Little v Horowhenua District Council
[2023] NZHC 2049
•3 August 2023
IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY
I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE
CIV-2023-454-26
[2023] NZHC 2049
BETWEEN MALCOLM TIMOTHY LITTLE, AUDETTE LEE-ANNE LITTLE, and TANYA MICHELLE LITTLE
ApplicantsAND
HOROWHENUA DISTRICT COUNCIL
Respondent
On the Papers Counsel:
D G Livingston for the Applicants
D D Vincent and N A A Platje for the Respondent
Judgment:
3 August 2023
JUDGMENT OF GWYN J
Introduction
[1] The applicants Malcolm, Audette and Tanya Little seek leave of the Court to bring an appeal against a decision of the District Court out of time. In addition they seek to file fresh evidence and stay enforcement of the District Court’s judgment, pending resolution of the appeal.
[2] The respondent, Horowhenua District Council (Council), opposes all three applications.
LITTLE v HOROWHENUA DISTRICT COUNCIL [2023] NZHC 2049 [3 August 2023]
Background
[3] The background to this proceeding is neatly encapsulated in the judgment the applicants seek to appeal, from Judge C N Tuohy, dated 21 June 2022:1
[1] The late Ian Little was a passionate aficionado of trolley buses. In 1988, with the support of the Foxton Borough Council, he installed a network of tramlines around the central streets of Foxton on which trolley buses ran, providing an attraction for visitors and locals alike. The system consists not only of the lines but also the poles and attached cantilevers which support them and other associated apparatus (the Loop).
[2] Mr Little passed away in 2008, leaving the Loop to members of his family (the respondents) including his son, Malcolm, who inherited his father’s passion for trolley buses as well. The Foxton Borough Council has also ceased to exist. Its functions have devolved to the Horowhenua District Council (the Council).
[4] As Judge Tuohy records, the buses have not run for several years and the Loop is in a state of disrepair.2
[5] The Council applied to the District Court for an order for the Loop’s removal by the then respondents and for an order appointing the Council as the agent of the respondents in the event they failed to remove it within the time specified.
[6] The respondents, now the applicants before this Court, opposed the orders sought by the Council and indicated that they had plans to revive the trolley bus operation.3
[7] The Council’s application to the District Court was for an order for removal of the Loop, pursuant to s 54 of the Government Roading Powers Act 1989 (Act). Section 54 provides:
54 Removal of roadside structures
(1)In this section, unless the context otherwise requires,—
controlling authority, in relation to any road, means the authority in which is vested the control of the road; and includes the Minister or the Agency, as the case may be, where the control of the road is vested in the Minister or the Agency
1 Horowhenua District Council v Little [2022] NZDC 9278 [Judgment] at [1]–[2].
2 At [3].
3 At [5].
road includes any motorway or service lane
structure means any tower, pole, or post lawfully upon or in or over a road or any pipes, cables, chambers, drains, or other services lawfully under a road; and includes any equipment that must be removed with the structure if the structure is removed; but does not include—
(a)any part of a bridge or culvert:
(b)any fence, gate, or cattle stop erected in accordance with this Act or the Local Government Act 1974:
(c)anything provided for the assistance or control of traffic:
(d)any structure that was erected when the land was not a road
utility authority, in relation to any structure, means the Crown, or any Minister of the Crown, local authority, company, or person lawfully authorised to construct, maintain, utilise, or use the structure.
(2)Where any structure has been erected upon, in, over, or under any road by any utility authority, either before or after the commencement of this Act, and the controlling authority has by notice in writing to the utility authority or to a responsible officer of it required the removal of the structure because—
(a)it is, or is likely to become, dangerous to vehicles and persons in them using the road; or
…
the utility authority shall remove the structure within such period as may be specified in the notice.
…
(4)Subject to any agreement to the contrary, the reasonable costs incurred by a utility authority in so removing any structure and (where reasonably necessary) in re-erecting the structure (or an equivalent structure provided by the utility authority at its expense), including compensation payable to the owners and occupiers of the alternative site and a reasonable sum for proper overhead charges, shall, subject to subsection (5), be borne by the controlling authority and the utility authority in equal shares, and the amount payable to the utility authority may be recovered as a debt.
(5)A controlling authority or a utility authority may apply to the District Court to vary the proportions in which the costs and compensation shall be borne; and, in exceptional circumstances where it is reasonable to do so, the District Court may, after hearing the parties, vary those proportions, and the decision of the District Court shall be final and binding on all parties.
(6)Any dispute as to—
(a)the length of the period within which any structure is required to be so removed; or
(b)whether any structure is or is likely to become dangerous to vehicles and persons in them using a road; or
…
shall be heard and determined by the District Court on application made to it in that behalf; and the decision of the District Court shall be final and binding on all parties. The costs and expenses of determining any dispute under this subsection shall be borne as the District Court may direct.
(7)Notwithstanding anything to the contrary in subsection (6), the period within which any structure is required to be so removed may from time to time be extended by agreement between the parties or by the District Court on application made to it in that behalf.
(8)If the utility authority, after receiving notice under subsection (2), fails within the period so determined to remove the structure that is the subject of the notice, the controlling authority, after giving 10 working days’ further notice of its intention to do so, may apply to the District Court for an order requiring the utility authority to remove the structure within such period as may be specified in the order; and in any such case, if the District Court orders the removal of the structure, the whole cost of carrying out the removal and re-erection of the structure shall be borne by the utility authority and shall be recoverable from it by the controlling authority as a debt.
…
[8] As the District Court Judge recorded,4 there was no dispute that the Council is “the controlling authority” and the applicants in this appeal are a “utility authority” in terms of s 54. Nor is there any dispute that the notices referred to in s 54(8) had been given.
[9] The Judge noted there was “a dispute whether the Loop is a ‘structure’, which amounts to a challenge to both the validity of the notices and to the jurisdiction of the Court to make the orders sought.”5
[10] The Judge noted that the primary issue is a factual one: whether the Loop is, or is likely to become, dangerous to vehicles and persons in them using the road. The
4 At [7].
5 At [7].
Judge noted “that has been put in issue directly by the respondents by way of a cross- application under s 54(6)(b)”.6
[11]The key findings in the Judgment were:
(a)the network of tramlines including the lines, poles, attached cantilevers and associated apparatus (defined as “the Loop”) is a singular structure for the purpose of s 54 of the Act;7
(b)the Loop was dangerous,8 and likely to become more dangerous over time;9
(c)the Loop must therefore be removed;10
(d)the applicants were to do so within two months of the judgment (that was, by 21 August 2022);11 and
(e)if the applicants failed to remove the Loop, the respondent was permitted to file for enforcement of the Judgment on three days’ notice.12
Filing of appeal
[12] On 3 November 2022 the applicants filed an application for an extension of time to appeal on the grounds that it was not practical to exercise the right of appeal within the usual period, the extension is minor, and the appeal has merit.
[13] On 20 February 2023, an amended notice was filed by the applicants, seeking to extend the time for filing a notice of appeal, adduce new evidence, and stay enforcement of the District Court’s judgment.
6 At [8].
7 At [29].
8 At [61].
9 At [70].
10 At [72].
11 At [73].
12 At [75].
Second judgment
[14] The respondents did not comply with the District Court’s orders, failing to remove the Loop within the time period set by the Court. The Council brought the matter back before the District Court for enforcement purposes.
[15] The second hearing occurred on 3 March 2023. In the course of argument, it was agreed that enforcement by the Court was not necessary as the Council, as a Territorial Authority under the Local Government Act 2002 (LGA 2002), has the power to remove the Loop under either the LGA 2002 or the Local Government Act 1974 (LGA 1974).
[16] In his second judgment (Second Judgment), Judge Tuohy awarded costs to the Council on the standard 2B basis and noted the Council’s view that it has an independent power to carry out the work necessary to remove the Loop. The Judge recorded: “… If it does carry out that work it would be entitled to recover the cost of doing so pursuant to s 54(8) as a debt by a separate proceeding.”13
Grounds of appeal
[17] The substantive grounds of the appeal, if leave is granted, are set out in the applicants’ notice of appeal of 10 March 2023. They are:
(a)The overhead trolley bus system is made up of individual structures because:
(i)the poles and their wires can be separated from one another;
(ii)it is standard industry practice to treat the poles as individual structures;
(iii)interpreting the poles as a single structure has absurd results when applied to other repair situations that may arise;
13 Horowhenua District Council v Little (No 2) [2023] NZDC 3900 [Second Judgment] at [12].
(iv)no evidence was presented to the District Court to indicate that the trolley bus system should be treated as a single structure; and
(v)it is safer and easier to repair the system if the poles are acknowledged as individual structures.
[18] The applicants seek a declaration that the poles in the overhead trolley bus system are individual structures.
Issues currently before the Court
[19] Section 54(6) of the Act provides that any dispute as to the specified matters heard and determined by the District Court shall result in a decision of the District Court which is “final and binding on all parties”.
[20] The applicants submit that their intended appeal would be a general appeal on a confined point of statutory interpretation, that is, the interpretation of “structure” in s 54(1) of the Act. The applicants say there is a right of appeal in respect of this issue, which had to be exercised within 20 working days of the decision.
[21] The applicants concede that if there were such a right of appeal it was not exercised within the requisite timeframe, but say that the Judgment had provided the applicants with two months to remove the poles and they spent that time with an expert, assessing the required task.
[22] The applicants also argue that the Judgment was an interim decision and the final decision in the matter was not issued until the Second Judgment on 3 March 2023. On that basis, the applicants submit that no extension for the time to file an appeal is required.
[23] The Council in response says there is no right of appeal from the Judgment. The source of the District Court’s power to order removal of the Loop was s 54(6). That provision is clear that the District Court judgment is final and binding.
[24] Further, the Judgment was a final decision. The matter came back before the District Court only on the question of enforcement.
Discussion
[25] Establishing a right of appeal depends on the applicants establishing that the District Court’s decision that the Loop was, in its entirety, a “structure”, was a separate decision and therefore not caught by s 54(6) of the Act which says the decision of the District Court shall be final and binding.
[26] Section 54 anticipates a controlling authority (here, the Council) giving notice to a utility authority (here, the applicants) requiring removal of a structure for specified reasons or conditions, which are set out in subs (2).
[27] If any dispute then arises as to whether any one or more of those specified conditions is met, application is to be made to the District Court. The District Court’s decision is “final and binding”.
[28] The applicants say, in effect, that the definition of “structure” is not one of those specified reasons or conditions listed in s 54(2).
[29] In considering that submission it is necessary to look at the Judgment as a whole.
[30] Having noted that the primary issue is a factual one (whether the Loop is, or is likely to become, dangerous), the Judge went on to consider whether the Loop in its entirety is the “structure” for the purposes of the application. In deciding whether the Loop was a structure, the Judge’s reasoning interlinked a careful assessment of all the facts, underlaid by a purposive approach14 to the statutory interpretation of “structure”. The Judge noted that the Council relied on:15
…the factual proposition that the Loop is a single system with a single purpose, that is, the conveyance of trolley buses in a circuit and that the component poles mutually support each other and the system as a whole. The Council also puts weight on the provisions of the Electricity (Safety)
14 Legislation Act 2019, s 10.
15 Judgment, above n 1, at [14].
Regulations 2010 which define a ‘trolley bus system’ in terms which would encompass the Loop and treats a system as a single entity rather than a series of separate structures.
[31] The Judgment records the applicants’ submission that the word “structure” in s 54 could not be applied to the Loop as a whole. Their submission was that the use of the words “any pole” does not include the plural, so that the Court could do no more than order the removal of individual poles, not the whole system. The Court summarised the applicants’ argument that “… the Court has power to order the removal only of individual poles within the Loop and that wires and fittings attached to the individual poles must be seen as ‘equipment’ which may only be subject to a removal order in as much as it must be removed with a pole.”16
[32] The Judge canvassed the expert evidence presented by the Council. Mr Mason provided detailed observations of the components of the system over its entire course, with reference to specific poles and associated apparatus. Mr Mason’s conclusion is set out in the Judgment:17
The overall loop system is in my view a risk to the safety of the public and should be removed. There are consistent issues with the cantilevers, insulators, shackles and the use of Parafil cable which make it very concerning. There are also a number of poles which need to be removed immediately…
[33] The Judgment also refers to the expert evidence of Mr McLaren Smith, who had been commissioned by the Council to report on the Loop.
[34] The Judge also canvassed the evidence produced for the respondents which primarily addressed the question whether the state of the Loop raised any immediate safety concerns.
[35] The Judge noted18 that the qualifications and experience of the Council’s experts “far outweigh” those of the respondents, while acknowledging that the respondents’ witnesses have knowledge and practical experience in the electrical area and particularly in the area of power pole maintenance.19
16 At [25] (emphasis in original).
17 At [37].
18 At [58].
19 At [60].
[36] Having considered the evidence before him, the Judge noted: “The main components of the system are the poles, the overhead lines and the cantilevers which connect the poles to the lines and support them.”20
[37] The Judgment sets out the detail, from Mr Mason’s affidavit of the issues with each of the state of the poles, corroded and broken cantilever attachments, broken wooden insulators and fittings, the use of Parafil rope (as a connector) and the use of non-rated shackles.21
[38]The Judgment went on to record:22
There is no dispute that all these components are integral parts of a single tensioned system in which the failure of any one part will inevitably alter and increase the load on other parts of the system. The consequence is that deterioration or failure of a significant part of the system is likely to endanger the stability of the system as a whole. Because of that factor, I consider that the Loop as a whole should be treated as a ‘structure’ in terms of s 54.
[39] The Judge also observed that the respondents’ submission that “any pole” does not include the plural overlooked ss 10 and 19 of the Legislation Act 2019. Section 19 repeats the rule that words in the singular include the plural and vice versa. “Thus, the term ‘pole’ in s 54(1) can be read as ‘poles’”.23
[40] Section 10 of the Legislation Act requires the Court to take a purposive approach in construing the meaning of “structure”. The Judge concluded “it is plain from its content that the purpose of s 54 is to enable the removal of structures which are or, are likely to become dangerous to vehicles and their occupants using a road.”24
[41]Adopting that purposive approach, the Judge concluded:25
… I consider the phrase “any tower, pole, or post including any equipment that must be removed if that structure is removed”, should be read as covering the entire Loop, providing the Council establishes the interdependent nature of its components.
20 At [32].
21 At [39]–[42].
22 At [33].
23 At [27].
24 At [28].
25 At [29].
[42] The Judge concluded that the Loop is dangerous in its current state.26 The Judge’s description makes clear that he had assessed the safety or otherwise of the Loop as a whole structure:27
The primary danger is that the overhead wires will continue to sag because of the compromised condition of a significant number of the poles supporting them and the cantilevers and other fittings connecting them to the poles. The original poles are compromised primarily because, after nearly 35 years, they have reached the end of their safe life in Foxton’s western coastal conditions. The cantilevers and their connectors have also deteriorated primarily through corrosion.
[43]Further:28
Although the extent of deterioration and resulting cracking, corrosion, bending and tilting differs from one pole to another, and from one cantilever and connector to another, the inter-dependent nature of the components of the compromised system means that it is not possible to say what it will take to trigger a systemic collapse. …
[44] The Judgment also went on to consider whether the Loop is likely to become dangerous,29 and concluded that, if it is not now dangerous, the Loop will shortly become dangerous “simply through further physical deterioration unless steps are immediately taken to replace a very substantial part of the system”.30
[45]Finally, the Judge concluded that removal of the Loop was required.31
[46] The conclusion that the Loop as a whole constituted a structure, was reached in the context of the Judge’s assessment of whether the Loop is dangerous. The Judge’s assessment of risk necessarily entailed a conclusion on what comprised the relevant structure.
[47] Section 54(6) was the source of the Court’s power to order removal of the Loop. The Court explicitly recorded,32 that the application before it fell for consideration under s 54(6). The definition of “structure” is part of s 54. That
26 At [61].
27 At [61].
28 At [62].
29 Government Roading Powers Act 1989, s 54(2)(a).
30 Judgment, above n 1, at [66].
31 At [72].
32 At [8].
definition, and the other definitions in s 54, apply only to that section. They are an integral part of s 54. I accept the submission for the Council that the definition of the term “structure” is only relevant because it informs the Court’s power under s 54(6).
[48] It would be entirely artificial to attempt to separate out aspects of the Judge’s interlinked reasoning to argue that the Court’s finding that the Loop was a single structure is a discrete statutory interpretation question that can be appealed, notwithstanding s 54(6).
[49] By contrast, I note that some other of the provisions in the Act (for example, ss 61(9C), 71(7) and 48(7C)) do provide a right of appeal, indicating that Parliament intended to include the rights of appeal for some matters, but not others.
[50] I conclude that the Court’s decision that the Loop as a whole was a “structure” is not a discrete decision. It is an integral part of the Court’s overall decision that the Loop was dangerous, or likely to become dangerous, and should be removed.
[51] The effect of s 54(6) is that the Judgment, including the interpretation of “structure”, is final and binding and there is no right of appeal to this Court.
Was the Judgment an interim decision?
[52] The second limb of the applicants’ submission is that the Judgment was an interim decision, not made final until the Second Judgment, and therefore the time for appeal had not expired prior to lodging the appeal in this Court.
[53] There is an inconsistency in that argument, since the applicants’ primary position is that the Judge’s consideration of “structure” was a discrete decision and that issue is not mentioned in the Second Judgment. In any event, my conclusion above means that I do not need to consider this second limb. I address it only briefly.
[54] The Judgment made an order requiring the respondents to remove the Loop within two months of the date of the Judgment.33
33 At [76].
[55] The Judgment then recorded that the Council’s application for the remaining orders was adjourned sine die to be brought on by either party on three days’ notice.34
[56] The “other orders” were an order appointing the Council as the agent of the respondents in the event the respondents failed to remove the Loop within the time specified and an order that the respondents bear the whole cost of removal in that event.
[57] The Judgment was plainly a final decision on the Council’s application for an order for removal of the Loop. Leave was granted to allow the matter to be brought before the Court again only in relation to matters of enforcement.
Extension of time
[58] In view of my conclusion that there is no right of appeal from the Judgment, it is strictly speaking not necessary for me to consider whether an extension of time should be granted. Nevertheless, I briefly canvass the relevant factors below.
Reason for and length of the delay
[59] The Judgment was given on 21 June 2022. The deadline for the filing of an appeal was on 19 July 2022.35 The initial application for leave to appeal was filed on 3 November 2022 — that is, four months or 107 days after the time for appeal had lapsed. The application was filed in reliance on an unsworn affidavit from Malcom Little, which included the draft report of Allan Neilson, dated 11 August 2022. Mr Neilson’s report is the new evidence that the applicants seek to introduce on appeal.
[60] Counsel for the applicants submit that the delay was caused by the need to consult Mr Neilson, but, as the Council points out, there is no evidence as to that and no explanation of the gap between 11 August 2022 (the date of Mr Neilson’s draft report) and the filing of the appeal.
34 At [77].
35 High Court Rules 2016, r 20.4.
Other features of the parties’ conduct in the proceedings
[61] The Council notes that the applicants did not attempt to comply with the District Court’s order that the Loop was dangerous and needed to be removed. Rather, they sought to engage services to repair the Loop.36 As Judge Tuohy noted, the appropriate approach, if the applicants sought to challenge his orders, was to apply for a stay.37 This was not done until February 2023.
[62]That is a factor that would point against granting an extension.
Prospective merits of the appeal
[63] As discussed at [47]–[50] above, I have concluded there was no error in the District Court’s interpretation of what constitutes a “structure” for the purposes of s 54.
[64] The substantive grounds of appeal are set out at [18] above. The Judge’s analysis of the evidence is comprehensive and thorough. His application of ss 10 and 19 of the Legislation Act is plainly correct.
The appeal would have no effect
[65] The Judgment ordered the applicants to remove the Loop. They did not comply with that order.
[66] The Council has now removed most of the Loop in reliance on its powers in the LGA 2002 and LGA 1974. As the submissions filed for the Council note, they did not do so in reliance on the District Court’s substantive judgment.38
[67]Consequently, success or failure in the proposed appeal would have no effect.
36 Second Judgment, above n 13, at [9].
37 At [10].
38 At [4].
Application to adduce further evidence
[68] The applicants seek to adduce further evidence from Allan Neilson, dated 11 August 2022. Mr Neilson’s evidence was not put before the District Court and therefore, if I had found the applicants had a right of appeal, they would still have required the Court’s leave to produce the evidence.39
[69] Admitting further evidence on appeal is exceptional and generally the evidence must be “fresh, credible and cogent”. The overall test is the interests of justice.40
[70] The purported appeal is only a question of law, that is, the District Court’s interpretation of “structure”. Mr Neilson’s evidence does not address that question, relating as it does primarily to the state of the Loop in August 2022 and Mr Neilson’s opinion of the remedial work required.
[71] I would have declined the application to introduce Mr Neilson’s evidence on appeal.
Application for a stay
[72]The applicants have not specified the terms of the stay they seek.
[73] The Council has already removed most of the Loop, relying on its powers under the LGA 2002 and the LGA 1974, rather than on the Judgment or Second Judgment. As the submissions for the Council note, success or failure in the proposed appeal would have no effect on the Council’s power of removal.
[74] Given a stay of the Judgment would have had no effect, I would have refused it in any event.
39 High Court Rules, r 20.16(2).
40 Jessica Gorman and others McGechan on Procedure (looseleaf ed, Thomson Reuters) at [HR20.16.02].
Result
[75] I dismiss the applications for leave to appeal out of time, for the filing of further evidence and for a stay.
Costs
[76] I indicate that the respondent is the successful party for the purposes of this application and is entitled to costs. I expect that the parties should be able to agree costs but, failing that, memoranda as to costs (not exceeding five pages for each party) should be filed by 5.00 pm on Thursday 24 August 2023.
Gwyn J
Solicitors:
Livingston & Livingston, Wellington Cullinane Steele Ltd, Levin
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