Mann v Far North District Council - [2022] NZHC 632

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CIV-2021-488-65

[2022] NZHC 632

UNDER the District Courts Act 1947

IN THE MATTER

of an appeal against the decision of the District Court

BETWEEN

LAIHA MANN, DESMOND MAHONEY, TANIA MORUNGA, DESLEY AUSTEN, CASINO HADFIELD, PARAIRE

FLETCHER and ALEXANDRA BAKER as

trustees of the NGAKAHU/NGAKOHU WHĀNAU AHU WHENUA TRUST

Appellants

AND

FAR NORTH DISTRICT COUNCIL

Respondent

Hearing: 4 November 2021

Appearances:

R Mark for the Appellants JGA Day for the Respondent

Judgment:

31 March 2022

JUDGMENT OF GAULT J

This judgment was delivered by me on 31 March 2022 at 2:00 pm pursuant to r 11.5 of the High Court Rules 2016.
Registrar/Deputy Registrar

……………………………………

Solicitors:
Mr R Mark, Solicitor, Kerikeri
Mr JGA Day, Law North Ltd, Kerikeri

MANN v FAR NORTH DISTRICT COUNCIL [2022] NZHC 632 [31 March 2022]

[1] The trustees of the Ngakahu/Ngakohu Whānau Ahu Whenua Trust appeal from the judgment of Judge D J McDonald in the Whangārei District Court dated 28 May 2021,1 declining to order the Far North District Council (FNDC) to remove an asbestos pipeline and metalled access track from the trustees’ land under s 313 of the Property Law Act 2007 (PLA).

Factual background

[2]The trustees administer two Māori freehold land titles near Kaitaia (the land).2

[3] In the 1930s, at the behest of the hospital board when considering relocation of the hospital from Mangonui to Kaitaia, a pipeline providing potable water was constructed across the land.

[4] In 1957 a cement, sand and asbestos pipe (described as the asbestos pipeline) was laid over the land to replace the original pipeline.

[5] In 1983 the Kaitaia Borough Council (predecessor to FNDC) obtained a pipeline easement for waterworks and a right of way easement over the land (and nearby titles) by proclamation pursuant to the Public Works Act 1981 (PWA).3 The pipeline easement included the right “to use any line of pipes already laid on the stipulated course”.4

[6] In 1987 the pipeline easement was amended by further proclamation.5 As a result of the amendment, the right of way was removed. The easement still included the right to enter to inspect and repair the pipeline.

[7] In about 1994 the asbestos pipeline was replaced by a PVC pipeline but remained in place.

1      Mann v Far North District Council [2021] NZDC 9563.
2      Part of 4D Okahu (title 493144) comprising 21.4660 hectares and Okahu 3B 2B 2D (title 750284) comprising 17.11 hectares.
3      Gazette notice dated 27 October 1983. The right of way was imported by incorporation of paragraphs from the Seventh Schedule of the Land Transfer Act 1952.
4      Incorporated from paragraph 5 of the Seventh Schedule of the Land Transfer Act 1952.
5      Gazette notice dated 20 August 1987.

[8] Sometime between 1999 and the early 2000s, FNDC constructed a metalled access track (the driveway) over the land. The driveway largely followed the course of the pipeline easement except for an area described as the…

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.

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Details

Case: [2022] NZHC 632
Decision Date: 31 March 2022

CaseChat Overview and Summary

The trustees of the Ngakahu/Ngakohu Whānau Ahu Whenua Trust appealed against the District Court's decision not to order the Far North District Council (FNDC) to remove an asbestos pipeline and metalled access track from their land under s 313 of the Property Law Act 2007. The trustees argued that the District Court had erred in concluding that there was no power under s 313 to make an order removing the asbestos pipeline and that s 313 did not provide an alternative form of relief outside of enforcement of the express or implied terms of an easement. The trustees also contended that the District Court had erred in concluding there was no power under s 313 to make an order removing the driveway. The issues to be determined on appeal were the scope of s 313 of the PLA, whether there was power under s 313 to make an order removing the asbestos pipeline, whether FNDC should be ordered to remove the asbestos pipeline, and whether there was power under s 313 to make an order removing the driveway. The court held that s 313(1)(c) does not provide an alternative form of relief outside of enforcement of the express or implied terms of an easement. The court found that the asbestos pipeline has not been relinquished or abandoned and so remains a public work available for use under the pipeline easement. The court held that the circumstances do not require removal of the asbestos pipeline because it may be kept safe by maintaining it buried in the ground without incurring the substantial cost of removal. The court also held that an order requiring removal of the driveway is not work required to be done under the terms of a right of way easement. The appeal was dismissed, and the respondent was entitled to costs.

The court's approach on a general appeal is settled following the Supreme Court's decisions in Austin, Nichols & Co Inc v Stichting Lodestar and Kacem v Bashir. The appellate court has the responsibility of considering the merits of the case afresh. The appellate court must be persuaded that the decision is wrong, but the weight it gives to the reasoning of the court below is a matter for the appellate court's assessment. Those exercising general rights of appeal are entitled to judgment in accordance with the opinion of the appellate court, even where that opinion is an assessment of fact and degree and entails a value judgment. If the appellate court's opinion is different from the conclusion of the tribunal appealed from, then the decision under appeal is wrong in the only sense that matters, even if it was a conclusion on which minds might reasonably differ. The court found that the District Court's decision was correct, and the appeal was dismissed. The respondent was entitled to costs.

Orders