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 dogleg, which was outside the pipeline easement boundary. This was created to provide all year round access to a kauri dam.

[9]                  On 26 April 2019 the Māori Land Court determined that the 1983 pipeline easement (as amended) was not a vehicular right of way. The trustees advised FNDC it could no longer use the dogleg.

[10]              By notice dated 2 October 2019 under s 308 of the PLA, the trustees required FNDC to remove the disused asbestos pipeline and metalled driveway, and reinstate the land. The cost of the proposed works was said to be $165,925.52.6

[11]By notice dated 18 October 2019, FNDC refused to do so.

Proceedings

[12]              The trustees applied to the District Court by way of originating application for orders under s 313 of the PLA that the work specified in their notice be carried out, at FNDC’s cost.

[13]FNFC opposed the application.

District Court judgment

[14]In a reserved judgment, Judge McDonald found that:

(a)FNDC’s belief that the pipeline easement contained a general vehicular right of way was mistaken – the 1983 right of way was removed by the proclamation in 1987 – so FNDC had no right to construct the driveway under the pipeline easement;

(b)the dogleg was outside the pipeline easement boundary;

6      This cost included works on another title owned by others who were not party to the proceeding.

(c)the pipeline easement remains an important part of the Kaitaia water infrastructure and FNDC has a valid existing easement for the purpose of piping water across the trustees’ land albeit now using the PVC pipeline;

(d)the asbestos pipeline is no longer used;

(e)on the trustees’ land, the asbestos pipe is buried in the ground to some degree and the pipe itself is not dangerous so as to require removal – asbestos only becomes dangerous when it becomes airborne and none of the pipe is in a condition to become airborne;

(f)FNDC has not given up its easement nor the possibility that the asbestos pipe may be used for some other purpose so there is no legal obligation to remove it; and

(g)there is no power under s 313 of the PLA to make an order in relation to the driveway across the trustees’ land as it was not constructed under or maintained as part of the pipeline easement.

Issues

[15]The issues to be determined on appeal are:

(a)the scope of “work required to be done under the terms of an easement” in s 313 of the PLA;

(b)whether there is power under s 313 to make an order removing the asbestos pipeline;

(c)whether FNDC should be ordered to remove the asbestos pipeline; and

(d)whether there is power under s 313 to make an order removing the driveway.

Approach on appeal

[16]              This 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.7 The appellate court has the responsibility of considering the merits of the case afresh.8 The appellate court must be persuaded that the decision is wrong,9 but the weight it gives to the reasoning of the court below is a matter for the appellate court’s assessment.10 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.11

[17]              To the extent that the Judge’s decision involved the exercise of discretion,  the approach of an appellate court is that an appellant must show that the Judge acted on a wrong principle, failed to take into account some relevant matter, took account of some irrelevant matter or was plainly wrong.12

Scope of s 313 of the PLA

[18]              Given the issue as to the scope of s 313 of the PLA to require work to be done “under the terms of an easement”, I begin with reference to the jurisdiction of the District Court before turning to the relevant part of the PLA. Section 362(1)(a) of the PLA provides that the District Court has jurisdiction to hear and determine:

a  question or dispute  concerning the existence  or effect  of  an easement   or covenant, so far as it can be resolved by the making of an order under section 313.

7      Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [13] and [16]; Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1 at [31]-[32].

8      Kacem v Bashir, above n 7, at [31].

9      Austin, Nichols, above n 7, at [13].

10 Kacem v Bashir, above n 7, at [31]. No deference is required beyond the customary caution appropriate when seeing the witnesses provides an advantage because credibility is important; see Austin, Nichols, above n 7, at [13], and Green v Green [2016] NZCA 486, [2017] 2 NZLR 321 at [27]-[32].

11 Austin, Nichols, above n 7, at [16]; Kacem v Bashir, above n 7, at [32].

12 May v May (1982) 1 NZFLR 165 (CA) at 169-170. See also Kacem v Bashir, above n 7, at [32].

[19]              Such applications to the District Court must be made by originating application.13

[20]              Part 5 of the PLA deals with covenants, easements, profits, and access lots. Subpart 5 of Part 5 deals with easements, covenants, and access lots: enforcement, modification, and extinguishment.

[21]Section 308 provides:

308     Person entitled may give notice of work required

(1)This section applies to a positive covenant benefiting land, and to the people who, in relation to that positive covenant, are the person entitled and the person bound.

(2)The person entitled may serve on the person bound a notice calling on the person bound to undertake, or to contribute to the cost of undertaking, work required to be done under the terms of the covenant.

[22]              Section 309 deals with service of notices. Section 310 provides that the person bound who does not agree may serve a cross-notice.

[23]Section 313 provides:

313     Court may enforce easements and positive or restrictive covenants

(1)In determining a question or dispute concerning the existence or effect of an easement, positive covenant, or restrictive covenant, a court may make an order, on any conditions the court thinks fit, concerning all or any of the following matters:

(a)the existence of an easement, positive covenant, or restrictive covenant benefiting or burdening land:

(b)the enforceability of an easement, positive covenant, or restrictive covenant by or against any person, and whether under this Act or otherwise:

(c)the question whether any work is work required to be done under the terms of an easement, positive covenant, or restrictive covenant (required work) and, if so, the nature and extent of any required work at the time in question:

13 District Court Rules 2014, r 20.13. Rule 19.2 of the High Court Rules 2016 does not mandate that applications under s 313 must be made by originating application, although the Court may permit a proceeding to be commenced by originating application under r 19.5.

(d)the reasonable and proper cost of any required work, including interest on outlay, expenses of survey, and reasonable remuneration for the superintendence or work of a person entitled or person bound who is or has been personally engaged on that work:

(e)the person or persons by whom the cost of any required work is to be borne and, if the cost is to be shared among 2 or more persons, the shares to be borne by each of them:

(f)the time at or before which, and the manner in which, any required work is to be undertaken:

(g)the entry onto any land (whether or not land over which a vehicular right of way is granted) for the purpose of doing any required work, and the use on or over that land of vehicles, aircraft, or any other means of transport, and any plant, machinery, crane, or other equipment for the purpose of carrying out that work:

(h)any other matters arising in relation to a question or dispute concerning the existence or effect of an easement, positive covenant, or restrictive covenant.

(2)This section is subject to sections 314 and 315.

[24]As the Court of Appeal said in Guo v Bourke:14

The powers are remedial, and hence are typically expressed in broad terms. Generally, relief may be granted when the court considers it just and equitable, and orders may be made on such terms and conditions as the court thinks fit. The courts are therefore empowered to make pragmatic but principled decisions in circumstances where, as here, neighbours are unable to resolve disputes that have arisen.

[25]              Consistent with the description of the District Court’s jurisdiction in s 362 referred to above,  the  scope  of  s  313(1)  is  indicated  by  the  opening  words:  “In determining a question or dispute concerning the existence or effect of an easement…”.

[26]              The Court may make an order concerning any of the matters set out in paragraphs (a)-(h) of s 313(1) on conditions the Court thinks fit. It is common ground that in this case s 313(1)(c) is the relevant paragraph. It relates to “the question whether any work is work required to be done under the terms of an easement…”.

14     Guo v Bourke [2017] NZCA 609, (2017) 19 NZCPR 168 at [12].

[27]              Mr Mark, for the trustees, submitted that “work required to be done under the terms of an easement” should be given a broad remedial interpretation, and not limited to work prescribed or implied in the easement itself, albeit acknowledging there needs to be some link between the easement and the work.

[28]              I agree with  a purposive  approach.  But in addition to the opening scope of  s 313(1), the words “under the terms of an easement” confirm that s 313(1)(c) is aimed at enforcement of the terms of an easement rather than enforcement of other legal rights or obligations. This is consistent with the references to the person “bound” in ss 310 - 312. I accept, of course, this extends to obligations implied in the terms of an easement. But this case is rather different from neighbourhood cases involving breach of an easement, particularly given the PWA dimension.

[29]              A further indicator of the scope of s 313, at least in relation to District Court applications, is that the required originating application process is appropriate to make pragmatic decisions to enforce easements (and covenants) but is not necessarily well suited to the determination of other property disputes such as those giving rise to tortious causes of action.

[30]              For these reasons, I consider that s 313(1)(c) does not provide an alternative form of relief beyond enforcement of the express or implied terms of an easement  (or covenant).

Asbestos pipeline

[31]              Mr Mark submitted that the Judge erred in declining to order removal of the asbestos pipeline. He submitted it cannot be reused for waterworks, and is made of hazardous material.

[32]              The asbestos pipeline pre-dated the pipeline easement,15 but is nevertheless within the scope of the easement. FNDC claimed there was no obligation to remove the asbestos pipeline given it still held a valid easement. I accept the dispute concerns the existence or effect of the easement in terms of s 313(1).

15     I need not determine whether the underground pipeline was permitted with or without consent prior to the pipeline easement.

[33]              The next question is whether the order sought is within the scope of s 313(1)(c). As indicated, I consider 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 issue is whether the express or implied terms of an easement require the removal of the asbestos pipeline. A preliminary issue arises as to the status of the replaced asbestos pipeline.

[34]              The easement was obtained by proclamation pursuant to the PWA. It includes the right “to use any line of pipes already laid on the stipulated course”.16 There is no express requirement in the pipeline easement to remove pipes that have been replaced. There is no reason to imply such a term, which could have far-reaching implications. Replaced pipes may be retained as a backup. If so, they remain a public work available for use under the pipeline easement. The Judge acknowledged that the easement had not been relinquished or abandoned,17 but considered the preponderance of the evidence was that the asbestos pipe had not been used since the PVC pipe was installed.18 However, this was not an explicit finding that the asbestos pipeline had been abandoned and was no longer part of the public works. Later, the Judge referred to the possibility it could be used for some other purpose.19

[35]              I accept Mr Day’s submission that the asbestos pipeline has not been relinquished or abandoned and so remains a public work available for use under the pipeline easement. Removal of the asbestos pipeline is not work required to be done under the terms of the easement. But it follows, as Mr Day acknowledged, that FNDC remains responsible for maintaining the asbestos pipeline – in the sense of keeping it safe rather than operable.

[36]              Even if the asbestos pipeline had been abandoned, it would only be amenable to an order under s 313 if removal was required by the express or implied terms of the easement rather than by reason of a separate legal obligations owed to landowners. The easement includes a requirement to repair damage done when laying, inspecting,

16 Incorporated from paragraph 5 of the Seventh Schedule of the Land Transfer Act 1952.

17 At [24]. Section 40 of the Public Works Act 1981 contains specific provision for how land – including interests in land such as easements – no longer required for a public work must be disposed of.

18 At [27].

19 At [34].

cleansing, repairing, maintaining or renewing the pipeline. But there is no express requirement in the easement to remove pipes that are dangerous. Given the likely separate legal obligations to remove or make safe, I doubt there is an implied term in the easement requiring removal. In any event, the Judge concluded that the asbestos pipeline was not dangerous and did not require removal.

[37]              Mr Day submitted the Judge’s decision that the asbestos pipeline was not dangerous and did not require removal involved the exercise of a discretion. I accept there is an element of the exercise of discretion in the sense that s 313(1) provides the Court “may” make an order but I consider that is in the nature of a residual discretion. I consider the Judge’s operative factual finding should be subject to a general appeal merits review rather than the limited appellate approach applicable to the exercise of discretion.

[38]              Even so, I agree with the Judge 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. Evidence of instances of exposed pipe and soil contamination on neighbouring land does not undermine the Judge’s conclusion. The conclusion was consistent with the expert evidence.

[39]As indicated, FNDC remains responsible for keeping the asbestos pipeline safe

– which means safely buried in the ground. If not already, this should be the subject of an asbestos management plan including provision for inspections. Mr Day said that discarded pipe had already been removed. Any exposed pipe should be covered. Any broken or discarded asbestos pipe above ground should be removed so as to minimise disturbance to the surface of the land or other damage.

Driveway

[40]              Mr Mark submitted that the Judge was wrong to conclude there was no power under s 313 to make an order for removal of the driveway. Mr Day submitted that the work was authorised under the Local Government Act 1974 (LGA),20 so the driveway should not be removed under s 313.

20     Section 708; now s 181 of the Local Government Act 2002.

[41]              As Mr Mark submitted, FNDC’s original opposition was on the basis that its construction of the driveway was lawful under the easement. It follows, as Mr Day accepted, that the Court could make an order concerning the existence of the claimed easement in terms of s 313(1)(a). The Court’s determination that the pipeline easement did not permit construction of the driveway does not preclude the application of s 313. It would be contrary to the purpose of s 313 to preclude its application when works claimed to be permitted by an easement were not in fact permitted by it.

[42]              However, the further question is whether the Court may order removal of the driveway under s 313(1)(c). I do not accept Mr Mark’s submission that the Judge gave no reasons for deciding there was no power under s 313 to make any order in relation to the driveway. The Judge said it was not constructed under or maintained as part of the pipeline easement, which I understand refers to the scope of s 313(1)(c). As I have concluded, s 313(1)(c) does not provide an alternative form of relief outside of enforcement of the express or implied terms of an easement. As Mr Day submitted, an order requiring removal of the driveway is not work required to be done under the terms of a right of way easement.

[43]              As indicated, an application under s 313 is not the appropriate form of claim for removal of the driveway on the basis it was constructed without consent or other lawful basis. I agree with the Judge that whether the driveway was constructed under the LGA (rather than under a mistaken view of the easements) was not a matter to be determined under a s 313 application. That is so even though both parties adduced evidence on the topic, including evidence from Mr Swanepoel that Council staff did not utilise the powers under the 1983 proclamation when the driveway was installed, and the Judge observed in the background section of the judgment that when the Council laid out the driveway it (mistakenly) believed it had the right to do so under the pipeline easement.21 If that observation was erroneous given Mr Swanepoel’s evidence, nothing turns on it. The same applies to the Judge’s observations that the Council must have known that the dogleg was outside the boundaries of their pipeline easement, and that there was no power under s 313 to make an order in relation to the driveway as it was not constructed under or maintained as part of the pipeline

21 At [10].

easement.22 That observation was correct in the sense that the driveway was not permitted by the pipeline easement.

[44]              The Judge determined that the Council had no right under the pipeline easement to develop the driveway.23 But I do not accept Mr Mark’s submission that the Judge determined that the LGA did not apply. As indicated, given the limited scope of s 313(1)(c), it was not for the Judge to determine whether there was a lawful basis to construct the driveway under the LGA. Nor is it for this Court to determine that issue on appeal; even though I am conscious of the desirability of finality.

[45]              It follows, as Mr Day acknowledged, that the judgments in this s 313 proceeding do not create an issue estoppel precluding a civil claim in relation to the driveway. Equally, FNDC would not be precluded from defending such a claim on the basis that the driveway to access the dam that supplies water to Kaitaia was lawfully constructed pursuant to the LGA, given substantial compliance with the LGA schedule 16 process.

Result

[46]The appeal is dismissed.

[47]              The respondent is entitled to costs. If costs cannot be agreed, I will receive memoranda not exceeding three pages within 15 working days and determine costs on the papers.

Gault J

22     At [36]-[37].

23     At [26] and [35].