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…
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- Case
- [2022] NZHC 632
- Decision Date
CaseChat Overview and Summary
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.
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