Maungatautari 4G Section IV Landowners Trust v Waipa District Council
[2024] NZHC 933
•26 April 2024
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE
CIV 2021-419-86
[2024] NZHC 933
UNDER Part 30.3 of the High Court Rules IN THE MATTER OF
An application pursuant to section 8 of the Judicial Review Procedure Act 2016 for a Judicial Review of an action by the Respondent under the Local Government Act 1974
BETWEEN
MAUNGATAUTARI 4G SECTION IV LANDOWNERS TRUST
Applicant
AND
WAIPA DISTRICT COUNCIL
Respondent
Hearing: 11 October 2023 Appearances:
J Muru and N Muru (two trustees of the applicant) in person, with G E Cullen as McKenzie Friend
P Lang for the respondent
Judgment:
26 April 2024
JUDGMENT OF CAMPBELL J
This judgment was delivered by me on 26 April 2024 at 11.30 am pursuant to Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar
MAUNGATAUTARI 4G SECTION IV LANDOWNERS TRUST v WAIPA DISTRICT COUNCIL [2024] NZHC 933 [26 April 2024]
[1] Maungatautari is an extinct volcano located west of the Waikato River and south of Cambridge. It is covered in native forest and bush. Significant conservation work has taken place on Maungatautari since 2000. Much of the forest and bush is now enclosed by a 43-kilometre predator-proof fence that was built by the Maungatautari Ecological Island Trust (MEIT). The area within the fence is commonly called the Maungatautari Ecological Island.
[2] The most convenient access to the Maungatautari Ecological Island is at the northern end of Tari Road, which runs up the southern slope of Maungatautari. MEIT operates a visitor centre at the north-western end of Tari Road.
[3] At the north-eastern end of Tari Road is a block of Māori freehold land known as Maungatautari No 4G Sec IV (the 4G4 block). Most of the 4G4 block is situated within the Maungatautari Ecological Island. The 4G4 block is vested in trustees and administered as an ahu whenua trust (the Trust).
[4] Tari Road is vested in the Waipa District Council (the Council). In December 2013, the Council decided to temporarily close part of the northern end of Tari Road and to grant MEIT a licence to occupy part of the road (in which the Council allowed MEIT to erect a turnstile and gate on the road). The Council did so for several reasons, including to encourage visitor movements to be through MEIT’s visitor centre, thus helping MEIT with the provision of information and the sales of guided tours.
[5] The temporary closure and licence to occupy continued for almost five years. During that period, anyone wishing to access the 4G4 block by vehicle from Tari Road first had to pass through the gate that was erected on the road. Anyone wishing to access the 4G4 block on foot either had to pass through the gate or follow a slightly longer route to the west of the gate and turnstile.
[6] The Trust brought this proceeding to judicially review the Council’s decisions. The Trust says the Council acted unlawfully or unreasonably in closing part of Tari Road and in granting MEIT a licence to occupy that allowed MEIT to erect structures on the road.
Factual outline
[7] MEIT is a charitable trust. It was formed in October 2001. Its primary object is to remove introduced mammalian pests and predators from Maungatautari and to restore to the forest a healthy diversity of indigenous plants and animals. MEIT aims to reintroduce threatened species such as kiwi, kōkako and tuatara to the forest.
[8] The predator-proof fence was completed in 2006, creating the Maungatautari Ecological Island. At about 3,400 hectares, this is the largest mainland ecological island in New Zealand.
[9] Before completing the predator-proof fence MEIT built, as part of testing and field work, what are called the Northern and Southern Enclosures. These enclosures now lie within the predator-proof fence. The Southern Enclosure is near the northern end of Tari Road. The Southern Enclosure is the dominant focus of MEIT’s visitor activity and species translocation.
[10] The land within the Maungatautari Ecological Island consists of the Maungatautari Scenic Reserve and privately-owned Māori freehold land (including the 4G4 block) and general land. The 4G4 block is about 23.5 hectares in size. Most of the block is within the Maungatautari Ecological Island. About six and a half hectares of the block is within the Southern Enclosure.
[11] In March 2010, the Māori Land Court constituted the Trust as an ahu whenua trust for the 4G4 block and vested the block in trustees. The owners of the 4G4 block are the direct descendants of Nganeko Tawhia, the original owner of the block. The block is their ancestral land. It contains wāhi tapu, including urupa.
[12] Following formation of the Trust, issues arose between the Trust (or, more correctly, the trustees1) on the one hand and the Council and MEIT on the other. In late 2011, after the Trust and the Council attended a mediation, the Trust granted an easement to the Council over parts of the 4G4 block. The easement provided a right of way in gross over parts of the block. This enabled members of the public to have
1 The Trust is constituted under Te Ture Whenua Māori Act 1993. It is not incorporated. For convenience, I generally refer in this judgment to the Trust rather than the trustees.
access to the Maungatautari Ecological Island, including to the Southern Enclosure, as well as to other parts of Maungatautari. The Trust also granted a lease to the Council over the 4G4 block.
[13] From at least 2013, MEIT charged a fee for guided walks and for casual access to the Southern Enclosure. The fees helped fund MEIT’s management of pests and maintenance of the predator-proof fence. However, at that time MEIT had no means of access control. Visitors accessed the Southern Enclosure by using the right of way over the 4G4 block. Visitors could use the right of way by passing through a gate on the 4G4 block at the north-eastern end of Tari Road. Visitors could do so without first going to the visitor centre (at the north-western end of Tari Road) and paying a fee. MEIT estimated that as many as 30 per cent of visitors were accessing the Southern Enclosure without paying a fee.
[14] MEIT asked the Trust whether it could place an access control system at the Trust’s gate. The Trust declined. In part, it seems this was because the Trust considered that MEIT was not entitled to charge a fee for guided tours of the Southern Enclosure (a matter which led to litigation between the Trust, the Council and MEIT in the Māori Land Court and the Environment Court).
[15] In November 2013, MEIT wrote to the Council explaining that the lack of access control impeded its ability to generate visitor revenue to fund its operations. MEIT outlined a proposal for implementing an access control system. The proposal involved temporarily closing the north-eastern end of Tari Road by erecting a fence, steel gate and card-operated turnstile across that part of the road.
[16] After discussions between the Council and MEIT, in December 2013 the Council decided to temporarily close the north-eastern end of Tari Road for a distance of 20 metres to all vehicles, while permitting use by private landowners and persons engaged in reserve management, maintenance and operations. The Council also decided to issue a licence to occupy to MEIT for a temporary gate and other structures to be erected across part of Tari Road.
[17] An internal Council memorandum that led to these decisions said that MEIT wished to provide for a separate access gate for visitors to the Southern Enclosure, while ensuring access for the owners of the 4G4 block. The memorandum also said that the road closure and the gate and other structures on the road would be temporary, until such time as MEIT had implemented a master plan for the site that would involve a permanent arrangement for traffic management, parking, and visitor access control.
[18] A licence to occupy was subsequently signed on behalf of the Council and MEIT. It commenced on 16 December 2013 and recorded an expiry date of 16 December 2016. It recited that the Council had temporarily closed part of Tari Road as MEIT was erecting a fence, turnstile and gate on that part of the road, until such time as a more permanent arrangement for traffic management and visitor parking was made. The licence included a special condition that the structure on the road must not be locked at any time or prevent “the adjacent landowner” (a reference to the owners of the 4G4 block) “from exercising access, whether vehicular or not, to their land”.
[19] In February 2014, the Trust filed an interim injunction application against MEIT and the Council in the Māori Land Court. The Trust sought to prohibit commercial guided tours on the 4G4 block. The Trust was not successful in obtaining an injunction. At the hearing of that application in July 2014, one of the concerns expressed by the Trust was that the gate and turnstile erected by MEIT on Tari Road impeded and hindered access to the 4G4 block. Judge S R Clark said that was outside the jurisdiction of the Māori Land Court (as the structures were on a road vested in the Council). The Judge nonetheless recorded that it was clear that the gate was not locked. The gate could be opened by sliding a bolt, and vehicle and pedestrian access could be obtained to the block.2
[20] Shortly before the Council made its decisions to temporarily close part of Tari Road and issue a licence to occupy to MEIT, the Trust filed (in late November 2013) an application with the Environment Court seeking enforcement orders that MEIT cease conducting, and the Council cease permitting MEIT to conduct, commercial
2 Trustees of Maungatautari 4G Sec IV Block v Maungatautari Ecological Island Trust – Maungatautari No 4G Sec IV Block (2014) 86 Waikato Maniapoto MB 248 (86 WMN 248) at [80]–[81] and [90].
guided tours in the Southern Enclosure using the right of way across the 4G4 block. In May 2014, the Trust amended its application by including a new claim that the Council had acted unlawfully in closing part of Tari Road and in granting a licence to occupy to MEIT. The Trust sought an enforcement order requiring removal of the fence, gate and turnstile that MEIT had erected under the licence to occupy.
[21] In a decision dated 19 December 2014, the Environment Court explained that it did not have jurisdiction to determine the lawfulness of the Council’s temporary road closure or the validity of the licence to occupy. The Environment Court only had jurisdiction to determine whether resource consent was required for the structures that had been built on Tari Road.3 It concluded that resource consent was not required. It therefore refused the Trust’s application for an enforcement order.
[22] At the same time as pursuing remedies in the Māori Land Court and Environment Court, the Trust complained, in May 2014, to the Ombudsman about the Council’s closure of Tari Road. In March 2015, the Trust asked the Ombudsman to pause investigation of the complaint, while the parties sought to resolve the dispute themselves. Attempts at resolution were unsuccessful, and in May 2015 the Trust asked the Ombudsman to recommence the investigation.
[23] Owing to workload pressures, the Ombudsman took some time to conduct the investigation. On 10 May 2018, the Ombudsman informed the Council that he had reached the provisional opinion that the Council’s temporary closure of Tari Road was unlawful.
[24] In the meantime, MEIT had encountered difficulties in arranging funding for its master plan, necessitating the continued use of the turnstile to control visitor access. As a result, the Council pursued an alternative means of accessing the Southern Enclosure for guided tours. The Council commenced negotiations with the owner of land to the east of Tari Road for alternative access. The negotiations were drawn out. Once agreement was reached, construction of the new access started. The construction was difficult because of the steep terrain. The new access was not open until late 2018.
3 Maungatautari 4G Sec IV Landowners Trust v Waipa District Council [2014] NZEnvC 263 at [26].
The Council had meanwhile renewed the licence to occupy in December 2016 and December 2017, with it eventually coming to an end on 16 December 2018.
[25] In response to the Ombudsman’s provisional opinion, the Council lifted the temporary closure of the end of Tari Road in June 2018. The gate, turnstile and other structures were removed from Tari Road in November 2018.
[26] The Trust brought a judicial review application in late 2019 challenging the Council’s decisions to close Tari Road and to grant a licence to occupy to MEIT. That application did not proceed, because of the death of the then Trust chairman. The Trust brought the current judicial review application in April 2021.
The Trust’s representation and its claims
[27] The Trust’s claims were set out in a statement of claim that appears to have been drafted by Graham Cullen, who is described as the Trust’s agent. Mr Cullen also made an affidavit in support of the Trust’s claim.
[28] Mr Cullen is not a lawyer. The Trust was not represented by a lawyer in the proceeding or at the hearing.
[29] Two of the trustees appeared in person at the hearing. They asked if Mr Cullen could appear as a McKenzie friend, but it was evident that they wanted Mr Cullen to act as an advocate. A McKenzie friend does not generally have the right to act as an advocate. The Court does have a discretion to allow the McKenzie friend to speak for a party. The discretion is exercised sparingly and in accordance with the interests of justice.
[30] In the exceptional circumstances of this case (set out in a minute issued shortly after the hearing), I considered it was in the interests of justice to allow Mr Cullen to act as an advocate at the hearing.
[31] The material prepared by Mr Cullen was not always easy to follow. However, the Trust’s essential claims were tolerably clear. First, the Trust said the Council’s temporary closure of the end of Tari Road was unlawful. The Council purported
to rely on its power in the Local Government Act 1974, s 342(1)(b) and cl 11(d) of sch 10, to close Tari Road on a temporary basis because it was considered desirable that traffic should be temporarily diverted to “other roads”. The Trust said this power was not available to the Council because:
(a)the closure was not temporary; and
(b)the Council was diverting traffic to another part of the same road, rather
than to “other roads”.
[32] Secondly, the Trust said the Council acted unlawfully in granting MEIT a licence to occupy allowing MEIT to erect structures on Tari Road, because the Council had no power to grant such a licence over a part of a public road.
[33] Thirdly, the Trust said that the Council acted unreasonably or unfairly in temporarily closing the end of Tari Road and granting a licence to occupy that allowed MEIT to erect structures on the road.
[34] The Trust also claimed that a resource consent was granted for commercial guided tours using the easement over the 4G4 block without any statutory authority. The Trust did not pursue that claim in its written or oral submissions. I say no more about it, other than noting that the Council’s evidence showed that on 17 July 2014 independent hearing commissioners granted resource consent to MEIT to conduct guided tours within the Southern Enclosure.
[35] In response to the Trust’s claims, the Council said it had the power to make its various decisions. It acknowledged one procedural error (a failure to consult with the Police and the New Zealand Transport Agency (NZTA)) in temporarily closing part of Tari Road, but said that could be dealt with under s 19 of the Judicial Review Procedure Act 2016. The Council rejected the Trust’s claims that it had acted unreasonably or unfairly in making its decisions. Finally, the Council said that if there were any judicially reviewable errors in its decisions, the Court should, as a matter of discretion, decline relief to the Trust because the issues raised were now moot and the Trust had delayed in bringing its claims.
Issues
[36] I have to determine four issues. First, did the Council lack the power to close part of Tari Road because, in terms of the Local Government Act 1974:
(a)the closure was not temporary; or
(b)the Council was diverting traffic to another part of the same road, rather
than to “other roads”; or
(c)the Council failed to consult with the Police and the NZTA?
[37] Secondly, did the Council have the power to grant to MEIT a licence to occupy allowing MEIT to erect structures on Tari Road?
[38] Thirdly, did the Council act unreasonably or unfairly in closing part of Tari Road or in granting the licence to occupy to MEIT?
[39]Finally, if there were any reviewable errors in the Council’s decisions, should
the Court grant relief to the Trust?
Did the Council lack the power to close part of Tari Road?
[40] Section 342(1) of the Local Government Act 1974 provides that a council may, in the manner provided in sch 10 of that Act, “stop any road or part thereof” or “close any road to traffic or any specified type of traffic (including pedestrian traffic) on a temporary basis in accordance with that schedule”. Here the Council purported to close (not stop) a part of Tari Road.
[41] Schedule 10 of the Act has two sets of clauses. Clauses 1–10 are headed “Stopping of roads”. Clauses 11–16 are headed “Temporary prohibition of traffic”. Clause 11 is the key clause. It provides:
11The council may, subject to such conditions as it thinks fit (including the imposition of a reasonable bond), and after consultation with the Police and the New Zealand Transport Agency, close any road or part of a road to all traffic or any specified type of traffic (including pedestrian traffic)—
(a)while the road, or any drain, water race, pipe, or apparatus under, upon, or over the road is being constructed or repaired; or
(b)where, in order to resolve problems associated with traffic operations on a road network, experimental diversions of traffic are required; or
(c)during a period when public disorder exists or is anticipated; or
(d)when for any reason it is considered desirable that traffic should be temporarily diverted to other roads; or
(e)for a period or periods not exceeding in the aggregate 31 days in any year for any exhibition, fair, show, market, concert, film-making, race or other sporting event, or public function: provided that no road may be closed for any purpose specified in paragraph (e) if that closure would, in the opinion of the council, be likely to impede traffic unreasonably.
[42] The Council relied on cl 11(d). It follows that the Council had power to close part of Tari Road only if the closure was “temporary” and the closure temporarily diverted traffic to “other roads”.
Was the closure “temporary”?
[43] The Trust claimed that the closure was not “temporary” given that the closure lasted for four and a half years. This claim, however, was not advanced with vigour in the Trust’s written and oral submissions.
[44] The Act does not define “temporary”. Mr Lang, counsel for the Council, referred me to several dictionary definitions of “temporary”. From these, it is clear that the primary meaning of “temporary” is “lasting or meant to last for a limited time”, or in other words “non-permanent”. A less common meaning is “lasting only a short time”. In the context of the Act, “temporary” bears the former meaning. This can be seen from the contrast between “stopping” a road and temporarily “closing” a road. A road that is stopped ceases to be a road.4 Stopping is therefore permanent. The point of a temporary closure is that it is non-permanent.
4 Local Government Act 1974, sch 10, cls 4 and 8.
[45] Here, the closure of a part of Tari Road was at all times intended to be non- permanent. MEIT requested a temporary road closure pending the development and implementation of an alternative plan for traffic management and visitor access. An internal Council memorandum recommending the road closure said that the closure would stay in place until MEIT’s alternative plan was completed.
[46]I conclude, therefore, that the closure was temporary.
Did the closure temporarily divert traffic to other roads?
[47] The Council’s closure of part of Tari Road diverted traffic (both pedestrian and vehicular) to another part of that same road (namely, to the north-western end, which was not closed). The Trust said this was outside the Council’s power in cl 11(d). The Trust argued that cl 11(d) only empowers a council to divert traffic to another road altogether.
[48] I do not accept that argument. It ignores the surrounding context of cl 11(d). The opening words of cl 11 empower a council to close “any road or part of a road”. There follow five circumstances in which a council can exercise that power. Clause 11(d) is the broadest. It provides a catch-all power enabling the closure of a road or part of a road “when for any reason it is considered desirable” to divert traffic to “other roads”. I accept Mr Lang’s submission that cl 11(d) is intended to be available in a wide and undefined range of circumstances that make traffic diversion a desirable step. The Trust’s interpretation of cl 11(d) would considerably limit what is intended to be a broad power. A broad interpretation of “other roads” should be preferred, one that includes “other parts of the same road”.
[49] The Trust’s interpretation would, as Mr Lang submitted, also produce an absurd outcome. It would mean that, where traffic diversion was desirable, a council would be empowered to close a road altogether to divert traffic to a separate road, but the council would not be empowered to take the less intrusive step of closing only part of the road to divert traffic to another part of the same road.
[50] The Council was therefore empowered to close part of Tari Road to divert traffic to another part of that road.
What is the effect of the Council’s failure to consult?
[51] Clause 11 conditions a council’s power to close a road on the council first having consulted with the Police and the NZTA. The Council acknowledged that it did not consult with the Police until about six months after it closed a part of Tari Road and did not consult with the NZTA at all.
[52] This meant the Council lacked the power to close a part of Tari Road when it did. I consider, below, whether I should grant relief to the Trust in respect of this error.
Did the Council have the power to grant to MEIT a licence to occupy allowing MEIT to erect structures on Tari Road?
[53] The Trust said there was no specific provision in the Local Government Act 1974 or the Local Government Act 2002 empowering a council to issue a licence to occupy part of a road, let alone a licence to occupy that allows the licensee to erect structures on the road. The Trust said that the Council therefore lacked the power to grant MEIT a licence to occupy part of Tari Road and to erect structures there.
[54] I agree with the Trust that the Local Government Acts do not contain any provision specifically empowering a council to grant a licence to occupy over a road. But s 316 of the 1974 Act provides that roads are vested in fee simple in the council of the district in which the roads are situated. As Harvey J recently held in Ours Not Mines Ltd v Hauraki District Council,5 a council may, as owner of a road, grant a licence over a road (including a licence that permits the construction of structures on the road), in the same way that any landowner can grant a licence over land they own. It is simply an incidence of ownership.
[55] As Harvey J also held in Ours Not Mines,6 this does not mean that a council’s power to grant a licence to occupy a road is as unlimited as an ordinary landowner’s
5 Ours Not Mines Ltd v Hauraki District Council [2024] NZHC 63 at [21].
6 At [26].
power to grant a licence. Harvey J referred to the Court of Appeal’s explanation, in Lower Hutt City Council v Attorney-General ex rel Moulder, that:7
Although all streets and the soil thereof are by s 170(1) [of the Municipal Corporations Act 1954] vested in the local corporation they nevertheless retain their character as highways so that the ownership by the corporation is in general subject to the rights in respect of highways enjoyed both by the public and by adjoining owners.
[56]The Court of Appeal there referred to two matters that might limit a council’s
ownership rights.8 The first was the right enjoyed by the public in respect of a highway
– namely, the right of the public to pass along the highway. That public right was the focus of the Court of Appeal in Lower Hutt City Council. The Court said:9
[T]he fact that streets are vested in and are under the control of the local authority does not entitle a council to erect or authorise the erection of a structure in a street if that structure amounts to what is technically described as a “public nuisance”. … At common law a permanent obstruction erected upon a highway without lawful authority, and which renders the way less commodious than before to the public, is a “public nuisance” provided that the obstruction constitutes an appreciable interference with the traffic in the street: see R v Bartholomew [1908] 1 KB 554. It may also be noted that it is no defence that the obstruction, though a nuisance, is in other ways beneficial to the public.
[57] The second right referred to by the Court was the right of an adjoining owner (that is, a frontager) – namely, the right to access the highway from any part of their land. This right was not in issue in Lower Hutt City Council. It was addressed by the Court of Appeal in Fuller v MacLeod.10 The Court held that the right was enjoyed by a frontager subject to any limitations imposed by statute.11
[58] The Trust said that the structures erected by MEIT on Tari Road (authorised by the Council by granting the licence) had interfered with the public right of passage along Tari Road and therefore amounted to a public nuisance. The Trust also said that the structures had interfered with its private right to access Tari Road from the 4G4 block.
7 Lower Hutt City Council v Attorney-General ex rel Moulder [1977] 1 NZLR 184 (CA) at 188 (emphasis added).
8 The distinction between the public’s right of passage along a highway and a frontager’s private right of access to a highway was recognised in Fuller v MacLeod [1981] 1 NZLR 390 (CA).
9 Lower Hutt City Council v Attorney-General ex rel Moulder [1977] 1 NZLR 184 (CA) at 190.
10 Fuller v MacLeod [1981] 1 NZLR 390 (CA).
11 At 409 and 415.
[59] I begin with the claim of public nuisance. In Lower Hutt City Council, the Court of Appeal said that a permanent obstruction erected without lawful authority,12 which renders the road less commodious to the public than before, is a public nuisance if it constitutes an appreciable interference with the traffic. In Harper v Haden & Sons Ltd,13 Lawrence LJ contrasted permanent and temporary obstructions, saying that the latter may or may not constitute a public nuisance according to circumstances. A stricter test therefore appears to apply to permanent obstructions.
[60] It is not necessary for me to decide whether the structures erected by MEIT should be characterised, for this purpose, as permanent or temporary. Even if characterised as permanent, determining whether the obstructions constituted an appreciable interference with the traffic (pedestrian or vehicular) depends on the context.14 Here, the context points firmly to any interference being less than appreciable. The structures affected only part of the end of a no exit road. The unaffected part of the end of Tari Road (on the north-western side) allowed ample space for vehicular and pedestrian movements. There is no record of any complaints in that respect.
[61] The Trust was, of course, affected. The trustees, the owners of the 4G4 block, and their invitees had to go through the gate erected by MEIT to reach the end of Tari Road and to then access the 4G4 block (or use the slightly longer pedestrian access around the gate). However, there was very little evidence from the Trust as to the extent or significance of this interference. I was not told how often the trustees, the owners or their invitees visited the 4G4 block. The block is of significant spiritual and cultural value to the owners, but there are no residences or other buildings on the block. To the extent the block was visited, MEIT’s gate was a minimal interference with access. That gate was unlocked.15 It appears to have been about 10–12 metres from the wooden gate at the entrance to the block. This meant that a driver of a vehicle
12 By lawful authority, of course, the Court of Appeal meant authority other than that derived from ownership of the road. Here, ownership was the only source of authority for the Council’s grant of the licence to MEIT.
13 Harper v Haden & Sons Ltd [1933] 1 Ch 298 (CA) at 308.
14 Ours Not Mines Ltd v Hauraki District Council [2024] NZHC 63 at [42].15 At the hearing, Mr Cullen told me that the gate had sometimes been locked. This was contrary to the evidence at [50] of his own affidavit (as well as evidence in affidavits filed by the Council).
wishing to access the block could have stopped at MEIT’s gate, opened both gates,
driven through both, and then closed them both, with a minimum of fuss.
[62] For these reasons, I conclude that the structures erected by MEIT did not amount to a public nuisance.
[63] As to the Trust’s claim that the structures interfered with its right to access Tari Road from the block, I find there was no such interference. The Trust was still able to access Tari Road in the usual way. MEIT’s gate did not prevent that. Once a trustee or an owner or an invitee accessed Tari Road from the block, MEIT’s gate affected their right, shared with other members of the public, to pass along Tari Road. But, as I have just held, that did not amount to a public nuisance.
[64] It follows that the Council did have the power to grant a licence to occupy allowing MEIT to erect the structures on Tari Road.
Did the Council act unreasonably or unfairly in closing part of Tari Road or in granting the licence to occupy to MEIT?
[65] The Trust claimed that the Council had acted unfairly because it had not consulted with the Trust before closing part of Tari Road and granting the licence to MEIT. In the slightly peculiar circumstances of this case, I do not consider that the Council was obliged to consult with the Trust. The Council was obliged, by s 78 of the Local Government Act 2002, to give consideration to the views and preferences of persons likely to be affected by the two decisions. This means the Council had to give consideration to the Trust’s views. But consultation is only one of the ways in which the Council could obtain the Trust’s views. Here, the Council (and MEIT) had been dealing with the Trust over issues relating to the Southern Enclosure for some time. The Council knew that the Trust was opposed to commercial guided tours of the Enclosure and opposed to controls on pedestrian access. MEIT had told the Council that the Trust would not agree to an access control system being installed at the Trust’s gate to the block. The Trust’s views on the proposed closure and grant of a licence were therefore clear to the Council.
[66] The Trust also claimed that the Council’s decisions were unreasonable or unfair because the Council was motivated by a desire to assist MEIT in its revenue collection rather than a desire to control traffic. I find that the Council was motivated by a number of factors. These included assisting MEIT in its revenue collection as well as managing vehicle movements (including parking) and interactions between vehicles and pedestrians at the end of Tari Road. There was nothing unreasonable or unfair in the Council acting on these factors, so long as the Council also gave consideration to public and private interests in passage along or access to Tari Road (which it did).
If there were any reviewable errors in the Council’s decisions, should the Court grant relief to the Trust?
[67] The only reviewable error in the Council’s decisions was its failure to consult with the Police and the NZTA before closing part of Tari Road. Under s 19 of the Judicial Review Procedure Act 2016, if the sole ground of relief established is a defect in form or a technical irregularity, and no substantial wrong or miscarriage of justice has occurred, the Court may refuse to grant relief. It is plain that the Council’s failure to consult was a technical irregularity. Further, no substantial wrong or miscarriage of justice occurred from it. This is because it is inconceivable that the Police or the NZTA would have had any concerns with the closure of a part of the end of a no exit road. Consultation would not have produced a different Council decision. In these circumstances, I exercise my discretion in s 19 to refuse to grant relief to the Trust.
[68] It is not necessary for me to address the Council’s arguments that, if there were any reviewable errors, relief should be refused on the grounds of futility and delay. There was, however, considerable force in the delay argument. The Trust had made claims with respect to the same matters in the Māori Land Court and the Environment Court. The claims had (correctly) been rebuffed on jurisdictional grounds in both Courts. That happened in 2014. The Trusts did not commence any action in this Court until five years later. That rather speaks for itself.
Result
[69]I dismiss the Trust’s claim for judicial review.
[70] The Council, as the successful party, is entitled to costs from the Trust. If the quantum of costs cannot be agreed, brief memoranda (no more than two pages each, excluding relevant annexures) may be filed.
Campbell J
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