Moffatt v New Zealand Transport Agency HC Christchurch CIV 2010-409-2397

[2010] NZHC 2092

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CIV 2010-412-000713

BETWEEN  QUEENSTOWN LAKES DISTRICT COUNCIL

Plaintiff

ANDHUNTER VALLEY STATION LIMITED Defendant

Hearing:         22 November 2010 (Heard at Christchurch)

Counsel:         R S Cunliffe and K J Logan for Plaintiff

NRW Davidson QC and J J Mills for Defendant

Judgment:      22 November 2010

JUDGMENT OF FOGARTY J

[1]      The setting of this case is at Lake Hawea and in particular a road known as Meads Road which runs from the neck of land separating Lake Wanaka from Lake Hawea all the way out, becoming at a later stage Hunter Valley Station Road, to the Hunter Valley Station homestead.  The road is used for access to the station and is also used by members of the public particularly to go to an area known as Kidds Bush.  Kidds Bush is an area of land on the shores of Lake Hawea managed by the Department of Conservation, the Department having the benefit of an easement granted by, probably, the predecessors of the current owners/leaseholders of the Hunter Valley Station.

[2]      There  have  been  some  ongoing  negotiations  as  to  a  variety  of  matters between Hunter Valley Station and various Government agencies about a number of issues pertaining to the operation of the Station which also touched on the use of this

road.  Those negotiations, which I do not have a full understanding of and do not

QUEENSTOWN LAKES DISTRICT COUNCIL V HUNTER VALLEY STATION LIMITED  HC DUN CIV

2010-412-000713  22 November 2010

need to for the purpose of this hearing, broke down and shortly after that Hunter Valley Station set up a barrier arm and a notice to the public on a section of Meads Road near the Neck Creek.   The notice read:

ACCESS CLOSED AT NECK CREEK 1.2KM FROM OCT TO NOV DUE TO LAMBING AND CALVING.

TOWING & HEAVY VEHICLES DO NOT PASS THIS POINT

And in the nearby vicinity a barrier arm was erected across the road, though not locked.

[3]      The  Queenstown  Lakes  District  Council  have  applied  to  this  Court  for interim injunction to restrain the road being closed by the barrier in the context of proceedings which are seeking declaration that the disputed land has vested in the Council as a road.

[4]      There is a complicated history to the development of this road.   But it is common ground it had its origins in the raising of Lake Hawea and the need to create a replacement road access to the station.  It is common ground that there is no doubt that parts of this road are legally road but there is an issue as to whether a section of the road, past Neck Creek, has ever been dedicated by the Crown, or by an appropriate Crown agency as a road, or whether or not it can be declared a road based on implied dedication by the Crown, or whether it can otherwise be declared as a road due to acceptance by the operators of Hunter Valley Station that it does function as a road and has over a period of years.

[5]      I have had the benefit of quite a bit of argument from Mr Cunliffe for the Crown  as  to  these  issues  and  some  argument  in  reply from  Mr  Davidson  QC. Mr Davidson considered that there was an arguable case that this section of the road was public road.   On the other hand, Mr Cunliffe’s arguments also readily acknowledged that there was no formal and completed grant or dedication by the Crown that this is a road.  There is a very real prospect that for one reason or another steps to make a portion of this formed road a legal road dropped off the table somewhere in the process.

[6]      The result is that there is a real possibility that this section of highway is not in fact a public road and that that may well then have justified legally the barrier arm being put in place.   I am not here to decide that today and am also not going to express a view as to who has the stronger argument.   In this sort of case it is important to know all the facts and be sure that all historical material is before the Court, and I am not sure of either.

[7]      It is, nonetheless, quite appropriate for Queenstown Lakes District Council to be extremely concerned about any step taken to impede public access on what has hitherto been, for practical purposes, a public highway.  Mr Cunliffe is quite correct in emphasising the importance in our community both now and for many centuries of heritage from the United Kingdom, of the law leaning strongly towards allowing free passage on the highway.   It is sufficient to mention that that point is made, certainly by the House of Lords in Jones v DPP [1999] 2 AC 240, which I had occasion to discuss recently in a Christchurch case and I think by the Court of Appeal in Man  O'War  Station  Ltd  v  Auckland  County  Council  [2000] 2 NZLR 267. Therefore it is important in the interests of the community to sort out practical arrangements which so far as possible preserve public access while as far as possible respecting the right of Hunter Valley Station to test the legality of that road. In that regard Mr Davidson has proffered undertakings by Hunter Valley Station Limited not to impede public access pending final determination of this litigation.

[8]      I am not going to set out the initial proffering of the undertaking.  It has gone through a number of iterations and it is going to probably go through some more even after this judgment.  That is not a criticism of anyone.  It is a difficult issue.  It seems to me that the most important thing to do in this case is to ensure a very prompt hearing by the High Court of the issues of this case in order to get as fast as possible to a final determination.

[9]      To that end the case is set down for hearing on Monday, 11 April.   It is estimated to take three days at this stage.  In that regard I have set aside a week but I am hoping it will not go beyond three days which will then give the Court time to write a judgment straight after the hearing.  I am conscious also that there are rights

of appeal.  In order to achieve the case commencing and being tried efficiently on

11 April a number of other intermediate steps have to be made.

[10]     I understand the parties are going to seek to discover more documents and Mr Davidson is hopeful discovery can be completed by the end of December.  In that regard I leave it to the parties to informally agree the scope of discovery and reserve leave on one day’s notice to have a telephone conference with me to discuss any problems with discovery.   The next step after discovery will be to consider what additional materials need to be placed before the Court.   There is already a lot of very valuable material collected in the affidavits for the purpose of the interim injunction.  It seems to me that this material can be used in its present format just as efficiently at the main hearing.  There is no need to convert the affidavits into briefs of evidence.

[11]     Mr Davidson has suggested that the parties endeavour to agree facts and then to confine the evidential part of the hearing to those facts that cannot be agreed.  I would agree  with  this  process.    That  is  best  practice.    Again,  if there  are  any difficulties in that regard I think there should be a conference with me, as the hearing Judge, to try to assist collection of the facts that can be agreed.

[12]     To that end I reserve leave to either party to apply for a case management conference at any time after discovery has been completed.  I reserve the right to call a case conference myself if I am not satisfied that there has been adequate progress in preparing an agreed set of facts.

[13]     Subject to comment from counsel at the end of this draft judgment I would suggest that counsel should report to me by the end of the first week of March as to whether or not they are making progress on reaching an agreed set of facts and/or whether or not they need my assistance by way of a case management conference. This would target a combination of identifying the issues that have to be decided and the facts that are needed for those issues.

[14]     Given that this case is going to trial now in April, the concern of Hunter

Valley Station Limited to public access impeding the lambing and calving does not

arise and does not need to be addressed at this stage in an undertaking.   The intervening period between now and April is the Summer and Autumn, a period of time when Kidds Bush is popular.  There are holidaymakers who regularly use Kidds Bush.  Hunter Valley Station is concerned that there has been a change in usage over the last few years with some unruly elements coming to Kidds Bush.   That is a matter of concern to them and I have no doubt to the regular users of Kidds Bush.  I have read some of the affidavits of these people, some of whom are quite elderly, and, I am sure, are looking for a quiet life.

[15]     In that regard, the Council has the power to close this road if public disorder exists or it is unsafe.  It is a power given to the Council by the 10th Schedule of the Local Government Act clause 11(b).  The Hunter Valley Station had suggested an undertaking not to restrict passage beyond the road except in exceptional circumstances, that is, exceptional circumstances necessary to protect a person’s property or stock.  Those circumstances, it seems to me, fall within the concept of public disorder, as used by Parliament.  But Parliament has also signalled in the 10th Schedule that it envisaged that ultimately the police would, as is their professional role, have the responsibility of resolving problems of public disorder.  I am therefore reluctant in any way to assert some power of the High Court to give Hunter Valley Station Limited any powers to intervene themselves.  Nor do I think that is a wise course of action.  It might expose the members of the family and/or their employees

to personal risk.

[16]     It seems to me that the potential problems of Kidds Bush over the holiday period can be addressed by:  Hunter Valley Station Limited, perhaps some regular users of Kidds Bush, police and transport agencies and the Council getting together and sorting out and planning as to how they will deal with any issues that might arise.   Conceptually it seems to me that the police should be ready to receive a call, either from Hunter Valley Station, or from known regular users of Kidds Bush for assistance and confirm they have in place a means of immediately consulting with the Council and or the Ministry of Transport.

[17]     The need for this is because clause 11 of the 10th  Schedule gives the actual power to close the road to the Council but after consultation with the police and the

Ministry of Transport. If a potential problem is anticipated before it happens there are ways of obviously having a quick round of telephone conferences.  There is also power then for the Council, in consultation with the police, to request Hunter Valley Station,  by  themselves,  or  in  conjunction  with  police  assistance  to  control  any ensuing problems that might arise.

[18]     For these reasons it seems to me that the intermediate problem is resolved if the Hunter Valley Station undertakes to this Court that until judgment as a final determination of this litigation in the High Court is given (that is likely to be before the end of April next year) that Hunter Valley Station Limited will not impede public access along the formed alignment of Meads Road between State Highway and Neck Creek Road in the area known as Kidds Bush.

[19]     Leave   is   reserved,   however,   for   Hunter   Valley   Station   Limited   or Queenstown Lakes District Council to apply to this Court, and particularly to myself as the Judge familiar with the case, at any time, by telephone if necessary, to amend this undertaking.  I am hopeful that that will not be necessary but the Registrar will provide Hunter Valley Station Limited and the Queenstown Lakes District Council with appropriate telephone numbers so that I can be reached at any stage over the holiday season and also be given telephone numbers of the Christchurch Duty Judge in the event that I, for some reason, cannot be reached.

[20]     I  am  also  reserving  leave  for  counsel  immediately  following  this  oral judgment to come back with any further suggestions as to the terms of the undertaking that I have just dictated.

[21]     I then turn to the question of costs.  Mr Cunliffe has applied for costs on the part of the Council.  He has argued that until the last few days he thought he was going to have to meet an argument that this section of Meads Road was not a legal road.  Mr Davidson has indicated that his concession that the point was arguable was made partly as a result of a late affidavit by Mr Smith which was a reply affidavit.  I do not have a sufficient grip on the issues in this case to adjudicate the merits of the competing viewpoints.  Secondly, as I have already observed, much of the material

and affidavits prepared for this interim injunction, this hearing, will also be used in the substantive hearing, so that time by both parties has not been wasted.

[22]     For these reasons costs are reserved on the proceedings to date.

[23]     The hearing will take place on 11 April.  I am happy for counsel to discuss between themselves and with the Registry as to which is the most suitable Court to hear this case, be it Christchurch, Dunedin or, if courtroom facilities are available, in Queenstown.

[Discussion with counsel]

[24]     As a result of the oral judgment just dictated counsel have conferred and they have advised me that the Crown has filed a notice of appearance and is reserving its position.   As a result, of course, the Crown can take a position in the timetabling events and participate as it wishes.  Secondly, counsel have agreed upon the wording of the undertaking which has been given to me and I have also agreed to it and it is as follows:

Hunter Valley Station undertakes not to close the barrier arm without further order or determination of the Court that it may do so, or it may be requested to do so by the police, or the Council after consultation with the police.

Solicitors:

Macalister Todd Phillips, Queenstown, for Plaintiff (Counsel: R S Cunliffe) Gallaway Cook Allan, Dunedin, for Defendant (Counsel: N Davidson QC)