Napier Public Health Action Group Inc v Minister of Conservation HC Napier CIV 2006-441-586 - [2007] NZHC 506

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IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CIV 2006-441-586

UNDER Judicature Amendment Act 1972

AND

UNDER Declaratory Judgments Act 1908

IN THE MATTER OF section 98 of the Reserves and Other lands Disposal and Public Bodies Empowering Act 1920

AND

IN THE MATTER OF Gazette Notice 14.10.2004, No. 132, p.3266

BETWEEN NAPIER PUBLIC HEALTH ACTION GROUP INCORPORATED
Plaintiff

ANDTHE MINISTER OF CONSERVATION First Defendant

ANDTHE MINISTER OF HEALTH Second Defendant

ANDCROWN HEALTH FINANCING AGENCY
Third Defendant

Hearing: 13 and 14 February 2007

Counsel: M Courtney and J Krebs for Plaintiff
H S Hancock and S J Ritchie for First and Second Defendants
P R Jagose and J F Keane for Third Defendant

Judgment: 17 May 2007

JUDGMENT OF HEATH J

Solicitors:
Langley Twigg, PO Box 446, Napier
Crown Law Office, PO Box 2858, Wellington Chapman Tripp, PO Box 993, Wellington Counsel:
M Courtney, PO Box 7467, Napier

NAPIER PUBLIC HEALTH ACTION GROUP INCORPORATED V THE MINISTER OF CONSERVATION AND ORS HC NAP CIV 2006-441-586 17 May 2007

Table of Contents

(a) Submissions on behalf of the Action Group [34]

(b) Submissions on behalf of Ministers of Conservation and Health [36]

(c) Submissions on behalf of the Agency [39]

The issues [1] Background to the proceeding [6] The competing submissions

Analysis of the “Trust” issue
(a)   Introductory comments  [40]
(b)   The Land Acts  [43] (c) The Reserves Acts  [55] (d)   The Napier Hospital site  [72] (i) Lots 1 to 6  [73] (ii)   Lots 7 to 16  [76] (iii)   Consolidation of lots 1 to 16  [82]
The “consultation” issue
(a)   Legitimate expectation  [94]
(b)   Consultation as District Health Board’s surrogate  [99] (c)   Ministerial representations   [108] (d)   Discretionary issues   [115]
Conclusion  [120]

The issues

[1] In the mid 1990s Cabinet made a decision, after extensive consultation, to close the Napier Public Hospital and to establish a regional hospital for the Hawke’s Bay Province in Hastings. At the time that decision was made, the preferred option was to use some or all of the hospital buildings to house medical services designed to meet the needs of the community in Napier and its immediate surrounds. Before the regional hospital debate, the land on which the Napier Hospital buildings stood had been classified as reserve land for hospital purposes.

[2] On 14 October 2004, the reserve status of the hospital land was revoked. The revocation was effected by Gazette Notice under the hand of the Minister of Conservation’s delegate. It is common ground that revocation of reserve status was legally effective. The question is whether revocation of reserve status carried with it, as a necessary consequence, termination of the statutory trust requiring the land to be used for hospital purposes. If the trust were terminated, the land could be disposed of by the Crown. An agreement to sell the land has, in fact, been entered into.

[3] In this proceeding, the Napier Public Health Action Group Inc (the Action Group) seeks…

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

AGLC: Napier Public Health Action Group Inc v Minister of Conservation HC Napier CIV 2006-441-586 [2007] NZHC 506
Case: [2007] NZHC 506
Decision Date: 17 May 2007

CaseChat Overview and Summary

In Napier Public Health Action Group Inc v Minister of Conservation, the Napier Public Health Action Group Inc (the Action Group) sought a declaration that the Gazette Notice revocation of the reserve status of the Napier Hospital land did not terminate the statutory trust on which the land was held. The Action Group also sued the Minister of Health and the Crown Health Financing Agency (the Agency), claiming that they failed to consult adequately before deciding to dispose of the site by sale. Heath J held that the statutory trusts affecting the land were lawfully terminated on revocation of reserve status because they were confirmed by an Act falling within the exceptions to s 11E(6)(b) of the Health Sector Reserves Act. The Action Group's claim that the trusts survived revocation failed. The Action Group's claims that the Minister of Health or the Agency had an obligation to consult also failed. The Minister and the Agency were well aware of the Action Group's concerns and the position it had taken. Further consultation would have been a futile exercise.

Orders