Nelson City Council v Stanton
[2015] NZHC 395
•6 March 2015
IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY
CIV-2014-442-72 [2015] NZHC 395
BETWEEN NELSON CITY COUNCIL
Applicant
AND
LEWIS REGINALD STANTON Respondent
In Chambers: On papers Judgment:
6 March 2015
JUDGMENT OF THE HON JUSTICE KÓS (Leave to appeal)
[1] Mr Stanton and his horse live life on the open road. But even the free- spirited must stop and rest. Mr Stanton has made a point of stopping in Nelson. He relies on “donations” from the public. He likes to stop with his horse and cart in the downtown area. “Donations” are better there. He often parks in metered parking spaces. He will not pay the required parking fee. He also parks in unmetered parking spaces with a time limit. He declines to quit these spaces when his time has expired.
[2] The Nelson City Council has powers to prohibit or restrict the stopping, standing or parking of vehicles on any road under its control.1 It has passed a parking bylaw giving effect to those powers.2 Mr Stanton has received numerous infringement notices. He has incurred fines exceeding $8,800. He refuses to pay
them. He has continued to park in breach of the parking bylaw.
1 Land Transport Act 1998, s 22AB(1).
2 Nelson City Council Parking and Vehicle Control Bylaw 2011.
NELSON CITY COUNCIL v STANTON [2015] NZHC 395 [6 March 2015]
[3] The Council therefore sought an injunction under s 162 of the Local Government Act 2002 to restrain Mr Stanton from parking his horse and cart in the city centre in breach of the parking bylaw.
[4] The Council was successful in the District Court, but the injunction was quashed in an appeal to the High Court. The Council now seeks leave to appeal to the Court of Appeal.
District Court decision
[5] In the District Court, Mr Stanton’s first argument was that the bylaw did not apply because of the references therein to “car parking”. He does not drive a car, but a horse-drawn cart. He also contended that the bylaw was vague and should be struck down. Finally, he submitted that the bylaw should be interpreted consistently with his rights and freedoms under the New Zealand Bill of Rights Act 1990 (NZBORA).
[6] Judge Tompkins concluded that the bylaw did apply to Mr Stanton and his cart. Further, the bylaw does not unduly restrict Mr Stanton’s rights under NZBORA. The Judge granted the injunction sought. Its terms were reasonable and would not have a chilling effect on rights and freedoms implicated. The injunction went only so far as was necessary, restricting the current and persistent unlawful parking of the horse and cart.
High Court decision
[7] In the High Court, the injunction was quashed.3 Goddard J found the conclusions reached by Judge Tompkins that the arguments relating to the definition of a vehicle and to NZBORA are “unremarkable and unassailable”. But four factors persuaded the Judge that an injunction was not required or appropriate. First, the injunction was duplicitous. A complete enforcement framework existed already, via the infringement regime. Secondly, the injunction prevented future breaches that were of a repetitive, but not continuous, nature. Such breaches were not the
behaviour properly targeted by s 162. Thirdly, there was some inconsistency in the
3 Stanton v Nelson City Council [2014] NZHC 3117.
Council’s approach by enjoining only one mode of transport (horse and cart). This suggested “a possible antipathy towards Mr Stanton and his horse and cart”, rather than preventing breaches of the bylaw. Fourthly, an injunction would inutile, or futile; it would lead to compulsion via imprisonment,4 but that recourse existed already. There was no basis to assume Mr Stanton would be more amenable to restraint by injunction than by other existing enforcement measures.
[8] In fact I am now informed on the present leave application that Mr Stanton is, or has been, imprisoned.5 Mr Stanton’s horse has been taken in by the SPCA. The disposition of the cart is unstated.
Leave sought to appeal
[9] The Council seeks leave to appeal to the Court of Appeal against the decision of the High Court. Leave to appeal is sought on the grounds that the judgment raises important questions of law and fact. These are the questions mooted. The first three are ones of law; the fourth one primarily of fact:
(a) Is an injunction under s 162 an available remedy to restrain a person from committing future acts or omissions in breach of a bylaw; or is the remedy for future breach of a bylaw limited to circumstances where there is a continuing course of conduct amounting to an ongoing breach?
(b) Was the High Court right to find that the grant of an injunction under s
162 to restrain a person from committing future acts or omissions in breach of a bylaw is not an available remedy (and is duplicitous) in circumstances where other enforcement measures have been taken for past breaches of the bylaw?
(c) Was the High Court right to find that an injunction under s 162 should not be granted because there was no basis to assume the respondent
4 For contempt.
5 I gather for non-performance of community work imposed in place of some or all of the fines.
The exact circumstances are unclear.
would be more amenable to restraint by injunction than existing enforcement measures taken under the bylaw?
(d)Was the High Court right to find that the Council was ‘inconsistent’ in its approach to the bylaw in seeking an injunction in the form that it did?
Should leave be granted?
[10] Section 67 of the Judicature Act 1908 states that decisions of the High Court on appeal from an inferior court is final, unless leave is granted to appeal against that decision. To obtain leave the appeal must raise some question of law or fact capable of bona fide and serious argument in a case involving some interest, public or private, of sufficient importance to outweigh the cost and delay of the further appeal.6 The primary function of a further appeal is to clarify the law and to
determine whether it has been properly construed in the Court below.7
[11] I accept that the first three questions are of considerable public interest. There is limited authority on s 162. The approach taken in this Court would constrain the use that might be made of the jurisdiction conferred by that provision in the face of persistent disobedience with parking bylaws. They are also capable of bona fide and serious argument, as counsel for Mr Stanton sensibly accepts. On its face, s 162 is open to the interpretation contended for by the Council. These questions have not previously been considered by the Court of Appeal. The cost and inconvenience of further judicial analysis are justified given the importance of the questions raised.
[12] I do not however accept that these considerations apply with the same force to the fourth question. The Council says it is a matter of considerable importance to the Council, noting that it has been widely reported. I do not regard that as a sufficient reason to grant leave. This ground was of relatively limited significance in the Judge’s reasoning. Of itself it would not justify denial of injunctive relief. It is
not a matter of general public importance. It is not a matter of sufficient private
6 Waller v Hider [1998] 1 NZLR 412 (CA).
7 Waller v Hider [1998] 1 NZLR 412 at 413.
importance to justify further examination. The role of the Court of Appeal on a second appeal is, as it has itself observed on many occasions, not the correction of error generally. What is important is for the primary issues of law to be resolved. If they are resolved in the Council’s favour, that will deal with its reputation adequately.
Result
[13] Leave is granted to appeal on the three questions set out at [9](a) – (c)
inclusive.
Stephen Kós J
Solicitors:
Fletcher Vautier Moore, Nelson for Applicant
Zindels, Nelson for Respondent