Ohana Limited v Far North District Council
[2025] NZHC 2477
•28 August 2025
IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE
CRI-2025-488-000077
[2025] NZHC 2477
BETWEEN OHANA LIMITED
First Applicant
AND
ELECTRIC BOAT CO NZ LIMITED
Second Applicant
AND
CHRISTOPHER LEE CLAYDON
Third Applicant
AND
FAR NORTH DISTRICT COUNCIL
Respondent
Hearing: 21 August 2025 Appearances/ Representation
J M Wood for first and second applicants Third applicant self-represented
P Moodley for respondent
Judgment:
28 August 2025
JUDGMENT OF JOHNSTONE J
This judgment was delivered by me on 28 August 2025 at 4.15 pm pursuant to r 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Solicitors:
Court One, Auckland Brookfields, Auckland
OHANA LTD & ORS v FAR NORTH DISTRICT COUNCIL [2025] NZHC 2477 [28 August 2025]
[1] Christopher Claydon lives on a yacht which is usually tied alongside a pontoon floating in the Kerikeri River. One of his companies, Ohana Limited, owns and (under a 35-year resource consent issued in 2015) is permitted to use and occupy the Pontoon. Another of his companies, Electric Boat Co NZ Ltd, operates a business from the Pontoon.
[2] A strip of land around six metres wide runs, for a distance of around 220 metres, down a slope from the intersection of Kendall Road and Riverview Road to the riverbank to which the Pontoon is attached. Mr Claydon and his companies say this Land amounts, at least for certain purposes, to a “road”. And they say they are entitled to treat the Land as a road, including by driving and parking a car on it.
[3] The Far North District Council, which holds the Land in fee simple, disagrees. Recently, the Council has demanded that Mr Claydon remove from the Land:
(a)a removable bollard placed in the centre of its entrance, near Kendall and Riverview Roads;
(b)a security camera positioned in that vicinity;
(c)power boxes that had been installed at either end; and
(d)gravel that had been placed on the Land along almost its entire length.
[4] And, when he did not, the Council removed the bollard, installing its own posts on either side of the Land’s entrance. Between the posts, the Council fixed a padlocked chain, intending to prevent cars driving on the Land without the Council’s consent.
[5] Mr Claydon says that the bollard, the gravel, the power boxes, and the security camera (along with two more recently installed cameras) were all installed lawfully, and that the Council’s actions in respect of them have been unlawful. Again, the Council disagrees.
[6] In this proceeding, filed on 30 June 2025, Mr Claydon and his companies seek wide-ranging injunctive and declaratory relief directed to the issues of the Land’s legal nature, and thus the laws to which it and those seeking access or entitlement in respect of it are subject. The proceeding can be regarded, broadly, as an application for judicial review, in terms of the Judicial Review Procedure Act 2016.
[7] While the proceeding is being determined, Mr Claydon and his companies apply1 for interim orders, under s 15 of the Judicial Review Procedure Act 2016, prohibiting the Council:
(a)impeding or obstructing access to the Land;
(b)interfering with electrical installations on the Land;
(c)interfering with the Land’s surface so as to make it unsuitable as an accessway (vehicular or otherwise); or
(d)dealing with the title to the Land.
Approach to interim orders under s 15
[8] The parties agree that, under s 15, the Court may prohibit the Council from taking any further action that is, or would be, consequential on the exercise of a statutory power, if (in the Court’s opinion) doing so is necessary to preserve the Applicants’ “position”.2 If the Court forms this opinion, it then has a wide discretion to consider all the circumstances, including the apparent strength or weakness of the claim for review, and all the repercussions, public or private, of granting relief.3 The discretion is, in essence, guided by “the overall justice”.4
[9] Citing Higgs v Minister of Immigration, the Council submits that the reference in s 15 to preserving a “position” is one that refers to a currently existing right in law
1 This is the sense in which they are referred to here as the Applicants.
2 Judicial Review Procedure Act 2016, s 15(1) and (2).
3 Carlton & United Breweries Ltd v Minister of Customs [1986] 1 NZLR 423 (HC and CA) at 430.
4 Nair v Minister of Immigration [1982] 2 NZLR 571 (HC).
or in fact, not a mere interest in the outcome of the subject proceeding.5 The Council submits that the Land is not a road, and that the Applicants accordingly have no position to preserve.
[10] In Higgs, the applicant had brought a substantive judicial review proceeding in what his counsel described as “a representative capacity”, on behalf of persons (such as his partner) who might be affected by a Ministerial immigration instruction issued under the Immigration Act 2009. And provisions of the Immigration Act had prevented the applicant’s partner from seeking judicial review more directly, by way of her own challenge to the instruction being applied to her circumstances as an individual. That was the context in which Jagose J found:
[14] … [the applicant] has no position to preserve … whether or not in a representative capacity …. By “position” is meant a currently existing ‘right’ in law or fact, as may be derived from the meaning of ‘statutory power’ open to challenge by judicial review. It is not to be confused with a mere interest in the outcome of the subject proceeding. Not until the decision is made in [the applicant’s] favour does it confer on him a position for prospective preservation.
[11] This characterisation of the need for interim relief under s 15 to preserve a “position” is one tied closely to its context. In my view, it should not be applied beyond that context, so as to require the Court to engage more closely with the substantive proceeding’s merits than to observe the existence of an arguable case. To do so would contradict the leading authorities which require wide-ranging consideration of factors such as the strength or weaknesses of the substantive claim (see [8] above), but not its final determination, and would undermine the purpose and underlying policy of the s 15 power to grant interim relief.
[12] On the other hand, it is clear that a non-justiciable substantive claim in judicial review will not give rise to a “position” that might found jurisdiction to grant interim relief under s 15.6
5 Higgs v Minister of Immigration [2021] NZHC 2287 at [14].
6 Whale Watch Kaikoura Ltd v Transport Accident Investigation Commission [1997] 3 NZLR 55 (HC) at 17, upheld on appeal in Whale Watch Kaikoura Ltd v Transport Accident Investigation Commission CA98/97, 12 May 1997.
[13] I therefore prefer to describe the “position” mentioned in s 15 more generally than the way it was described in Higgs. I see it as a reference to the arguable position of an applicant in judicial review proceedings, where that case derives from a justiciable challenge to the exercise (or non-exercise) of a statutory power. If there is no arguable position in justiciable proceedings, there will be no position to preserve. But if there is, orthodox questions of necessity of preservation, and then of the overall justice pending substantive determination should hold sway.
Recent dealings with the Pontoon and the Land
Development of the Pontoon
[14] As indicated above, Ohana acquired its resource consent relating to the Pontoon in 2015. The resource consent was issued by the Environment Court in an appeal which Ohana had brought against the conditions of a resource consent previously issued by the Northland Regional Council. The previous resource consent prohibited long-term mooring alongside, and residential and commercial use of, the Pontoon. The Environment Court’s resource consent permitted those activities, and contemplated Ohana undertaking various works which, as I understand it, developed the Pontoon so that it became capable of securing Mr Claydon’s yacht semi-permanently. However, the Court’s resource consent was conditional on, amongst other things, the Pontoon being available “for public berthage and pedestrian access and use, free of charge, at all times” except when pedestrian access had to be limited for safety reasons, and berth space was not available.
Mr Claydon seeks to connect the Pontoon to infrastructural services
[15] In July 2020, the Council declined a request by Mr Claydon, or one of his companies, for permission to dig a trench on the Land for the purpose of laying an electric cable, phone line and a water pipe, along its length to the Pontoon. In doing so, the Council made assertions about the Land’s legal status with which the Applicants disagree; in particular, that it is not a road.
[16] Undeterred by the Council’s refusal of permission, Mr Claydon arranged in January 2021 for T8 Traffic Control Ltd, a traffic management contractor, to prepare
and provide the Council with a traffic management plan. The plan supported a request to access, and to install ducting through, what it described as “Legal Rd to Wharf”. The Council initially granted this request, but in separate contemporaneous correspondence (dated 15 January 2021) it advised:
Council once again decline your request… and put you on notice that you or your related parties including Ohana Limited do not have Council’s permission to lay water pipe, Chorus broadband conduit and electrical conduit.
[17] Despite this, installation work commenced. In February 2021, the Council attended the site and sought to stop work that Chorus New Zealand Ltd was doing, as Electric Boat’s contractor, to install fibre-optic cable under the surface of Land.
The Applicants’ success in the Disputes Tribunal
[18] In June 2022, Electric Boat succeeded in proceedings that it had brought in the Disputes Tribunal against its installation contractor, Chorus New Zealand Ltd. The Tribunal’s referee expressly refrained from making any “declaration as to the status of the Land”, but found that there was a contract between Electric Boat and Chorus entitling Electric Boat to completion of the installation or, alternatively, to a payment by Chorus of $25,000 as a consequence of breach of that contract.
[19] It appears that Chorus chose to proceed with installing fibre-optic cable along the Land, rather than to pay the $25,000.
Ohana’s contract to install electrical infrastructure
[20] Mr Claydon says that, in August 2022, Ohana entered a contract with NZ Electricity Lines Ltd, providing for the installation of electrical infrastructure on, and along, the Land. NZ Electricity Lines Ltd is an “electricity operator” for the purposes of s 24 of the Electricity Act 1992.
[21]The contract provides, amongst other things, for:
(a)NZ Electricity Lines to “delegate all responsibility for The Works and all powers in respect of The Works” to Ohana;
(b)Ohana to “pay for The Works to be installed and maintained in a safe condition”; and
(c)Ohana to “require ownership of The Works be transferred to another Network Operator (including itself if it obtains Network Operator powers)”; and
(d)Ohana to pay NZ Electricity Lines Ltd by providing its directors, and family and close friends, with “free electric boat hires for life”.
[22] In sum, the contract may be characterised as Ohana purchasing, for the price of free boat hires, what it argues was NZ Electricity Lines’ statutory power to install electrical infrastructure on land amounting to a “road”, on the basis that Ohana itself would install, and might in time come to own, the infrastructure.
The application and installation of electrical infrastructure
[23] Also in August 2022, the Council received an application for approval of the installation of “conduits and cables, with associated cabinets for connections” along the Land (which it described as “the Road”). The application described itself as made “under delegated authority of NZ electricity lines network operator”. It identified Mr Claydon as the primary contact at NZ Electricity Lines Ltd. And it indicated that Levi Anderson-Crewther, of T8 Traffic Control, was (as before) the designer of a traffic management plan which formed part of, or at least accompanied, the application. The application described the work as “horizontal drilling and/or trenching”, to be undertaken “in pedestrian access way (no vehicular traffic)”. A Council employee issued a Works Access Permit approving this application within a few days.
[24] In December 2022, the Minister of Energy and Resources declared by notice in the Gazette that Electric Boat had been granted “electricity operator” status for the purposes of s 24 of the Electricity Act. Mr Claydon wrote to NZ Electricity Lines to share the “wonderful news.” He added:
I never expected to get that approved just for our one connection but the minister must have been in a good mood!
The installation was completed in November and everything was up and running in time for the busy boat hire season so it was a huge help that you were able to sign off on that. Now we can put it into our own name so you don’t have to worry about any future obligations. Of course your lifetime of free electric boating will always still be available if you get the chance to visit Kerikeri!
[25] On 2 August 2023 and 13 February 2024, Council employees undertook physical inspections of the work they understood had been approved, noting that “no remedial work” was required and “no issues” had been found.
The application to undertake surface work
[26] The electrical infrastructure installed in November 2022 includes electrical cabinets at the top of the Land, and at around 10 metres from the riverbank at the bottom (where the Land becomes impassable by car). The cabinets include power sockets. Mr Claydon says Electric Boat owns a plug-in four-wheel-drive, which since installation of these cabinets has normally been driven to the bottom end of the Land, plugged in to the cabinet in that location, and left there to charge.
[27] In September 2024, the Council received a further application for approval of work on the Land. The work was described as:
Remedial work for sunken/eroded & washed out fill/reinstatement/surfacing of previous trenches (repair damage caused by weather events and burst water main). Lay gravel to level surface. cut vegetation, move posts to enable access.
[28] This application was made in Electric Boat’s name. Again, this application was made in association with an application for approval of a traffic management plan (TMP). The TMP sought approval of “maintenance to existing infrastructure – surface work only, no trenching”. It advised “works on pedestrian access way only”. Again, the traffic management aspect identified itself as associated with Mr Anderson-Crewther of T8 Traffic Control, describing him as “TMP Applicant”. A Council contractor issued a Works Access Permit approving this application within a few days.
[29] Mr Claydon says that in the few months leading up to, and including, September 2024, the entrance to the Land at the top became waterlogged and was
substantially eroded by a burst water main, heavy rainstorms, and defective remedial work undertaken by the Council. He says that Electric Boat decided to use its powers as an “electricity operator” to complete “repairs and other works”. This included the installation of the removable bollard placed in the centre of the Land’s entrance, near Kendall and Riverview Roads.
Complaints to the Council
[30] In October 2024, the Council received complaints that Electric Boat’s car was parked at the top of the Land, and (while charging) was creating the impression the Land is privately owned. In March 2025, the Council received a complaint that a gravelled driveway had been installed on the Land, and that a security camera had been installed at its entrance.
The Council’s “unconsented works” letter, and recent actions
[31] In May 2025, the Council’s compliance manager visited the Land and took photographs. This led to the Council’s solicitors writing to Mr Claydon by letter dated 4 June 2025 under the heading “unconsented works on Council owned land”. It was by means of this letter that the Council issued its demand to remove the bollard, security camera, power boxes and gravel described at [3] above.
[32] As also described above, when this demand was not met, the Council removed the bollard and took it away, installing its own posts on either side of the Land’s entrance. Between the posts, the Council fixed a padlocked chain, intending to prevent cars driving on the Land without the Council’s consent.
The Applicants’ contentions
The Applicants’ substantive case
[33] The Applicants’ substantive case rests on the proposition that, under s 24(1) of the Electricity Act, electricity operators such as NZ Electricity Lines may construct, and electricity operators such as Electric Boat may maintain, “works” along any
“road”. At this “interim orders” stage of the proceeding, the Applicants submit there is a serious argument that:
(a)The Land is, in terms of s 315(1) of the Local Government Act, a “road”.
(b)The Utilities Access Act 2010 was enacted to require utility operators (such as NZ Electricity Lines and Electric Boat) and corridor managers (such as the Council) to comply with a national code of practice that regulates access to transport corridors, and to provide for the making and administration of the code.7 The National Code of Practice for Utility Operators’ Access to Transport Corridors has been approved as secondary legislation under s 12 of the Utilities Access Act.
(c)One exception to the entitlement of electricity operators under s 24(1) applies to the construction of such works “otherwise than in accordance with such reasonable conditions as may be prescribed by the local authority (here, the Council) or other body or person having jurisdiction over the road”.8 But the above Code requires such conditions not to “have the effect of preventing, frustrating or unreasonably delaying” the installation or maintenance of the infrastructure.
(d)The electrical infrastructure was therefore lawfully installed along the Land. And, having acquired the electrical infrastructure, Electric Boat is entitled under s 25(5) of the Electricity Act to immediate access for the purpose of undertaking work rendered urgent and necessary by any defective equipment, or other emergency, without giving the Council prior notice of its intention to undertake the work.
(e)Accordingly, the Council breached the Code by installing the chain which currently prevents cars from driving on the Land. Further, the chain breaches s 357(2) of the Local Government Act. That provision
7 Utilities Access Act 2010, s 3.
8 Electricity Act, s 24(2).
prohibits the Council from authorising or suffering any encroachment on a road if the encroachment “would or might interfere with or in any way obstruct… any person so authorised by any Act, to construct, place, maintain… or otherwise deal with any electric wires… on, over, or under the road”, except with prior consents which do not apply.
(f)The Council may not remove the electrical infrastructure, including the security cameras, which meet the definition of “fittings” under the Electricity Act. Electric Boat has acquired an interest in the Land, to the extent of the space occupied by its infrastructure. Removal of the infrastructure would amount to theft, or some other form of interference with Electric Boat’s property rights.
The Applicants’ case as to necessity and overall justice
[34] Further, the Applicants submit that the interim orders sought are necessary to preserve their position deriving from this argument, and that the Court should exercise its discretion to impose the orders. This is because:
(a)The Council has behaved poorly. It has failed to accept the Disputes Tribunal’s ruling requiring Chorus to ignore the Council’s “unlawful objections” and to complete works in the same Land to supply the same Pontoon. And it has refused to participate in an arbitration which Electric Boat has initiated in reliance on the dispute resolution procedures of the Code.
(b)The Land has been in public use, including vehicular use, for more than 90 years. The balance of convenience favours vehicular access for all users of the Land wishing to access the Pontoon and adjacent land and moorings.
(c)The gravel surface of the Land facilitates its purpose of providing access, regardless of use by pedestrians or vehicles.
(d)The electrical infrastructure is required for the health, safety and comfort of Mr Claydon and those family members who reside or may stay with him on his yacht, and for his companies’ businesses. It does not obstruct the Council or the public.
(e)The Council does not itself use the Land. The chain benefits no-one, but causes harm to the Applicants and undermines the Land’s public amenity.
Assessment of Applicants’ substantive case
Definition of “works” under Electricity Act
[35] As stated above (at [33]), s 24(1) provides that electricity operators may (subject to certain exceptions) construct “works” along any “road”. The Applicants’ argument that the electrical infrastructure was installed lawfully under s 24(1) of the Electricity Act depends not only on the proposition that the Land is a road, but the further proposition that the infrastructure amounts to “works” in terms of that Act.
[36]The definition of “works” is complicated.
[37]Under s 2(1) of that Act, unless the context otherwise requires:
works—
(a)means any fittings that are used, or designed or intended for use, in or in connection with the generation, conversion, transformation, or conveyance of electricity; but
(b)does not include any part of an electrical installation.
[38]“Electrical installation” is also defined under s 2(1), as follows:
electrical installation—
(a)means—
(i)in relation to a property with a point of supply, all fittings beyond the point of supply that form part of a system that is used to convey electricity to a point of consumption, or used to generate or store electricity; and
(ii)in relation to a property without a point of supply, all fittings that form part of a system that is used to convey electricity to a point of consumption, or used to generate or store electricity; but
(b)does not include any of the following:
(i)an electrical appliance:
(ii)any fittings that are owned or operated by an electricity generator and that are used, designed, or intended for use in or in association with the generation of electricity, or used to convey electricity from a source of generation to distribution or transmission lines:
(iii)any fittings that are used, designed, or intended for use in or in association with the conversion, transformation, or conveyance of electricity by distribution or transmission lines.
[39]Further, “point of supply” is defined under s 2(3):
In this Act, point of supply, in relation to a property, means the point or points on the boundary of the property at which exclusive fittings enter that property, except that,—
(a)if there are both high voltage lines and a transformer owned by the electricity distributor on the property, the point of supply is the point at which electricity from the transformer enters exclusive fittings; or
(b)if there are non-exclusive fittings on the property, the point of supply is the point at which those fittings become exclusive fittings; or
(c)if the exclusive fittings on the property are owned by a consumer that is a tenant or licensee of the owner or occupier of the property, the point of supply is the point at which those exclusive fittings enter the area leased or licensed by the consumer; or
(d)if there is specific agreement that any other point on the property is the point of supply, the point of supply is the agreed point;—
and, in this definition,—
exclusive fittings means fittings used or intended to be used for the purpose of supplying electricity exclusively to that property
high voltage lines means lines conveying electricity at a voltage of 1 000 volts or more
property—
(a)means the land within the boundary where the electricity is consumed:
(b)includes the whole of the property, if the property is occupied wholly or partially by tenants or licensees of the owner or occupier:
(c)includes the whole of any property that has been subdivided under the Unit Titles Act 2010
specific agreement may be an agreement—
(a)entered into by—
(i)the existing consumer; or
(ii)any person with a greater interest in the property than the consumer (such as the consumer’s landlord); or
(iii)any body corporate under the Unit Titles Act 2010 or the registered owner of the land to which the unit plan relates; and
(b)entered into by the electricity distributor or the electricity retailer; and
(c)entered into before or after the date on which this provision comes into force.
[40] Thus, electrical operators are entitled under s 24(1) to install “works” but not “electrical installations” along roads. In relation to properties with a point of supply, an electrical installation includes all fittings beyond the point of supply. Electrical operators are not entitled under s 24(1) to install fittings on roads beyond the point of supply.
[41] This accords with the apparent purpose of s 24(1): to enable electrical operators to install infrastructure along roads so that the infrastructure may supply electricity to other properties where it may be consumed.
The “works” and the “electrical installation” in the present case
[42] In the present case, the Land has a point of supply. At the very least, the infrastructure includes “exclusive fittings”, in terms of s 2(3), in the form of power sockets in the cabinets at the top and towards the bottom of the Land. These sockets have been used, and plainly were intended to be used, for the purpose of supplying electricity exclusively to the Land. The infrastructure, insofar as it provides the Applicants (and any other person lawfully entitled to be on the Land) an opportunity to plug in an appliance, is therefore an “electrical installation” rather than “works”. And, to this extent, it could not have been authorised under s 24(1).
[43] However, the extent of the unauthorised “electrical installation” on the Land appears likely to go further. That is, albeit the parties did not advance argument on the issue, it appears that, in terms of the definition of “electrical installation” set out in s 2(1), the Pontoon is a property without a point of supply. “Property” in terms of s 2(1) is not specifically defined, but “property” in terms of s 2(3) refers to land. Property such as the Pontoon, which is not land, is therefore at least arguably incapable of having a point of supply for the purpose of the definitions in the Electricity Act. And on that basis, the fittings which form that part of the infrastructure which connects the bottom cabinet to the Pontoon appear “in relation to a property without a point of supply” to be “fittings that form part of a system that is used to convey electricity to a point of consumption”. And therefore those fittings which connect the bottom cabinet to the Pontoon, like the power sockets, amount to an “electrical installation”, and are similarly unauthorised.
Upshot
[44] To the extent there are exclusive fittings on the Land, unauthorised by s 24(1), they are subject to the control of the Council as the Land’s registered owner.
[45] The upshot of these points, deriving from the distinction between “works” and “electrical installation” under the Electricity Act, is therefore that:
(a)the power sockets on the Land were not lawfully authorised, and may be removed at the Council’s election;
(b)the electrical connection to the Pontoon appears not to be lawfully authorised, and in that case could be removed at the Council’s election; and
(c)the balance of the infrastructure appears unlikely to serve any lawful purpose, assuming the Council will not agree to the power sockets and connection to the Pontoon remaining on the Land.
[46] This upshot similarly accords with the apparent purpose of s 24, which does not appear to be intended to facilitate electrical operators’ access to roads so that they
may install electrical infrastructure for the use of consumers on the roads themselves. If this were otherwise, there would be little to prevent activities such as those observed in this case, where the Applicants have arranged for the installation of electrical infrastructure on public land, which they wish to rely upon for the purpose of private consumption. Such activity might appropriately be facilitated, but in my view that should only occur with the consent of the public body charged with oversight of the public land in question.
[47] In summary, the Applicants might have an arguable case that a part of the infrastructure — the part that was installed on the Land so as to convey electricity to the connection points in the top and bottom cabinets — was installed under the lawful authority of s 24. That case would depend on the validity of the Applicants’ implicit claim that NZ Electricity Lines had the power to delegate its status as an electricity operator, to the extent it purported to do so under the contract described at [21] above. I consider that doubtful, since if it did, electricity operators in general might be able effectively to sell their status to any other person who wishes to install electrical works along a road, in that way overcoming the Minister’s discretion to declare persons electricity operators under s 4. It is unnecessary for me to decide that issue. And, of course, that case also depends on the validity of the Applicant’s express claim that the Land is, in terms of s 315(1) of the Local Government Act, a road. But it is similarly unnecessary for me to decide this issue.
[48] This is because I find the Applicants do not have an arguable case that the power sockets in the top and bottom cabinets, or the fittings which connect the Pontoon to the bottom cabinet, were lawfully installed as “works” under s 24(1) of the Electricity Act. This finding is sufficient to inform my findings on the questions of preservation of the Applicants’ position, and the overall justice.
Assessment of necessity of preserving Applicants’ position and the overall justice
[49] The above assessment of the Applicants’ substantive case clarifies the extent of their arguable position in this proceeding. It is, in essence, that the Applicants:
(a)may have an arguable case that they are entitled under s 25(5) of the Electricity Act to immediate access to electrical infrastructure on the
Land which serves no purpose (serving merely to connect the top and bottom cabinets with the wider electricity network); and
(b)may have an arguable case that they are entitled to vehicular access along the Land (another issue I do not consider is necessary to decide); but
(c)do not have an arguable case (or entitlement) to electrical connection of the Pontoon or of Electric Boat’s car.
[50]In respect of the Applicants’ arguable “position”:
(a)I do not consider it necessary that the Applicants should have immediate vehicular access to the infrastructure which serves the connection points on the Land. There has never previously been a need for the infrastructure to receive urgent repair. Even if there were, there is no evidence that urgent repair could not be effected on foot.
(b)It is not clear to me that the Council is obliged to participate in the arbitration that Electric Boat has initiated in reliance on the Code. The outcome of the arbitration may well be binding. But, in light of the significance of the extent of authorised “works” outlined above, a binding arbitral award as to the manner in which the parties are required to conduct themselves vis-à-vis those works is unlikely substantially to contradict the Council’s approach of insisting that the Applicants are not entitled to have electrical power supplied to them on (or from) the Land.
(c)The Disputes Tribunal did not rule on the question whether Chorus was entitled to complete its contract. The Council’s approach in the present case does not contradict any such ruling. The Council appears to me entitled to maintain its stance that the fibre-optic cable was installed unlawfully.
(d)The Applicants say that the Land was used, historically, by vehicles large enough to be prevented access by the Council’s chain. But even if that is so, it is clear that no such vehicles have used the Land (prior to the Applicants’ recent restoration) for many years. This is confirmed by the Applicants’ reference to the Land as providing “pedestrian access” only in their work access applications of August 2022 and September 2024.
(e)As the registered owner of the fee simple, the Council is likely to be able to prevent unauthorised access by such vehicles. In my view, in light of the Land’s narrowness and slope, the Council cannot reasonably be expected to assume responsibility for their safe transit.
(f)The Pontoon was acquired without the benefit of such vehicular access across the Land. In my view, the Applicants could not have acquired the Pontoon in the reasonable expectation of acquiring such access without the Council’s ongoing consent.
[51] On the other hand, the Applicants’ argument that the electrical infrastructure is required for their businesses and their health, safety and comfort overlooks that they are not entitled to electrical connection of the Pontoon or of Electric Boat’s car.
[52] Relatedly to this point, I do not overlook that the Council has consistently sought to oppose the Applicants’ ongoing campaign, conducted over several years, to connect infrastructural services running along the Land to the Pontoon. Council employees and contractors occupying relatively operational roles have granted discrete permits to conduct work, it appears in reliance upon existing relationships with contractors to the Applicants such as T8 Traffic Control. But the Council’s substantive stance was made clear in July 2020. The occasional grant of discrete permits, countermanded by efforts by more senior Council decision-makers to revoke such permits, should have served only to confirm the Applicants’ understanding of that stance.
[53] Further, a significant part of the evidence is Mr Anderson-Crewther’s affidavit. This evidence confirms that, despite the August 2022 and September 2024 applications for approval of works incorporating TMPs in their names, neither he nor his employer (T8 Traffic Control) had undertaken any traffic management planning for such work, or authorised the use of their names. Mr Claydon responds that he understood, given his previous dealings with Mr Anderson-Crewther, that he was authorised to use documentation in these names. I consider that unlikely. But, in any event, it can be inferred that the Applicants adopted a strategy of seeking to rely on the use of their contractors’ names for the purpose of overcoming the Council’s expected reticence.
[54] Given the Council’s stance of several years, a more preferable approach would have involved the Applicants seeking declarations as to their lawful entitlements, rather than adopting imperfect legalistic workarounds (such as the action in the Disputes Tribunal to have Chorus perform its contract, the device of having NZ Electricity Lines install infrastructure including connections on public land, and the making of applications in respect of a “pedestrian access way” to install gravel which is now said to facilitate vehicular access).
[55] For these reasons, upon review of the Applicants’ position (to the extent it is arguable), I do not consider the interim orders sought to be necessary for its preservation. Moreover, for the reasons just advanced, even had the interim orders been necessary, they would not have met the overall justice of the case.
Result
[56]The Applicants’ application for interim orders is declined.
[57] The Council appears entitled to costs and disbursements. If costs cannot be agreed:
(a)the Council may file and serve memorandum no more than five pages in length;
(b)the Applicants may file and serve a memorandum of no more than five pages in length; and
(c)I will determine the issue thereafter on the papers.
Johnstone J
0