Page v Wanganui District Council
[2012] NZCA 324
•24 July 2012
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA49/2012 [2012] NZCA 324 |
| BETWEEN ADRIAN NEIL PAGE |
| AND WANGANUI DISTRICT COUNCIL |
| Hearing: 2 July 2012 |
| Court: Wild, Heath and Keane JJ |
| Counsel: C J Tennet for Appellant |
| Judgment: 24 July 2012 at 12 noon |
JUDGMENT OF THE COURT
A The appeal is dismissed.
BCosts are reserved. Memoranda are to be exchanged as directed in [45] of the reasons of the Court.
____________________________________________________________________
REASONS OF THE COURT
(Given by Heath J)
Introduction
Mr Page was prosecuted by the Wanganui District Council (the Council) for offences under both the Resource Management Act 1991[1] and the Crimes Act 1961.[2] After he elected trial by jury, the Council filed an indictment. On arraignment, Mr Page pleaded not guilty to all counts. The charges alleged that Mr Page had contravened the terms of abatement notices issued by the Council and subsequent enforcement orders made by the Environment Court in respect of land on which he was carrying out earthworks. The Council also alleged he had carried out some works recklessly (on one occasion) and with intent to cause harm (on another).
The trial
[1] Sections 338(1) and 339(1).
[2] Sections 269(2)(a) and 271.
The trial took place in the District Court at Wanganui, before Judge Bouchier and a jury. On 31 October 2011, before the jury was empanelled, the Judge heard an application for discharge under s 347 of the Crimes Act. Mr Page relied on (what he contended were) applications to cancel the abatement notices that he had sent by emails dated 8 December 2008 and 7 January 2009.[3] He also alleged bad faith on the part of the Council’s principal planner, Mr McGhie. Those challenges were rejected and the trial then began.[4]
[3] See also [38] below.
[4]Wanganui District Council v Page DC Wanganui CRI-2010-083-1528, 31 October 2011 at [4], [5], [11], [17], [18] and [19] per Judge Bouchier.
In opening to the jury, Mr Page stated that he had complied with the first abatement notice and the second was both unnecessary and unlawful. Because he had applied to cancel the second abatement notice[5] and had lodged an appeal to the Environment Court, he contended he did not need to comply with the second notice and Court orders. He also told the jury that he would be presenting evidence that a number of Council officials, including the Mayor (Mr Laws) and Mr McGhie, had:[6]
… conspired to pervert the course of justice as officials. They have manipulated certain offences in order to avoid the storm-water separation cost of $80,000 and later, once exposed, unlawfully changed the first abatement notice orally rather than in writing according to law.
[5] See [2] above and [38] below.
[6] Opening address of Mr Page at 3.
Mr McGhie was the first witness. He began to give evidence at 10.43 am on 31 October 2011. After a period of cross-examination, there was a legal discussion, in the absence of the jury. On 2 November 2011, Judge Bouchier ruled that the trial was not an occasion for the Court to question the validity of the abatement notices.[7] That ruling had the effect of preventing Mr Page from defending the prosecution on the basis he had outlined to the jury. As a result, Mr Page pleaded guilty to six of the seven counts in the indictment, and was discharged under s 347 on count 1.[8]
[7]R v Page DC Wanganui CRI-2010-083-1528, 2 November 2011 at [2].
[8] The counts are set out at [23] below.
Subsequently, Mr Page applied to set aside his guilty pleas. The trial Judge dismissed the application, holding that the pleas were “made freely and informedly”, though “with reluctance”.[9] Mr Page has not appealed against that decision. Rather, he seeks to set aside the convictions entered in consequence of his guilty pleas, on the grounds that he was induced to plead guilty as a result of an erroneous legal ruling.[10]
The facts in outline
[9] R v Page DC Wanganui CRI-2010-083-1528, 22 December 2011 at [7].
[10] See R v Le Page [2005] 2 NZLR 845 (CA) at [19].
Mr Page was one of three trustees who, together, were the registered proprietors of a property in Ikitara Road, Wanganui. The property is on a steep hillside, consisting of about 6,700 square metres. Before the property was purchased, it was in a vegetated and undeveloped state, with mature trees and substantial groundcover.
In October 2008, Mr Page undertook earthworks to develop an access track. On 31 October 2008, following complaints from neighbours that silt-laden stormwater had been discharged from the property onto Ikitara Road and geotechnical advice that the slope stability of the property may have been compromised, the Council issued abatement notices to all three trustees. The abatement notice was served on Mr Page on 31 October 2008, by Mr McGhie.
The purpose of the abatement notice was to reduce actual or likely adverse effects on the environment, arising from the earthworks. This included actual or potential subsidence on, and the flow of silt-laden stormwater over, adjoining land. The notice required Mr Page (who was responsible for the works) to “[c]ease cutting, digging and other earthworks activities and vegetation clearance on the property”.
Two reports were provided by Abuild Consulting Engineers Ltd, on 2 and 22 December 2008. They were made available to the Council. There is a dispute about whether they were obtained for Mr Page or the Council. On the view we take, it does not matter which version is correct.
The reports recommended further engineering design of steps required to mitigate risks identified by the Council, including the risks of erosion, land instability and uncontrolled discharge of stormwater.
On 26 December 2008, a neighbour saw Mr Page carrying out further earthworks. Those works continued until 1 January 2009. They included extensive cutting of the hillside, the realignment of the internal access track and the movement of fill within the site. On 2 January 2009, Mr McGhie served a second abatement notice on Mr Page. The notice required Mr Page to desist from undertaking works, in the same terms set out in the first notice.
Nevertheless, Mr McGhie saw Mr Page undertaking similar works, between 2 January 2009 and 12 January 2009. A neighbour also observed that a stormwater channel had been diverted in a manner that caused it to flow through his property.
On 13 January 2009, the Council sought and obtained an interim enforcement order from the Environment Court. The interim order required cessation of earthwork activity and the restoration of the pre-existing stormwater channel away from the neighbours. Although Mr McGhie served this order on Mr Page on the morning of 14 January 2009, Mr Page was observed operating a digger and undertaking prohibited works later that day. During this time, the Wanganui region experienced heavy rain, between 9 am and 4 pm, on 10 February 2009. This caused silt-laden water to discharge from the property, flow across Ikitara Road and onto other neighbouring properties. That material blocked the closest stormwater sump on the road. The blockage was later cleared by contractors engaged by the Council
On 4 April 2009, Mr Page was seen carrying out excavation work. It was alleged that he acknowledged that was being done without engineering design reports. Further work of a similar type was observed on 6, 8 and 9 April 2009.
The Council obtained an extension of the interim enforcement order on 8 April 2009. That second order, as well as a memorandum filed on behalf of the Council in support, were served on Mr Page on 9 April 2009. Mr McGhie visited the property on 17 April 2009. He observed that the new track was about 45 metres long and about 150–200 square metres of the property had been cleared of vegetation. In his view, that work contravened earlier notices and orders.
On 27 April 2009, Mr McGhie observed that a detention pond had been modified. An outlet pipe had been capped and a newly formed diversion channel dug. The effect of this was to divert water from the pond to a neighbouring property. Following this, Mr McGhie issued a notice under s 459 of the Local Government Act 1974, requiring the diversion to be removed and the course of the stormwater drain altered so that it no longer ran onto the adjoining property. That notice was served on Mr Page, requiring him to rectify this by 28 April 2009.
An inspection of the property, on 28 April 2009, found that the s 459 notice had not been complied with. An enforcement officer from the Council then undertook work required to prevent water continuing to flow onto the neighbouring property. In continuing defiance of the notices and orders, Mr Page re-dug the diversion channel, with the consequence that the Council enforcement officer had to return to restore the original position. Even then, on 8 May 2009, Mr Page again went back to the property and re-dug the channel, placing a plastic bag over the overflow pipe.
Because of heavy rain on the evening of 8 May 2009, a fast flowing river of silt-laden water poured onto the adjacent land and into the neighbour’s house and garage. That resulted in thick mud being deposited throughout his section and garage. It was necessary for further restoration work to be undertaken by the Council.
At about 1 pm on 9 May 2009, Mr Page again returned to re-dig the drainage channel to have water flow towards the neighbouring property. Finally, police were called and Mr Page was arrested.
On 22 June 2009, after a hearing in which Mr Page participated, the Environment Court issued an enforcement order requiring Mr Page to arrange for an erosion and sediment control plan, an earthworks plan and a stormwater design plan to be prepared by a professional engineer within 15 working days. Implementation of the plans within a further period of up to 20 working days was also required.
This order prevented Mr Page from undertaking further development work, save for urgent remedial work to which those plans referred. He was also required to obtain a topographical survey of the site, stability assessment of proposed building sites and a scheme development plan, all of which were to be submitted to the Council before further development work was undertaken. Nevertheless, in breach of those requirements, Mr Page continued to undertake earthworks on the property between 7 and 14 August 2009.
On 17 August 2009, a search warrant was executed so that officers could enter the property and ascertain whether any offence had been committed. It was ascertained that earthworks undertaken by Mr Page did not comply with the enforcement order.[11]
The charges
[11]Initially, there was a challenge to the validity of the search warrant. In rulings given on 17 June 2011 and 21 September 2011, its validity was confirmed and the evidence gathered from its execution was ruled admissible: see Wanganui District Council v Page DC Wanganui CRI-2010-083-1528, 17 June 2011 at [8] per Judge Cameron and R v Page DC Wanganui CRI-2009-083-1507, 21 September 2011 at [19] per Judge P A Moran. No appeal was brought against either decision.
There were seven counts in the indictment:
(a)Count 1 alleged contravention of the first abatement notice, between 26 December 2008 and 1 January 2009.
(b)Count 2 alleged contravention of the second abatement notice, between 2 and 12 January 2009.
(c)Count 3 alleged contravention of the interim enforcement order, between 13 January and 8 April 2009.
(d)Count 4 alleged that Mr Page “recklessly, and without claim of right, damaged property in which he had no interest”, by causing stormwater to be diverted onto the neighbouring property on 10 February 2009.[12]
(e)Count 5 alleged contravention of the interim enforcement order, between 9 April and 2 May 2009.
(f)Count 6 alleged diversion of stormwater onto the neighbouring property “without claim of right and with intent to cause loss or harm to the occupants” of that property.[13]
(g)Count 7 alleged contravention of the enforcement order, between 7 and 14 August 2009.
The grounds of appeal
[12] Crimes Act 1961, s 269(2)(a).
[13] Crimes Act 1961, s 271.
Although Mr Page represented himself in the District Court, Mr Tennet appeared as his counsel in this Court. Mr Tennet submitted that the Judge was wrong to prevent Mr Page from challenging the abatement notices and the good faith of Council witnesses.
Mr Tennet put to us that “the defence case came down to whether the Appellant had contravened the original Abatement Notice and Interim Enforcement Orders (based as they were on the Abatement Notices)” and “also whether he had ‘claim of right’ to do what he did and therefore [did not] commit a wilful damage” for the purposes of the two Crimes Act charges.
To support his submission that the Judge erred in refusing to allow a challenge to the abatement notices and the Court orders, Mr Tennet referred to cases in which challenges to by-laws had been permitted: notably, Boddington v British Transport Police[14] and Brady v Northland Regional Council.[15]
[14]Boddington v British Transport Police [1999] 2 AC 143 (HL) at 152 per Lord Irvine of Lairg LC and 173 per Lord Steyn.
[15] Brady vNorthland Regional Council [2008] NZAR 505 (HC) per Elias J.
The fact that Mr Page was alleging bad faith in respect of the issue of the Council notice, misuse of a report from Abuild Consultancy Engineers Ltd and the effect of the cancellation meant, in Mr Tennet’s submission, that the Judge ought to have allowed evidence to be elicited from the Council’s witnesses or adduced by Mr Page on those topics. Mr Tennet contended that it was for the jury to consider Mr Page’s defences, based on legal directions from the Judge.
On the two charges under the Crimes Act 1961, the defence of “claim of right” was raised. Mr Tennet submitted, in reliance on R v Hayes,[16] that a qualifying belief that an act is lawful did not need to be based on reasonable grounds.
Appeals against convictions based on guilty pleas
[16] R v Hayes [2008] NZSC 3, [2008] 2 NZLR 321 at [35].
In order for Mr Page’s appeal to succeed, he must establish that his guilty pleas were entered on the basis of a legal ruling that has been found to be wrong. The relevant test is set out in R v Le Page.[17] Delivering the judgment of the Court, Panckhurst J said:
[19] The third category is where it can be shown that the plea was induced by a ruling which embodied a wrong decision on a question of law. That description is of course apt to describe the situation in Mohammed [(CA415/96, 13 November 1996)], which type of case may also be seen as a subset of the third category. Examples are where a trial Judge wrongly concludes that there is no evidence sufficient to justify a defence being left to the jury (say provocation or self-defence) leaving the accused with no option but to plead guilty. In such cases, which will admittedly be rare, this Court would intervene to cure a miscarriage of justice which plainly flowed from the erroneous ruling. The present appellant contends that his pleas were entered in the face of an erroneous legal ruling.
[17] R v Le Page [2005] 2 NZLR 845 (CA).
Mr Page was discharged on the first count in the indictment, which alleged contravention of the original abatement notice. There is no basis on which that discharge can be revisited.[18] Nothing further need be said on that issue.
[18] R v Holt [2008] NZCA 388, [2009] 1 NZLR 325 (CA).
Was there an incorrect ruling, on the basis of which guilty pleas were entered? In our view, for reasons set out below, there was not.
The second abatement notice
Count 2 deals with alleged contravention of the second abatement notice. In our view, Mr Page could not, in the circumstances, challenge the validity of that notice. The authorities relied on by Mr Tennet in challenging the notice involve by-laws. The by-laws are subordinate legislation that may be challenged on the basis of unreasonableness.[19]
[19]For example, Boddington v British Transport Police [1999] 2 AC 143 (HL) and Brady v Northland Regional Council [2008] NZAR 505 (HC). As to the bases on which by-laws may be challenged, see also JB International Ltd v Auckland City Council [2006] NZRMA 401 (HC) at [50].
The position with regard to abatement notices is different. In the absence of exercise of a right of appeal to the Environment Court, a person must comply with the terms of an abatement notice. Even if a right of appeal were exercised, a stay is required from the Environment Court to immunise a person from civil and criminal proceedings, if he or she were not to comply with it.
Those propositions come from ss 323(1)(a) and 325 of the Resource Management Act:
323 Compliance with abatement notice
(1) Subject to the rights of appeal in section 325, a person on whom an abatement notice is served shall—
(a)comply with the notice within the period specified in the notice; and
...
325Appeals
(1) Any person on whom an abatement notice is served may appeal to the Environment Court in accordance with subsection (2) against the whole or any part of the notice.
...
(3) An appeal against an abatement notice does not operate as a stay of the notice unless—
(a)the abatement notice is within the scope of section 322(1)(a)(ii) and the person against whom the notice is served is complying with this Act, any regulation, a rule in a plan, or a resource consent; or
(b)a stay is granted by an Environment Judge under subsection (3D).
(3A) Any person who appeals under subsection (1) may also apply to an Environment Judge for a stay of the abatement notice pending the Environment Court’s decision on the appeal
(3B)An application for a stay must be in the prescribed form and must—
(a)state the reasons why the person considers it is unreasonable for the person to comply with the abatement notice; and
(b)state the likely effect on the environment if the stay is granted; and
(c)be lodged with the Environment Court and served immediately on the local authority or consent authority whose abatement notice is appealed against.
(3C) Where a person applies for a stay under subsection (3A), an Environment Judge must consider the application for a stay as soon as practicable after the application has been lodged.
(3D)Before granting a stay, an Environment Judge must consider—
(a)what the likely effect of granting a stay would be on the environment; and
(b)whether it is unreasonable for the person to comply with the abatement notice pending the decision on the appeal; and
(c)whether to hear—
(i)the applicant:
(ii)the local authority or consent authority whose abatement notice is appealed against; and
(d)such other matters as the Judge thinks fit.
(3E) An Environment Judge may grant or refuse a stay and may impose any terms and conditions the Judge thinks fit.
(3F) Any person to whom a stay is granted under subsection (3E) must serve a copy of it on the local authority or consent authority whose abatement notice is appealed against; and no such stay has legal effect until so served.
(3G) Any stay granted under subsection (3E) remains in force until an order is made otherwise by the Environment Court.
…
Mr Tennet argued that the right to apply to cancel an abatement notice, under s 325A, meant that once an application to cancel was made it was unnecessary to comply with the obligations set out in the notice. Section 325A provides:
325A Cancellation of abatement notice
...
(2) Where a relevant authority considers that an abatement notice is no longer required, the relevant authority may cancel the abatement notice at any time.
...
(4) Any person who is directly affected by an abatement notice may apply in writing to the relevant authority to change or cancel the abatement notice.
(5) The relevant authority shall, as soon as practicable, consider the application having regard to the purpose for which the abatement notice was given, the effect of a change or cancellation on that purpose, and any other matter the relevant authority thinks fit; and the relevant authority may confirm, change, or cancel the abatement notice.
...
(7) Where the relevant authority, after considering an application made under subsection (4) by a person who is directly affected by an abatement notice, confirms that abatement notice or changes it in a way other than that sought by that person, that person may appeal to the Environment Court in accordance with section 325(2) against the whole or any part of the abatement notice … .
Section 325A is a mechanism that enables a person to ask the Council to cancel the operation of an abatement notice. Section 325A(5) provides insight into its administrative purpose and limited scope.
As a matter of statutory construction, the absence of any reference to s 325A in s 323(1)(a) of the Act suggests that Parliament envisaged that abatement notices continue to have lawful effect until such time as a judicial order is made to stay compliance. That is emphasised by the prescriptive terms of s 325, particularly the information to be provided to support a stay[20] and the factors that an Environment Judge must take into account in determining whether to make an order.[21]
[20] Resource Management Act 1991, s 325(3B).
[21] At s 325(3D).
It is untenable to suggest that sending an email purporting to invoke s 325A[22] is sufficient to remove the obligation to comply with the notice, when lodging an appeal with the Environment Court would not bring about the same outcome. Parliament clearly did not intend such a result.
[22] See [2] above.
Although the Judge did not refer to s 323(1)(a), her decision was consistent with its terms. There is no basis on which Mr Page can contend that he pleaded guilty to count 2 on the basis of an incorrect legal ruling.
The enforcement orders
Counts 3, 5 and 7 allege contravention of interim and final enforcement orders made by the Environment Court.
In our view, it cannot be argued that a person against whom an order of a Court of competent jurisdiction is directed has the right to ignore it. Mr Page was bound to comply with the Environment Court’s orders, in the absence of a stay of them. There is no basis on which Mr Page can assert that he pleaded guilty to those three counts on the basis of a ruling made on an incorrect legal foundation.
The Crimes Act charges
That leaves counts 4 and 6, the two charges brought under the Crimes Act 1961. Mr Page’s defence to each rested on a “claim of right”. While such a claim does not need to be based on reasonable grounds,[23] the reasonableness of any particular belief is relevant to whether a belief was actually and genuinely held.[24]
[23] R v Hayes, above n 16, at [35].
[24] R v Hayes at [58]
At the time of the events giving rise to counts 4 and 6, Mr Page was acting in contravention of an interim enforcement order, made by the Environment Court. Thus, any “claim of right” had to be premised on the proposition that Mr Page had a genuine belief that he was entitled to ignore the Environment Court’s orders. The argument only has to be stated to be rejected outright. No genuine belief could be based on such grounds. Inevitably, any defence based on such grounds would have been withdrawn from the jury’s consideration.
Result
The appeal is dismissed.
Mr Rowe, for the Council, asked us to reserve costs in the event that the appeal was dismissed. In the circumstances, the Council may well be able to justify an award of costs in its favour.[25] While costs in the District Court are for that Court to determine, we can deal with costs on the appeal.[26] We reserve those costs, on the following basis:
[25] Costs in Criminal Cases Act 1967, s 4(1).
[26] See s 8.
(a)Any application for costs, together with any supporting affidavits and/or memoranda, shall be filed and served on or before 3 August 2012.
(b)A notice of opposition, together with any affidavits and/or memoranda shall be filed and served on or before 19 August 2012.
We will determine any application on the papers.
Solicitors:
Armstrong Barton, Wanganui for Respondent
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