Page v Wanganui District Council - [2012] NZCA 324

IN THE COURT OF APPEAL OF NEW ZEALAND

CA49/2012
[2012] NZCA 324

BETWEEN ADRIAN NEIL PAGE
Appellant

AND WANGANUI DISTRICT COUNCIL
Respondent

Hearing: 2 July 2012

Court: Wild, Heath and Keane JJ

Counsel: C J Tennet for Appellant
L C Rowe for Respondent

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.…

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

Case: [2012] NZCA 324
Decision Date: 24 July 2012

CaseChat Overview and Summary

Adrian Neil Page appealed against his convictions, arguing that his guilty pleas were induced by an erroneous legal ruling. The Court of Appeal found that there was no such error. The abatement notices issued by the Wanganui District Council were valid and enforceable, and could not be challenged in the District Court. The appellant was bound to comply with them. The appellant had also failed to challenge the validity of the enforcement orders issued by the Environment Court. There was no basis for his argument that he pleaded guilty based on an incorrect legal ruling. The appeal was dismissed. Costs were reserved pending further submissions.

Orders