Schmuck v Director-General, Department of Conservation
[2015] NZHC 422
•10 March 2015
IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
CIV 2014-488-171 [2015] NZHC 422
BETWEEN DOUGLAS CRAIG SCHMUCK
Plaintiff
AND
DIRECTOR-GENERAL, DEPARTMENT OF CONSERVATION
First Defendant
MINISTER OF CONSERVATION Second Defendant
FAR NORTH DISTRICT COUNCIL Third Defendant
Hearing: 3 March 2015 Counsel:
J A Browne and C H Prendergast for Plaintiff
J S Andrew for First and Second RespondentsNo appearance by or on behalf of Third Defendant (abiding decision of Court)
Judgment:
10 March 2015
JUDGMENT OF HEATH J
This judgment was delivered by me on 10 March 2014 at 4.00pm pursuant to
Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar
Solicitors:
Henderson Reeves Connell Rishworth, Whangarei
Crown Law, Wellington
Copy to:Law North Ltd, Kerikeri (G Day)
SCHMUCK v DIRECTOR-GENERAL, DEPARTMENT OF CONSERVATION [2015] NZHC 422 [10 March
2015]
CONTENTS
The application [1] Background [6] Analysis [16] Result [31]
The application
[1] Section 48 of the Reserves Act 1977 (the Act)1 allows the administering body of a reserve to which the Act applies, with the consent of the Minister of Conservation (the Minister), to grant rights of way and easements over any part of a reserve. Section 48(1)(a)–(e) identifies specific types of rights of way and easements that may be granted by the administering body. Section 48(1)(f) provides for four further situations. One of those is expressed in a more general drafting style: “any other purpose connected with” land not forming part of the reserve. 2
[2] Mr Douglas Schmuck and his father own the land from which a boatyard (known as “Doug’s Opua Boatyard”), has operated for many years, in the Bay of Islands. 3 Mr Schmuck seeks judicial review of a decision made by the Minister not
to grant consent to particular easements that he sought, under s 48(1)(f) of the Act.4
Notwithstanding the decision of the administering body (which favoured Mr Schmuck), the Minister determined that there was no power to grant easements of the nature sought.
[3] At the request of the parties, I directed that a preliminary question be argued before the substantive judicial review proceeding. The question was formulated as follows:
Whether section 48(1)(f) of the Reserves Act 1977 allows easements to be granted over a local purpose (esplanade) reserve for the following activities authorised by resource consents granted under the Resource Management Act 1991:
1 Set out at para [20] below.
2 See para [24] below.
3 Mr Douglas Schmuck has brought the present application. As nothing turns on the point, I refer only to him in this judgment. He is the principal operator of the boatyard.
4 The nature of the easements are set out in the question I have to determine: at para [3] below.
(a) The construction and maintenance of a concrete wash down area with associated discharge containment system to be located above a line 10m above mean high water spring.
(b) The washing down of boats prior to the boats being moved to the boatyard for repairs or maintenance or being returned to the water.
(c) The erection of screens or the implementation of similar measures to contain all contaminants within the wash down perimeter.
(d) The repair or maintenance of any vessel which by virtue of its length or configuration is unable to be moved so that it is entirely within the adjacent boatyard property.
(e) Access to, and repair and maintenance of, any vessel standing on the southern slipway tramrail and/or the turnable.
(f) The discharge of contaminants to air, soil, and water in accordance with any relevant resource consent.
(g) The emission of noise in accordance with any relevant resource consent.
[4] That order was made after Ms Andrew, for the Minister and the Director- General of the Department of Conservation (the Director-General), assured me that, if I were to find that the Minister could grant easements of this type, an order could be made by consent remitting Mr Schmuck’s application for reconsideration. Accordingly, subject to any appeals on the preliminary question, any decision on the interpretation point will be dispositive of this proceeding.5
[5] The preliminary question was argued before me on 3 March 2015. After oral submissions had been completed, I took a view of the land in issue.6 Ms Prendergast and Ms Andrew, counsel for Mr Schmuck and the Minister/Director-General respectively, were present. I advised counsel that I would not take into account any explanations given by Mr Schmuck at the scene and would refer expressly in this judgment to any factors that were of material significance arising out of the visit.7 In
short, the view was taken for orientation purposes only.
5 Schmuck v Department of Conservations and Ors HC Whangarei CIV-2014-488-171 (Minute
(No. 2)), 9 December 2014 at para [5].
6 Evidence Act 2006, s 82.
7 Schmuck v Director-General of Department of Conservation HC Whangarei CIV-2014-488-171,
3 March 2015 (Minute (No. 4), at para [3].
Background
[6] At the time Mr Schmuck and his father purchased the boatyard land in 1994, what is now a reserve was an unformed Crown Grant Road. Around August 1995, the Minister and the Council reached an agreement to stop a portion of the unformed Crown Grant Road, and to vest it in the Council as an esplanade reserve. The road was stopped in 1998 and was vested in the Far North District Council (the Council)
as a Local Purpose (Esplanade) Reserve, (the Esplanade Reserve).8 The Council is
the “administering body”, for the purposes of s 48(1) of the Act.
[7] My summary of the background to the present proceeding is necessarily brief and incomplete. As Mr Schmuck deposes, the “full background of the dispute is very complicated and has gone on for years”. I would characterise it as tortuous. From the late 1990s to the present time, it has been littered with various applications for resource consents, hearings before the Council and the Environment Court, and applications for easements over the reserve land. At one stage, there was a specific clause in a Bill before Parliament designed to resolve the issue, but that was removed at select committee stage.
[8] After obtaining various resource consents in 2002,9 Mr Schmuck applied for easements over the Esplanade Reserve to complement activities permitted under the resource consents. Eventually, on 26 August 2013, the Conservator Northland (the Conservator), acting under delegated authority from the Minister, granted some consents but declined others.10 The easements to which the Minister consented included construction and maintenance of a commercial marine slipway, establishment of a turntable and its integral parts, the movement of boats along the slipway between the adjacent boatyard property and the water, a stormwater and
conduit drain and the installation of a concrete dinghy ramp.
8 The road was stopped and Esplanade Reserve created under s 345 of the Local Government Act 1974. Section 345(3) of that Act provides that where “any road or any part of a road along the mark of mean high water springs of the sea, … [on stopping of the road becomes] vested in the council as an esplanade reserve … for the purposes specified in s 229 of the Resource Management Act 1991”. The size of the reserve is the lesser of the two alternatives set out in s 345(3).
9 See the summary set out in Schmuck v Far North District Council [2014] NZEnvC 101, at paras
[8]–[21] (Judge Kirkpatrick).
10 The easements in issue are set out in the preliminary question: see para [2] above.
[9] The Esplanade Reserve is located between the boatyard and the foreshore. A public walkway, from Opua to Paihia, runs along it. There is a sign warning members of the public that a slipway is present. The slipway from the boatyard intersects with the pathway but does not impede pedestrian access.
[10] The slipway has been in its current location since 1996. At that time, relevant planning consents allowed Mr Schmuck to use the slipway only to move boats to and from the sea. On 31 January 2002, the Environment Court made a number of orders by consent on the application of Mr Schmuck. Both the Director-General and the Council were parties to the appeals, in which the consent orders were made. 11
[11] Among other things, the resource consent permitted Mr Schmuck to place, use and maintain: a wharf; wharf abutment and walking track security lighting; discharge piping; access pontoon; a slipway and a dinghy ramp. Further, he was entitled to carry out maintenance dredging of seabed material at the slipyard. Those activities were permitted for purposes associated with the boatyard.
[12] Since January 2002, Mr Schmuck has had the benefit of resource consents to enable boats to be washed down, repaired and maintained while on the slipway. Those consents also permit the discharge of contaminants, and provide for a discharge containment system. As is clear from the way in which the preliminary question has been drafted,12 all of the activities for which Mr Schmuck seeks easements are authorised by existing resource consents.
[13] On 19 March 2014, the Environment Court (in Schmuck v Far North District Council) heard an application by Mr Schmuck for declarations “about the existence, terms and validity of certain resource consents relating to his boatyard, slipway and ancillary activities” at Opua.13 The application was directed to consents granted by the Environment Court’s order of 31 January 2002.14 In the course of a judgment given on 2 May 2014, Judge Kirkpatrick observed that “resolution of these issues in
these proceedings is made difficult by the status of the esplanade reserve under the
11 Doug’s Opua Boatyard v Northland Regional Council RMA381/01, 31 January 2002 (Judge
Newhook).
12 See para [2] above.
13 Schmuck v Far North District Council [2014] NZEnvC 101 at para [1].
Reserves Act 1977 and [the Environment Court’s] lack of jurisdiction to address issues arising under the Reserves Act”.15
[14] In explaining the circumstances in which the applications came before him, Judge Kirkpatrick said:
[19] The [Council] then sought the [Conservator’s] consent to the granting of such easements, by letter dated 20 March 2006. By letter dated
27 August 2013, the [Conservator] declined consent to certain easements, and granted consent to certain others. Essentially, the basis for declining
consent to certain easements was that they related to repair and maintenance activities rather than access between the boatyard and the coastal marine area: the [Conservator] consented to easements for the latter purpose and
refused consent for those for the former purpose. I have read both the
[Conservator’s] decision and also the report from the Statutory Land
Management Adviser to the Department of Conservation on which that decision is based. I note that the decision states that the easements which were declined are not capable of being authorised under the provisions of s48 of the Reserves Act 1977, and this jurisdictional reason is discussed in some detail in the Statutory Land Management Advisor's report to the [Conservator]. Within the confines of my own jurisdiction, I observe that a previous [Conservator] had, some 11 years before, signed the memorandum of the parties in support of the Consent Order dated 31 January 2002. By that settlement of his appeal, the Director-General of Conservation consented to the grant of the resource consents for certain repair and maintenance activities to occur on the esplanade reserve within the limits set by the amended conditions of consent. I note that the report of the Statutory Land Management Advisor acknowledges this previous action and simply states that the Minister’s exercise of discretion under the Reserves Act is not fettered by the RMA process. I lack the jurisdiction to make any comment on that reasoning.
…
[48] Being careful not to stray into any adjudication of issues under the Reserves Act which will likely arise if this argument is pursued before another forum with competent jurisdiction, I simply note that the refusal of consent by the [Minister] to a decision by the [Council] to grant certain easements under s48 of the Reserves Act may not be the same as an absence of consent from the [Council] as the landowner of the esplanade reserve. While one can appreciate why a person in the Applicant's position would seek formal tenure by way of an easement to protect his interests in the slipway and any ability to use it for boatyard purposes, it is not clear to me (at least to the extent that I need to consider the point for present purposes) that such use requires an easement as opposed to some other form of licence, concession, permit or other right or authority (as those various types of permission are identified in the Reserves Act). But I can only refer to that issue and cannot take it further.
(emphasis added)
[15] Notwithstanding the resource consents granted by the Court (with the concurrence of the Council and the Director-General) and the Council’s willingness to grant the easements, the Minister decided (without giving detailed reasons in a decision letter) that easements for the washing down, repair or maintenance of boats, discharge of contaminants and condition of noise could not be granted because “it [was] beyond the legal authority of the Minister, … [and] it would be inappropriate
for consent be given in relation to these easements”.16
Analysis
[16] The Long Title to the Act refers, among other things, to the establishment of public reserves, their continued management for the preservation and protection of the natural environment, and the need to make provision for public access to the coastline and the countryside. Those general purposes are reinforced by s 3(1) of the Act which refers (relevantly for present purposes) to the need to preserve and manage reserve land for the benefit and enjoyment of the public.17
[17] Section 229 of the Resource Management Act 1991 sets out the purposes of esplanade reserves and esplanade strips. Its reference to the importance of public access to (or along) any sea, and public recreational use of the Esplanade Reserve (and adjacent sea)18 is relevant to the interpretation of s 48(1). However, while I agree that the extent of the Minister’s power to consent to an easement under s 48(1) must be considered in the context of those purposes, care must be taken to ensure that the Minister’s power to consent (on the one hand) is not conflated with his or her discretion (after taking into account all relevant factors) to grant or refuse an
application. As Mr Browne, for Mr Schmuck, aptly put it: it is inappropriate to
“dabble in the merits” when considering a question of jurisdiction.
[18] Section 48(1) of the Act falls to be interpreted by reference to its text and purpose.19 The nature of the interpretation exercise was described by Tipping J,
16 As to those easements to which the Minister consented under s 48(1)(f), see para [8] above.
17 Reserves Act 1977, s 3(1)(a)(i) and (iv).
18 Resource Management Act 1991, s 229(b) and (c).
19 Interpretation Act 1999, s 5(1).
delivering the judgment of the Supreme Court, in Commerce Commission v Fonterra
Co-operative Group Ltd:20
[22] It is necessary to bear in mind that s 5 of the Interpretation Act 1999 makes text and purpose the key drivers of statutory interpretation. The meaning of an enactment must be ascertained from its text and in the light of its purpose. Even if the meaning of the text may appear plain in isolation of purpose, that meaning should always be cross-checked against purpose in order to observe the dual requirements of s 5. In determining purpose the Court must obviously have regard to both the immediate and the general legislative context. Of relevance too may be the social, commercial or other objective of the enactment.
(footnotes omitted)
[19] The Supreme Court added that where “the meaning is not clear on the face of the legislation, the Court will regard context and purpose as essential guides to meaning”.21
[20] Section 48(1) of the Act states:
48 Grants of rights of way and other easements
(1) Subject to subsection (2) of this section and to the Resource Management Act 1991, in the case of reserves vested in an administering body, the administering body, with the consent of the Minister and on such conditions as the Minister thinks fit, may grant rights of way and other easements over any part of the reserve for—
(a) Any public purpose; or
(b) Providing access to any area included in an agreement, lease, or licence granted under the powers conferred by this Act; or
(c) The distribution or transmission by pipeline of natural or manufactured gas, petroleum, biofuel, or geothermal energy; or
(d) An electrical installation or work, as defined in section 2 of the Electricity Act 1992; or
(e) The provision of water systems; or
20 Commerce Commission v Fonterra Co-Operative Group Ltd [2007] 3 NZLR 767 (SC), at para
[22].
21 Ibid, at para [24].
(f) Providing or facilitating access or the supply of water to or the drainage of any other land not forming part of the reserve or for any other purpose connected with any such land.
….
[21] Section 48(2) and (3) specify the circumstances in which public consultation must take place when an application for a right of way or easement is made under s 48(1). Plainly, Parliament intended that there would be public input into decision- making in respect of any application for a right of way or easement that might adversely (and materially) affect public use of the reserve. So, the presumptive position is that the Council (as the administering body) is required to give public notice of the application and to give full consideration to all objections and
submissions received in respect of it.22 Nevertheless, if the reserve were not likely to
be materially altered or permanently damaged, and the rights of the public in respect of the reserve are not likely to be permanently affected, the requirement for public notice does not apply.23 Those provisions demonstrate Parliament’s acknowledgement that some types of rights of way or easements that fall within s 48(1)(a)–(f) of the Act will not materially affect rights of members of the public in respect of the reserve.
[22] Ms Andrews argued that s 48(1)(f) limited the power to grant easements to those required to convey substances over the reserve land. She submitted that an interpretation more broad than that would be inconsistent with Parliament’s narrow prescription (in s 41(1)(a)–(e)) of certain matters for which easements may be granted. With respect, I disagree with that submission. I now explain why.
[23] Section 48(1) is structured to identify specific activities that may justify the grant of a right of way or easement over any part of a reserve. Some of the purposes set out in s 48(1)(a)–(e) are general, rather than specific in nature; the best example being the reference to “any public purpose” in s 48(1)(a). Other provisions, while identifying specific reasons why a right of way or easement might be required, leave the mechanics of drawing the easement and defining the nature and extent of it to the
administering authority and the Minister.
22 Ibid, s 48(1) and (2).
23 Ibid, s 48(3).
[24] Section 48(1)(f) addresses both particular reasons for requiring a right of way or easement and, through the adoption of an orthodox drafting technique, the possibility of rights of way or easements being required for some other purpose connected with land that does not form part of the reserve. It deals with four distinct situations, the common denominator of each being the need for a connection between the reserve land and land not forming part of the reserve:
(a) The provision or facilitation of access to other land not forming part of the reserve.
(b) The supply of water to any land not forming part of the reserve. (c) The drainage of any land not forming part of the reserve.
(d)Any other purpose connected with land not forming part of the reserve.
[25] I reiterate the important distinction between the jurisdictional power to grant a right of way or easement and the discretion whether or not to allow one to be created. From a jurisdictional perspective, the focus is on the degree of connection between the dominant tenement (the land over which the easement extends)24 and the servient tenement (the land owned by the grantor of the right of way or easement).25 In this case, there is a physical connection. The Esplanade Reserve and the boatyard are contiguous parcels of land. That, in my view, is a sufficient connection, for the purposes of s 48(1)(f).
[26] In contending for a more narrow interpretation,26 Ms Andrew placed emphasis on the maxim of interpretation requiring statutory provisions to be interpreted ejusdem generis; namely, later general words should be interpreted in the context of any specific words that precede them. However, as Ms Andrew acknowledged, the ejusdem generis maxim is not a strict rule of statutory
interpretation; rather, it is used as one of those factors that goes into the mix in
24 The boatyard land.
25 The Esplanade Reserve.
26 See para [22] above.
determining how particular words should be interpreted.27 The ejusdem generis maxim, together with like “rules” are now regarded as no more than “valuable guides”, with more attention now being paid to the particular provision, its context and its purpose; “rigid rules can obscure rather than illuminate” Parliamentary intent.28 I accept the submission of Mr Browne, for Mr Schmuck, that s 5(1) of the Interpretation Act must take precedence and that the ejusdem generis principle is, to a large extent, subsumed within the text and purpose analysis.29
[27] I do not consider that the fact that the easement may require some form of structure to pass over the reserve land derogates from the power (as opposed to the discretion) to grant an easement. Some of the sub-sections that authorise easements include structures such as pipes for the purpose of conveying gas, petroleum, biofuel
or geothermal energy over the reserve30 and the provision of water systems.31 The
creation of a structure is not an insurmountable impediment to the grant of an easement. Having said that, the nature and extent of the structure will be relevant to the discretion whether an easement should be granted; in the sense of considering what its likely effect will be on members of the public using the reserve.
[28] Nor do I consider that the easements would grant Mr Schmuck illegitimate occupation rights on the reserve. I agree with Mr Browne’s submission that, while a limited amount of occupation will occur, that is permissible. What cannot be granted is a right to joint or exclusive possession. That is not sought in this case. The proposed easements (all of which are permitted by existing resource consents) would not give rise to a degree of occupation that would remove the ability to grant an
easement.32
27 Burrows and Carter, Statute Law in New Zealand (LexisNexis Wellington, 4th ed 2009) at 213–
214.
28 Ibid, at 213.
29 An example of the diminution in influence of the ejusdem generis maxim, in a case decided nearly 50 years ago, is R v Coneybear [1966] NZLR 52 (CA) at 55 and 56 (McCarthy J).
30 Reserves Act 1977, s 48(1)(c), set out at para [20] above.
31 Ibid, s 48(1)(e), set out at para [20] above.
32 Generally, see Hinde McMorland and Sim Land Law in New Zealand (LexisNexis looseleaf ed) at para 16.006. In that part of that text, Professor McMorland indicated that “case law is either approaching or has reached the point where, whatever the semantics, easements which effectively exclude the servient owner from the use and enjoyment of land are recognised”.
[29] Further, I do not accept Ms Andrews’ submission that emissions and discharges of contaminants should not be permitted. A difficulty with that submission is that there are already necessary resource consents for those activities to be carried out. While I accept that the administering body and the Minister must turn their minds independently to the question whether the easements are capable of being and should be granted under the Act, it is (in the absence of an inability to draft the easement in a sufficiently precise manner) difficult to contend that an easement cannot be granted to formalise a resource consent; particularly one issued
with the consent of the Council and the Director-General.33
[30] I hold that there is jurisdiction for the Minister to consent to the easements sought. Whether it is appropriate to do so is a matter of discretion which will need to take into account wider concerns relevant to public rights of access, enjoyment of reserve land, and public health concerns. Measures taken to prevent the discharge of contaminants is a good example of the latter.
Result
[31] For those reasons, I answer the question posed34 in the affirmative. In summary, s 48(1)(f) of the Act allows easements to be granted over the Esplanade Reserve for the activities listed in the question that have already been authorised by resource consents granted under the Resource Management Act 1991.
[32] By consent,35 I quash the decision not to consent to the easements sought and make an order that the decision whether to consent to such easements be remitted back to the Minister for reconsideration, in light of observations made in this judgment. That order has the effect of determining this proceeding on a final basis.
[33] Counsel agreed that costs should be on a category 2 basis. I award costs in favour of Mr Schmuck on a 2B basis, together with reasonable disbursements, both
to be fixed by the Registrar.
33 Doug’s Opua Boatyard v Northland Regional Council RMA381/01, 31 January 2002, as confirmed in Schmuck v Far North District Council [2014] NZEnvC 101, at paras [19], [48] and [96]. See also para [13] above.
34 Set out in para [2] above.
35 See para [4] above.
[34] I thank counsel for their assistance.
P R Heath J
Delivered at 4.00pm on 10 March 2015
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