Spencer v Dunedin City Council

[2023] NZHC 410

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CIV-2022-412-82

[2023] NZHC 410

BETWEEN

MARK SPENCER and MARRAFIN TRUSTEE LIMITED

Plaintiff

AND

DUNEDIN CITY COUNCIL

Defendant

Hearing:

2 March 2023

Appearances:

G A Paine for Plaintiff

M R Garbett for Defendant

Judgment:

7 March 2023

JUDGMENT OF DUNNINGHAM J

This judgment was delivered by me on 7 March 2023 at 9.30 am, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

SPENCER v DUNEDIN CITY COUNCIL [2023] NZHC 410 [7 March 2023]

Introduction

[1]    On 14 April 2021 the Dunedin City Council (the Council) received an application from Mr Mark Spencer and Marrafin Trustee Ltd (the applicants) to erect two gates across Waitati Valley Road which bisects the applicants’ property so that Mr Spencer’s cattle could graze the roadside and use a feed pad situated on the road1 during the winter months.

[2]    The issue of Mr Spencer placing gates across the road had been the subject of many earlier communications with the Council, and of complaints by neighbours. Consequently, when the application was received, the Council appointed an independent hearing Commissioner to determine the application.

[3]    The application was heard on 2 July 2021. It was opposed by two of the three sets of neighbours. A report prepared by Council staff for the purpose of the application also recommended the application be declined (the Council Report). The Commissioner’s decision which issued on 29 July 2021 declined the application.

[4]The applicants now seek to judicially review the Commissioner’s decision.

The grounds of review

[5]    The pleadings filed in this Court were diffuse and did not expressly articulate the grounds of review.2 They simply sought “a declaration that the decision of the Commissioner is wrong in fact and law”. However, the body of the pleadings suggested there were the following procedural concerns:

(a)a party which had not been identified by the Council as being affected, the Halo Trust, was permitted to file submissions and information at the hearing;

1      The feed pad appears to be located on the legal road but fenced off from the gravel driveway on the road.

2      Which conventionally relate to the legality of the decision, the fairness of the decision-making process and the rationality of the decision. Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 (HL) at 410-411, [1983] All ER 935 at 950.

(b)the applicants filed further information to the Commissioner which was circulated to all affected parties. However, the written responses she received were not made available to the applicants and they did not have the opportunity to comment on them;

(c)the Commissioner inspected the road in the company of a representative of the Council, and without the applicants being given the opportunity to be present at the site inspection.

[6]    At the hearing Mr Paine confirmed he was not pursuing the last matter as a ground of review, but maintained that the first two matters constituted a breach of natural justice warranting the Commissioner’s decision being quashed.

Background

[7]    The Waitati Valley Road is a rural road, located north of Dunedin. It joins State Highway 1 at its northern end, approximately two kilometres south of Waitati township. Most of the road is maintained by the Council. However, the northernmost section of the road, compromising some 700 m, is unsealed and is not maintained by the Council (the gravel road). At the southern end of the gravel road, there is a ford which crosses the Waitati Stream, as well a pedestrian footbridge. At the northern end where it meets State Highway 1, there is an existing gate. It is unclear who authorised the presence of this gate and whether it is within the jurisdiction of the Council or Waka Kotahi, the Crown entity which administers the State Highway network.

[8]    There are four properties that adjoin the gravel road. The property owned by the plaintiff is situated at 693 Waitati Valley Road. As already noted, this property is bisected by the road. To the south west of the applicants’ land and on the western side of the road, is 669 Waitati Valley Road which is owned by John Ransley  and Carolyn Guytonbeck. To the north of the applicants’ property and to the east of the gravel road, is 671 Waitati Valley Road which is owned by Peter and Wendy Clinch. Finally, to the north of the plaintiff’s property and on the north side of the gravel road, is 673 Waitati Valley Road, which is owned by Mr Scott Kearney.

[9]    As the Council Report prepared for the hearing by Mr Michael Tannock, the Council Transport Network Team Leader, explains, the gravel road is treated by Council as a “privately maintained drive on legal road”. When the relevant land was subdivided to create the lots that include the plaintiff’s land, the subdivision consent included an advice note which records the following:

…

(ii)The Council maintains Waitati Valley Road to the ford only; maintenance of the remainder of the road lies with the surrounding land owners.

(iii)It is recommended that a maintenance agreement be entered into between the land owners regarding the portion of Waitati Valley Road not maintained by Council.

[10]   It is apparent from the history of correspondence provided in the Council Report that Mr Spencer has been wanting to erect gates across the gravel road for some time. A Council letter dated 11 August 2006 indicated that the Council was prepared to enter into an agreement for gates being erected across the paper road, subject to consulting with the adjacent property owners. The issue arose again in 2013 because Mr Spencer had put gates in place, but the neighbours objected and Council required the gate to be removed. It also arose again in 2014 when the road had been blocked by an electric fence.

[11]   In 2018, the Otago Regional Council investigated cattle grazing in a waterway known as Semple Burn, which ran alongside, and partly within, the legal boundary of the gravel road. Concerns were both with cattle having access to Semple Burn and being fed on the gravel road. Mr Spencer again requested that Council allow him to erect gates, and Council sent an email on 24 December 2018 saying the Council would not object if there were no reasonable objections from his neighbours. Mr Spencer canvassed his neighbours  and  all  three  sets  of  neighbours  objected,  although  Mr Spencer maintained their objections were not reasonable.

[12]   In late 2020 Mr Spencer had again installed gates and the Council received further complaints from neighbours about them, along with photos showing the gates which had been erected and the effect of cattle being in that section of the gravel road. The neighbours asked the Council to have the gates removed saying:

While the Semple Burn has on the face of it been fenced off, over the winters of both 2019 and 2020 cattle were again directed and held in this section – the bank was briefly planted with flax but this was quickly destroyed. By denying access, the owner of 693 is obviously trying to avoid any further scrutiny and is now using the public road as a private feedlot. This area used to be open, attractive and used by many locals for picnics, walking and bike riding.

[13]   By letter dated 21 December 2020, Mr Spencer was told that the gates were in breach of s 344(6) of the Local Government Act 1974 and the Dunedin City Council’s Roading Bylaw 2020, and, again, he was required to remove them.

[14]   The applicants, through their lawyer, Mr Paine, appealed to the Council to permit the gates to be erected, failing which there would be “an application to stop the road which would enable my client to fence it off completely so as to preclude anyone using the unformed paper road”.3

The application

[15]   After  Mr  Spencer  and  his  lawyer  met  with  Council  representatives  on  1 April 2021, it was proposed that Mr Spencer make a formal application to erect gates on the gravel road. That was duly done by way of letter dated 14 April 2021 to the Council. The proposal was:

… for a grazing permit to graze the berms on the side of the road known as “the unformed paper road”. For that purpose, [the applicants] would erect two gates, one at the north side, and one at the south end where the road bisects the property.

[16]The application went on to say:

The amount of time the gates would need to be closed by my clients to enable them to move stock would be seasonal, and it is difficult to be precise as it is weather dependent. However, as usage of the gates as a mechanism for controlling stock can be limited to after the spring growth, there needs to be frequent maintenance of the road which is usually one to two hours at least once a week. There is also movement up and down the road from one paddock to another, again dependent on growth. During the winter months, it is possible to feed stock out on a feed pad for approximately two hours a day and moving them then to their holding and wintering paddocks.

3      Letter dated 19 March 2021.

[17]The reasons given to support the application included the following:

(a)it would enable the grass on the berms to be controlled avoiding fire risk in the summer; and

(b)gates would better protect cattle from causing a risk to road users, particularly on State Highway 1.

[18]   Mr Tannock notes that the Council does not normally put such applications to a formal hearing. However, given the ongoing objections, the sustained application and the continued presence of the gates, the Council decided it was appropriate to appoint an independent hearing Commissioner, Ms Ros Day-Cleavin (the Commissioner), to hear the application.

[19]   The three sets of property owners who had frontage to the gravel road near where Mr Spencer sought to erect the gates were advised of the proposed hearing as they were considered the most directly affected. Two sets of property owners submitted in opposition to the application.

[20]   Before the hearing, a submission was also received from the Halo Trust, a group which had been working to restore riparian habitat along the Semple Burn and the Waitati River. The submission comprised an 11 line e-mail explaining the work of the Trust, and asking the Council to “consider our project when deliberating any changes to the public access in this area and its awa”.4 This submission was attached to the Council Report noting “it will be for the Commissioner to decide whether the Halo Trust submission should be considered as part of the hearing”, and recommending that this be determined “as a preliminary procedural matter at the commencement of the hearing”.

[21]   The Council Report then summarised the submissions in opposition from the owners of 669 and 671 Waitati Valley Road. In brief, the submitters raised the following points:

4      Awa means stream or river.

(a)an objection to the use of public land by a private party;

(b)the fact the gates would block both public access as well as access to 671 and  673  Waitati  Valley  Road  and  the  alternate  access  for  669 Waitati Valley Road in times of flood when the ford was impassable;

(c)concerns about cattle being in Semple Burn and the risk of effluent run-off into Semple Burn;

(d)the use of the gravel road for grazing was inconsistent with the works being done to revegetate a portion of the Semple Burn and would hinder the opportunity for the Council to work with the Halo Trust to enhance Semple Burn where it is on legal road;

(e)concerns that the applicant was already encroaching the road by having fences erected inside the legal road;

(f)concerns about the state of the road after cattle had been grazing on it, or being fed out on it; and

(g)risks to road users having to walk past the cattle.

[22]   Despite the objection from Mr Spencer, the Commissioner decided to accept the submission from the Halo Trust, noting “the content of the submission was generic in nature and did not introduce material to the hearing process that had not already been raised by other submissions”.

[23]   There was also a dispute over whether further photographs and videos could be introduced in evidence which had not been circulated prior to the hearing. However, as the Commissioner notes in her decision, the parties were able to discuss and agree on which of these could be admitted in evidence.

[24]   After the hearing, the Commissioner undertook a site visit. She was accompanied by Ms Jeanine Benson, the Group Transport Manager from the Council,

being a staff member who had had no direct involvement with the application, or with the writing of the Council Report.

[25]   Following the hearing, on 6 July 2021, the Commissioner received an unsolicited email from the applicants’ lawyer, Mr Paine. While no provision had been made for receiving further submissions, she determined that the email related to matters discussed at the hearing, being potential conditions of consent, and therefore did not constitute new evidence. She then issued a formal minute to the parties inviting them to provide written comments on the applicants’ email, by 15 July 2021. She received written responses to the minute from the two sets of submitters, along with the Dunedin City Council. She then formally closed the hearing.

The requirement to observe natural justice

[26]   The applicants claim there were breaches of natural justice which impeach the Commissioner’s decision and warrant it being quashed.5

[27]   It is fundamental to any decision making process that the principles of natural justice are appropriately observed. However, what is required to satisfy that requirement will vary according to the facts and circumstances of a particular case. As Elias J (as she was then) said in Ali v Deportation Review Tribunal:6

Fundamental to the principles of natural justice is the requirement that where the circumstances of decision making require that someone affected by it be given an opportunity to be heard, that person must have reasonable opportunity to present his case and reasonable notice of a case he has to meet. The more significant the decision the higher the standards of disclosure and fair treatment.

[28]   In that decision, she also endorsed the following explanation given by Fisher J in Khalon v Attorney-General of what natural justice requires:7

… a party should normally be given the opportunity to respond to an allegation which, with adequate notice, might be effectively refuted.

5      Although noting this relief was not expressly sought in the pleadings.

6      Ali v Deportation Review Tribunal [1997] NZAR 208 (HC) at 18.

7      Khalon v Attorney-General [1996] 1 NZLR 458 at 466.

[29]   She agreed with Fisher J’s view that “the key elements are surprise and potential prejudice”, saying:8

[i]f, … there is no surprise in an allegation or if, even if there is surprise, there could be no prejudice because further notice would not have assisted the person affected to meet the allegation, then there is no unfairness in the process.

[30]   With those statements about what natural justice requires in mind, I turn to consider the concerns raised by the applicants.

Did accepting the Halo Trust submission breach natural justice?

[31]   The first ground on which the applicants challenge the Commissioner’s decision is that she took into account the submission from the Halo Trust despite the Council not identifying this entity as an affected party prior to the hearing. The applicants’ legal submissions say that the Council “owed a duty of care to the plaintiff to ensure there would be a fair hearing with all identified parties circulating in advance the evidence that they relied on  and any legal submissions”.  In oral submissions,  Mr Paine maintained that the admission of the email from the Halo Trust unfairly prejudiced the applicants and it should not have been taken into account.

[32]   I do not accept this submission. First, all potentially affected parties were entitled to be heard on the application. The fact the Council did not initially identify the Trust as an affected party did not preclude it from submitting on the application if its interests were affected by it. I consider the impact of allowing cattle in the road on the riparian planting and restoration work on Semple Burn was a relevant consideration. Furthermore, the information from the Halo Trust was circulated in advance of the hearing because it was attached to the Council Report, so the applicants were aware of its content and had the opportunity to respond to it.

[33]   In any event, I concur with the Commissioner’s view that there was no prejudice to the applicants in admitting this submission. The submission was generic in nature and did not introduce material that had not already been raised by other submissions. The submissions simply pointed out the work of the Halo Trust in

8      Ali, above n 6, at 18.

undertaking work on riparian planting on waterways, including Semple Burn, which was a matter already raised in submissions from the neighbouring property owners.

[34]There was no breach of natural justice in admitting the Halo Trust submission.

Did a breach of natural justice result from the failure to circulate the responses to the applicants’ 6 July 2021 email?

[35]   The second ground of review relates to the receipt of further responses from submitters following the hearing, and whether the failure to refer those to the applicants led to a breach of natural justice. Ironically, it was the applicants’ decision to provide further unsolicited material to the Commissioner (and not to the other submitters), regarding the proposed conditions of the consent which prompted the Commissioner to circulate this material and seek responses to it, although she noted any response had to be confined to the matters the applicants raised. It is acknowledged by the Council that, through an oversight, the two responses received and Council’s subsequent memorandum to the Commissioner, were not circulated to the applicants.

[36]   Mr Paine considered the applicants had a right to have this material circulated to them and the failure to do so breached the principle of natural justice. In asserting that, he referred to legal authority on a duty to consult. However, the first decision he cited, Walsh and Ors v Pharmac, involved a statutory duty to consult prior to making a decision on whether to fund a particular type of drug.9 That is clearly irrelevant here as no statutory duty to consult is engaged.

[37]   The decision in Heinz Watties Ltd v MBIE involved new information being received by the decisionmaker which was relevant to the outcome of the decision after the opportunity to make submissions had been given.10 The Court held that in those circumstances, the decisionmaker needed to afford a further opportunity to make submissions. However, here, no new information was provided in the responses, so no further opportunity to submit was required.

9      Walsh and Ors v Pharmac HC Wellington CIV-2007-485-1386, 28 August 2007.

10     Heinz Watties Ltd v MBIE [2018] NZHC 2309.

[38]   I accept that best practice dictates that all material which is placed before a decisionmaker should also be provided to the parties even where there is no right of reply, as here. However, the real issue is whether the failure to circulate the responses to the applicants’ further submission resulted in surprise and prejudice to the applicants. In my view, it did not. Nothing raised in those responses was new or material to the substance of the Commissioner’s decision. Having permitted a limited right of reply by the other submitters, and being satisfied those did not raise new issues, it was appropriate that the Commissioner drew the hearing to close. Furthermore,  Mr Paine could not point to any prejudice arising from the failure to have an opportunity to reply to the reply. All the topics raised in the responses were already squarely before the Commissioner at the hearing.

[39]   There was no breach of natural justice resulting from the failure to circulate the responses to the applicants’ 6 July email.

Result

[40]   Neither of the matters raised by the applicants demonstrate a breach of natural justice warranting the decision being quashed.

[41]The application for judicial review is dismissed.

Costs

[42]   Counsel addressed me briefly on costs. Mr Garbett pointed out that the parties had already agreed this was a Category 2 proceeding for the purpose of costs and sought that 2B costs be awarded to the successful party.

[43]   Mr Paine, however, indicated I should exercise my discretion to award something less than 2B costs should the application be declined.

[44]   I am not persuaded there is any reason to refuse or reduce costs. The principles that costs should follow the event11 and that the determination of costs should be predictable and expeditious,12 prevail.

[45]The defendant is awarded costs on a 2B basis.

Solicitors:

Shona Cumming Law, Dunedin Anderson Lloyd, Dunedin

Copy To:

Gordon Paine, Barrister, Dunedin

11     High Court Rules, r 14.2(1)(a).

12     Rule 14.2(1)(g).