Spillane v Cornwall Park Trust Board
[2022] NZHC 1527
•29 June 2022
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2022-404-736 [2022] NZHC 1527
BETWEEN BRENT LESLIE SPILLANE
Plaintiff
AND
CORNWALL PARK TRUST BOARD
Defendant
Hearing: 13 June 2022 Appearances:
A J Sherlock and C D Hunter for Plaintiff
M E Casey QC and A E Murray for Defendant
Judgment:
29 June 2022
JUDGMENT OF PETERS J
This judgment was delivered by Justice Peters on 29 June 2022 at 4.30 pm pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Date: ...................................
Solicitors: Hesketh Henry, Auckland
DLA Piper, Auckland
Counsel: M E Casey QC, Auckland
SPILLANE v CORNWALL PARK TRUST BOARD [2022] NZHC 1527 [29 June 2022]
Introduction
[1] Since 1901, Aucklanders have been fortunate to enjoy what is known as Cornwall Park (“park”). The park derives from philanthropic gifts of large parcels of land made by Sir John Logan Campbell in 1901, 1907, and 1908, to trustees to hold on trust for the public. Today the park includes a working farm, and also many facilities for public use and enjoyment, including sports grounds and clubrooms; trails and paths for walking, running and cycling; picnic areas and gardens; and Maungakiekie One Tree Hill. The park also includes the land on which the Auckland Showgrounds are situated (“showgrounds land”). It is a proposal by the defendant to lease the showgrounds land, by which I mean the land itself and the improvements situated thereon, which is at the heart of this proceeding.
[2] The plaintiff, Mr Spillane, is a resident of Auckland. He is also the managing director of XPO Exhibitions Ltd (“XPO”). For many years XPO has been in the business of organising and conducting trade shows and large scale exhibitions attended by the public, such as the Food Show, the National Safety Show, and the Baby Show. Many of these events have been held at the showgrounds. Interests associated with the plaintiff and his wife are shareholders in XPO and thus, as he acknowledges, the plaintiff has a financial interest in the outcome of this litigation.
[3] The defendant, the Cornwall Park Trust Board Inc (“Trust Board”), was incorporated under the Charitable Trusts Act 1957 on 22 March 1963 (“CTA”). The Trust Board’s principal function is to ensure the provision, upkeep, and operation of the park.
[4] The Trust Board derives an income from leasing the showgrounds and other land. It applies that income in the fulfilment of its functions. However, the Trust Board has largely been deprived of income from the showgrounds land for the last two or more years, at least in part because of the effects of the COVID pandemic on its former lessee, the Agricultural Pastoral and Industrial Shows Board (“Shows Board”). The Shows Board went into liquidation in mid-2021 and its liquidator disclaimed its lease of the showgrounds land. The Trust Board, and the trustees before it, had a longstanding lessor/lessee relationship with the Shows Board in respect of the showgrounds land.
[5] After the Shows Board failed, the Trust Board entered into a short term arrangement with another entity, but that too has proved unsatisfactory financially from the Trust Board’s perspective. This again is at least in part because of the pandemic and the lengthy lockdown that prevailed for several months in Auckland from August 2021 onwards.
[6] The Trust Board now wishes to lease the showgrounds land to a film studio, Xytech Studio Management Co Ltd (“Xytech”), considering this its best prospect of a reliable rental return in the short to medium term. The Trust Board has entered into an agreement to lease with Xytech (“ATL”). The proposed lease to Xytech would be of four years, with a two right of renewal.
[7] The plaintiff’s case is that the Trust Board does not have power to grant the proposed lease insofar as it includes the “eastern portion” of the showgrounds land. In particular, the plaintiff contends the proposed lease of that portion would fall outside the scope of the power to lease conferred by s 3(2) of the Cornwall Park Endowment and Recreation Land Act 1982 (“1982 Act”).
Causes of action and relief sought
[8]The plaintiff has pleaded three causes of action.
[9] The first is that the Trust Board is in breach of trust in relation to what is referred to as “Hall 6”. I do not propose to deal with this first cause of action. Any breach has been short lived.
[10] The second is that the Trust Board is in breach of trust by virtue of the terms of the ATL.
[11]In relation to this cause of action the plaintiff seeks:
(a)a declaration that the Trust Board is in breach of trust and in breach of s 3(2) of the 1982 Act.
(b)a declaration that the ATL is ineffective to pass to Xytech any right to possession of any part of the showgrounds land; and
(c)an injunction prohibiting the Trust Board from entering into any new lease or other form of agreement permitting the use of the showgrounds land as a film studio facility or any other purpose outside, amongst other things, the provisions of the 1982 Act.
[12] The third cause of action is for relief in respect of an anticipatory breach of trust. This latter cause of action relates to advice from the Trust Board that, if unable to proceed with its lease to Xytech, it does not intend to allow any further events or exhibitions to take place on the showgrounds land after 30 June 2022.
[13] The relief sought in respect of the third cause of action is a mandatory injunction requiring the Trust Board to continue to make the showgrounds land (including improvements) available for exhibitions, entertainment events and other events of a public recreational nature.
Issues
[14]The issues to be determined are:
(a)Whether the plaintiff has standing to bring this proceeding.
(b)If so, whether the Trust Board has power to grant the proposed lease of the eastern portion.
[15]If not, issues arise as to relief.
Background
[16] Most of what follows derives from documents annexed to an affidavit of Mr Blaylock for the plaintiff, and an affidavit from Ms Llewellyn, the Board’s Property and Business Manager since 2012. Unfortunately, Ms Llewellyn did not put in evidence the documents to which she refers in recounting the history of the matters relevant to the issues before the Court.
1901 – 1908
[17] On 10 June 1901, Sir John, as he became in 1902, transferred a substantial part of the land that makes up today’s park, being approximately 230 acres (in round terms 93 ha), to David Murdoch, Arthur Myers, Robert Hall, and Alfred Bankart as trustees. On the same day, Sir John and the trustees executed a Deed of Trust which provided that the trustees would hold the land on trust (“1901 Deed”). The plaintiff relies particularly on these provisions of the 1901 Deed:
I.THE said lands are and shall be held by the trustees upon trust as a place of recreation and enjoyment for the people of the colony of New Zealand and also for such public purposes for the general benefit of the people of New Zealand in the way of affording them recreation enjoyment pleasure and other similar benefits and advantages of that nature as the trustees shall from time to time consider best.
II.IN addition to their other powers the Trustees may lay out enclose and plant the said lands or any of them or build or erect any lodge museum art-gallery library baths ornamental or other public buildings which in the opinion of the trustees may be in furtherance of the purposes and objects of the gift of the donor the said John Logan Campbell and may purchase erect and set up statues or other works of art.
[18] Sir John made two further transfers of land. The first of these was on 22 October 1907 and was of 104 acres. This land included the eastern portion of the showgrounds land.
[19] The second was on 30 March 1908 and was of more than 130 acres, and included the western portion of the showgrounds land. The Trust Board refers to the land transferred on 30 March 1908 as the “endowment land”. Mr Sherlock, counsel for the plaintiff, took some issue with this. For myself, I do not consider much turns on the point and I shall use that phrase myself.
[20] In each case, by Declarations of Trust of the same date, the trustees declared that they would hold the lands transferred upon the trusts and subject to the conditions and powers set out in the 1901 Deed. This is a convenient point to note that, contrary to Mr Casey QC’s submission, there is only one trust, being that settled in 1901. The 1908 Declaration did not establish a second trust in respect of the endowment land.
[21] By Deed of Variation dated 7 April 1908, Sir John and the trustees exercised their (then) power to vary the trustees’ powers in respect of the endowment land (“Deed of Variation”). Clause 1 of the Deed of Variation provided that the trustees should have power:
1. TO LET or lease the said lands or any part or parts thereof in such manner at such rent or rents for such term or terms and upon such conditions subject to such reservations in all respects as to the said trustees may seem expedient.
[22] Thus it is that the Trust Board may lease the western portion of the showgrounds land to Xytech, or any other third party, as it sees fit.
[23] The Deed of Variation also conferred powers on the trustees to, amongst other things, subdivide and grant rights of way in relation to the endowment land.
[24] The Trust Board did not acquire power to lease the eastern portion, and even then subject to qualifications, until the 1982 Act was passed. The principal issue to be determined is whether the proposed lease to Xytech is within the Trust Board’s qualified power to lease.
Showgrounds land
[25] As of today, the showgrounds land comprises approximately 8 ha, all contained and described in one certificate of title.1 In round terms the area of the eastern portion is approximately 5 ha, and the western portion makes up the balance.
[26] Situated on the showgrounds land are a series of large halls, numbered one to four inclusive. These are often used for large exhibitions of the nature referred to at
[2] above. The Trust Board acquired these halls, and other buildings on the showgrounds land, when the Shows Board went into liquidation and surrendered its lease.
[27] A portion of the halls straddle the boundary of the eastern and western portions. By my estimate, approximately 25 per cent of the halls is situated on the eastern
1 NA56C/300.
portion, and the remainder on the western. There is no internal partition within the halls marking the boundary.
[28] Adjacent to the halls on the western portion is the Logan Campbell Centre which is a venue for live entertainment.
[29] The balance of the eastern area is taken up with “Hall 6” which is said to comprise about 1,200 m2; a substantial open area, now asphalted but previously grassed and used for equestrian and other events; and a grandstand overlooking that asphalted area.
Xytech
[30] There is no evidence before me from or on behalf of Xytech. The only evidence available as to Xytech’s intentions is what appears from its application to Auckland Council referred to below and the affidavit evidence of Mr McKay for the Trust Board. Mr McKay is a chartered accountant who has been assisting the Trust Board with various matters arising from and since the liquidation of the Shows Board.
[31] The ATL is conditional on two matters, neither yet satisfied but both in Xytech’s favour.
[32] The first is Xytech entering into an agreement to licence the showgrounds land (all of it, as I understand the position) to a substantial film and television production company. The second is Xytech obtaining a resource consent and/or certificate of compliance with the Auckland Unitary Plan (“AUP”) for its proposed use of the site. In the documents it has lodged with Auckland Council for this certificate, Xytech states the site will be used for events (for which the site is already zoned), and filming activities, these principally to be the filming of movies and television series.
[33] Xytech further states that the Logan Campbell Centre and the carpark to the south of the centre will be reserved for events. These areas are on the western portion. Xytech then states that the “remaining carparking area” — it is unclear which area this is — will be used for events and/or filming activities as required. Hall 6, to which I
referred above, is also intended to be a “flexible” space, used by both events and/or filming activities as demand requires.
[34] The parties differ on the extent to which the eastern portion will be available for events and exhibitions.
[35] The gist of the Trust Board’s submission is that Xytech is likely to be willing or able to accommodate operators such as XPO, so as to maximise its return from the site.
[36] The plaintiff believes that the effect of the lease/licence will be to displace all but a few smaller events and exhibitions from the showgrounds land.
[37] As it turns out, the view I take of the issues which arise makes it unnecessary to consider the evidence and submissions advanced on this issue in any detail, for the moment at least.
Standing
[38] In [23](a) of its statement of defence, the Trust Board alleges that the plaintiff does not have a proper interest in, or standing to pursue, this proceeding and that the orders the plaintiff seeks are to secure a commercial benefit for the plaintiff and his family.
[39] Mr Casey submits that in the first instance at least, it is for the Attorney- General to bring proceedings against the Trust Board if seen fit to do so.2 Mr Casey accepts that an individual plaintiff might have standing to pursue relief if there is a broad public interest in the matter, an effect on the community, and the likely absence of any other challenger. Even then, however, that plaintiff must have an “honest interest” in the subject matter of the proceeding, and be acting in good faith and not in a manner that is frivolous, vexatious, or otherwise untenable. The Trust Board submits that the plaintiff does not have such an interest, and is not acting in good faith, in that he seeks only to advance his commercial interests and those of his fellow shareholders.
2 Charitable Trust Act 1957, s 60. I record that the plaintiff did invite the Attorney-General to participate in the proceeding but he declined to do so.
[40] In response to these submissions, Mr Sherlock referred me to Chisholm J’s judgment in Great Christchurch Buildings Trust v Church Property Trustees.3 In that case, the plaintiff brought an application for judicial review and also pleaded a breach of (charitable) trust.
[41] Chisholm J dismissed the defendant’s challenge to the plaintiff’s standing. In doing so, the Judge referred to the following statement by Tipping J in O’Neill v The Otago Area Health Board, to which Mr Sherlock also referred me:4
Any person who shows an honest interest in a public issue may invoke the processes of the Court to have the substantive matter of concern considered. It will usually be necessary to examine the substantive issue or issues before a decision on standing can be made. If the Plaintiff fails on the substantive issues the question of standing will be academic. If the Plaintiff would otherwise succeed it will be an unusual case in which either as a matter of standing or as a matter of discretion the Plaintiff will fail. It is my view that the only circumstance in which a Plaintiff should be shut out in limine for want of standing is where the Defendant can show that the Plaintiff lacks good faith or that the complaint is clearly frivolous, vexatious or otherwise untenable.
[42] O’Neill was an application for judicial review (which Mr Sherlock submits would have been open to the plaintiff in the present case), but Tipping J’s comments are of wider application to a proceeding in which a plaintiff seeks declaratory relief, and are consistent with the Court of Appeal’s comments in Morgan v Wellington City Corporation, in which Mr Morgan applied to the Court under s 60 of the CTA.5
[43] In any event, the essence of Mr Sherlock’s submissions on this point is that the plaintiff meets the criteria Tipping J identified as entitling a plaintiff to invoke the processes of the Court, and is not subject to the excluding criteria that Tipping J also identified.
[44] The plaintiff submits that his interest in this proceeding is twofold. First, as a resident of Auckland he is motivated to ensure the showgrounds remain available for events and exhibitions which all can enjoy and which, it must be said, are of wider
3 Great Christchurch Buildings Trust v Church Property Trustees [2012] NZHC 3045.
4 O’Neill v The Otago Area Health Board CP50/91, 10 April 1992 at 4.
5 Morgan v Wellington City Corporation [1975] 1 NZLR 416 (CA).
benefit to the economy, particularly Auckland’s. Secondly, the plaintiff acknowledges that he has a personal commercial interest in the outcome of the litigation.
[45] In addition to these matters, Mr Sherlock submits that the Trust Board has a “quasi-civic” role as custodian of the park and the showgrounds, the latter being an important venue for exhibitions and entertainment events.
[46] Taking these various matters into account, I am satisfied that the plaintiff has a sufficient interest in this matter to have standing. For reasons set out below, I am satisfied there is a substantive matter of concern to be considered. Tipping J said that it will be a rare case in which the Court refuses to accord standing, or relief, to a plaintiff who would succeed on the substantive issue.6 That is the case here on the information before me. Nor am I persuaded that the plaintiff lacks good faith or that his complaint is clearly frivolous, vexatious or otherwise untenable. As I have said, a commercial interest alone is not disentitling.
Proposed lease
[47] I turn now to the issue of whether a lease by the Trust Board to Xytech of the eastern portion in the terms proposed is within or without the Trust Board’s powers under s 3(2) of the 1982 Act, which provides:
3 Transfer of Board’s powers
(1)Area 1 is hereby declared to be no longer subject to the powers conferred upon the Board in respect of endowment land by the deed of variation and shall remain as open park land in perpetuity.
(2)Area 2 and Area 3 are hereby declared to be subject to the powers referred to in subsection (1), but in exercising those powers the Board shall preserve the present character of Area 2 and Area 3, and to this end each shall continue to be used in essentially the same manner and for essentially the same purpose as at the specified date and to the extent authorised by the provisions of the One Tree Hill Borough Council’s operative district scheme under the Town and Country Planning Act 1977 as they applied to Area 2 and Area 3 on the specified date, and no subsequent change in those provisions shall operate to extend the powers conferred on the Board by this subsection.
(emphasis added)
6 O’Neill v The Otago Area Health Board, above n 4, at 4.
[48] At the time of the 1982 Act, Area 1, referred to in s 3(1), was endowment land. The effect of s 3 was to exclude Area 1 from the powers, including the power to lease, conferred by the Deed of Variation.
[49] As to s 3(2), Area 2 is the eastern portion of the showgrounds land, Area 3 is land to the north that is largely taken up as with sports grounds and clubrooms, and the specified date is 1 January 1980. Section 3(2) declared those areas to be subject to the powers conferred by the Deed of Variation but required that the Board, in exercising those powers, should preserve the then character of Areas 2 and 3, and to that end each was to continue to be used in essentially the same manner and for essentially the same purpose as at 1 January 1980 and to the extent authorised by the provisions of the One Tree Hill Borough Council’s operative district scheme (“District Scheme”), likewise as at 1 January 1980.
[50] The reason for the 1982 Act appears from an extract from Hansard in which Mr Richard Prebble, the then Member of Parliament for Auckland Central, introduced the relevant Bill for its second reading. In summary, and as Mr Casey submits, it was to exchange the Trust Board’s powers under the Deed of Variation as regards Area 1 in return for the same powers as regards Areas 2 and 3, but on the terms set out in s 3(2).
[51] From the Hansard extract it appears that the Trust Board had intended to subdivide and lease the land contained in Area 1 for residential purposes but this had encountered difficulties under the District Scheme, as the land has ceased to be zoned for residential use. The proposal also encountered public opposition, as by then the Area 1 land had been informally incorporated into the park and the public did not wish to lose the use of it. Nor, however, did the Trust Board wish to lose its powers to derive income from Area 1. This had led to discussions between the Trust Board and public authorities, and ultimately to s 3 of the 1982 Act. Mr Prebble described this as follows:
… In recent months the [Trust Board] and the public authorities have got together to see whether there might be some means of settling the matter in a way that would achieve the objectives of (a) keeping [Area 1] as public open space; and (b) preserving to the [Trust Board] its powers to obtain income for the permanent maintenance of the park in accordance with its duty as a trustee
… a settlement has been arrived at [under which] the 33 acres [of Area 1] will
remain as park land… At the same time, park land [Area 2] on which the Epsom Showgrounds stadium and arena stand, and the football fields [Area 3] will be permitted to be leased for income bearing purposes, provided they are used generally for the same purposes as at present, and are retained generally in their present character ...
… Clause 3 provides that Area 1 as described in the first schedule will cease to be subject to the powers conferred upon the … Trust Board by the deed of variation … and the land shall remain as open park land in perpetuity. Areas 2 and 3 become subject to the said powers. Areas 2 and 3 are to continue to be used in essentially the same manner and for essentially the same purpose to the extent currently authorised by the One Tree Hill Borough Council’s operative district scheme under the Town and Country Planning Act 1977 …
[52] There is no dispute that the Trust Board has power to lease under the Deed of Variation. The issue is whether its proposed lease to Xytech is within the terms of the power conferred by s 3(2). This in turn makes it necessary to identify the character of the eastern portion (presumably as at December 1982 when the 1982 Act was passed, although little turns on whether it was then or 1 January 1980); the manner and purpose of its use as of 1 January 1980; and the relevant provisions of the District Scheme likewise at that date.
[53] This brings me to the Shows Board and the Auckland Agricultural Pastoral and Industrial Shows Board Act 1972 (“Shows Board Act”); an affidavit of a Mr Hobbs; and the provisions of the District Scheme referred to in s 3(2).
Shows Board Act
[54] The trustees, and later the Trust Board, had a long-standing lessor/lessee relationship with the Auckland Agricultural and Pastoral Association (“Association”). The trustees granted several leases of the showgrounds land, including the eastern portion, to the Association from 1911 onwards.
[55] The Shows Board Act was passed in 1972. The preamble to the 1972 Act states that the Association had previously established a joint venture with the Auckland Manufacturers’ Association Inc for the holding of a joint annual “Easter Show” on the showgrounds land. The two associations wished their joint venture to have a separate corporate existence, in which the Association’s lease of the showgrounds land (“lease”), and all other joint venture assets, would vest. The Act records the Trust Board had no objection to this.
[56] Section 3 of the Shows Board Act constituted the Shows Board; s 5 vested the lease and other assets in the Shows Board; and s 6 provided that the Shows Board would hold and use, occupy, manage, and control its property for the purposes and objects set out in s 8. In summary, these were the promotion and encouragement of agricultural, pastoral, manufacturing and industrial excellence in a variety of ways, including by promoting and organising shows, exhibitions and competitions for these purposes.
[57] The Shows Board remained as lessee of the site until the disclaimer in 2021. The two leases to the Shows Board in evidence before me, granted in 1983 and 2004, provide for the Shows Board to use the land “only” for the purpose permitted by the 1982 Act, being “in particular in essentially the same manner and for essentially the same purpose as at” 1 January 1980, and to the extent then authorised by the District Scheme.
[58] A plan of the showgrounds land as at 1980 shows that the grandstand, Hall 6, and some small buildings, which Ms Llewellyn states were pens and stalls for animals, were then on the eastern portion. A small part of a building marked D on the plan (being one of the small buildings that Ms Llewellyn states were pens and stalls) straddled the boundary between the eastern and western portions. The Logan Campbell Centre had been built and was (and remains) on the western portion. Likewise, a small part of other buildings, which may have been exhibition halls and which were predominantly on the western portion, also straddled the boundary between the eastern and western portions.
Mr Hobbs’ affidavit
[59] Mr Hobbs’ affidavit is relevant in ascertaining the prevailing character and manner and purpose of use of the eastern portion as at the specified date. Mr Hobbs formed XPO in 1972 and managed the company for 29 years, although he no longer has an interest in the company. Mr Hobbs says he has extensive experience putting on events at the showgrounds in the 1980s and running trade shows. His evidence is that from the time he started XPO, the showgrounds land was used for public exhibitions and shows, and that he is unaware of any other use. As to their use in the 1980s, Mr Hobbs says:
Use of the Showgrounds as of 1 January 1980
6.By January 1980 the Auckland Showgrounds had operated as a venue for exhibitions and public entertainment for many years. This continued during the 1980s. During this period the Showgrounds were only used for exhibitions, trade shows and entertainment events.
7.XPO had a close relationship with the Showgrounds and ran many exhibitions and shows. In 1980 the Showgrounds held the Easter Show, New Zealand Boat Show, Engineering Manufacturing Exhibition (“EMEX”), Home Show and the Wood Products Exhibition (“Wood Ex”).
8.The activities held at the Showgrounds during the 1980s continued along the same lines. XPO added further events to its own line-up, including the Food Tech Expo in 1982. I understand that event had taken place at least once prior to 1982, but that is outside my own direct recollection as XPO was not directly involved.
9.I am not aware that the Showgrounds was used for any purpose in the 1980s other than as an exhibition and show venue.
District scheme
[60] As at the specified date, all of the showgrounds land was zoned “Entertainment B”. This zone was to “cater primarily for the activities promoted by or under the overall control or supervision of the Shows Board … as provided for” in the Shows Board Act.
[61]The predominant uses in the District Scheme for this zone were:
(a)Shows, exhibitions and demonstrations of an agricultural, horticultural, pastoral, cultural, industrial and trade fair nature.
(b)Use of buildings for conferences, meetings, social functions, indoor concerts, indoor entertainment, indoor sports, and indoor games ...
[62] Mr Casey referred me to the conditional uses provided for in the zone. These were any use within the objectives and policy in cl 4.5 of the Scheme Statement, that objective being the provision of public entertainment activities.
ATL
[63] Against that background, I turn now to the provisions in the ATL as to the proposed use of the site. Although the ATL is not in evidence, in his affidavit
Mr McKay says that the permitted use provided for in the ATL is as follows (“permitted use provision”):
... the use of the Premises for: (I) concerts, events and festivals; (2) displays and exhibitions; (3) functions, conferences, gathering and meetings; (4) markets, fairs and trade fairs; (5) the provision of public entertainment (whether for payment or not) and filming activities of any nature for the production of future entertainment; and (6) all uses reasonably ancillary or incidental to such uses, and all of the foregoing must be in accordance with the Auckland Unitary Plan, Resource Management Act 199l and the provisions of the lease and in relation to those parts of the Premises that are subject to the Endowment Act, in the locations and to the extent permitted by the Endowment Act. The parties acknowledge and agree that filming activities do not infringe the Endowment Act.
[64] This provision permits the holding of concerts, events, displays, exhibitions, trade fairs and the like, as well as filming activities of any nature for the production of future entertainment. The provision also provides that all of the uses allowed for on the eastern portion must be in the locations and to the extent permitted by the 1982 Act.
[65] The matters in [33] above are also relevant to Xytech’s proposed use of the site, assuming these remain current.
Submissions
[66] Mr Sherlock submits that it is clear from the evidence that the character and essential manner and purpose of use of the eastern portion of the showgrounds land at the material times was as a venue for exhibitions and events. Thus he submits that any exercise by the Trust Board of its power to lease must ensure the preservation and continuation of this character and manner and purpose of use. The gist of Mr Sherlock’s submission is that any lease of the eastern portion must provide for exhibitions and events to be the principal use of the site. The ATL does not make provision for this. Nor, on Mr Sherlock’s submission, can the Trust Board meet this point by relying on the clause in the permitted use provision which requires Xytech to comply with the 1982 Act. Mr Sherlock submits that it is for the Trust Board to ensure the use of the eastern portion in accordance with the 1982 Act if it is to exercise its power to lease.
[67] Mr Casey submits that the effect of the 1982 Act was to render Area 2 endowment land and that thereafter it was to be held and used for the purpose of generating income for the Trust Board.
[68] Mr Casey also submits that the land and buildings on the showgrounds land, and the uses to which they have been put, have changed considerably since 1980 as a result of works undertaken and activities conducted by the Shows Board.
[69] Mr Casey submits that the provisions of the District Scheme contemplated the showgrounds land being used for public entertainment activities generally and that the 1982 Act should not be construed, and was not intended, to “freeze in time, or preserve as some sort of museum only those activities which were being conducted in 1980”. Mr Casey submits that the range of activities contemplated by the District Scheme was “broad and inclusive”. Mr Casey submits that what is meant by “public entertainment” has evolved since 1980; that the 1982 Act and provisions of the District Scheme would have been “drafted in the expectation that people would commonly attend at a venue such as the Showgrounds to be entertained”; that a wide range of entertainment is now provided through streaming services; that the meaning of words and the activities they describe may alter to keep pace with technological and social changes;7 and that filming activities qualify as “public entertainment” under the provisions of the District Scheme and are a permitted use under the AUP. Mr Casey submits the use of the buildings within Area 2 for filming activities will not change its character, and nor will the “occasional use of the outdoor areas as temporary film sets”.
Discussion
[70] As Mr Sherlock submits, the evidence is to the effect that as of December 1982 the site was used as a venue for exhibitions, trade shows, and entertainment events. This appears from Mr Hobbs’ affidavit; from the Shows Board Act; and from the predominant uses specified in the District Scheme. It is that character that s 3(2) of the 1982 Act requires the Trust Board to preserve in relation to the eastern portion, and it is that essential manner and purpose of use the Trust Board is required to continue. In my view, that requires the eastern portion to continue to be used principally as a
7 McElroy v Auckland International Airport Ltd [2008] 3 NZLR 262.
venue for exhibitions, trade shows, and entertainment. It follows that the permitted use provision in the ATL would require amendment to comply with s 3(2) of the 1982 Act.
[71] I refer to Mr Casey’s submission at [68] above. To the extent it is relevant, at the time the Shows Board surrendered its lease, it appears to have still been using the site as Mr Hobbs said it was in the 1980s. Clearly, the Shows Board had developed and improved the buildings on the site considerably, and I expect the nature and scale of the events and exhibitions have changed over the years, but the actual manner and purpose of the use of the showgrounds land seems to have been consistent. In a memorandum of 3 June 2022, Mr Casey provided the Court and the plaintiff (on a confidential basis) with schedules of monthly activities at the showgrounds land between 2017 and 2019. The schedules are full of events and exhibitions such as the Rug Expo, “Meatstock”, a fair or similar for “Spot on Publications”, “Buildnz”, “Go Green Expo”, Bunnings Trade Expo, gift fairs, and numerous shows such as the Boat Show, the Speed Show, the Baby Show, the Royal Easter Show, and the Home Show.
[72] The site was also used for other activities between 2017 and 2019, such as training days, conferences, and graduation ceremonies. There was also filming at the site in these years. However, the sums derived from these other activities were modest. To take just one example, in August 2017, the Shows Board realised $2,500 from filming activities on the site. However, more than $350,000 revenue was derived in that same month from larger activities such as those to which I have referred.
[73] Accordingly, whilst I accept Mr Casey’s submission that there have been changes in the improvements to the land, the activities in 2017 indicate that the principal manner and purpose of use of the showgrounds as a whole remained the conduct of exhibitions, trade fairs, and events.
[74]I turn now to Mr Casey’s submissions on the provisions of the District Scheme.
[75] Section 3(2) requires that any exercise of the powers conferred by the Deed of Variation in respect of Areas 2 and 3 must not only meet the specified criteria but “to
the extent authorised by the provisions of the District Scheme”. As I read this part of s 3(2), it was intended to confine the Trust Board and lessee to the use of the site within the bounds of the District Scheme.
[76] There is no evidence before me that filming activities were a conditional use of the site in the Entertainment B zone. The critical issue, however, is whether the lease to Xytech preserves the character of the eastern portion as it was in 1982 and ensures its continued use in essentially the same manner and so forth as it was in 1980.
[77] I am not satisfied that the proposed lease of the eastern portion from the Trust Board to Xytech in the terms proposed will do so. Nothing in the permitted use provision in the ATL requires that the principal manner and purpose of use of the eastern portion be as a venue for exhibitions, trade fairs, and events. In my view, that is what s 3(2) requires. This does not mean that filming activities or other activities may not take place on the eastern portion (subject to the AUP), but s 3(2) requires that they be secondary.
Relief sought
[78] The Trust Board submits that, however s 3(2) falls to be construed or applied, I should decline relief. The reasons advanced for this submission are largely financial. The Trust Board has not realised the income it would have expected from its lease of the showgrounds land in recent years. It wishes to retrieve its position as best it can, and submits that the “four plus two” term proposed is relatively short term. As I said above, the Trust Board considers Xytech to be less exposed to the consequences of the pandemic than any lessee dependent on the conduct of large scale events attended by the public. This last point is a matter of dispute. The gist of the plaintiff’s case is that the worst of the pandemic is past, but that is not a matter I can resolve.
[79] I would not decline relief in respect of the currently proposed lease to Xytech insofar as it affects the eastern portion. It would be unusual to decline relief to a plaintiff who has made out their case, and whilst I recognise the financial consequences the Trust Board has had to bear in the last two or more years, I do not consider the proposed lease, at four to possibly six years, short term.
[80] Equally, I do not propose to make a mandatory order, even as regards the eastern portion, in the terms referred to in [13] above. As Mr Casey submits, the Trust Board has power to lease the eastern portion on the terms conferred by s 3(2) of the 1982 Act, but it is not required to do so. I note also that in his evidence Mr McKay refers to works that are required to repair and maintain the exhibition halls or part of them, and cl IX of the 1901 Deed also permits the Trust Board to close off land and buildings from time to time. In my view, the most that can be said is that, to the extent the Trust Board elects not to lease the eastern portion, it holds the land upon trust on the terms of the 1901 Deed.
[81] In any event, I propose to refrain from granting any relief until I have heard further from the parties. It may be, for instance, that the Trust Board and Xytech can vary the permitted use provision in the ATL to reflect what s 3(2) requires as regards the eastern portion, or there may have been developments of which I am unaware. To that end, I have asked the case officer to arrange a suitable time for counsel to appear so that the matter can be progressed.
Result
[82]The plaintiff has standing to bring this proceeding.
[83] The Trust Board may lease the eastern portion of the showgrounds land on terms that preserve its character as at December 1982, and continue its essential purpose and manner of use as at 1 January 1980, the eastern portion then being a site for the conduct of exhibitions, trade fairs, and events. Any filming or other activities on the eastern portion must be secondary to that use.
[84]Further orders as to relief may follow.
[85]Costs are reserved pending further order of the Court.
Peters J
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