Stanton v Nelson City Council - [2014] NZHC 3117

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

CIV-2014-042-246 [2014] NZHC 3117

BETWEEN HONE MA HEKE AKA LEWIS REGINALD STANTON Appellant

AND

NELSON CITY COUNCIL Defendant

Hearing: 1 December 2014

Counsel:

S J Zindel and J Gully for Appellant
J C Ironside and A C Besier for Respondent

Judgment:

8 December 2014

JUDGMENT OF GODDARD J

This judgment was delivered by me on 8 December 2014 at 11.30 am, pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:
Zindels, Nelson for Appellant
Fletcher Vautier Moore, Richmond for Respondent

STANTON v NELSON CITY COUNCIL [2014] NZHC 3117 [8 December 2014]

Introduction

[1] This is an appeal by Mr Stanton against a decision of Judge Tompkins in the Nelson District Court on 17 October 2014 granting the Nelson City Council’s (the Council) application for a limited injunction under s 162 of the Local Government Act 2002 (the Act) restraining Mr Stanton from parking his horse and cart in the city centre in breach of cls 4 and 6 of the Council’s parking bylaw.

Section 162, Local Government Act 2002

[2] Section 162 of the Local Government Act 2002 provides:

162Injunctions restraining commission of offences and breaches of bylaws

(1) A District Court may, on the application of a local authority, grant an injunction restraining a person from committing a breach of a bylaw or an offence against this Act.

(2) An injunction may be granted under subsection (1)—

(a) despite anything in any other enactment:

(b) whether or not proceedings in relation to the breach or offence have been commenced:

(c) if a person is convicted of the breach or offence,—

(i) in substitution for, or in addition to, any other penalty; or

(ii) in subsequent proceedings.

Background

[3] Mr Stanton has an unusual lifestyle. He keeps all of his possessions in a horse-drawn cart and an attached trailer (referred to for convenience sake as “Mr Stanton’s cart”). He spends his time travelling in the cart around the Nelson City and region. He is largely self-sufficient and chooses not to receive any social welfare payments from the Government but instead supports himself by donations from members of the public. He parks his cart in the central area of Nelson City where the greatest foot traffic is, so as to maximise the receipt of donations from passersby. This means he often parks in either metered parking spaces or in spaces where there is a finite time limit imposed by the Council. Mr Stanton, however, has

a philosophical aversion to paying parking fees and does not do so; at times he also remains in a finite parking space for longer than the time stipulated.

[4] This defiant approach to the parking regulations has unsurprisingly attracted the attention of the Council parking enforcement officers. The Council is a territorial authority with bylaw making powers under s 145 of the Act. It is also a local authority with road controlling powers to prohibit or restrict the stopping, standing or parking of vehicles…

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: [2014] NZHC 3117
Decision Date: 8 December 2014

CaseChat Overview and Summary

Hone Ma Heke, also known as Lewis Reginald Stanton, appealed against a decision by Judge Tompkins in the Nelson District Court which granted the Nelson City Council’s application for a limited injunction under s 162 of the Local Government Act 2002. The injunction restrained Mr Stanton from parking his horse and cart in the city centre in breach of clauses 4 and 6 of the Council’s parking bylaw. The Nelson City Council argued that the bylaw was fully enforceable against Mr Stanton and that he had demonstrated a resolute intention not to comply with the bylaw or to pay the fines incurred. The Council sought an injunction to restrain Mr Stanton from parking his cart in the city centre in breach of the bylaw.

The High Court found that there were a number of problematic aspects in granting the injunction as sought. The injunction would be duplicitous, as the laws in question already applied to all without exception and provided a complete framework for due process in the event of infringement. The nature of the breach or breaches sought to be restrained was also problematic, as it concerned future events that had yet to occur, each of which involved a separate, unrelated act. The injunction would also be inconsistent in approach, as it particularised only one mode of transport in Mr Stanton’s case, which was his cart. Finally, there was no utility in the injunction, as the immediate remedy for any future breaches would still be to issue an infringement notice and potentially bring Mr Stanton before the Court for contempt proceedings.

The appeal was granted, and the injunction was quashed.

Orders