Taueki v Horowhenua District Council
[2017] NZHC 34
•25 January 2017
IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY
CIV-2013-454-441 [2017] NZHC 34
UNDER the Declaratory Judgments Act 1908 IN THE MATTER
of a purported agreement in 1973 in relation to stormwater discharge into Lake Horowhenua
AND
IN THE MATTER
of a purported ratification of the 1973 agreement by the Horowhenua District Council on 2 October 2013
BETWEEN
PHILIP DEAN TAUEKI First Plaintiff
MARGARET TAUEKI Second Plaintiff
PETER CHARLES HEREMAIA Third Plaintiff
VIVIENNE TAUEKI Fourth Plaintiff
MELANIE TUKAPUA Fifth Plaintiff
JOSEPH HAPETA TAUEKI Sixth Plaintiff
PRISCILLA NAHONA Seventh Plaintiff
TE KEKE TAUEKI Eighth Plaintiff
PEGGYANNE GAMBLE Ninth Plaintiff
CHARLES RUDD (SNR) Tenth Plaintiff
TAUEKI v HOROWHENUA DISTRICT COUNCIL [2017] NZHC 34 [25 January 2017]
EUGENE THOMAS HENARE
Eleventh Plaintiff
COLIN HANITA PAKI Twelfth Plaintiff
FREDERICK PK HILL Thirteenth Plaintiff
MACKIE NAHONA Fourteenth Plaintiff
BRADLEY TAUEKI Fifteenth Plaintiff
DELIA PAUL Sixteenth Plaintiff
AND
HOROWHENUA DISTRICT COUNCIL Defendant
Hearing: 25 August 2016 Counsel:
P D Taueki and A Hunt for Plaintiffs
H P Kynaston and M L Mulholland for DefendantJudgment:
25 January 2017
JUDGMENT OF CLARK J
Introduction
[1] A 1973 agreement between the predecessor of the Horowhenua District Council (HDC), the Levin Borough Council (LBC), and the trustees of the Lake Horowhenua Trust (the Trustees) provides for the construction and use of a drain which runs from Queen Street in Levin through land owned by the Muaupoko iwi into Lake Horowhenua (the Queen Street drain).
[2] The HDC was able to locate a copy of the agreement with the signatures of the Trustees but not of the LBC. With a view to ratifying the agreement, on
2 October 2013 the HDC passed a resolution specifically authorising execution of the agreement (the 2013 resolution).
[3] Mr Taueki, a member of Muaupoko and a beneficial owner of the Muaupoko land and the lakebed, alleges the agreement is in various ways unlawful, invalid or unenforceable and seeks declarations pursuant to s 3 of the Declaratory Judgments Act 1908 to that effect.
[4] Specifically he seeks:
(a) a declaration that the 1973 agreement “in its formation and/or its performance is invalid, unlawful, and of no legal effect” and is in any event “unenforceable”;
(b) a declaration that any “agreement or document of ratification made by
or authorised by or evidenced in writing by the HDC on 2 October
2013” so as to ratify the 1973 agreement is “invalid, unlawful, unenforceable and of no legal effect”; and
(c) such other declarations or relief as may be just.
[5] In the course of his submissions Mr Taueki sought relief beyond that now set out.
Background
[6] Lake Horowhenua is a shallow coastal lake located to the west of Levin. The Queen Street drain is Levin’s primary stormwater drain. For various reasons the quality of water in the lake is very poor. The drain has contributed to the problem.
[7] Mr Taueki is dutiful in his commitment to improving water quality and preventing further degradation of Lake Horowhenua. He is strident in his criticism of what he perceives to be systemic failures of central and local government in relation to the health of the lake.
[8] Mr Taueki has an earlier and an outstanding claim in the Māori Land Court in trespass and nuisance against the Council in respect of the drain. He initiated the proceedings in this Court in November 2013.
The claim
[9] Mr Taueki’s case was in the main advanced on four bases:
(a) The agreement is invalid because it was not signed, sealed, witnessed or delivered by the LBC.
(b)The agreement is invalid because it does not stipulate or provide for valuable consideration.
(c) The agreement is an illegal contract because it is contrary to and/or inconsistent with the objects and purposes of various legislation.
(d)The agreement is illegal because it is an agreement to perform the torts of private and public nuisance.
[10] The defendant disputes Mr Taueki’s claim and opposes the relief sought. It concedes, though, that if the agreement was invalid in its unsigned form the 2013 resolution would not have validated the agreement.
First ground — Agreement not properly executed
[11] Mr Taueki argues that the agreement is invalid because it was not signed, sealed, witnessed or delivered by the LBC. With only the signatures of the Trustees, it cannot be a binding agreement.
[12] The Council submits that the lack of a signature or seal of the LBC does not deprive the agreement of force. It relies on s 3(4) of the Public Bodies Contracts Act
1959 which saves contracts from invalidity for want of signature or seal in certain circumstances:
Notwithstanding anything in the foregoing provisions of this section, no contract made by or on behalf of a public body shall be invalid by reason only that it was not made in the manner provided by this section, if it was made pursuant to a resolution of the public body or to give effect to a resolution of the public body in relation to contracts generally or in relation to that particular contract.
[13] In his submissions on behalf of the Council Mr Kynaston provided an overview of the history of the agreement by reference to historical material covered in the affidavit of David Clapperton, the Chief Executive Officer of the HDC:
(a) Discussions between the Trustees and the LBC about a proposed stormwater line began in 1970 but delays arose from difficulties in arranging meetings with the Trustees.
(b)The minute book of the LBC records that on 17 May 1971 it resolved following discussion of the proposed drain that “the arrangements with the Trustees be approved and that authority be given to affix the seal of the Council to the necessary documents covering the agreement”.
(c) A letter of 20 May 1971 from the Town Clerk to the solicitors for the LBC records that on 10 May 1971 the Council reached agreement with the Trustees permitting the Council to lay the proposed drain provided it did not allow trade waste to be transmitted into the Lake through the drain.
(d)In the following months several drafts were sent between the solicitors and Town Clerk. The drafts are identical in wording to the agreement ultimately signed by the Trustees.
(e) An article in The Chronicle dated 7 December 1971 reported that at a meeting on 5 December 1971 an agreement was signed by three of the Trustees and approved by a number of other Māori present.
(f) Approximately 18 months later the solicitors informed the Town Clerk that all Trustees had signed the agreement and that the solicitors would attend to stamping the agreement.
(g)The final signed agreement is identical to the draft versions referred to at (d) above.
[14] The evidence is clear. The agreement gave effect to a 1971 resolution of the LBC in relation to the agreement. The effect of s 3 of the Public Bodies Contracts Act 1959 is that the agreement is not invalid for want of seal or signature by the LBC.
[15] Mr Taueki submitted in response to the Council’s reliance on the 1971 resolution that the Council is in default of that resolution; therefore the agreement is invalid. The resolution committed to not giving permission for trade wastes to enter the drain and pollutants have entered the drain. In my view that argument cannot succeed in the present application. Breach of the agreement would be a matter on which a party to the agreement might sue; not a basis for granting the declarations as to the agreement’s invalidity which Mr Taueki now seeks.
Second ground — No consideration
[16] Mr Taueki pleads that the agreement is invalid because no valuable consideration was provided in exchange for the Trustees entering the agreement.
[17] The Council’s position is that the exchange of promises in the agreement constitutes consideration. I accept Mr Kynaston’s submission that consideration comprised:
(a) the prospect that the LBC would construct and maintain a public drain where, previously, there was an unformed drain;
(b)the LBC’s agreement to cover the drain on completion, to restore the surface above it and essentially make good the land disturbed by the laying of the pipeline; and
(c) the LBC’s confirmation it would not give permission for trade wastes
to be discharged through the drain.
[18] The agreement resulted in an exchange of “something of value”. Consideration may be either some detriment to the promisee or some benefit to the promisor.1 Whether in the fullness of time the benefits have proved illusory does not invalidate the agreement for want of consideration — the Court will not enter into assessments of the adequacy of consideration.2
Third ground — Illegal contract
[19] Mr Taueki next contended that the agreement is illegal because it violates, is inconsistent with, or is contrary to various statutes. In essence Mr Taueki argues that the agreement breaches enactments.
[20] As to a contract allegedly breaching an enactment, the Illegal Contracts Act
1970 provides in s 5:
Breach of enactment
A contract lawfully entered into shall not become illegal or unenforceable by any party by reason of the fact that its performance is in breach of any enactment, unless the enactment expressly so provides or its object clearly so requires.
[21] In Tauranga Boys College Board of Trustees v International Education Appeal Authority Ellis J was required to consider the lawfulness of the termination of a contract for tuition of an international student.3 The contract for tuition had been terminated on disciplinary grounds which could not have justified expulsion under the Education Act 1989. That Act permitted expulsion only in relation to conduct connected to the school however the conduct in question was unrelated to the school. Ellis J expressed the view that the termination of a tuition contract that was inconsistent with, or in breach of, the right to have tuition enshrined within the Act
would be illegal:
1 Fuel Espresso Ltd v Hsieh [2007] NZCA 58, [2007] 2 NZLR 651 at [18].
2 At [18].
3 Tauranga Boys College Board of Trustees v International Education Appeal Authority [2016] NZHC 1381, [2016] NZAR 1029.
[100] … Here, TBC purported directly to terminate the tuition contract on disciplinary grounds which could not have justified expulsion under the Act. The Act (and the Code) makes it clear that tuition may only be terminated or refused in accordance with the Act. A purported contractual overlay makes no difference to that. In my view:
(a) the clarity and absoluteness with which the right to enrolment and tuition is expressed in the Act; and
(b) the wider context of fundamental human rights,
mean that a provision in a contract that was in inconsistent with, or in breach of, that right would be illegal.
[22] Mr Taueki’s contentions require me to consider the various enactments which Mr Taueki says are breached by the agreement: do the enactments expressly provide that contracts in breach are illegal or unenforceable or do their objects otherwise clearly so require? I address each enactment in turn.4
Reserves and Other Lands Disposal Act 1956
[23] Mr Taueki submitted that the agreement is contrary to s 18 of the Reserves and Other Lands Disposal Act 1956 (ROLD Act) because it permits and causes damage to the Lake, to Muaupoko and other people. Section 18 is lengthy and does not bear quotation but in short it:
(a) confirms the Trustees as legal owners of Muaupoko land and confirms
Muaupoko ownership of that land;
(b) establishes the Lake Horowhenua Domain and its board; and
(c) preserves certain fishing rights.
[24] Mr Kynaston’s submission is correct. Nothing in s 18 or the ROLD Act as a whole prevents the Trustees from entering a contract on the terms of the agreement in question. The effect of the Act is to confer legal ownership on the Trustees. In
entering into contracts related to the land the Trustees’ acts were entirely consistent
4 An enactment means “the whole or a portion of an Act or regulations”: s 29 Interpretation Act
1999. Accordingly, to the extent that Mr Taueki relies on specific sections of Acts, it is those sections that I will consider albeit in their broader statutory context.
with their legal ownership of it and accordingly the agreement is not in breach of the
ROLD Act.
[25] Even if the agreement were construed as permitting degradation and destruction of the waters of the Lake5 such damage and impairment is not addressed by the ROLD Act, expressly or impliedly, and therefore neither the agreement itself nor its performance is made illegal by that Act.
Town and Country Planning Act 1953 and Soil Conservation and Rivers Control Act
1941
[26] The Town and Country Planning Act 1953 (now repealed) provided for planning schemes for development. Infrastructure such as the Queen Street drain may have required consent under the relevant planning scheme. Similarly, under regulations and bylaws possibly promulgated pursuant to the Soil and Rivers Control Act 1941 the Queen Street drain may have required consent.
[27] But any statutory requirement arising from either Act to obtain consent to construct and operate the Queen Street drain would sit, as Mr Kynaston submitted, outside the agreement and would not be excluded or diminished by it.
[28] The agreement does not require the abandonment of any of the statutory requirements for consent. No term in the agreement cuts across either of the statutory consent regimes. A contract to do a thing which was not permissible without a consent might be frustrated if consent was not given, but the absence of consent would not make the contract an illegal contract.
Resource Management Act 1991, Local Government Act 2002, and Te Ture Whenua
Māori Act 1993
[29] The statement of claim pleads that the agreement contravenes, is inconsistent with or violates the statutory objectives of Local Government Act 2002, Te Ture
Whenua Māori Act 1993 and the Resource Management Act 1991.
5 As pleaded in the statement of claim at [27].
[30] Mr Taueki identifies s 13(1)(d) of the Resource Management Act 1991. Section 13 restricts certain uses of rivers and lake beds to those expressly allowed by a national environmental standard, a relevant plan, or a resource consent. As with the arguments in reliance on the Town and Country Planning Act 1953 and the Soil Conservation and Rivers Control Act 1941, these statutory requirements sit outside the agreement and are not excluded or diminished by it. Nor does any term in the agreement itself contravene or purport to cut across the conditional restrictions in s 13 of the Resource Management Act.
[31] Next Mr Taueki relies on s 191 of the Local Government Act 2002. Section 191 is in subpart 3 which, broadly speaking, confers powers on local and territorial authorities to enter private land and undertake activities authorised by subpart 3. However, s 191 stipulates that subpart 3 does not entitle a local authority to create a nuisance or deprive any person of the right or remedy they might otherwise have against the local authority or any other person in respect of any nuisance. Mr Taueki’s argument is that the agreement is illegal because it is an agreement to perform a tort, namely nuisance.
[32] Whether the construction or operation of the Queen Street drain amounts to a nuisance is not a matter which can be determined on an application for a declaratory judgment. To determine whether the Queen Street drain is a nuisance would require an action to be brought based on the alleged tort. In this proceeding there is no evidence on which to make such a determination, nor the jurisdiction to go beyond
the declaratory role of interpreting a document or similar.6 Without jurisdiction to
determine whether the Queen Street drain is a nuisance, the Court cannot determine whether the agreement is an illegal contract for breaching s 191 of the Local Government Act 2002.
[33] The same analysis is applicable to Mr Taueki’s argument that the agreement breaches s 19(1) of Te Ture Whenua Māori Act 1993, which provides for the Māori Land Court to issue injunctions in relation to trespass or injury to Māori land. The Court is unable to determine, on the present application, whether the Queen Street
drain is a trespass or injury.
6 Declaratory Judgments Act 1908, s 3.
Fourth ground — Agreement to perform a tort
[34] Mr Taueki contends that the agreement is an agreement to perform a tort and is accordingly unlawful. The torts identified are private and public nuisance.
[35] The respondent submitted that any tort involved would be incidental to the agreement’s performance and accordingly the agreement is not unlawful as an agreement to commit a tort.7 Nor would Mr Taueki have standing to sue on a tort as his interest as a beneficial owner of Muaupoko land is represented by the trustees as legal owners of the land.
[36] In any case this question turns on whether there has in fact been a tort which, as earlier discussed, is a matter which cannot be determined in the context of this application for a declaratory judgment.
The 2013 resolution
[37] Mr Taueki seeks a declaration that:8
The agreement or document of ratification made by or authorised by or evidenced in writing by the Horowhenua District Council on 2 October 2013 as to ratify the draft 1973 Agreement between the Lake Horowhenua Trustees and the Levin Borough Council is invalid, unlawful, unenforceable and of no legal effect.
[38] I have found for the preceding reasons that the agreement is not invalid, unlawful, unenforceable or of no legal effect. But Mr Taueki also advances an argument that the Council’s 2013 resolution is ultra vires the Local Government Act
2002 or otherwise invalid. Mr Taueki says a resolution could not retrospectively validate an agreement that was otherwise not valid. This ground of invalidity was not pleaded.
[39] There are two reasons why this argument cannot succeed. First, the HDC does not rely on the 2013 resolution for the validity of the agreement. Indeed, it specifically concedes that the 2013 resolution would not have been effective to
validate the agreement were it invalid.
7 Citing ParkingEye Ltd v Somerfield Stores Ltd [2013] 1 QB 840, [2012] EWCA 1338.
8 Statement of claim at [28].
[40] Secondly, the 2013 resolution does not fall for consideration under s 3 of the Declaratory Judgments Act. While the Court possesses a wide discretion under s 3 the orders sought must nevertheless relate to one of the documents listed in s 3.9 The resolution of a local authority does not fall within any of the categories of documents or enactments the validity of which may be determined in an application under s 3.
[41] Even had the application been brought under s 2 of the Declaratory Judgments Act, s 2 concerns declarations of right. A Court should decline to exercise its discretion to grant relief under that provision where there are no contested legal rights.10 Because, in this proceeding, the defendant does not rely on the 2013 resolution there are no contested legal rights in relation to it and relief would be refused even were the plaintiff ’s argument permissible on his pleadings.
Decision
[42] It follows from my analysis and conclusions in relation to each of the grounds advanced that a declaration of invalidity or unlawfulness is refused. My conclusions mean it is unnecessary to address the affirmative defences advanced by the defendants.
[43] Nor is it necessary to address the other forms of relief sought in submissions. They included an injunction, damages, and orders requiring specific actions on the part of the HDC. The additional relief sought is non-declaratory and therefore unavailable in proceedings under the Declaratory Judgments Act. In particular that relief was not pleaded and the HDC did not therefore adduce any evidence bearing
on the relief Mr Taueki sought in his submissions.
9 Mandic v Cornwell Trust Board [2010] NZCA 576 at [13].
10 Gouriet v Union of Post Office Workers [1978] AC 435; [1977] 3 All ER 70 (HC): Gazley v
Attorney-General (1995) 2 NZPC 415; (1995) 8 PRNZ 313 (CA).
Result
[44] The application is declined.
[45] The defendant is entitled to costs. If the parties are unable to agree costs they may file brief memoranda by 24 February 2017.
Karen Clark J
Solicitors:
P D Taueki/A Hunt for Plaintiff
H P Kynaston/M L Mulholland, Buddle Findlay for Defendant