Watercare Services Limited - [2018] NZHC 294

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2017-404-292

[2018] NZHC 294

UNDER the Declaratory Judgments Act 1908

AND

UNDER

the Judicature Act 1908

AND

IN THE MATTER

of s 191(3) and Schedule 12 of the Local Government Act 2002

IN THE MATTER

of an application by WATERCARE SERVICES LIMITED

Applicant

Hearing: 9 October 2017

Appearances:

R J Somerville QC, B S Carruthers and A M Cameron for the Applicant

J Caldwell as amicus curiae with K Dawson

Judgment:

1 December 2017

Reasons:

1 March 2018

JUDGMENT OF WOODHOUSE J

(Reasons)

This judgment was delivered by me on 1 March 2018 at 3:30 p.m. pursuant to r 11.5 of the High Court Rules 2016.

Registrar/Deputy Registrar

……………………………………

RE WATERCARE SERVICES LTD [2018] NZHC 294 [1 March 2018]

Introduction

[1] Watercare Services Ltd (Watercare) sought declarations as to the interpretation of s 181 and sch 12 of the Local Government Act 2002 (the Act). Section 181 and sch 12 make provision for construction of works on or under private land for sewage and stormwater drainage, amongst other works. In a judgment without reasons the declarations were made.1 I now provide reasons.

Summary: the background, the issue, the alternative interpretations and the decision

[2] Watercare, is a council-controlled organisation of Auckland Council. It is responsible for the construction, ownership and management of all publicly owned water supply, wastewater and sewage systems in Auckland. As such, Watercare has the power of a local authority under s 181 of the Act to construct works.2 This power is subject to compliance with other provisions in s 181 and sch 12 which are directed to the rights of owners and occupiers of affected land and buildings.

[3] Watercare is proposing to undertake major underground sewage and stormwater drainage works in Auckland, known as the Central Interceptor. These works will collect, store and convey wastewater from the central area of the Auckland Isthmus to the Mangere Wastewater Treatment Plant. Watercare cannot proceed with the work under s 181 unless it either has the prior written consent of the owners of the land through which the drains will pass, or it has complied with the requirements of sch 12.

[4] Schedule 12 requires, in addition to public notice of the proposed works, individual notices to the owners of land who have not consented, where the owner is known, and to the occupier of land or a building through or under which the works will pass. Schedule 12 makes provision for objections by owners and occupiers, a procedure for determination of objections, and a right of appeal to the District Court.

1 Re Watercare Services Ltd [2017] NZHC 2981. The declarations are recorded below at [9].
2 Local Government (Auckland Council) Act 2009, s 64.

[5] Schedule 12 contains a proviso that, if there is a change of occupier after notice of the intention to construct the works has been given, it is not necessary to give notice…

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

AGLC: Watercare Services Limited [2018] NZHC 294
Case: [2018] NZHC 294
Decision Date: 1 December 2017

CaseChat Overview and Summary

Watercare Services Ltd applied for declaratory judgments under s 3 of the Declaratory Judgments Act 1908 as to the meaning of s 181 and sch 12 of the Local Government Act 2002. The court was satisfied that it had jurisdiction to hear the application and that it was appropriate to exercise its discretion to make the declarations sought. The court held that, if there is a change of owner after written consent has been given, it is not necessary either to obtain the written consent from the subsequent owner or give the subsequent owner notice under Schedule 12(1)(b) of the Act of the intention to construct the works before the work is done. The court also held that, if there is a change of owner after notice has been given under clause 1(b) of the Schedule, it is not necessary to give notice to any subsequent owner before the work is done. The court held that the second alternative was contrary to the broad purposes of the Act, and to the more specific objectives under s 181 and sch 12.

Orders