Weir v Kapiti Coast District Council
[2013] NZHC 3516
•19 December 2013
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CIV-2012-485-2577 [2013] NZHC 3516
UNDER the Judicature Amendment Act 1972 and
Part 30 of the High Court Rules
IN THE MATTER OF an application for judicial review
BETWEEN M and V Weir
Applicants
ANDKAPITI COAST DISTRICT COUNCIL Respondent
COASTAL RATEPAYERS UNITED INC. Intervenor
Hearing: 24 June 2013
Counsel: P Milne and G Holgate for Applicants
T C Stephens and S Fairbrother for Respondent
M Smith for Intervenor
Judgment: 19 December 2013
INTERIM JUDGMENT OF WILLIAMS J
Background
[1] The coast is a dominant social, cultural and economic feature of life in these islands. The coastline itself is constantly evolving, but the climate change phenomenon seems to be accelerating and accentuating the processes that drive these changes. This case is about how coastal communities are learning to cope with both the inevitability of marine incursion onto the foreland, and the difficulty of predicting where and at what rate, incursion will occur.
[2] The site of this debate is the humble LIM: the local authority’s land
information memorandum familiar to every purchaser of property in New Zealand.
WEIR v KAPITI COAST DISTRICT COUNCIL [2013] NZHC 3516 [19 December 2013]
The question is how much information about future changes to the shoreline must be included in a LIM.
[3] In 2005, the Kapiti Coast District Council (KCDC or the Council) commissioned Dr Roger Shand, an applied coastal scientist, to undertake a coastal hazard erosion assessment for the Kapiti Coast District. He issued two reports – one in 2008 and a second final report in 2012. These reports have provided the scientific basis for the Council’s coastal erosion planning going forward.
[4] When the second Shand Report was delivered in August 2012, the Council decided to place on its cadastral maps, a series of coastal erosion hazard “prediction lines” derived from Dr Shand’s findings. These lines covered the entire
38 kilometres of open coastline within the Kapiti Coast District, together with the 12 separate river or estuarine inlets along that length. The lines predicted the possible extent of incursion of the shoreline at 50 years and 100 years from the present day. There were two separate 50 year lines – a “managed line” (in areas where there are coastal protection structures operated by the Regional Council) in which it is assumed the Regional Council’s coastal protection structures are maintained by that Council at current levels; and an “unmanaged line”, predicated on the Regional Council allowing current protection structures to fail over time without repairing or replacing them, or applicable where, as in most of the coastline, there are no such structures. The 100 year line was “unmanaged” only. There was no ‘managed’ equivalent – presumably because over 100 years, sea incursion was predicted to be so significant that no realistic coastal protection measures could succeed in holding back the tide.
[5] 1800 coastal properties in the Kapiti Coast District were affected by these new lines in some way. For most, the lines bisected their titles on the Council cadastral, the 50 year managed prediction line shaving off a few metres of beach frontage, the 50 year unmanaged lines, a little more, while the 100 year unmanaged line penetrated more deeply. In some cases though, the relevant line completely overtook the title indicating that the entire property could become swamped by sea within the relevant prediction period. Dr Shand adopted sea level rise indices of
0.3m over 50 years and 0.9m over 100 years.
[6] The applicants in this case, the Weirs, own a property in Olliver Grove, PekaPeka South. It is bisected by the Shand 100 year line. The intervenors Coastal Ratepayers United (CAU) represent many more land owners whose properties are affected by one or more of the lines.1
[7] As Dr Shand was at pains to point out in his report, these lines were not based on any probability assessment. Coastal science, he said, was not yet sufficiently sophisticated to attach probabilities to any particular lines. Rather, his lines were “deterministic”. They identified a single worst case under each of the three scenarios
– 50 year managed and unmanaged and 100 year unmanaged. They were calculated on an intentionally precautionary basis. For example, they do not factor in coast line accretion even though it is known that accretion is occurring in some parts of the Kapiti Coast including at the Weirs’ frontage. Dr Shand says accretion was written out of the assessment because science cannot yet predict where accretion will occur or at what rate. As a result, the Shand lines predict the worst that could happen over
50 and 100 years absent the most extreme set of environmental circumstances. In short, the lines predict the maximum width of coastal land likely to be impacted by coastal erosion over 50 and 100 years.
[8] Ultimately, the Council plans to use these lines to ground coastal land use planning controls in its review of the Kapiti Coast District Plan. The new Proposed District Plan was notified in November 2012. Chapter 4 – the coastal environment chapter – contains proposed “no build” areas and “relocatable build” areas based around the Shand lines. Building seaward of these lines would either be prohibited, or only allowed if the building itself was relocatable. Submissions on Chapter 4 closed at the beginning of April this year and the period during which cross- submissions may be lodged commenced in the second half of 2013.
[9] It is in the context of the plan review process involving hearings before independent Council appointed commissioners, and possible merits appeals to the
Environment Court, that Dr Shand’s science will be fully tested. As will the
1 A memorandum was also filed, with leave, by Mr Maassen on behalf of the North Otaki Beach Residents Group Inc. That group of residents are also affected by the Shand lines, although apparently to a somewhat lesser extent. I will come back to those submissions at the end of the judgment.
proposed planning controls I have outlined above, all of which are built on that science.
[10] The Shand Report was, it was said, completed as required by the New Zealand Coastal Policy Statement (NZCPS) which came into effect in 2010. The fact that the NZCPS was promulgated after the first Shand Report in 2008, explains why a further iteration of that report was produced in 2012. Policy 3 of the NZCPS mandated a precautionary approach to regulation of the coastal environment. It provides:
(1) Adopt a precautionary approach towards proposed activities whose effects on the coastal environment are uncertain, unknown, or little understood, but potentially significantly adverse.
(2) In particular, adopt a precautionary approach to use and management of coastal resources potentially vulnerable to effects from climate change, so that:
(a) avoidable social and economic loss and harm to communities does not occur;
(b) natural adjustments for coastal processes, natural defences, ecosystems, habitat and species are allowed to occur; and
(c) the natural character, public access, amenity and other values of the coastal environment meet the needs of future generations.
[11] Paragraph 24 relates to the identification of coastal hazards. It requires hazard risks to be assessed over at least 100 years. That requirement in particular, is why Mr Shand went back to the drawing board in 2012, his first report only providing for 50 year predictions. Policy 24 provides as follows:
(1) identify areas in the coastal environment that are potentially affected by coastal hazards (including tsunami), giving priority to the identification of areas at high risk of being affected. Hazard risks, over at least 100 years, are to be assessed having regard to:
(a) physical drivers and processes that cause coastal change including sea level rise;
(b) short-term and long-term natural dynamic fluctuations of erosion and accretion;
(c) geomorphological character;
(d) the potential for inundation of the coastal environment, taking into account potential sources, inundation pathways and overland extent;
(e) cumulative effects of sea level rise, storm surge and wave height under storm conditions;
(f) influences that humans have had or are having on the coast; (g) the extent and permanence of built development; and
(h) the effects of climate change on: (i) matters (a) to (g) above;
(ii) storm frequency, intensity and surges; and
(iii) coastal sediment dynamics;
taking into account national guidance and the best available information on the likely effects of climate change on the region or district.
[12] Meanwhile, on receipt of the final Shand Report in August 2012, senior management within the Council took the view that the report was information caught by s 44A(2)(a) of the Local Government Official Information and Meetings Act 1987 (LGOIMA). That section relates to LIMs. It provides:
The matters which shall be included in that memorandum are–
(a) information identifying each (if any) special feature or characteristic of the land concerned, including but not limited to potential erosion, avulsion, falling debris, subsidence, slippage, alluvion, or inundation, or likely presence of hazardous contaminants, being a feature or characteristic that–
(i) is known to the territorial authority; but
(ii) is not apparent from the district scheme under the Town and Country Planning Act 1977 or a district plan under the Resource Management Act 1991.
[13] The Council considered that the information in the Shand Reports, including the predicted shorelines, met the description in paragraph (a). That is that it
contained information:
identifying a special feature or characteristic of the land;
in particular, potential erosion;
that, as a result of the Shand Reports, is known to the Council; and
is not apparent in the Kapiti Coast District Plan. The definition of
District Plan in the Resource Management Act does not cover a Proposed
District Plan.
[14] This in turn meant, in the view of officials, that any applicant for a LIM in relation to a coastal property affected by the Shand lines, must be notified in the LIM of the Shand Reports’ conclusions as they affect that property.
[15] Officials considered that subsection (6) of s 44A removed from the Council any discretion in that respect. Subsection (6) provides:
Notwithstanding anything to the contrary in this Act, there shall be no grounds for the territorial authority to withhold information specified in terms of subsection (2) or to refuse to provide a land information memorandum where this has been requested.
[16] Emily Thompson, Senior Analyst at the Council, included in her affidavit an example of the information placed in LIMs as a result of the Shand Reports. The information is a five page document – including two pages showing the unmanaged
50 and 100 year lines across the particular title in question. The 50 year line cuts a sliver off the beach frontage. The 100 year line encroaches to within a few metres of the dwelling on site. The lines capture the viewer’s attention immediately.
[17] The written information by contrast to the eye catching simplicity of the lines, is relatively dense. Among other things, it confirms that these prediction lines are worst case scenarios and that they are not site specific assessments but are instead “local level” in scale. It also confirms that no account has been taken of privately owned protective structures such as sea walls, nor of shoreline accretion, even though the Council is aware that some parts of the coast are presently “undergoing long term accretion”. This issue is of particular relevance and significance to the applicants. They say contrary to Dr Shand’s prediction, their coastline has been advancing in a seaward direction for some years.
[18] As noted in [7] above, accretion was excluded as a relevant factor because of Dr Shand’s advice that current understanding of accretion processes is too imperfect to make any useful prediction of their effect on shoreline change on the Kapiti Coast.
[19] The LIM information also notes that a 100 year sea level rise of 0.9m is adopted in the Shand predictions, and that the Council takes a precautionary approach to any uncertainties in predictive modelling.
[20] In summary form, those are the facts, or at least sufficient of them to resolve the legal controversy before me. I turn now to address the issues raised. I begin with certain objections that Mr Stephens on behalf of KCDC took with respect to certain affidavit evidence filed by the applicants and the intervenor. I then turn to the substantive debate.
Admissibility objection
Arguments
[21] KCDC objects to admitting the affidavits of the following witnesses who purported to give opinion evidence on areas within their expertise: Jeffery Ashby as a geologist; Christopher Packer as a real estate expert; Donald Frampton as a coastal scientist; Sharon Strong as an expert valuer; and Bryce Wilkinson as a public policy expert.
[22] These affidavits are objected to both because they have each of them failed to comply with cls 3(a), (b) and (c) of the Code of Conduct for expert witnesses, and because the deponents are each of them, owners affected by the decision under review. Alternatively, Mr Stephens argued that, if they are admissible, then they should be given little or no weight.
[23] There was a further objection with respect to the evidence of Willem de Lange, a coastal scientist. He provided the challengers’ primary counter to the Shand Reports. Although this evidence was filed in reply, KCDC complains that it is in fact evidence in chief, and is filed well out of time. Mr Stephens pointed out that a fixture in this matter had already been adjourned once due to the late filing
of evidence but the de Lange evidence, upon which the applicants placed much weight, was filed a week and a half prior to the new fixture. This, Mr Stephens argued, was in such gross breach of both the letter and spirit of successive timetabling orders, that the affidavit should not be read.
Analysis
[24] In dealing with public interest litigation being advanced by unfunded or poorly funded community groups against public authorities, there is a need to give such groups some latitude so as to ensure that the actual dispute is fully and properly aired before the court. Here Mr Weir began the process by acting for himself and his wife but instructed counsel at a very late stage. The ratepayers’ organisation also instructed counsel but it is clear that they too are operating on a very limited budget.
[25] Evidence from experts who have their own interest in public issue litigation of this kind will still be admissible, although the court must be alive to issues of objectivity, and the weight accorded such evidence may be affected accordingly. As to Mr de Lange’s evidence, it simply seems to underscore the point that the science deployed by Dr Shand (and the scientists who reviewed his work for KCDC) is both hotly debated and (all readily accept) imperfect. Mr de Lange’s evidence must be admissible for that purpose and I have read it accordingly. I do not see how KCDC is unduly prejudiced by the applicants being given an opportunity to demonstrate how and why the science of predicting coastal erosion hazard is so controversial. The point is probably obvious anyway. Beyond that of course, it is not the role of
this court on judicial review to choose whose science it prefers.2
[26] I hold the affidavits to be admissible accordingly and they have been read.
2 In that respect see New Zealand Climate Science Education Trust v National Institute of Water and Atmospheric Research Ltd [2013] 1 NZLR 75 at [48] and New Zealand Pork Industry Board v Director-General of the Ministry of Agricultural and Forestry [2012] NZHC 888 at [111].
T h e Court’s rol e on rev iew in th is case
Arguments
[27] Mr Smith for CRU argues that this is essentially a case about the interpretation of s 44A(2) of the LGOIMA. It is therefore, he said, a case within the core competency of the court and it is not appropriate for the court to take a deferential approach on judicial review as suggested by the Court of Appeal in Wellington City Council v Woolworths New Zealand Ltd.3
[28] KCDC argued that there is no room for discretion under s 44A(2) and judicial review is either entirely inappropriate or very narrow in compass. If the information in question fits the description in subsection (2) then it must be included in the LIM. Secondly, while construing that description is a matter of interpreting the subsection, KCDC argued that the rules for construing imprecise statutory language such as that contained in subsection (2) are different where the description is imprecise. It is sufficient, the Council argued, relying on the Supreme Court judgment in Vodafone v Telecom that the decider applies a rational construction of the language to the particular facts, even if different deciders each acting rationally might reach different
conclusions in applying the imprecise language to the particular case.4
Analysis
The legislation
[29] Provision for LIMs was introduced into LGOIMA in 1991 by way of the LGOIMA Amendment Act 2003. Paragraph (a) of the clause upon which this case is focused was contained in the original draft, but a number of additional categories have been added since that time. As William Young P (as he then was) noted in the
Byron Avenue case:5
The LIM system was introduced as part of the same statutory package as the Building Act 1991 and was plainly intended to promote a simple mechanism by which potential purchasers can inform themselves as to potential property risks.
3 Wellington City Council v Woolworths New Zealand Ltd [1966] 2 NZLR 537.
4 Vodafone v Telecom [2011] NZSC 138, [2012] 3 NZLR 153 at [54] to [55].
5 O’Hagan v Body Corporate 189855 [2010] NZCA 65, [2010] 3 NZLR 486 at [136].
[30] The LIM was created to empower purchasers in the real estate market by giving them access to information that could affect price, land suitability or even saleability. For that reason, speed of delivery and certainty of information to be provided were built into the design. LIMs have to be provided by councils within 10 days of application,6 and the 11 categories of information described in subsection (2) must be supplied to the applicant. There are no grounds for the Council to withhold subsection (2) information, or more generally to refuse to provide a LIM.7
[31] I have cited some parts of s 44A, but it is useful to set out subsection (2) in full. The categories of information described in subsection (2) are as follows:
(a) information identifying each (if any) special feature or characteristic of the land concerned, including but not limited to potential erosion, avulsion, falling debris, subsidence, slippage, alluivion, or inundation, or likely presence of hazardous contaminants, being a feature or characteristic that–
(i) is known to the territorial authority; but
(ii) is not apparent from the district scheme under the Town and Country Planning Act 1977 or a district plan under the Resource Management Act 1991:
(b) information on private and public stormwater and sewerage drains as shown in the territorial authority’s records:
(ba) any information that has been notified to the territorial authority by a drinking-water supplier under section 69ZH of the Health Act 1956:
(bb) information on–
(i) whether the land is supplied with drinking water and if so, whether the supplier is the owner of the land or a networked supplier:
(ii) if the land is supplied with drinking water by a networked supplier, any conditions that are applicable to that supply:
(iii) if the land is supplied with water by the owner of the land, any information the territorial authority has about the supply:
(c) information relating to any rates owing in relation to the land:
(d) information concerning any consent, certificate, notice, order, or requisition affecting the land or any building on the land previously
6 Local Government Official Information and Meetings Act 1987, s 44A(1).
7 Section 44A(6).
issued by the territorial authority (whether under the Building Act
1991, the Building Act 2004, or any other Act):
(e) information concerning any certificate issued by a building certifier pursuant to the Building Act 1991 or the Building Act 2004:
(ea) information notified to the territorial authority under section 124 of the Weathertight Homes Resolution Services Act 2006:
(f) information relating to the use of which the land may be put and conditions attached to that use:
(g) information which, in terms of any other Act, has been notified to the territorial authority by any statutory organisation having the power to classify land or buildings for any purpose:
(h) any information which has been notified to the territorial authority by any network utility operator pursuant to the Building Act 1991 or the Building Act 2004.
[32] It will be seen at once that all categories of information other than that set out in (a) relate to standard Council-sourced or received information pertaining to water, drainage, rates, building consents, leaky building issues, land use rules and permissions, land use or building classifications, and network utility operator issues. It will, I suggest, always be a straightforward matter to determine whether a document on file fits the particular description in s 44A(2)(b)–(h).
[33] Paragraph (a) is altogether different. There are a number of components in this paragraph to which I will return below, but for now it is sufficient to note that whether the potential for erosion (amongst other things) is a special feature of the land in question, is inevitably going to require a judgement call on the part of some official. The necessity for judgement in applying the words of paragraph (a) to the application in question, very much distinguishes paragraph (a) from the other paragraphs. Latitude is plainly required in that respect, in light of the administrative and non-discretionary format of the section; the volume of applications that must be addressed by Council on an annual basis, and the mandatory and short timeframe
available to process LIM applications.8
[34] That said, it is not the case that the Council will make a decision on whether to include the Shand lines in relation to any particular property on a LIM by LIM
8 I understand that KCDC receives on average three such applications a day.
basis. In fact, in this case, the Council’s senior management team made a general decision after careful consideration of the Council’s statutory obligations, to include the Shand lines on Council maps believing that KCDC was duty bound to do so because the Shand Reports and lines fitted the paragraph (a) description. That decision at senior management level was subsequently noted by the Council itself at a Council meeting. So the decision to include in the LIM, the particular information at issue in this case, was far from administrative in nature. It was carefully considered over a longer timeframe than the 10 day statutory timeframe. Mr Stephens’ argument that these decisions are workaday administrative ones does not really fit the unique circumstances of this case.
[35] I note also that, if there is an obligation to include the Shand lines on the LIM, that obligation lasts only so long as they have not been transposed onto the Operative District Plan as a result of the statutory district plan review process. That is the process in which Dr Shand’s science and the reliability of his 50 and 100 year lines will be put to the test by the affected community. I must be careful not to usurp the role of the review under cover of a purported exercise in statutory interpretation.
[36] But I must still in the end be satisfied that the information referred to in the LIM fits the description in paragraph (a) in light of the text and purpose of s 44A and the practical context within which it applies in this case. I derive no particular assistance from considering broader abstract contentions about the intensity of review beyond the obvious and constantly useful markers to which I have just made
reference.9
[37] I will turn to the words of s 44A(2) below, but I note here the purposes and principle of the LGOIMA is set out in ss 4 and 5. I realise that s 44A was parachuted in to the LOGIMA, four years after its enactment, but that does not mean that the purposes and principles of LGOIMA do not apply to it. On the contrary, the fact that s 44A was placed in LGOIMA indicates that where applicable, the legislature must have intended that ss 4 and 5 applied to s 44A. The relevant purpose is in my view
contained in s 4(a):
9 See for example, Commerce Commission v Fonterra [2007] 3 NZLR 767 (SC) especially at [22]
per Tipping J as the classic modern New Zealand restatement of these principles.
To provide for the availability to the public of official information held by
local authorities…
[38] I do not consider that s 4(c) relating to the protection of official information in the public interest, and the preservation of personal privacy has application in this case. The Shand Reports do not raise any privacy issues and there are no relevant public interest bases for withholding the reports. The interest based considerations argued for by the applicants and the intervenor are private interests rather than public ones.
[39] Section 5 provides:
The question whether any official information is to be made available, where that question arises under this Act, shall be determined, except where this Act otherwise expressly requires, in accordance with the purposes of this Act and the principle that the information shall be made available unless there is a good reason for withholding it.
[40] That section seems more focused on the exercise of discretion, than the interpretative exercise with which I am primarily pre-occupied here, nonetheless the flavour of this legislation is to disclose unless there is good reason for withholding.
The terms of s 44A(2)
[41] There are various ways in which the terms of paragraph (a) can be sliced. Mr Smith suggested as many as six elements to be addressed and separately construed: is the Shand Report (a) information, (b) that identifies, (c) potential erosion, (d) as a special feature or characteristic of the land concerned, (e) that is known to the territorial authority, and (f) not evident on the district plan.
[42] I have found it more useful to assess the applicability of the subsection by asking three key questions:
(a) Does the information in the Shand Reports (including the 50 and 100 year prediction lines) relate to potential erosion?
(b) Does that information relate to a feature or characteristic of the
applicants’ land (or indeed any other individual title)?
(c) Is it information that is “known” to KCDC?
These questions I hope address each of Mr Smith’s elements, but in a way that is less fragmentary. I simply assume the Shand Reports are information. I cannot see how they can be anything else.
Potential erosion
Arguments
[43] Mr Milne, for the Weirs argued that the Shand Report did not relate to potential erosion and therefore did not qualify as information to be included under paragraph (a). That was because, as the reports themselves confirmed, their prediction lines are deterministic, not probabilistic. They do not assess the probability of erosion occurring all the way to the 50 and 100 year lines over those respective timeframes. Thus, there is, Mr Milne argued, no way of knowing how reliable the lines are. They cannot therefore be considered to reflect potential erosion at all. “Potential”, he said, requires an assessment of probability of the hazard actually eventuating.
[44] Mr Smith argued that the Shand lines are in fact no more than speculative. That is partly because the lines ignore obviously relevant factors in relation to predicting coastal erosion such as accretion history at the location, land contour, and privately owned coastal protection structures. Although Mr Smith accepted that “potential” is capable of a very wide meaning – merely possible – a narrower meaning should, he argued, be adopted here. Where otherwise would the line be drawn, he asked? Earthquakes and meteor showers are all possible too, he argued. Should they also be referred to on the LIM?
[45] Mr Smith argued further that “potential” erosion should be interpreted consistently with the adjective adopted in relation to the second sub-category of examples in paragraph (a), namely the “likely” presence of hazardous contaminants. Mr Smith argued that the use of “likely” in that context suggests that potential should be construed narrowly.
[46] Mr Stephens on the other hand argued that “potential” should be given its fullest meaning – “possible or capable of coming into being”. He argued that Dr Shand’s deterministic predictions were necessary because probabilistic analyses of coastal erosion are not scientifically feasible at this point. He argued that predicative timeframes of at least 100 years are required by the NZCPS and it is simply not possible to be exact over that required timeframe. All scientists who filed evidence in this case agreed with that proposition.
[47] It is also reflected, Mr Stephens argued, in the Ministry for the Environment’s
Coastal Hazards and Climate Change Guidelines:10
Coastal erosion, on the other hand, at present tends not to be expressed probabilistically. As it is an ongoing process (a creeping hazard) it is usually defined as the expected position of the coast at a certain future point in time.
[48] The thrust of the evidence of scientists for KCDC was that the lines provide a sound worst case prediction over the assessment period using orthodox and up-to- date methods, together with an appropriately precautionary approach as required by the NZCPS.
Analysis
[49] The Shand Reports do contain information in relation to potential erosion. The term erosion is to be construed widely in accordance with the purpose of s 44A which is to inform the market of special features or characteristics of the land that may affect value, suitability or saleability. Incursion from the sea is erosion. “Potential” is to be distinguished from “likely” as the two terms are used in paragraph (2). Information in relation to hazardous contaminants must show that they are “likely” to be present in the land before the duty to include that information in a LIM is triggered. “Likely” is the standard because it relates to a present fact or probability – discernible to a certainty if necessary by testing. Presumably that is why subsection (5) which declares the information in the LIM to be sufficient evidence of its “correctness”, is subject to the important rider that the sufficiency
presumption applies only “[i]n the absence of proof to the contrary”.
10 Coastal Hazards and Climate Change, a guidance manual for local government in New Zealand
(Ministry for the Environment), 2nd ed, July 2008) at 5.3.3.
[50] The point is that “likely” unquestionably refers to probability – specifically a state of facts that is more probable than not.
[51] The future possibility items are different. Erosion, avulsion, falling debris, subsidence, slippage, alluvion, or inundation all refer to physical effects on the land that have not yet occurred and, it is accepted, may never occur. I consider that the drafter carefully selected the term “potential” as opposed to “likely” when referring to these possible future events. That is because it is not feasible to attach probabilities to them. Instead, there is an obligation to refer in the LIM to information held by the Council and relating to such future events only if there is a possibility that they may occur in the future. By possibility, I mean a reasonable possibility objectively determined.
[52] In my view, the assessment by Shand does raise such reasonable possibilities objectively determined. He admits that his lines are a very worst case scenario, partly because he has removed certain mitigating factors from the calculation on the basis that science has not yet worked out how to reliably include them. But a worst case scenario objectively identified and evidentially based, must, by definition, be a reasonable possibility – albeit the worst one. Indeed, the worst case is the boundary line between reasonable possibility and mere speculation.
[53] I am satisfied that Mr Shand’s science is sufficiently robust to satisfy that relatively low threshold requirement. Of course I say nothing at all about whether the Shand Report and the Shand lines should survive a more rigorous merit-based review through the District Plan Review process under the Resource Management Act 1991. That is not my arena.
Does that feature relate to the applican ts’ lan d (or in d eed an y other titl e)?
Arguments
[54] Mr Milne argued that the information in the Shand Reports does not relate to any specific land and therefore cannot meet the description of “special feature or characteristic of the land concern” as required by paragraph (a).
[55] That, Mr Milne argued, is because the assessment undertaken by Dr Shand was never site-specific. No assessment was made, he argued, of the particular features or characteristics of any individual lots to which LIMs will attach. Rather, his assessment was done at the “local” level. The practical effect of this was, as I have said earlier, that Dr Shand took no account of information that might have a particular impact on erosion at the site, such as any history of accretion, the presence of privately owned coastal protection structures or individual land contours that might affect the extent of incursion on a site-specific basis.
[56] Mr Smith echoed that submission and added that the requirement that LIM information must relate to particular land was intentionally built into s 44A. He cited the Explanatory Note to the Building Bill in relation to what would become s 44A. The Explanatory Note provided that LIMs:
… will contain information held by a territorial authority in relation to a particular area of land, for instance whether the land is subject to subsidence, or whether there are [orders] or consents affecting the land.
[57] Mr Stephens argued that the information does not need to be land specific. It is sufficient, he argued, that Dr Shand’s local level analysis will be the basis for site- specific development controls. There is therefore a specific connection to particular land sufficient to require the Council to advise the market of the existence of the information held.
Analysis
[58] I agree that the information is sufficiently site-specific to be caught by paragraph (a). Information can relate to a special feature or characteristic of the land without a site-by-site analysis being undertaken. The special feature or characteristic of all land the subject of the Shand lines is that it is situated on the coast at a time of gradual sea level rise. The Shand analysis is an assessment of the potential erosion effect of that general trend. His conclusions in that regard may be right or they may be wrong – that is to be assessed in a separate process. The analysis may or may not be sufficiently “granular” to withstand attack in that other process. But, it is unquestionably about potential erosion as a special feature or characteristic of all coastal land along the Kapiti Coast, and therefore of every individual property fitting
that description. Here, the Council is trying to warn the market about the potential local effects of a global phenomenon. It would be inconsistent with the purpose of s 44A if that could not be done because a far more expensive site-by-site analysis is required but unaffordable.
[59] The sound approach, in my view, is to leave challenge to the site-by-site analysis to the plan review process and in the meantime, to think far more carefully about how the Shand information is actually recorded on the LIM.
Is the Sh an d inf ormatio n “k n ow n to” KCDC?
Arguments
[60] Mr Milne argued that the information in the Shand Reports is not “known to” KCDC because neither Dr Shand nor the Council know how probable the posed outcomes at 50 and 100 years are. Mr Milne relied on s 44A(5) in particular. This provides:
In the absence of proof to the contrary, a land information memorandum shall be sufficient evidence of the correctness, as at the date of its issue, of any information included in it pursuant to subsection (2).
[61] This provision deems the LIM to be sufficient evidence of the correctness of the information it contains in the absence of proof to the contrary. That requirement operates, Mr Milne argued, as an implied filter on the kinds of information caught by paragraph (a). Only information that is known to a reasonable degree of certainty was, he argued, intended to be caught. That is to read paragraph (a) consistently with the other paragraphs in subsection (2). Other information can be included, but such inclusion is via the discretionary provision in subsection (3). That subsection provides:
In addition to the information provided for under subsection (2), a territorial authority may provide in the memorandum such other information concerning the land as the authority considers, at its discretion, to be relevant.
[62] Mr Smith argued that “known” was used intentionally. The legislature could have used “has notice of” or “is aware of”, if paragraph (a) was intended to relate merely to information received by the Council, rather than information processed
such that it is “known” to the Council. Mr Smith cited the Collins English Dictionary to the effect that to “know” is “to be or feel certain of the truth or accuracy of (a fact, etc).11 Thus, it was argued that KCDC must be certain of the truth or accuracy of the Shand predictions in order to be required to include that information in the LIM.
[63] Mr Stephens argued that “known to” the Council means what it says. In this case, KCDC commissioned Dr Shand to produce his reports and they were presented to and noted by the Council at a formal Council meeting. There is no doubt, he argued, that the Shand Reports are known to the Council in accordance with paragraph (a). The requirement that the information be known was not, he argued, intended to benefit landowners by restricting the amount of information making it through the LIM process. Rather, Mr Stephens argued, it was designed as a safeguard for the Council. It ensures that there is no obligation (and therefore no responsibility) to put on a LIM, information that is not known to the Council.
Analysis
[64] I agree that the Shand Report and its implications are “known to” Council as required by paragraph (a). The Council needs to know about the report but it does not need to believe that the predictions in them are accurate or even probably accurate. The subsection (5) deeming provision does not change matters. It does not mean that only probabilistic predictions can be placed on a LIM. “Correctness” in subsection (5) must mean correct according to its own terms and within its stated limitations. Subsection (5) must be read alongside the express predicting wording in paragraph (a). That paragraph relates to potential erosion (amongst other potential physical effects), not probable erosion and certainly not inevitable erosion. It is illogical therefore to read the “known to” requirement as if it cancelled the meaning of “potential” out or narrowed it so as to have the same meaning as ‘likely’ as used in relation to contaminants.
Conclusion in respect of s 44A(2)(a)
[65] I conclude therefore that the Shand Reports –
11 Collins Dictionary of the English Language (London: Collins, 1979).
(i) contain information that relates to potential erosion;
(ii)being a special feature or characteristic of the individual titles including the land of the applicants; and
(iii) that is known to the Council and not evident on the District Plan.
[66] Some reference to that information must therefore be included on LIMs in relation to affected titles if there is to be compliance with s 44A(6). For what it is worth, these findings seem to be consistent with the spirit and intendment of the purposes and principles of the Act set out in ss 4 and 5.
[67] But that is not an end to the matter. There is still the question of how that information should be rendered on the actual LIM. That information is required to be included in the LIM by the introductory words of subsection (2), but this can only be by way of reference and summary. Obviously LIMs cannot and do not include both of the reports in their entirety. Rather, they contain, as I have said, brief summaries of those reports and conclusions together with the coastal erosion hazard prediction lines.
[68] Council has a very broad discretion as to how it represents the Shand information on its LIM. The information on the LIM must of course be accurate, state the position fairly, and it must not mislead.12
[69] It must in my view be relevant in considering how to summarise the Shand material, that the reports and, particularly the lines, have the potential to seriously affect the value and marketability of coastal properties in the district. That consideration ought at least to sharpen the obligations of accuracy and fairness. After all, across 1800 properties there must be many millions of dollars at stake. It
would be a callous Council indeed that was unmindful of that potential impact.
12 See Lyttleton Harbour Residence Association v Banks Peninsula District Council HC Christchurch M49/96 22 March 1996 at 17; and note also Athendale Property Limited v Western Bay of Plenty District Council [2013] NZHC 965 at [25] as to a duty of care to provide accurate information in LIMs. Mr Smith also cited R (on application of Dimmock) v Secretary of State for Education and Skills [2008] 1 All ER 367 (QBD), but that case seems very much focused on its particular statutory context and facts – as must this case be.
[70] In light of that, I am struck, as I noted earlier, by the stark simplicity of the prediction lines. None of the many and important conditions and assumptions contained in the Shand Reports are obvious in the graphic. To understand what they really mean one must go through the five pages of relatively densely written material. With respect to the Council, those five pages are hardly an exemplar of clear communication of the big points that a potential purchaser must know in order to properly understand the meaning of the lines.
[71] There is in my view a good argument for placing in script along the lines wording to the general effect of “very worst case scenario at 100 years”, and an equivalent on the 50 year line. Together, I suggest, with confirmation that, at this stage they are draft only. There is also a very good argument for sharpening and reducing the detail in the written text and including reference to the scientific challenges to the Shand conclusions. This would help to ensure fair balance in the LIM. The Council itself has acknowledged that the Shand lines are still to be tested and that its mind is very much open on that front. It is legally required to adopt that approach.
[72] Mr Maassen who appeared (as I noted earlier at footnote 1) for the North Otaki Beach Residents Group Incorporated, suggested a modus vivendi in his memorandum filed in court and dated 21 June 2013. I commend his suggestions in paragraphs 5 and 13 for possible inclusion in some form in the LIM.
[73] This judgment is not the place (at least at this stage) to give detailed direction on the way in which the Shand Reports should be rendered in LIMs.
[74] I propose to adjourn this matter to allow the parties to confer over appropriate amendments to ensure clarity, fairness and balance. The application is adjourned accordingly. I will have the Registrar recall the matter in February 2014 in order togauge progress.
Solicitors:
Simpson Grierson, Wellington
Williams J
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