WHANARUA BEACHFRONT PROPERTY OWNERS GROUP INCORPORATED SOCIETY AND ŌPŌTIKI DISTRICT COUNCIL
[2022] NZHC 2589
•7 October 2022
IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY
I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE
CIV-2021-470-000098
[2022] NZHC 2589
UNDER the Judicial Review Procedure Act 2016 BETWEEN
WHANARUA BEACHFRONT PROPERTY OWNERS GROUP INCORPORATED SOCIETY
Applicant
AND
ŌPŌTIKI DISTRICT COUNCIL
First Respondent
AND
MINISTER FOR TREATY OF WAITANGI NEGOTIATIONS
Second Respondent
AND
TE RŪNANGA O TE WHĀNAU
Third Respondent
Hearing: 29 August 2022 (Heard at Hamilton) Appearances:
Richard Fowler KC and Tim Conder for the Applicant Mary Hill and Kathryn Stubbing for the First Respondent
Matthew McMenamin and Nopera Dennis-McCarthy for the Second Respondent (via VMR)
Matanuku Mahuika (via VMR), Tara Hauraki and Joanna Judge for the Third Respondent
Judgment:
7 October 2022
JUDGMENT OF MOORE J
[Judicial review]
This judgment was delivered by me on 7 October 2022 at 10:00 am pursuant to Rule 11.5 of the High Court Rules.
Registrar/ Deputy Registrar Date:
WHANARUA BEACHFRONT PROPERTY OWNERS GROUP INCORPORATED SOCIETY v ŌPŌTIKI DISTRICT COUNCIL & ORS [2022] NZHC 2589 [7 October 2022]
Contents Paragraph
Number
Introduction.............................................................................................................. [1]
The land at Whanarua Bay.................................................................................... [5]
The existing access arrangement across Lots 66 and 75.................................... [10]
Steps towards a grant of an easement.................................................................. [13]
Intervening Treaty of Waitangi claim settlement................................................ [21]
The Statement of Proposal.................................................................................... [29]
The Staff Report.................................................................................................... [31]
Resolution to accept the proposal transferring Lot 66 to the joint administering body [35]
The Property Owners’ claim................................................................................. [39]
Did the Council breach the Property Owners’ legitimate expectations in making the Decision?................................................................................................................. [41]
Is the Property Owners’ expectation procedural or substantive?........................ [43]
The legal test for claims of legitimate expectation.............................................. [49]
What is the proper approach in this case?.......................................................... [54]
Did the Council give a clear and unambiguous promise or commitment to act a certain way?............................................................................................................................. [60]
(a) Are the statements and practices relied on by the Property Owners attributable to the Council?................................................................................................ [62]
(b) Do the statements and practices attributable to the Council amount to a clear and unambiguous commitment to guarantee the Property Owners some form of continued access over Lot 66?............................................................................... [68]
Was the Property Owners’ reliance or expectation reasonable or legitimate in the circumstances?.................................................................................................... [84]
Conclusion........................................................................................................... [98]
Was the consultation process prior to the Decision procedurally unfair?..... [100]
Did the Council change the terms of the consultation by deferring resolution of the access arrangement until a later date, effectively rejecting potential outcomes in advance? [102]
Did the Council wrongfully provide additional opportunities for Te Whānau ā Apanui to respond to matters raised without advising the Property Owners or
providing a right of response?........................................................................... [110]
Were the resolution discussions poisoned by a member of the Council who
belatedly declared a conflict of interest and was biased?................................. [122]
Conclusion......................................................................................................... [128]
Did the Council fail to take into account relevant considerations or take into account irrelevant considerations when making the Decision?..................................... [129]
Result.................................................................................................................... [134]
Costs...................................................................................................................... [135]
Introduction
[1] Since the late 1970s members of the Whanarua Beachfront Property Owners Group Incorporated Society (“the Property Owners”) have used a road through a recreational reserve to access their properties. Despite this longstanding practice, the access arrangement has never been legally formalised by the grant of an easement from the owner, the Ōpōtiki District Council (“the Council”).
[2] On 1 June 2021, the Council decided to approve a transfer of the land to the Te Whānau ā Apanui iwi (“the Decision”), following a Treaty of Waitangi claim settlement between the iwi and the Minister of Treaty of Waitangi Settlements. The land is in the rohe of Te Whānau a Rangi-i-Runga, a hapū of the iwi. The hapū is represented in these proceedings by Te Rūnanga o Te Whānau Charitable Trust (“Te Whānau”).
[3]The Property Owners seek judicial review of the Decision on the basis that:
(a)their legitimate expectations of continuity of access were not properly considered or given effect through the consultation and decision;
(b)the consultation process was procedurally unfair; and
(c)the Council failed to take into account relevant considerations and took into account irrelevant considerations.
[4] The Council, the Minister of Treaty of Waitangi Settlements and Te Whānau oppose the application.
The land at Whanarua Bay
[5] It is first necessary to set out the history of the land at Whanarua Bay. This explains how the existing access arrangements came about and the potential for the Property Owners’ beachfront properties to become landlocked.
[6] An aerial photograph of the land and adjacent areas at Whanarua Bay is reproduced below:1
[7] Part of the focal land was previously Maori land known as Motuaruhe 2B.2 In 1956, the sole owner applied to vest approximately 25 acres in the Maori Trustee. The Maori Trustee was to then subdivide the land, sell half of the sections and lease the remainder. Three sections, denoted Lots 67, 74 and 75, did not sell. They were revested in the sole owner. He died in 1976. Lots 67, 74 and 75 were transferred to his eight children.
[8] Lots 67 and 74 were previously used by the beachfront property owners as a right of way. State Highway 35 (“SH35”) is visible running below the beachfront properties at the left edge of Lot 75. It appears that Lots 67 and 74 provided access to these properties from SH35.
[9] The owners of Lots 67 and 74 subsequently blocked this accessway. This left the Property Owners with the only feasible access route being through Lots 66 and 75.
1 This image was annexed to the Minister’s submissions.
2 This history is set out in a decision of the Maori Land Court which is attached to the affidavit of Mark Stringfellow, one of the beachfront property owners.
Although it appears from the aerial photograph that the beachfront properties back onto SH35, the bush clad incline behind the properties rises steeply over the 30 to 40 metre distance to the highway. Constructing an access driveway up such a gradient would seem to be impracticable, hence the Property Owners’ claim that the present accessway is their only viable means of access.
The existing access arrangement across Lots 66 and 75
[10] Following the blocking of the previous access, the Property Owners used an accessway over Lots 66 and 75. Quite how that occurred has been lost in the mists of time, but it appears that one of the owners took it upon themselves to build the road. The Council denies that at the time it knew the road was being constructed. It has, however, since allowed members of the public and the Property Owners to use it. Throughout, Lot 66 has been owned by the Council and managed as a reserve.
[11] Access over Lot 75, however, has been resolved. In 2002, the Maori Land Court determined that the Property Owners had a recognised legal right to pass and repass over the Lot. It is common ground that an easement was then formally granted, although the date when this occurred is disputed. For present purposes it is sufficient to simply record that there is such an easement.
[12] However, although the road over Lot 66 has routinely been used by the Property Owners to access their properties, no legal access arrangement has been formalised.
Steps towards a grant of an easement
[13] Despite the lack of an enduring legal accessway, there have been multiple efforts to secure such a right. Between 2002 and 2018 discussions took place between the Property Owners and the Council. Over that period the Council and its officers made statements which the Property Owners claim led them to expect that an easement would be granted.
[14] The first evidence of this is a letter dated 28 March 2002 sent from the then Chief Executive of the Council to one of the beachfront property owners. That letter said:
“It has long been accepted by Council that there is a need for some property owners to use the track through recreation reserve (Lot 66) to obtain access to their properties. These properties have legal access from state highway 35 but this is impractical and therefore their only practical access is through Lot 66.
You indicated that there is some small amount of unease that practical access through Lot 66 may be denied by Council at some time in the future. As Chief Executive I can assure you that there has never been any consideration by Council to restrict property owners access through Lot 66. Council appreciates this is as a result of a Maori Trustee mistake in the 1950’s. Until this matter is resolved I cannot see Council ever restricting the use of the track subject to the following qualification:
·Physical capability and safety of the track
·Reserve management plan prepared pursuant to the Reserves Act
·Any Council decision concerning the area at Whanarua Bay”
[15] A few months later the Council’s solicitors sent a letter dated 10 July 2002 to the Property Owners’ lawyers. They said that the “appropriate mechanism” to formalise the access arrangement was to “commence the preparation of a reserve management plan for Lots 66 and 80, and at the same time to establish a right of way easement across part of Lot 66”. The letter advised that the Council had passed a resolution which included:
“… work[ing] towards establishing appropriate access easements across Lot 66 to be in favour of the Whanarua Bay property owners, the Maori owners and the Council, subject also to appropriate arrangements for maintenance and access management to the satisfaction of the Council.”
[16] The Council’s solicitors noted that a right of way easement across a reserve may be created under s 48 of the Reserves Act 1977 (“the Reserves Act”). A statutory notification and submissions procedure would be required, as would the Minister of Conservation’s involvement. The Council therefore:
“… evisage[d] the easement process being undertaken in conjunction with the reserve management plan process, to ensure consistency and integration of the access issue with some of the wider issues relating to Whanarua Bay.”
[17] This was reflected in a letter of the then Chief Executive Officer of the Council to the Property Owners dated 20 November 2006. That letter recorded:
“The draft Reserve Management Plan will include provision for the continued vehicle access through Lot 66 (recreation reserve owned by the Opotiki District Council) for the ‘lower bach owners’. While we cannot predetermine the outcome of the final version of the plan, which will be subject to public consultation, we consider that the continued use of this access in this way contributes to a favourable resolution of the access issue. As discussed, this would be subject to the Group undertaking all necessary maintenance of the vehicle access.”
[18] The Council’s subsequent Coastal Reserves Management Plan of March 2012 referred to the Property Owners’ access issue. The future development of the reserve was said to include:
“Options to formalise access right over lot 66 for ‘lower’ Whanarua Bay house owners will be explored by Council and; implemented where practicable.”
[19] Other Council documents had previously referred to the accessway. By way of example, one of the property owners, Mark Stringfellow, applied for a Project Information Memorandum (“PIM”) relating to a project to demolish an existing bach and erect a two-storey house. The Council referred to the road in the PIM. The report writer noted that the Council did not arrange the construction of the accessway through Lot 66, nor maintain it. The writer then said that:
“Access through the reserve for recreational purposes, such as via a passenger car is considered by the Council as acceptible [sic] practice and is within the Council’s authority to allow without conditions in terms of the Reserves Act. The use of the access for building construction traffic, in particular for vehicles carting and/or towing large, heavy materials falls outside of such permitted activity and will require the person(s) who own the property responsible for the construction to … obtain a Reserve Access License: Transit for Construction Purposes.”
[20] On 15 January 2018, the Council’s Community Facilities Group Manager, Mike Houghton, emailed a draft easement to Mr Stringfellow. The easement was drafted by consultants in 2015. Mr Houghton said that “the project seems beleaguered from its beginning” and apologised for not forwarding the draft easement earlier. He
noted that he had “not presented the draft easement to Council for consideration”. He then said:
“Important to Council will be who covers the maintenance costs of the access road over Lot 66. The draft easement assumes Council will take on this responsibility – but this has not been agreed to by Council. Would the collective property owners be willing to accept the costs of ongoing maintenance?
At present there is a benefit to the public to use the road to access the beach but as Council does not have an access agreement (on behalf of the public) over Lot 75 then this right is not secure. I understand you and other property owners do have an access agreement over Lot 75 so you do have more of an advantage than the general public. This consideration will influence the decision as to ‘who should pay’ for road maintenance. If the Wirepa whanau were to grant similar access rights to Council on behalf of the public then a component of the cost of maintaining access over Lot 66 could be shared more by Council.”
Intervening Treaty of Waitangi claim settlement
[21] On 21 September 2018, a new Reserves Manager, Garry Page, emailed the Property Owners’ solicitor, Clayton Stent, saying that the matter had been referred to him. Mr Page explained that he needed to get “up to speed” with the issues requiring resolution. When setting out those issues, Mr Page said that:
“This reserve land is subject to a treaty claim settlement currently being worked through. I need to check what the implications are regarding this.”
[22] This reference to a Treaty of Waitangi claim settlement (“the Treaty settlement”) was the first such reference in the chain of correspondence between the Council and the Property Owners going back some 16 years. Plainly it came as a surprise. Mr Stringfellow responded on 6 December 2018 by requesting further details. His own enquiries with the Waitangi Tribunal proved fruitless.
[23] There then followed a chain of correspondence between Mr Stringfellow, Mr Page and the Council’s Engineering and Services Group Manager, Ari Erickson. On 1 February 2019, Mr Page emailed Mr Stringfellow saying, among other things, that irrespective of the outcome of the settlement discussions, the Council “will still work towards securing an easement” over Lot 66.
[24] However, progress on that front stalled. On 27 February 2019, Mr Page called Mr Stringfellow and told him that the discussions could not be progressed further due to the Treaty settlement claim.
[25] On 28 June 2019, Te Whānau ā Apanui and the Crown reached an agreement in principle. The Whanarua Bay Recreation Reserve was listed as property to explore for cultural redress.
[26] It appears that despite the Property Owners’ requests to execute the easement, little was done to progress the matter while the Treaty settlement was ongoing. On 15 August 2019, the Finance, Systems and Property Group Manager, Michael Homan, emailed Mr Stringfellow and Mr Stent. He advised that the Council had taken legal advice on the draft easement from its solicitors, Cooney Lees Morgan, who suggested redrafting it. He then said:
“Since receiving the feedback from Cooney Lees Morgan I have been asked to cease progressing the easement to allow discussions with Te Whānau a Apanui to continue. Although I am not privy to those discussions I have been informed that this will only take a matter of months.”
[27] Mr Homan advised he would be in touch as soon as he was “able to pick up the easement matter again”.
[28] The Property Owners instructed Rotorua barrister, Murray McKechnie. Mr McKechnie emailed the Council’s Planning and Regulatory Group Manager, Gerard McCormack, with queries about the Treaty settlement discussions. In an email dated 16 October 2020, Mr McCormack refused to provide Mr McKechnie with an assurance that the Council would not consent to the transfer of reserve land to the Crown until it had considered granting an easement over Lot 66. He did say, however, that an easement policy would be developed and presented to the Council for adoption.
The Statement of Proposal
[29] On 4 February 2021, the Council published a Statement of Proposal (“SOP”) in response to a joint request from Te Arawhiti (the Office for Māori Crown Relations) and Te Whānau ā Apanui which involved the transfer of the Council’s land. The SOP
proposed that seven lots of the Whanarua Bay Recreation Reserve, including Lot 66, be vested in Te Whānau ā Apanui. The proposal then suggested that:
“Implementing this part of the proposal would be subject to the Council first being satisfied as to how any existing encroachments are addressed prior to the land being transferred.
It is proposed that Te Whānau a Apanui would be the sole administering body for the reserves.”
[30] The SOP then called for submissions from the public. Many of the beachfront property owners made submissions expressing the view that the Council should grant an easement formalising their access arrangement over Lot 66, particularly before the potential transfer of the land to Te Whānau ā Apanui.
The Staff Report
[31] The Council reviewed the submissions obtained through public consultation. This process culminated in the production of a written proposal to accept the joint request from Te Arawhiti and Te Whānau ā Apanui (“the Staff Report”).
[32] The central recommendation in the Staff Report was to accept the joint proposal, making the specified reserves available to the Crown for the purpose of the Treaty settlement. The report then stated that:
“● All reserves described in Table 1 are transferred to Te Whānau-ā- Apanui (via the Crown) and, with the exception of Whanarua Bay Recreation Reserve, Te Whānau-ā-Apanui will become the sole administering body of those reserves;
·Whanarua Bay Recreation Reserve is to be transferred to Te Whānau- ā-Apanui (via the Crown) and a joint administering body is to be formed between Te WhDnau-ā-Apanui [sic] and Council to administer and manage that reserve; …”
[33] The Staff Report summarised “the views expressed through the special consultative procedure” as follows:
“● the majority of the submissions supported the Statement of Proposal and the transfer of the identified reserves in the District to Te Whānau- ā-Apanui
…
·in relation to Whanarua Bay Recreation Reserve, the submissions
ogenerally supported the transfer of the urupā focal point to iwi;
oraised concerns that an easement ought to be drafted to allow vehicular access over lot 66 before the transfer of any reserves; …”
[34] Many of the beachfront property owners subsequently wrote to the Council expressing dissatisfaction with the Staff Report.
Resolution to accept the proposal transferring Lot 66 to the joint administering body
[35] The Council met on 1 June 2021 to consider resolving to accept the joint proposal. Councillor Rāpihana declared an interest in this item. When it was due to be discussed, the Mayor asked him to leave the meeting. He disagreed, but complied.
[36] The minutes of the meeting record that some councillors highlighted their concerns about formalising access over Lot 66. The Planning and Regulatory Group Manager responded that the joint administering body would follow the reserve management plan, which included public consultation, to address that issue. They expected a resolution addressing access over Lot 66 within five years.
[37]This agenda item concluded with the Council resolving:
“That the proposal to accept the Joint Request from Te Arawhiti and Te Whānau-ā-Apanui to transfer the reserves described in Table 1 to the Crown to enable them to be transferred to Te Whānau-ā-Apanui be approved, subject to the following conditions:
(a)All reserves identified by the Joint Request are transferred to Te Whānau-ā-Apanui (via the Crown) and, with the exception of Whanarua Bay Recreation Reserve, Te Whānau-ā-Apanui are the sole administering body of the reserves.
(b)In the case of Whanarua Bay Recreation Reserve, the reserves are transferred to Te Whānau-ā-Apanui (via the Crown) and a joint administering body is formed between iwi and Council to administer and manage the reserve. The development of the Reserve Management Plan will focus on resolving access arrangements.”
[38]This meeting was public and the Property Owners were aware of the resolution.
The Property Owners’ claim
[39] The Property Owners then commenced these proceedings. The issues raised by their application are:
(a)whether the Council breached the Property Owners’ legitimate expectations in making the Decision;
(b)whether the consultation process prior to the Decision was procedurally unfair; and
(c)whether the Council failed to take into account relevant considerations or took into account irrelevant considerations when making the Decision.
[40]I shall address each in turn.
Did the Council breach the Property Owners’ legitimate expectations in making the Decision?
[41] The first is whether the Council breached the Property Owners’ legitimate expectations in making the Decision.
[42] Mr Fowler KC, for the Property Owners, argued that the Council made a variety of commitments to the Property Owners relating to access across Lot 66. He submitted that the decision to transfer the property to the joint body unencumbered was a major departure from those commitments which has diminished the rights of the Property Owners.
Is the Property Owners’ expectation procedural or substantive?
[43] A legitimate expectation may relate to a procedure or a substantive outcome. This is an important distinction. Relief in the form of a substantive outcome is “rarely, if ever, granted”.3 Enforcing an undertaking where it would interfere with a public
3 Green v Racing Integrity Unit Ltd [2014] NZCA 133 at [40] citing Comptroller of Customs v Terminals (NZ) Ltd [2012] NZCA 598, [2014] 2 NZLR 137 at [155].
authority’s statutory duty, or where there is a satisfactory reason not to enforce it, would usurp that authority’s public function.4
[44] The Property Owners’ pleadings frame their expectations as both substantive and procedural. Their first cause of action is that they had a legitimate expectation “that a formal easement would be granted in their favour”. At the hearing Mr Fowler adopted a more nuanced position. He argued that the Property Owners’ expectation was of continuity of access generally. This, he submitted, could be achieved, as a matter of law by the grant of an easement, but it was said to be sufficient if the Property Owners were, as a matter of practice, permitted to access their properties.
[45] For the purpose of this issue, this is a distinction without a difference. However the expectation is viewed, it involves a matter of substance. The Property Owners being granted an easement would confer a property right in the form of a registerable interest in the land. Continuity of access in a practical sense may fall short of being a legally registrable property right, but it is nevertheless a privilege or license to use property. A promise of this nature involves a matter of substance, not procedure.
[46] The Property Owners’ second cause of action is a claim of a legitimate expectation that “they would be properly consulted before any decision was made that meant the Council could not guarantee access” across Lot 66. This reference to the Council being unable to guarantee access is presumably because the body now tasked with resolving the access issue is the joint administering body.
[47] I do not consider this cause of action made out on the facts. Mr Fowler’s criticisms of the consultation process will be dealt with in further detail below. For present purposes it is sufficient to record that the Property Owners were consulted on the Decision. They made extensive submissions on the SOP. The subsequent Staff Report reflects the Council changing its position in response to those submissions. It recommended that the Whanarua Bay Recreation Reserve be managed by the joint administering body, rather than solely by Te Whānau ā Apanui. The Council’s subsequent resolution then made resolving access arrangements the “focus” of the reserve management plan.
4 At [40].
[48] It follows I consider that the Property Owners’ procedural expectation of consultation was met. The extant issue is one of substantive legitimate expectation.
The legal test for claims of legitimate expectation
[49] The doctrine of legitimate expectation ensures that public bodies act fairly and reasonably.5 A public body which promises to follow a certain procedure,6 or possibly even promises a certain outcome or right,7 may be bound that promise. Two key policy considerations lie at the heart of that determination.8 As Randerson J put it:9
“On the one hand there is a public interest in holding a public authority to promises made in the interests of proper public administration and allowing people to plan with some assurance. On the other, there is also a public interest in allowing governments and other public authorities to change policy from time to time when it is perceived to be appropriate to do so. Indeed, the adoption of new policy to meet changing circumstances may be viewed as the duty of any government in furthering the public interest.”
[50] There are varying formulations of the applicable legal test. In Green v Racing Integrity Unit Ltd, the Court of Appeal said that an applicant:10
“… must establish three elements if they are to succeed on a claim for breach of a legitimate expectation, in the administrative law context: (1) a promise or commitment, in this case by the adoption of a settled practice or policy, to act in a certain way; (2) their legitimate or reasonable reliance on the promise or commitment; and (3) the appropriate remedy if any that should be granted.”
[51] The Court did not distinguish between procedural and substantive legitimate expectations when setting out this approach.
[52] There is nevertheless a suggestion that more stringent requirements apply to cases involving a substantive expectation. In Oosterveen v Ministry of Business, Innovation and Employment, Collins J listed five elements of substantive legitimate
5 New Zealand Assoc for Migration and Investments Inc v Attorney-General [2006] NZAR 45 (HC) at [141].
6 At [139] citing Attorney-General of Hong Kong v Ng Yuen Shiu [1983] 2 All ER 346 at 351.
7 At [145].
8 At [140].
9 At [140].
10 Green v Racing Integrity Unit Ltd [2014] NZCA 133 at [13]. A similar approach was set out by the Court of Appeal in Comptroller of Customs v Terminals (NZ) Ltd [2012] NZCA 598, [2014] 2 NZLR 137 at [125]–[127].
expectation which “might” apply if “the doctrine were to gain traction in New Zealand”:11
“(1) a public authority has given a clear and unambiguous undertaking;
(2)the undertaking was reasonably understood to mean what the applicant claims;
(3)the decision-maker knew of the representation and chose to act contrary to it;
(4)the applicant has suffered some detriment by relying on the representation; and
(5)the decision-maker’s conduct cannot be objectively justified as being in the public interest and a proportionate response to the circumstances of the case;”
(footnotes omitted)
[53] Subsequent cases in this Court have cited Collins J’s test but to date have opted not to apply it.12
What is the proper approach in this case?
[54] It is no straightforward task determining the appropriate legal test to be applied in this case. The doctrine of substantive legitimate expectation remains controversial in New Zealand.13 It has not been adopted by any Court to date.
[55] In Hugh Green Ltd v Auckland Council, Fitzgerald J set out the differing formulations of the test in Green and Oosterveen.14 Although that case concerned a substantive expectation, Fitzgerald J preferred the three-stage approach set out in Green over Collins J’s test from Oosterveen.15 The Judge noted, however, that the same result was reached under either approach.16
11 Oosterveen v Ministry of Business, Innovation and Employment [2014] NZHC 1709 at [50] citing Paponette v Attorney-General of Trinidad & Tobago [2010] UKPC 32, [2012] 1 AC 1; R (Davies) v Revenue and Customs Commissioner [2011] UKSC 47, [2011] 1 WLR 2625; R (Patel) v General Medical Council [2013] EWCA Civ 327, [2013] 1 WLR 2801; Regina (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2) [2009] 1 AC 453; and R (Nadarajah) v Secretary of State for the Home Department [2005] EWCA Civ 1363.
12 See for example Petromont Holdings Ltd v Director-General of the Ministry of Primary Industries
[2020] NZHC 3242; and Hugh Green Ltd v Auckland Council [2018] NZHC 2916.
13 Back Country Helicopters Ltd v Minister of Conversation [2013] NZHC 982 at [184].
14 Hugh Green Ltd v Auckland Council [2018] NZHC 2916 at [75]–[76].
15 At [150].
16 At [150].
[56] A similar theme is evident in Chamberlain v Attorney-General.17 There Palmer J commented that:18
“[74] I consider New Zealand judicial reluctance about claims of substantive legitimate expectations often derives from judicial concerns that it might allow the role of the decision-maker to be usurped in two ways. The first is that it is not usually legitimate to fetter a decision-making discretion with an expectation of a particular substantive outcome. The second is that it is rarely appropriate to grant substantive relief. Both concerns can be taken into account in the application of the Terminals concept of legitimate expectations and in the way Collins J suggests. Rather than ruling out any possibility of a substantive legitimate expectation having legal traction, I consider it better to examine such a claim using those approaches.”
(footnote added)
[57]Gwyn J has accordingly commented that:19
“… even if the doctrine of substantive legitimate expectation is available in theory, the substantive relief would be extremely rare. Given the difficulty of proving a claim in substantive legitimate expectation, the Court often bypasses the issue of whether the doctrine exists in New Zealand, and instead dismisses the claim on the ground that it would not succeed.”
[58] I agree with Gwyn J and propose to adopt a similar approach. As Kós J colourfully framed it, the “Court has danced with the doctrine for a long time, but seldom taken it home.”20
[59] Given the facts of this case there is little benefit in attempting to refine or develop the elements which various Judges have suggested underpin the doctrine. That is because I am of the view that the first and second elements of the Green test, which are key irrespective of which test is adopted, are not satisfied here. My reasons follow.
17 Chamberlain v Attorney-General [2017] NZHC 1821.
18 Although Palmer J refers to using both approaches, his analysis at [75]–[76] disposes of the claim principally on the basis that the expectation was not legitimate.
19 Petromont Holdings Ltd v Director-General of the Ministry of Primary Industries [2020] NZHC 3242 at [61].
20 Back Country Helicopters Ltd v Minister of Conversation [2013] NZHC 982 at [184].
Did the Council give a clear and unambiguous promise or commitment to act a certain way?
[60] The first hurdle for the Property Owners is whether the Council gave a clear and unambiguous promise or commitment to act a certain way.21 Two issues were raised under this heading:
(a)whether the statements and practices relied on are attributable to the Council; and
(b)whether those statements and practices amounted to a clear and unambiguous commitment to guarantee the Property Owners some form of continued access over Lot 66.
[61] It is only the statements and practices attributable to the Council which are capable of supporting a legitimate expectation.
(a)Are the statements and practices relied on by the Property Owners attributable to the Council?
[62] Mr Fowler cited a series of statements forming the basis for the expectation which he submitted were attributable to the Council. These are:
(a)the 28 March 2002 letter from the Chief Executive of the Council which said that “there has never been any consideration by Council to restrict property owners’ access through Lot 66”;
(b)the 10 July 2002 letter from the Council’s solicitors which said that the Council would “work towards establishing appropriate access easements across Lot 66 to be in favour of the Whanarua Bay property owners, the Maori owners and the Council, subject also to appropriate
21 See New Zealand Assoc for Migration and Investments Inc v Attorney-General [2006] NZAR 45 (HC) at [146] where Randerson J said that a promise or practice which is ambiguous in nature is unlikely to be treated as giving rise to a legitimate expectation in administrative law terms; and Comptroller of Customs v Terminals (NZ) Ltd [2012] NZCA 598, [2014] 2 NZLR 137 at [125] where the Court of Appeal repeated that phrase.
arrangements for maintenance and access management to the satisfaction of the Council.”;
(c)the 20 November 2006 letter of the Chief Executive of the Council which said that the “draft Reserve Management Plan will include provision for the continued vehicle access through Lot 66 … for the ‘lower bach owners’”;
(d)the March 2012 Coastal Reserves Management Plan which said “[o]ptions to formalise access right over lot 66 for ‘lower’ Whanarua Bay house owners will be explored by Council and … implemented where practicable”;
(e)Council documents, including the PIM obtained by Mr Stringfellow, which noted that “[a]ccess through the reserve for recreational purposes, such as via a passenger car is considered by the Council as accept[a]ble practice and is within the Council’s authority to allow without conditions in terms of the Reserves Act”;
(f)the circulation of a draft easement by Mr Houghton on 15 January 2018, albeit not agreed to by the Council;
(g)the 1 February 2019 email from Mr Page saying that the Council would “work towards securing an easement” despite the ongoing Treaty settlement discussions;
(h)the 10 October 2019 email of the then Chief Executive of the Council saying that the Council preferred “a mutually acceptable and enduring solution” and that it was “important to explore [the options] fully before committing to actions that may close the door on better outcomes, including for Whanarua Bay residents”; and
(i)the 16 October 2020 email of Mr McCormack saying that an easement policy would be developed and presented to the Council.
[63] In addition to these statements, Mr Fowler relies on the Council’s conduct in permitting the construction of the road and its subsequent use for some 40 years.
[64] Mr Mahuika, for Te Whānau, submitted that not all of these statements are attributable to the Council. He pointed out that some were the views of Council officers rather than the Council entity itself. In particular, he referred to the draft easement circulated by Mr Houghton and his associated comment that it had not been agreed to by the Council. His argument would necessarily also capture the emails of Mr Page and Mr McCormack.
[65] I do not consider this distinction between the Council and its officers to be of particular significance. The statements appear to be from senior officers of the Council holding managerial and executive roles. Their comments are consistent with those made by the Chief Executive and the Council itself in other official documents. They contain predictably caveated comments, including that the matters discussed would need to be referred to the Council. Nothing can reasonably be taken from them beyond the fact that Council officers were working towards a grant of an easement – a point to which I will return.
[66] Even if the Property Owners were not entitled to rely on the Council officers’ emails, they could properly rely on the conduct of the Council and its Chief Executives. Since 2002 the Council had been contemplating granting an easement over Lot 66, something it repeatedly communicated to the Property Owners.
[67] It follows I consider that the statements and practices cited by Mr Fowler are properly attributable to the Council.
(b)Do the statements and practices attributable to the Council amount to a clear and unambiguous commitment to guarantee the Property Owners some form of continued access over Lot 66?
[68] I accept that these statements and practices created an expectation on the part of the Property Owners. The question is whether those statements and practices, individually or collectively, amount to a clear and unambiguous commitment to guarantee the Property Owners continued access over Lot 66.
[69] Taking together all of the Council’s statements and conduct, Mr Fowler submitted that they amount to a clear and unambiguous commitment by the Council to guarantee the Property Owners continued access over Lot 66 prior to the transfer of the land. He accepted that the statements and conduct might not have committed the Council to a formalised means of access by the creation of an easement, but it did amount to a clear commitment to permit and facilitate continuing practical access.
[70] Ms Hill, for the Council, submitted that the focus here should be on the meaning of the Council’s statements and practices. She submitted that while the statements and practices relied on by Mr Fowler represent the Council’s position that it would work towards resolving the access issue and in the meantime would permit the Property Owners to access their land via Lot 66, they fall well short of a clear and unambiguous guarantee.
[71] I agree that the analysis of this issue must focus on the meaning of the Council’s acts and declarations and the commensurate expectation that may reasonably be inferred from them. Under this heading three points can be made.
[72] The first is whether the combination of the Council’s statements and practice of permitting the Property Owners to traverse Lot 66 to access their properties amounts to an expectation that it would permit them to continue doing so while the process was ongoing. This began with the Chief Executive’s comment in 2002 that the Council had never considered restricting Property Owners’ access through Lot 66 and that, subject to conditions, it expected the status quo would remain. Similarly, the PIM stated that access through the reserve was viewed by the Council as an acceptable practice which could be permitted without conditions. Reflective of those statements, the Council knowingly permitted the Property Owners to use the accessway for many years. It is understandable that the Property Owners would expect continued access to their properties.
[73] There is no evidence that the Council has resiled from its assertions permitting continued access. I was advised at the hearing that the Council would continue to permit the Property Owners’ access across Lot 66 as well as the public’s recreational use of the land until the question of formal access is resolved. There is thus no breach
of any such expectation. The status quo vis-à-vis the Property Owners and the Council is preserved.
[74] Secondly, the expectation cannot be pitched at a higher level than the above. The Council’s statements were always conditional on a process, following which the Council would come to a final decision. This is evident from the correspondence:
(a)the Chief Executive’s 2002 letter referred to access being subject to a “[r]eserve management plan prepared pursuant to the Reserves Act” and “[a]ny Council decision concerning the area at Whanarua Bay”;
(b)the Council’s solicitors’ 2002 letter said that they would “work towards establishing appropriate access easements”, but that they envisaged that occurring in conjunction with a reserve management plan;
(c)the Chief Executive’s 2006 letter said that the “draft Reserve Management Plan will include provision for the continued vehicle access through Lot 66”, although the Council could not “predetermine the outcome of the final version of the plan, which w[ould] be subject to public consultation”; and
(d)the 2012 Coastal Reserves Management Plan referred to exploring options to formalise access rights over Lot 66.
[75] These statements are consistent with the Council’s intention to work towards any grant of an easement as being part of a reserve management plan. Although the Council has been “working towards” the potential grant of an easement for almost 20 years, the resolution to transfer the land for the purpose of the Treaty settlement has now defined the process by which that may occur. That the Council explicitly resolved that the “development of the Reserve Management Plan will focus on resolving access arrangements” is in keeping with its earlier commitments.
[76] The difference emphasised by Mr Fowler is that it is not the Council which will develop this reserve management plan, but rather the joint administering body.
He submitted that the Property Owners’ expectation was that the Council would deal with the issue itself, not a differently constituted entity. He submitted that the Council’s influence over this new entity is diluted. Furthermore, the longer term intention is for Te Whānau ā Apanui to eventually become the sole administering body. That could happen before the access issue is resolved. Mr Fowler submitted that there is a procedure under the Reserves Act by which the Council can grant an easement without public consultation; a process which the Council could have adopted before the land was transferred.
[77] While the joint administering body is differently constituted to the Council, it is nevertheless the administering body of the reserve for the purpose of the Reserves Act. As such it must adhere to the requirements of the Reserves Act.22 In the context of granting an easement, these include undertaking a public consultation process and giving full consideration to submissions received.23 That requirement is not materially different to the process the Council would be obliged to follow if it was undertaking the process.
[78] I do not accept Mr Fowler’s submission that the Council could have granted an easement without public consultation. The relevant statutory exception applies only where the reserve “is not likely to be materially altered or permanently damaged”.24 Ms Hill advised that tangata whenua had previously raised concerns that culturally significant sites with wāhi tapu values could be damaged. Mr Mahuika adduced evidence from a member of Te Whānau who deposed that Whanarua Bay contained wāhi tapu. It would plainly be unwise for the Council to proceed on the basis that the exception was engaged when there is a body of evidence suggesting otherwise.
[79] Thirdly and contrary to Mr Fowler’s submission, the Council did not commit to the issue being resolved prior to the transfer of the land. On this point Mr Fowler particularly relies on the SOP. That document suggests that Lot 66 was only to be vested in Te Whānau ā Apanui “subject to the Council first being satisfied as to how any existing encroachments are addressed prior to the land being transferred.” He
22 Reserves Act 1977, s 40.
23 Section 48(2).
24 Section 48(3)(a).
argued that the Council therefore invited submissions on how the access issue should be resolved, not whether the access issue should be resolved (with the Council ultimately deciding not to deal with the access issue prior to the transfer). This “consultation misfire” is said to have resulted in the breach of the Property Owners’ expectation that access would be dealt with prior to the land being transferred.
[80] The Council’s conduct here does not constitute a clear and unambiguous commitment to resolve the access prior to the transfer of the land. I accept that the SOP was phrased in terms seeking consultation on the question of how the access issue should be addressed prior to the land being transferred. But the Council ultimately satisfied itself as to how to address the issue. It determined that the matter should be included in the reserve management plan and subject to public consultation. The Council’s proposal to determine how to address the access issue should be construed as it deciding on a process by which it would be resolved, not actually resolving the issue.
[81] The Council’s focus on being party to the resolution of the issue is evident from the Staff Report. The initial proposal was for Te Whānau ā Apanui to be the sole administering body of the reserve. The Council then opted to form a joint administering body through which it could manage the process of resolving the Property Owners’ access issue, with Te Whānau ā Apanui. That process has not yet been undertaken.
[82] It follows the Property Owners cannot rely on the SOP as creating an expectation that the issue would be resolved prior to the land being transferred for the Treaty settlement. To the contrary, their submissions were effective in causing the Council to proceed with the settlement on terms which provide for the resolution of the issue and to enable it to retain some degree of control over that process.
[83] For these reasons, the Council has not in fact resiled from any clear and unambiguous commitment to the Property Owners.
Was the Property Owners’ reliance or expectation reasonable or legitimate in the circumstances?
[84] The second hurdle is that the Property Owners’ reliance or expectation must be reasonable or legitimate in the circumstances.
[85] Mr Fowler submitted that it was. He emphasised the strong commitments made by the Council over almost 20 years and the manner in which the Property Owners relied on them.
[86] Ms Hill, on the other hand, submitted that any expectation of legal access would be unreasonable in light of the qualifications on the Council’s commitments and the need to follow the Reserves Act procedure. I agree, for the reasons which follow.
[87] Here it is necessary to deal with the legitimacy of the Property Owners’ pleading that the Council committed itself to grant an easement prior to the transfer of the land. The starting point is that the Council does not have an unfettered power to grant such an easement. The grant of an easement over reserve land is subject to the procedure set out under the Reserves Act.
[88] An administering body under the Reserves Act is charged with the duty of administering, managing, and controlling the reserve under its control and management in accordance with the appropriate provisions of the Reserves Act and in terms of its appointment and the means at its disposal, so as to ensure the use, enjoyment, development, maintenance, protection, and preservation, as the case may require, of the reserve for the purpose for which it is classified.25
[89] This duty includes preparing and submitting a reserve management plan within five years of its appointment to the Minister of Conservation for their approval.26 Extensive public consultation is required. That consultation broadly involves giving
25 Section 40(1).
26 Section 41(1).
notice to the public and considering their submissions on the administering body’s intention to prepare a plan and the subsequent draft plan.27
[90] As part of a reserve management plan, the administering body may consider granting an easement over the focal reserve. Section 48 of the Reserves Act permits the administering body of a reserve to grant a right of way easement over any part of that reserve for any public purpose, with the consent of the Minister of Conservation and on such conditions the Minister of Conservation thinks fit.28 Before granting the easement, the administering body must give public notice specifying the easement intended to be granted and give full consideration to all objections and submissions received on the proposal.29 The exceptions to the requirement to seek public consultation are inapplicable for the reasons previously discussed.30
[91] The Minister of Conservation may delegate their powers under the Reserves Act.31 A suite of powers have been delegated to the Council.32 These include authorities to:
(a)approve reserve management plans;
(b)consent or refuse consent to an administering body granting rights of way or other easements over any part of a vested reserve; and
(c)impose such conditions as it thinks fit in giving the consent.
[92] An expectation held by the Property Owners that the Council could commit itself to granting an easement is inconsistent with this statutory framework. The Council is unable, as a matter of law, to make such a commitment. The grant of an easement requires full consideration of public submissions. Any commitment to grant
27 Section 41(5)–(6).
28 Section 48(1).
29 Section 48(2).
30 Section 48(3).
31 Section 10.
32 A copy of the “Instrument of Delegation for Territorial Authorities” was handed up at the hearing by Ms Hill.
an easement without taking into account those submissions would amount to a predetermination of the decision.
[93] Nor is there anything in any of the Council’s statements upon which to found a reasonable expectation that the Council would put the matter to the public prior to the transfer of the reserve land. To the contrary, the Council consistently advised that any easement would be dealt with as part of a reserve management plan. That is now the position. While the joint administering body may now control that process, the process itself remains the same.
[94] Self-evidently, an expectation which is unsustainable as a matter of law can be neither reasonable nor legitimate. This principle has been judicially recognised. For example, Palmer J in Chamberlain said that an “expectation of an outcome inconsistent with the law is not legitimate”.33 Similarly, in Petromont Holdings Ltd v Director-General of the Ministry of Primary Industries, Gwyn J commented that “any legitimate expectation must be consistent with relevant statutory provisions.”34
[95] In light of the statutory framework, the Property Owners cannot legitimately expect more than the matter being the subject of public consultation, which the administering body must fully and fairly consider before making a decision. The Court of Appeal’s comments in Webster v Auckland Harbour Board are relevant here:35
“It is certainly arguable (we need say no more for present purposes) that a person who has held a valuable licence for years is entitled to an adequate “hearing” (not necessarily an oral hearing) and a fair consideration of his position before the licence is terminated — or, we think, before it is decided that a new licence will be offered to him only on much more onerous terms. He has a legitimate expectation of reasonable treatment.”
33 Chamberlain v Attorney-General [2017] NZHC 1821 at [75].
34 Petromont Holdings Ltd v Director-General of the Ministry of Primary Industries [2020] NZHC 3242 at [67].
35 Webster v Auckland Harbour Board [1983] NZLR 646 (CA) at 650–651. This case involved the Auckland Harbour Board’s decision to terminate the appellants’ longstanding license to use a boat ramp and boat shed in Herne Bay. That decision arose from a dispute between the appellant and the Auckland Harbour Board over the rent payable. The dispute remained unresolved at the time when the Auckland Harbour Board withdrew its offer to renew the license and required the applicants to remove the boat ramp and shed.
[96] This is comparable to the position here. The Council has vested the reserve in the joint administrative body, which must now prepare a reserve management plan. The Council resolved that the focus of this plan must be on determining the access issue. The Property Owners are legally entitled to receive a fair and proper consideration of their position through this process.
[97] It follows that any expectation on the part of the Property Owners that an easement would be granted prior to the transfer of the land would be neither reasonable nor legitimate.
Conclusion
[98] For these reasons, I consider that the Property Owners’ claim of legitimate expectation fails.
[99] I turn next to consider the other grounds advanced by the Property Owners on judicial review.
Was the consultation process prior to the Decision procedurally unfair?
[100] The Property Owners’ second ground of review is that the Decision was procedurally unfair. Mr Fowler advanced three bases on which he argued that the decision was procedurally unfair:
(a)that the Council changed the terms of the consultation by deferring resolution of the access arrangement until a later date, effectively rejecting potential outcomes in advance;
(b)that the Council wrongfully provided additional opportunities for Te Whānau ā Apanui to respond to matters raised without advising the Property Owners or providing a right of response; and
(c)that the resolution discussions were poisoned by a member of the Council who was biased and belatedly declared a conflict of interest.
[101] Mr Fowler submitted that taken together these errors constitute a breach of the Property Owners’ right to natural justice. I deal with each ground in turn.
Did the Council change the terms of the consultation by deferring resolution of the access arrangement until a later date, effectively rejecting potential outcomes in advance?
[102] Mr Fowler’s first criticism of the consultation process is that the Council changed the terms of the consultation by deferring resolution of the access arrangement until a later date. He submitted that the Property Owners were effectively consulted on the wrong issue. The language of the SOP is said to have indicated that the Council would consider the issue prior to the land being transferred. The Property Owners thus did not make submissions on the time at which the issue should be dealt with.
[103] The public consultation process is of significance. It may be a reviewable error if a public authority fails to consider the appropriate method of consultation when a significant change is made to a proposal which has previously been consulted.36 The authority should turn its mind to consider the likely impact or significance of the change of position.37
[104] Here, however, I am not satisfied that the Council made a significant change to the position expressed in the proposal. The focal paragraphs of the SOP read as follows:
“It is proposed that the seven land parcels comprising [the Whanarua Bay Recreation Reserve] be transferred from the Ōpōtiki District Council to Te Whānau a Apanui.
…
The remaining lots being 66, 68, 69, 70, balance of Lot 80 DP 4651 and Lot 3 DP6108 would be vested in Te Whānau a Apanui as historic reserves under the Reserves Act 1977. The public rights of access to those parcels, would be as per that Act as is currently the case. Implementing this part of the proposal would be subject to the Council first being satisfied as to how any existing encroachments are addressed prior to the land being transferred.
36 New Zealand Motor Caravan Association Inc v Marlborough District Council [2021] NZHC 3157 at [68].
37 At [69].
It is proposed that Te Whānau a Apanui would be the sole administering body for the reserves.”
(emphasis added)
[105] Mr Fowler’s argument is premised on his interpretation of the statement emphasised in the above passage. He claims the meaning of the highlighted sentence is that the Council proposes transferring the reserve land only after the existing encroachments, that is the use of Lot 66 by the Property Owners, is addressed.
[106] As previously discussed, this misconstrues the SOP. What the Council is actually saying is that it must be satisfied as to how the encroachments will be addressed prior to the land being transferred. This involves the Council satisfying itself that it has a plan in place to address those encroachments. It is not saying that the existing encroachments must actually be addressed prior to the transfer.
[107] That interpretation is consistent with how the process actually unfolded. The Council satisfied itself that the access arrangement could be dealt with as part of the subsequent reserve management plan. This is reflected in the Staff Report. The Council departed from its proposal that Te Whānau ā Apanui would be the sole administering body for the reserve. Instead, it recommended that the reserve be administered by the joint administering body, thus reserving to itself, at least in part, the opportunity to address the access issue.
[108] At the meeting where the Council resolved to accept the proposal, councillors emphasised the importance of addressing the access issue. The Council’s subsequent resolution made resolving access arrangements the “focus” of the reserve management plan. The Council plainly took it into account
[109] It follows that on a proper construction of the SOP, the Property Owners were appropriately consulted.
Did the Council wrongfully provide additional opportunities for Te Whānau ā Apanui to respond to matters raised without advising the Property Owners or providing a right of response?
[110] Mr Fowler’s next criticism of the consultation process is that the Council wrongfully provided additional opportunities for Te Whānau ā Apanui to comment on the submissions and the draft Staff Report.
[111] The first aspect of Mr Fowler’s argument under this head is that Te Whānau ā Apanui were present at a meeting on 12 May 2021 at which the submissions are said to have been discussed. Mr Fowler submitted that this created an unequal consultation, whereby Te Whānau ā Apanui was given a right of reply and the Property Owners were not.
[112] On this point Mr McMenamin, for the Minister of Treaty of Waitangi Settlements, referred to the evidence of Zsofia Hellyer, the Negotiations and Settlement Manager for Te Arawhiti. She deposed that she was present at this meeting. Te Arawhiti and Te Whānau ā Apanui were invited to speak about the proposals that the Council would subsequently consider. She says that those present discussed the general nature of the submissions received, but not the actual merits of the individual submissions.
[113] Similarly, Mr McCormack’s evidence is that he organised this meeting as a workshop for the councillors to assist them in understanding the Treaty settlement process and the Council’s role within it.
[114] The Council is required to follow the rules on consultation set out in the Local Government Act 2002. Of relevance here is that those who wish to have their views on the decision considered by the local authority should be provided with a reasonable opportunity to do so in a manner and format that is appropriate to the preferences and needs of those persons.38 Where the local authority adopts a special consultive procedure, it may request comment, advice or views on the proposal from any person.39
38 Local Government Act 2002, s 82(1)(d).
39 Section 83(3).
[115] Given that Te Arawhiti and Te Whānau ā Apanui were the parties presenting the joint proposal to the Council for acceptance, it is entirely understandable that councillors would benefit from meeting with those parties. There is nothing inherently unfair about a Council meeting separately with submitters or interested parties.40 The Council was entitled to request further information from them.
[116] The Council also met its obligations to the Property Owners. That group was able to present their views through the public consultation process. Being unable to respond to matters raised in the meeting did not render the consultive process unfair.
[117] The second aspect of Mr Fowler’s argument is that Te Whānau ā Apanui were given the opportunity to comment on the draft Staff Report. Nicholas Turoa, a member of Te Whānau, emailed a draft copy of the Staff Report with suggested amendments to a group of recipients including Council representatives. Amendments were incorporated in the final copy of the Staff Report. The particular amendments which Mr Fowler criticised are those referring to the accessway over Lot 66 as “illegal” and repeating provisions of the Reserves Act which create offences said to be have been committed.
[118] These comments must be viewed in context. The Council gave both Te Whānau ā Apanui and Te Arawhiti the opportunity to comment on the draft Staff Report. They too suggested some amendments, which Ms Hellyer described in an email as designed “to ensure the resolutions reflect exactly what [Te Arawhiti were] proposing”. The opportunity to comment was provided to both parties to the joint proposal to ensure that the Council’s subsequent decision was based on accurate information.
[119] The Property Owners were not provided with an opportunity to comment on the Staff Report because their input was not needed at that point. They had previously provided detailed written submissions on the issue. Furthermore, Mr Stringfellow said that some of the beachfront property owners made further written submissions to the Council complaining that the information was unfairly skewed against them.
40 Island Bay Residents’ Association v Wellington City Council [2019] NZHC 1240 at [145].
[120] It is regrettable that aspects of Mr Turoa’s amendments to the Staff Report were expressed in unnecessarily inflammatory language. However, the passages criticised by Mr Fowler were no doubt included by Mr Turoa to provide background. There is nothing to suggest that what he recorded had any bearing on the Decision, particularly given that the Property Owners made further submissions highlighting what they plainly regarded as Mr Turoa’s intemperate observations.
[121] It follows that I am satisfied that these aspects of the consultation process did not render it unfair.
Were the resolution discussions poisoned by a member of the Council who belatedly declared a conflict of interest and was biased?
[122] Mr Fowler’s final criticism of the process was that a particular member of the Council belatedly declared a conflict of interest and was biased.
[123] Councillor Louis Rāpihana affiliates with Te Whānau ā Apanui. Although he was excluded from the meeting at which the Decision was made, he was present at the 12 May 2021 meeting with Te Arawhiti and Te Whānau ā Apanui.
[124] Mr Fowler submitted that Councillor Rāpihana’s presence at this meeting is critical. He submitted that at this meeting critical changes to the Staff Report were made. He says that the Decision was thus influenced by a person with a personal interest in the outcome of the matter.
[125] It is trite that decision-makers must not be biased, nor give the appearance of bias. The test is whether:41
“… a fair-minded lay observer might reasonably apprehend that the judge [or decision-maker] might not bring an impartial mind to the resolution of the question the judge [or decision-maker] is required to decide.”
[126] Here Councillor Rāpihana was not the decision-maker. He was excluded from the meeting when the Decision was made. Even if he was present at the earlier meeting, his presence cannot have operated to influence the Council’s final decision.
41 Saxmere Co Ltd v Wool Board Disestablishment Co Ltd [2009] NZSC 72, [2010] 1 NZLR 35 at [3].
The remaining councillors resolved to accept the joint proposal. It is not disputed that they brought an impartial mind to the issue.
[127] It follows that I am satisfied Councillor Rāpihana’s presence at this meeting did not poison or improperly influence the decision-making process.
Conclusion
[128] For these reasons, I am satisfied the consultation process prior to the Decision being made was not unfair.
Did the Council fail to take into account relevant considerations or take into account irrelevant considerations when making the Decision?
[129] Finally, I turn to consider whether the Council failed to take into account relevant considerations or took into account irrelevant considerations when making the Decision.
[130]Mr Fowler advanced two arguments under this heading:
(a)that the Council failed to take into account a relevant consideration in neglecting the impact of the Decision on the Property Owners’ ability to access their properties, particularly in light of the previous commitments it had made; and
(b)that the Council took into account an irrelevant consideration by referring to the road as illegal in a prejudicial manner, effectively poisoning the Decision.
[131] There is nothing in either of these points. The Council clearly took into account the impact of the Decision on the Property Owners’ ability to access their properties. It received submissions from the Property Owners on this very point. The Council then made resolving the access issue a focus of the reserve management plan. It plainly turned its mind to this issue.
[132] While the reference to the “illegal” road is unfortunate, there is nothing to suggest that the reference prejudiced the Decision. Nor is it an irrelevant consideration. To the contrary, the questionable legal status of the accessway was an important and relevant facet of the Decision. Indeed, so much so was it that the Council resolved to address the issue when accepting the joint proposal. The Council should have and did take it into account.
[133]It follows this final ground of review must also fail.
Result
[134]The Property Owners’ application is declined.
Costs
[135] The respondents are the successful parties. As such they are entitled to costs. In my view 2B costs would be appropriate.
[136] I direct the parties to consult with a view to agreeing on the question of costs. In the event agreement cannot be reached I direct:
(a)the respondents are to file and serve their submissions no later than 5:00 pm on Monday, 21 November 2022; and
(b)the applicant is to file and serve their submissions no later than 5:00 pm on Monday, 12 December 2022.
[137]No memorandum is to exceed five pages (tables and appendices excluded).
Moore J
Barristers/Solicitors:
Mr Fowler KC, Wellington Holland Beckett, Tauranga
Cooney Lees, Tauranga Crown Law Office, Wellington Kahui Legal, Wellington
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