FIRST GAS LIMITED v GIBBS, GIBBS AND HORTON [2021] NZHC 1722

FIRST GAS LIMITED v GIBBS, GIBBS AND HORTON [2021] NZHC 1722 [9 July 2021]IN THE HIGH COURT OF NEW ZEALANDNEW PLYMOUTH REGISTRYI TE KŌTI MATUA O AOTEAROANGĀMOTU ROHECIV-2021-443-16[2021] NZHC 1722BETWEEN FIRST GAS LIMITEDPlaintiffAND RUSSELL VICTOR GIBBS, PARANIJOSEPHINE GIBBS AND LEIGH JOSEPHHORTONDefendantsHearing: 2 July 2021 (via AVL)Appearances: L P Wallace for PlaintiffM Gibbs and R GibbsJudgment: 9 July 2021JUDGMENT OF ISAC J[On application for interim injunction]The issue[1] First Gas owns and operates the Maui pipeline, which carries pressurisednatural gas from Taranaki to users throughout the North Island. It has statutoryeasements under the Petroleum Act 1937 over the defendants' land, through which thepipeline passes.[2] First Gas says it requires urgent access to the pipeline to undertake a repair. Itsays the defendants have denied it access and have sought to impose conditions onaccess which are inconsistent with First Gas' easement rights.[3] First Gas has brought proceedings against the defendants in nuisance. A trialdate has not been set. Given further delay might create a risk to gas supply in the NorthIsland, First Gas has applied for an interim injunction prohibiting the defendants fromobstructing or otherwise interfering with First Gas' easement interests.[4] Underlying the dispute is a disagreement about the extent of, and legal basisfor, the defendants' involvement in the planning and execution of works on their landconcerning the Maui pipeline.[5] Following the hearing on 2 July 2021, I received unsolicited supplementarysubmissions and additional materials from the defendants on 5 July 2021. Much ofwhat they contain are an amplification of points made in written and oral submissionsat the hearing of 2 July.1 As those additional materials do not alter the outcome, Irecord that I did not call on First Gas to respond to them.[6] I have concluded an interim injunction should issue. My reasons follow.Background[7] The Maui pipeline was completed in 1979 and supplies over 90 per cent of thenatural gas used in the upper North Island. In 2015, the pipeline carried 143 petajoulesof gas from seven production stations connected to it. More than half of that gas goesto large industrial users, including the Huntly Power Station and two methanol plantsoperated by Methanex.[8] The pipeline is operated pursuant to an authorisation issued on 31 July 1975under the Petroleum Act 1937. First Gas is the current holder of the pipelineauthorisation, and the current owner and operator of the pipeline.[9] There is a stringent regulatory framework governing maintenance andoperation of the Maui pipeline. Certification under an applicable industry standard isrequired, a process which involves inspection by an independent certifier and the issueof a pipeline certificate of fitness.1 In an appendix to this judgment I have set out a procedural history of the matter in response tosuggestions by the defendants that they have been prejudiced by First Gas' provision ofsubmissions the day before the hearing, and related claims of unfairness.[10] As the original pipeline's design life was less than 40 years, safe operationrequires continuous replacement and renewal of components.The Pariroa project[11] The Maui pipeline passes through an area known as Pariroa, approximately45 kms north of New Plymouth. The area has a high level of geotechnical hazard risk.Unsurprisingly, buried gas pipelines are susceptible to accumulated strain, bendingand possible rupture as a result of soil movement. Common geohazards includelandslides, land movement, erosion, and earthquake movement.[12] Due to landslide and coastal erosion risk affecting the Pariroa section of theMaui pipeline, "in-line" inspections are carried out every five years. This entails asensor package being inserted into the pipeline in order to inspect its structuralintegrity without interrupting gas flow. During an in-line inspection at Pariroa in 2018,a defect, known as a crease or buckle, was identified in a five-metre section of thepipeline. The defect was most likely caused by a nearby landslip which in turnsubjected the pipeline to forces exceeding its design capacity. Further investigationrevealed that the buckle presented a severe risk to pipeline integrity. As the damagedsection was close to failure, an "extraordinary repair project" was undertaken undercompressed timeframes. The first phase of the Pariroa project, as it became known,involved building and installing an 800m above-ground bypass alongside the existingunderground pipeline to ensure uninterrupted gas supply. This work included the firstplanned shutdown of the Maui pipeline for 20 years. The bypass was completedsuccessfully in 2018.[13] As the bypass does not lie within First Gas' existing easement, completion ofphase 1 required First Gas and the Gibbs Family Trust to reach an accommodationconcerning injurious affection to their land. Currently, First Gas makes annualpayments to the Gibbs Family Trust. In addition, First Gas claims it has paid for all ofthe time invoiced to it by representatives of the Gibbs Family Trust, as well as furthercompensation for disruption to the wider farming operation as a result of constructionworks, for the entire duration of the bypass operation, rather than the actual period ofconstruction.[14] On 27 June 2019, First Gas' pipeline authorisation was amended to permit theuse of the above ground bypass at Pariroa until 30 April 2023.[15] The second phase of the Pariroa project is to repair the damaged section of theunderground pipeline and to undertake other stabilisation or remediation work in thearea to avoid future issues with ground water or land movement. Importantly, FirstGas is only authorised to use the above ground bypass until 30 April 2023, so once theMaui underground pipeline is repaired (assuming it can be), the gas supply will berediverted back into the pipeline and the bypass can be decommissioned.[16] An initial geotechnical report was completed in late 2018, and in March 2019,First Gas commissioned a Land Feature Remedial Options Report (the remediationreport) based on the initial geotechnical investigations. Following consultation withstakeholders, including the Gibbs Family Trust, detailed site investigation andmonitoring, the remediation report was issued in July 2020. Amongst its findings wereconfirmation of landslide movement. The recorded movement rates appear to berelated to rainfall and groundwater levels, during a time when data indicated below-average rainfall.[17] A critical step which First Gas wishes to undertake involves preliminaryexcavation of the damaged area to determine the repair methodology and allow adesign solution to be prepared. Once that is completed, a wider excavation and re-burial to remove the landslip pressure from the Maui pipeline is intended, togetherwith any necessary drainage to assist with land stabilisation. It is at this point in theremediation process that First Gas proposes, subject to the findings of the exploratoryexcavation, that the damaged section will be replaced.[18] The ultimate objective of phase 2 of the Pariroa project is to repair the pipeline.But as the remediation report acknowledges, repair of the pipeline is dependent on theground conditions revealed by the initial excavation. One outcome of theinvestigations might be that undergrounding in the current easement is not viable. Ifthat occurs, it may be necessary to find a new route for the pipeline, or to maintain thebypass indefinitely.[19] Finally, in a recent development it seems that First Gas will need to completean archaeological authority application before it can complete the buckle repair. FirstGas has engaged a consultant to undertake that work and has advised the defendantsthat it proposes to have the consultant undertake a site inspection limited to theeasement area on 5 or 8 July 2021.First Gas' petroleum easements[20] As noted, First Gas holds a pipeline authorisation issued under the (nowrepealed) Petroleum Act 1937 (the Act), which allows the construction and operationof the Maui pipeline.[21] Under s 68 of the Act, a pipeline authorisation confers on the owner of apipeline "an absolute right" to "alter, remove, repair, operate, inspect, renew, andmaintain any pipeline". And, importantly, under s 68(d), the holder of a pipelineauthorisation is empowered to "do such other things as are necessarily incidental tothe exercise of the powersof the owner under this Part of the Act."[22] Under s 73 of the Act, the holder of a pipeline authorisation:may enter upon such land as may be necessary for the exercise of any suchright [conferred under the authorisation or the relevant part of the Act] withright of access to and egress from any such land with his servants, workmen,and agents, from time to time and at all times, with or without any suitable oravailable means of conveyance, and with all such equipment, articles andmaterials as may be necessary for the carrying out of any works authorised bythe authorisation or authorised by this Part of this Actand may also depositand store from time to time upon any land adjoining any such works all suchmachinery and material of any kind as may be used in carrying out any suchworks.[23] These powers are obviously broad and intrusive.[24] In addition to its rights under the pipeline authorisation, First Gas also holdstwo pipeline easement certificates issued by the then Minister of Energy under s 70 ofthe Act.2 Clause four of the easement certificates record that the easement holder hasthe:2 The two pipeline easement certificates relate to the two parcels of the defendants' land throughwhich the Maui pipeline passes.right of entry on the said land pursuant to subsection (6) of section 70 of theAct for the purpose of exercising the rights conferred on them by the Act andany regulations made thereunder and by the pipeline authorisation.[25] Under s 70(6) of the Act, every pipeline easement certificate gives the ownerof the pipeline a right of entry "on the land to which the certificate relates for thepurposes of exercising the rights conferred on [them] by this Partand by [the]authorisation."[26] So, between the petroleum authorisation, the pipeline easement certificates,and the provisions of the Act, First Gas says it has an absolute right of entry to carryout the initial investigation works and repairs to the Maui pipeline.[27] Finally, it is relevant to note that the Petroleum Act 1937 was repealed by theCrown Minerals Act 1991 on 1 October 1991, and by s 62(1) of the Health and Safetyin Employment Act 1993, on 1 April 1993. Despite the repeal of the Act, First Gas'rights under the pipeline authorisation and easement certificates are preserved by theCrown Minerals Act.3The land in issue and its people[28] The defendants are the trustees of the Gibbs Family Trust. The trust owns a227-hectare sheep and beef farm located on the North Taranaki coast immediatelysouth of the coastal village of Tongapōrutu. Both the Kapuni and the Maui piplinesrun through the Trust's property.[29] In an affidavit of 28 June 2021, Mr Russell Gibbs explains both his family'sstrong connection to their land and its significance for the Te Ahuru hapu of Ngā Hapūo Poutama. The Te Ahuru wharenui is situated on the land, along with urupa and thepito of all the Gibbs family's children and mokopuna. In addition to fishing grounds,puna and mahinga kai are other wāhi tapu. He says the Gibbs Family Trust "arereturning the land back into Māori title, including Māori reservation and Māori3 Schedule 1, Subpart 2 of the Crown Minerals Act (in particular, see cl 12). Section 2 of the thatAct, and in particular the definition of existing privilege, includes any authorisation granted underPart 2 of the Petroleum Act.freehold." Finally, he says "Te Ahuru exercise kaitiakitanga at Tongaporutu, includingat Te Ruataniwha and Pariroa, in conjunction with Poutama."[30] The strong connection of the Gibbs family to their ancestral land wasrecognised by the Court in Gibbs v Vector Gas Ltd.4First Gas' attempts to gain access to the Maui pipeline and events of 25 January[31] It is clear from the evidence of both parties that since at least 2020 there hasbeen ongoing disagreement on two important matters: first, the extent of First Gas'rights of entry onto the defendants' property for the purpose of repairing andmaintaining the Maui pipeline and second, the defendants' right to be involved in theplanning and execution of all works on their property by First Gas. The two issues areinterconnected for the Gibbs whānau, but not for First Gas.[32] Central to First Gas' application for an interim injunction is what it suggestswas an attempt to gain access to its easement area on 25 January 2021. It says thathaving endeavoured to obtain the Gibbs whānau's cooperation, when it arrived withits contractors on that day they were not permitted entry to the property. First Gas saysthat was an unlawful interference in its rights of access and maintenance and repair.[33] I will deal with the evidence relating to events of 25 January in more detaillater in this judgment.Principles applicable to grant of interim injunctions[34] The approach to consideration of interim injunctions has been settled for atleast thirty-five years.5 Such applications should be determined by assessing:6(a) whether there is a serious question to be tried;(b) the balance of convenience; and4 Gibbs v Vector Gas Ltd HC New Plymouth CIV-2008-043-000545, 27 April 2009, at [1] (VectorGas).5 Intellihub Ltd v Genesis Energy Ltd [2020] NZCA 344, [2020] NZCCLR 29 at [24].6 Klissers Farmhouse Bakeries Ltd v Harvest Bakeries Ltd [1985] 2 NZLR 129 (CA) at 142, ascited in Intellihub v Genesis Energy, above n 5, at [23].(c) where the overall justice lies.[35] I now turn to consider the issues as they arose at the hearing against thisframework.Is there a serious question to be tried?[36] The written and oral submissions of the parties identified the following issuesfor consideration:(a) whether there has in fact been any interference in First Gas' access tothe easement and pipeline;(b) whether a "collaborative process" with the Gibbs Family Trust is a pre-condition of the exercise of First Gas' easement rights; and(c) whether the pipeline authorisation and pipeline easement certificatespermit preliminary subsoil investigations?Interference with First Gas' access to the pipeline and the easement and pipeline?[37] The defendants submit that access continues to be available to First Gas forphase two of the Pariroa project, "subject to the longstanding collaborativerelationship between the Gibbs whānau, Te Ahuru, Ngā Hapū o Poutama and FirstGas."[38] While I will turn to the question of a collaborative process shortly, I have hadthe benefit of the evidence for both parties, which includes two video clips taken bythe defendants of the encounter on 25 January 2021 with First Gas staff andcontractors.[39] As Ms Gibbs submitted, the interaction that occurred at a farm gate entranceto the Gibbs Family Trust property was polite and respectful. But from the evidencethe following sequence emerges: First Gas sought to engage with the Gibbs whānaufor a considerable period to arrange access to the easement area in the vicinity of thebuckle. On 9 December 2020, First Gas wrote to the defendants giving notice of itsintention to enter the property to carry out the preliminary excavation and investigationworks. The letter indicated First Gas proposed to commence the works on 18 January2021, with an expected duration of 5 to 10 working days. The letter also provided anoutline of the work and invited the Gibbs Family Trust to respond within 15 workingdays "with reasonable conditions relating to access or use of the land". A satelliteimage attached to the letter identified the area where the excavation would occur, aswell as two nearby locations at which First Gas was proposing to temporarily storespoil.[40] First Gas did not receive a substantive reply for some time. It is unnecessaryto comment in detail on the communications that followed, other than to record thatthey reveal increasing unhappiness by Mr Gibbs with the planned entry onto theproperty, and with what was considered to be First Gas' refusal to engage in acollaborative process in relation to planning and execution of the buckle repair.[41] By mid-January 2021, First Gas was proposing to enter the Gibbs FamilyTrust's property on 25 January 2021 to carry out the preliminary excavation. Thisprompted an email of 17 January from Mr Gibbs to the Chief Executive of First Gasin these terms:We received a flurry of communications from First Gas before Christmas andover the holiday period, which were the latest in a string of contradictory,inconsistent, and inaccurate emails by a range of First Gas personnel,particularly over the past two years. This includes the entry notice dated9 December 2020, and the letter emailed on 11 January 2021 (dated23 December 2020). It is clear some First Gas personnel do not have a basicunderstanding of their rights and responsibilities, including the easements.First Gas have been seeking to renege on existing undertakings,representations, and agreements, and have been attempting to leveragepayments to achieve this. Poutama and Te Ahuru do not accept or consent toFirst Gas doing away with our collaborative process, withdrawing existingagreements, representations, and undertakings, both in our wider relationship,and the Pariroa Project.First Gas hold records of all agreements, undertakings, offers, and history ofremuneration. We recommend that you review these records.This agreed process is how everyone successfully participates in keeping withthe Gibbs v Vector decision and conditions.The proposed excavation planned for 25 January 2021 will need to be put onhold to allow time for First Gas to provide all project documentation, and forproject team meetings to occur, inclusive of our participation.[42] First Gas responded by advising Mr Gibbs that it was comfortable with theapproach it had taken and that it intended to continue with the excavation works on25 January. Subsequently, a First Gas employee, Mr Kevin Walden, sent a text toMr Gibbs advising him that First Gas representatives and its contractors would meetMr Gibbs at the cattle yards near an entrance to the defendant's property at 7.30 amon 25 January, prior to entry in order to carry out the excavation work within theeasement area.[43] There is no dispute that on the morning of 25 January 2021, First Gasemployees and contractors were met by Mr Gibbs and five other people at the entranceto the Trust's property.[44] Having read the affidavit evidence, and seen the video clips, I am satisfied thatit is seriously arguable that First Gas was denied access by the Gibbs Family Trust toits easement and were prevented from undertaking the preliminary excavation workon that day. While it will be a matter for the trial judge, the video tends to support FirstGas' claim that it sought entry onto the defendants' property on 25 January for thepurpose of undertaking preliminary excavations, but entry was impeded or prevented.[45] It also appears seriously arguable that the reason First Gas was denied accessto the easement area and pipeline is because the Gibbs Family Trust consider that FirstGas is legally required to follow a collaborative approach to the proposed works, basedon the High Court's decision in Vector Gas,7 to which I now turn.7 Above, n 4.Is a "collaborative process" as envisaged in Vector Gas a requirement of the exerciseof First Gas' easement rights?[46] The Gibbs Family Trust argue that First Gas' rights of access to their land andto carry out repairs and maintenance to the Maui pipeline is conditional on engagementin a collaborative process which they say was established as a legal requirement bythis Court's decision in Vector Gas. In variations of the same point they argue that FirstGas' approach to completion of phase 1 of the Pariroa project involved a collaborativeapproach, which is an on-going obligation limiting First Gas' statutory and registeredinterests in relation to phase 2. They also say that "representations, undertakings,actions and conduct" of First Gas amounts to a contract to the same effect.[47] Ultimately it is not for me to determine at this preliminary stage whether thesearguments are correct. Having considered the decision in Vector Gas and the othersupporting evidence and submissions advanced by the Gibbs Family Trust, I haveconcluded that there is a serious question to be tried as to whether the defendants'asserted limitations on First Gas' pipeline authorisation and pipeline easementcertificates is sustainable.[48] In Vector Gas,8 Hugh Williams J dealt with an appeal by Mr Gibbs from adecision of the District Court permitting Vector entry into the defendants' property forthe purposes of undertaking surveys and inspections under s 111A of the Public WorksAct 1981. The reason Vector had sought a right of entry was because the Kapuni gaspipeline, which also runs through the defendants' property, was at significant risk dueto coastal erosion. A new alignment of the pipeline was therefore needed, and Vectorsought to undertake surveys in order to ascertain an appropriate alternative routeoutside of its existing easement.[49] The key issue on appeal was whether Vector had discharged an obligation totake all reasonable steps to negotiate an agreement for entry before applying to thecourt for access. In determining that question, the Court concluded that there was nodispute the parties had reached an impasse in relation to access.9 The Court thereforeupheld the District Court's decision and dismissed Mr Gibbs' appeal from it. What8 Vector Gas, above n 4.9 At [48].then followed, however, was an opportunity for the parties to negotiate an agreementfor entry, because the District Court order granting access failed to specify theconditions of entry as required under s 111A(4) of the Act.[50] It then seems from the evidence that following further negotiation, the termsof access were agreed, and Vector was able to carry out its survey. Those agreed termswere then noted in consent orders of the Court.[51] While it may be understandable that the Gibbs whānau consider the agreementit reached with Vector in 2009 forms the basis of its relationship with First Gas inrelation to all works and maintenance concerning the Maui pipeline, again I haveconcluded there is a serious question to be tried as to whether that is the case in relationto the repair of the buckle. Without in any way expressing a final view, I do note thefollowing matters appear to arise from the Vector Gas decision:(a) First, the pipeline in issue was the Kapuni pipeline, not the Mauipipeline, or the pipeline authorisation or easement certificates in issuein the present case. Instead, the case concerned a quite different issue,being an access order under s 111A of the Public Works Act. At firstblush it is therefore difficult to see the immediate relevance of theaccess agreement that the decision ultimately led to on First Gas' rightsunder the pipeline authorisation and easement certificates in this case.(b) Second, in Vector Gas access was not sought to carry out repairs ormaintenance to the Kapuni pipeline. Rather, Vector was seeking tocarry out a survey so that the pipeline could be moved to a new location,outside of its existing easement.(c) Third, it also seems clear that the "collaborative arrangement" whichwas negotiated as part of the conditions of entry ordered under s 111Awere just that; negotiated terms. They do not appear to extend beyondthe matters dealt with in that proceeding. This reinforces the conclusionthat there is a serious question to be tried as to whether those conditionshave any wider application.[52] And, insofar as much the same argument is advanced by the Gibbs FamilyTrust on the basis of an alleged contract, or as a result of obligations arising from theprocess followed for phase one of the Pariroa project, once again I conclude there is aserious issue to be tried. It will be for the trial judge to determine whether First Gas'rights of entry and access have been qualified in the way alleged by the defendants.Do the pipeline authorisation and easement certificates permit preliminarygeotechnical investigations?[53] The Gibbs Family Trust argue that what First Gas is in fact seeking to do is tocarry out a survey for the possible re-alignment of the Maui pipeline. The defendantpoints to the remediation report, which acknowledges that one possible outcome ofthe initial investigation works could be the need to move the alignment of the pipe toa new location, or permanent use of the bypass.[54] As a result, the Gibbs Family Trust argues that the appropriate jurisdictioncontrolling access is not the pipeline authorisation and easement certificates but s 111Aof the Public Works Act. The defendants also contend that the works proposed reachbeyond the easement corridor, and such use of their land falls outside the rightsconferred on First Gas by the pipeline authorisation and easement certificates.[55] At the hearing, Ms Gibbs also accepted that an alternative way of framing hersubmission is to say that preliminary investigations of the nature proposed, which,depending on what is discovered, may not lead to any repair or maintenance of theMaui pipeline, is outside the rights conferred by the statutory instruments.[56] Regardless of how the issue is framed, I consider there is a serious question tobe determined regarding the scope of First Gas' rights, including the temporary use ofpart of the defendants' land beyond the easement corridor. That conclusion isinevitable given the extent of powers of entry and use conferred under ss 68(d) and 73of the Petroleum Act, noted at [21]–[22] above. Those provisions appear to conferbroad powers of entry onto land, not just an easement corridor, and use of that land tothe extent necessary in order to carry out repairs and maintenance to a pipeline.[57] And, to the extent the defendants contend that access to their land is limited topassage through the easement corridor itself, which they say is practically impossible,a serious issue to be tried arises in relation to the scope of cl 4 of the pipeline easementcertificates, which grants a right of entry on "land" for the purpose of exercising therights conferred by the Act and the pipeline authorisation. First Gas contends that"land" is not limited to the easement corridor, but the land through which the easementruns. Once again, that is a question for trial.Balance of convenience[58] It is necessary to consider the effect of the grant of an interim injunction on thedefendants, and to balance that against the effect of refusing to do so on the plaintiff.[59] The Gibbs whānau urge upon the Court the cultural heritage and importanceof their land not only to the Trust but to Te Ahuru and Ngā Hapū o Poutama. Theystress the existence of urupa, wāhi tapu and other taonga, which may be irreparablydamaged as a result of First Gas' works given the Trust's exclusion from the planningand decision-making process. They rightly question the value of an undertaking as ameans to compensate the loss of cultural heritage.[60] Against these factors, First Gas points to the significance of the Maui pipelineand its continuing operation. The pipeline is a piece of nationally significantinfrastructure. At present, repair of the buckle is required to be completed byApril 2023. While that is some time away, First Gas's evidence is that commencementof the site investigations are now urgent. The ground conditions need to be ascertainedbefore a design for repair and stabilisation can be commenced. There are thenconstruction and related consenting processes which will follow. And, significantly,the buckle needs to be repaired before the next scheduled "in-line" survey of the pipe,due to be undertaken in May 2023. Given lengthy periods of the year when the bucklecannot be repaired, commencement of the investigation is now urgent if First Gas isto ensure completion in time. Damages will not be an adequate remedy in light of thenature of the right at stake. And if the pipeline is not repaired in time, there is a threatto the maintenance of natural gas supply in the North Island, with significant knock-on effects for communities and business. In short, in addition to irreparable harm toFirst Gas is the potential for profound harm to third parties who rely on the continuingoperation of the pipeline.[61] Overall, I have concluded that the balance of convenience clearly favours thegrant of an interim injunction until trial on the terms set out later in this judgment.While the potential impact on the Gibbs Family Trust's farming operations or oncultural heritage and protection should not be understated, I find the following factorsdispositive of the issue:(a) First, First Gas is undertaking an archaeological investigation of the siteas a first step. They have also sought the defendants' input into thatprocess. In short, the plaintiff is aware of the need to understand issuesof cultural significance before it completes the repair and will obtainany necessary authority from Heritage New Zealand if required.(b) Second, the overall impact of a failure to repair or replace the buckledsection of pipe in time in my view clearly outweighs the risk, if any, ofharm to the defendants and their property pending trial.(c) Third, on the basis of the material before me I consider the merits ofthe rival arguments clearly favour First Gas rather than those raised bythe defendants.(d) Finally, while the Gibbs Family Trust might not consider theundertaking as to damages is adequate to address its concerns, Iconsider it does provide significant comfort and protection in relationto its position, should First Gas' claims not succeed at trial.[62] There were three more issues raised by the defendants which in my view arebest considered under the balance of convenience.Do the petroleum easements permit works and use of land outside the easementcorridor?[63] Much of the Gibbs Family Trust's submissions at hearing concerned the scopeof the proposed excavation and use of land beyond the easement corridor for thetemporary storage of spoil. The Trust argues First Gas does not have any right to useits land in this way, and must reach an agreement with the Trust about it first.[64] At the hearing, Ms Wallace confirmed that without prejudice to its claimedrights, First Gas will ensure that its exploratory works will be confined to the easementarea, such that no further use of the defendants' farm will be required.[65] That being the case, I am satisfied that limiting the scope of works and activityto the easement corridor supports my conclusion that the balance of conveniencefavours the grant of the injunction.Is there urgency given the need for an archaeological investigation and report?[66] The Gibbs whānau contended that the claimed urgency, and I take it necessity,for an interim injunction did not exist. In addition to noting that access is available(provided a collaborative process is followed), they also highlighted a recent emailfrom First Gas indicating that before any excavation can proceed, an archaeologicalreport and archaeological authority from Heritage New Zealand is needed. Thatprocess may take, it is said, up to forty-five working days. That counts against theclaim that the works need to occur without delay.[67] As noted above at [60], the evidence indicates that while April 2023 is sometime away, given the significant lead-in times to complete phase two of the Pariroaproject, and the limits on when physical works can be undertaken, commencement hasalready been significantly delayed and is urgent. And, First Gas' evidence is that thearchaeological investigations do not relate to the initial excavation of the site; rather,it relates to the repair works planned for late 2021. Regardless, I consider any addeddelay caused by the need for archaeological investigations exacerbates the urgencythat exists.[68] If anything, I consider the added delay occasioned by archaeologicalinvestigations heighten the impact of delay, and the necessity for the order sought.Does the s 70A Petroleum Act proclamation restrict access and work to the 12m wideeasement corridor?[69] In supplementary submissions received after the hearing, the Gibbs FamilyTrust also relies on s 70A of the Petroleum Act to argue that the easement certificatesare derived from, and limited by, the proclamation process laid out in s 70A. They goon to argue that the pipeline easement certificates were issued under s 70A of the Act,and that after construction of the pipeline, the total width of the easement was limitedto 12m.[70] As a result, the defendants submit that "there is no scope or [possibility] foreasement rights to extend beyond the 12 metre wide easements. Otherwise, whatwould be the purpose of the easement?"[71] Whether the defendants are correct in their argument that s 70A limits FirstGas' right of entry and land use beyond the easement itself is a matter for trial.Relevant to the determination of that question will be the statutory rights which appearto attach to the pipeline authorisation and easement certificates under ss 68(d) and 73of the Act.[72] I do not consider the additional supplementary submissions and materialsadvanced by the defendants — both in relation to s 70A or otherwise — alter theconclusion that First Gas has established a serious question to be tried, and that thebalance of convenience is clearly in favour of an interim injunction. I am reinforcedin that conclusion by the defendants' failure to address the effect of s 73 in theirsupplementary submissions, although it formed a key plank of First Gas' applicationand submissions.[73] Finally, I note First Gas' undertaking to confine its physical works, includingtemporary spoil, to the 12m easement corridor. It follows that apart from necessaryaccess to the buckle and the easement corridor, the interim works will not trigger thewider concern about non-easement land use the Gibbs Family Trust has sought to raise.Overall assessment of the interests of justice[74] Finally, an assessment of the overall justice of the position is required as acheck.10[75] Standing back, I am satisfied that the overall justice requires the grant of aninterim injunction.[76] In my view, an injunction limited to an order requiring the defendants to permitFirst Gas to exercise the rights apparent on the face of the pipeline authorisation andeasement certificates (and, therefore, the Act), is not an unwarranted intrusion intotheir claimed interests as landowners. The extent of preliminary works envisaged areat this stage limited to an excavation intended to provide information needed todetermine how and whether the buckle can be repaired, and land stability improved.That will occur over a limited period of time following archaeological investigations.And, to the extent access and use of part of the defendants' land is ultimately found tobe unlawful, I consider damages are an adequate remedy.[77] In addition, I am satisfied that the overall justice and wider interests, includingthose of third party energy consumers, require interim preservation of unimpededaccess to the Maui pipeline under the relevant instruments and Act, not only to repairthe buckle, but also in relation to the Maui pipeline's safe operation, maintenance andrepair. The alternative contended for by the defendants would involve significant riskto nationally important infrastructure and energy supply to the greater North Island,given the defendants consider they have the right to exclude First Gas from practicalaccess to the Maui pipeline.Conclusion and orders[78] I grant an interim injunction, until further order of the Court, prohibiting thedefendants or any other party from restricting, obstructing or otherwise interferingwith First Gas' rights under the pipeline authorisation or easement certificates,including rights to enter the defendants' land for the purpose of performing any action10 NZ Tax Refunds Ltd v Brooks Homes Ltd [2013] NZCA 90, (2013) TCLR 531 at [12].or operation necessary for the purpose of inspecting, maintaining or operating theMaui pipeline.[79] All such activities are to be carried out in accordance with the authorisationand easement certificates, and the applicable provisions of the Act. And physicalworks are to be confined to the easement corridor, including the temporary depositionof spoil and storage of equipment and machinery, until further order. I also considerthe draft conditions attached to the plaintiff's submissions dated 1 July should apply.[80] Leave is reserved to the parties to apply for further directions if required.Costs[81] Costs would normally follow the event. Should First Gas seek costs I direct amemorandum, no longer than three pages in length, to be filed within fifteen workingdays. Any memorandum from the defendants in reply shall also be limited to threepages and is to be filed fifteen working days thereafter.Isac JSolicitors:Govett Quilliam, New Plymouth for PlaintiffAppendix – procedural history[1] It is helpful to record events leading up to the hearing of the application andthose following shortly thereafter, in response to a submission by the defendants thatFirst Gas' provision of a synopsis of submissions in support of its application on 1 Julygave rise to a breach of natural justice and other unfairness to the defendants.[2] First Gas filed its proceedings on 16 April 2021. Service of the proceedings onthe defendants proved problematic. The papers were served personally on two of thedefendants, Ms Gibbs and Mr Horton, on 4 May 2021.[3] Service on Mr Russell Gibbs proved to be impossible despite efforts to do soon five separate occasions. Ultimately, Cooke J in a minute of 31 May directed thatservice on Ms Parani Gibbs was sufficient service on Mr Gibbs under the Rules. HisHonour also directed that the notice of hearing and a copy of his minute should beserved on the defendants by sending the documents to Mr and Ms Gibbs' usual emailaddress.[4] On 15 June, some six weeks after proceedings were served on Ms Gibbspersonally, Mr Russell Gibbs filed a notice of opposition. At the same time he filed amemorandum seeking an extension of time to file evidence to 23 June. That requestwas made because it seems Mr Gibbs appreciated that r 7.25 of the Rules requires anyevidence in support of an opposition to an interlocutory application to be filed withthe notice of opposition.[5] The defendants did not file any evidence on 23 June.[6] Instead, on 23 June they filed a memorandum seeking to adjourn the hearingon 2 July. The reasons for the adjournment did not include any suggestion that thedefendants were unable to prepare or file evidence in opposition. The request for anadjournment was opposed by First Gas.[7] In a minute of 28 June, I dismissed the defendants' request for an adjournmentand noted that the defendants had not, at that time, filed any evidence in opposition. Iindicated that if they intended to file evidence they should do so promptly and no laterthan 1 pm on 30 June. I also directed that if late evidence was filed by the defendants,the plaintiff had leave to file any evidence in reply by 5 pm on 1 July, being the daybefore the hearing.[8] An unsworn electronic copy of a seventeen-page affidavit by Mr Gibbs wasthen emailed to the Registrar by the defendants in the early afternoon of 28 June.Thereafter, a bundle of documents said to be exhibits to Mr Gibbs' affidavit were sentto the registrar during the evening of Wednesday 30 June.11[9] Given the lateness of Mr Gibbs' evidence and exhibits, and First Gas' replyevidence, I made no further directions on 28 June in relation to the exchange of writtensubmissions before the hearing. Despite that, Ms Wallace for First Gas was able to fileand serve on the defendants a synopsis of submissions at 3.29 pm the day before thehearing, 1 July 2021.[10] At the commencement of the hearing Ms Gibbs began with a criticism aboutwhat she submitted was the late filing of First Gas' submissions. But as she then wenton to develop careful and well thought-out submissions going to the merits of theapplication itself — which occupied most of the hearing time — it became evident shewas addressing the Court from written submissions which the defendants had preparedbut not filed. Helpfully, Ms Gibbs agreed to provide the Court with the defendants'fourteen and a half pages of written submissions during the luncheon adjournment,albeit, as she said, as a draft.[11] During the hearing, Ms Gibbs wished to refer the Court to two video clips ofthe encounter of 25 January taken by the defendants. I confirmed I had not been ableto view the clips before the hearing, but assured the defendants I would do so after thehearing.[12] On checking the material filed with the Court, it became apparent that whilethe clips were included in an index of documents relied on by the defendants, they had11 An earlier effort to provide a cloud-based electronic folder of documents was declined by theRegistrar.not in fact been provided to the Court. That led the Registrar to seek a copy of thevideos from Ms Gibbs on 5 July 2021.[13] In response, Ms Gibbs provided an additional synopsis of written submissionrunning to thirteen pages, as well as a number of other attachments.[14] The supplementary synopsis should not have been filed given that I indicatedto Ms Gibbs at the hearing that I preferred to receive all submissions at the hearing.The synopsis once again alleged First Gas' failure to provide its synopsis on 29 Junedeprived the defendants of the ability to prepare for the hearing and effectivelyamounted to a trial by ambush. A breach of natural justice is said to have followed.[15] I do not accept that submission given, as the chronology above records, thedefendants' unexplained failure to provide evidence prior to 28 June, and most of theexhibits sometime after that.[16] In those circumstances, it is not surprising that First Gas was unable to file andserve its written submissions, and evidence in reply, any earlier than it did. And I amleft with significant unease about the claimed prejudice to the defendants as a resultof all this given that before the hearing commenced they had prepared fourteen and ahalf pages of written submissions setting out their arguments, and were able to advancetheir case in careful oral submissions which occupied the majority of the hearing.[17] Finally, there are two further inaccuracies in the defendants' submissions thatrequire clarification. First is the claim in the supplementary submissions that:It became apparent at the hearing that Judge Isac had not viewed the film clipsin evidenceTo assist the Court to view these four film clips, we provide the followinglinks to view the film clips in evidenceAttached to the affidavit of RussellGibbs dated 28 June 2021, para 9, 11, & 68(emphasis added)[18] This submission is no correct. The relevant video clips had not been providedto the Court prior to the hearing, and were not "in evidence". They were only providedas a link to YouTube on 5 July, together with thirteen further pages of supplementarysubmissions.[19] Second, in the written and oral submissions made at the hearing, Ms Gibbssubmitted that my minute of 28 June:assumed that [that the defendants] had not yet filed supportingaffidavit/evidence. It appears that Isac J was unaware that we had requested afurther extension [to file evidence], and that we had already filed thesupporting affidavit/evidence. On 23 June 2021, we had requested a furtherextension until 8am, 28 June 2021. We filed this affidavit at 12.06am on28 June 2021.[20] This submission is inaccurate in two respects. First, my minute of 28 June wasemailed to the defendants at 10.43 am on 28 June. The text of Mr Gibbs' affidavit wasthen emailed to the registrar, presumably in response, at 12.07 pm the same day.Second, no request was made by the defendants on 23 June 2021 for a furtherextension of time to file evidence. In fact, Mr Gibbs' memorandum of that date madeno mention of the overdue evidence and instead sought an adjournment of the hearingnot on the basis that the defendants had inadequate time to prepare, but on the basisthat the application itself lacked merit and could not succeed.