GOLDEN BAY GRAND STAND COMMUNITY TRUST INC v TASMAN DISTRICT COUNCIL [2018] NZHC 1637

GOLDEN BAY GRAND STAND COMMUNITY TRUST INC v TASMAN DISTRICT COUNCIL [2018]NZHC 1637 [4 July 2018]IN THE HIGH COURT OF NEW ZEALANDNELSON REGISTRYI TE KŌTI MATUA O AOTEAROAWHAKATŪ ROHECIV 2018-442-35[2018] NZHC 1637BETWEEN GOLDEN BAY GRAND STANDCOMMUNITY TRUST INCORPORATEDGOLDEN BAY AGRICULTURAL ANDPASTORAL ASSOCIATIONINCORPORATEDApplicantsAND TASMAN DISTRICT COUNCILRespondentHearing: 27 June 2018Counsel: C Linkhorn for ApplicantsJ Winchester for RespondentJudgment: 4 July 2018JUDGMENT OF ELLIS J[1] On 27 June 2018, I made interim orders under the Judicial Review ProcedureAct 2016 prohibiting the Tasman District Council (the TDC) from taking further actionconsequential on its decisions between 9 June 2016 and 24 May 2018 to authorisedemolition of the Grandstand at the Takaka Recreation Reserve. These are my reasonsfor making those orders.Background[2] Both the Grandstand and the land on which it sits was once owned by thesecond applicant, the Golden Bay Agricultural and Pastoral Association Incorporated(the Association). The Association was established in 1893 and is an incorporatedsociety under the Agricultural and Pastoral Societies Act 1908 (the 1908 Act). ThatAct provides (inter alia) for the ownership and leasing of land by societies andrestrictions on the disposal of such land, in certain circumstances. Section 10 providesthat the objects of every society shall be: 1 or more, either wholly or in part, of those hereinafter set forth:(a) to collect such information contained in agricultural publications andin other works as has been proved by practical experience to be usefulto the cultivator of the soil:(b) to correspond with agricultural and other societies, and to select fromsuch correspondence all information that is, in the opinion of thesociety, likely to be of practical benefit to the cultivator of the soil:(c) to pay to any occupier of land or other person who undertakes, at therequest of the society, to ascertain by experiment how far suchinformation leads to useful results in practice, compensation for anyloss he incurs in doing so:(d) to encourage men of science in their attention to the improvement ofagricultural implements, the application of chemistry to the generalpurposes of agriculture, the destruction of insects injurious tovegetable life, and the eradication of weeds:(e) to promote the discovery of new varieties of grain and othervegetables useful to man or as food for domestic animals:(f) to collect information with regard to the management of woods,plantations, and fences, and on every other subject connected withrural improvement:(g) to take measures for improving the veterinary art as applied to horses,cattle, sheep, and pigs:(h) to encourage by the distribution of prizes at the meetings of thesociety, and by other means, the best mode of farm cultivation and theimprovement of livestock of all or any of the kinds defined in this Act:(i) to encourage enterprise and industry by the holding of meetings forthe exhibition of implements and produce, the granting of prizesthereat for the best exhibits, and by competitions for prizes forinventions or improvements, or for skill or excellence in agriculturalor pastoral arts.[3] Parts of the Grandstand date back to 1899 and it has distinctive architecturalfeatures; principally its barrel-vaulted roof, which dates from 1911. But it is presentlyin disrepair and has, over the years, had a number of architecturally anomalousadditions to it.1[4] It seems that in the late 1950s a decision was made that the Association nolonger needed to own the Grandstand or the surrounding land and that it should bevested in the local Council (then called a Corporation). The transfer of ownership waseffected by s 18 the Reserves and Other Lands Disposal Act 1959, which provided:18 Special provisions relating to certain land at TakakaWhereas the Golden Bay Agricultural and Pastoral Association (inthis section referred to as the Association) is registered as proprietorof an estate in fee simple in the land firstly described in subsection (7)of this section: And whereas the Association and the Takaka Athleticand Cycling Club Incorporated (in this section referred to as the Club)are registered as proprietors as tenants in common in equal shares ofan estate in fee simple in the land secondly described in subsection (7)of this section: And whereas the land described in subsection (7) ofthis section is not required by its registered proprietors for theirexclusive use: And whereas it has been agreed that the said land bevested in the Corporation of the County of Golden Bay (in this sectionreferred to as the Corporation) as a recreation reserve subject to theprovisions of Reserves and Domains Act 1953: And whereas there isno authority for the said land to be so vested, and whereas it isdesirable that provision be made accordingly: Be it therefore enactedas follows:(1) Notwithstanding anything to the contrary in the Agricultural andPastoral Societies Act 1908 or in any other Act or rule of law, the landdescribed in subsection (7) of this section, together with all buildingsand other improvements thereon is hereby vested in the Corporationas and for a recreation reserve subject to the provisions of the Reservesand Domains Act 1953, and subject also to the provisions hereinafterset out, but otherwise freed and discharged from all trusts, restrictions,and reservations heretofore affecting the same.(2) The District Land Registrar for the Land Registration District ofNelson is hereby authorised and directed to make such entries in theregister books and to do all such other things as may be necessary togive effect to the provisions of this section.1 Later additions to the Grandstand or immediately adjacent to it were the refurbishment of theground floor into rugby football clubrooms in 1967, rear lean-tos over a period of years, a frontextension in 1992, and an abutting two storey squash court building erected in 1975.(3) The Association shall be entitled to use free of charge the buildingson the said land for the purpose of holding meetings and for storageof fittings and equipment to the same extent as immediately prior tothe coming into force of this Act.(4) The Golden Bay County Council shall appoint a standing committeeunder section 71 of the Counties Act 1956, to be known as theShowgrounds Management Committee, which shall have themanagement of the said land, and which shall consist of:(a) 2 members to be appointed in that behalf by the Golden BayCounty Council:(b) 1 person to be appointed by the Golden Bay County Councilon the recommendation of the Association:(c) 1 person to be appointed by the Golden Bay County Councilon the recommendation of the Club:(d) Such other persons not exceeding three in number as theGolden Bay County Council may from time to time appointas nominees of other sporting bodies in the Takaka District.(5) Notwithstanding anything to the contrary in any Act or rule of law orin the terms or trusts under which the Golden Bay Agricultural andPastoral Society holds the sum of 750 pounds now deposited with thePermanent Building Society of Nelson on fixed deposit under NumberD 2350, the said sum shall, on the coming into force of this Act, beand be deemed to be owned by the Corporation to be held by it andadministered pursuant to section fourteen of the Land Subdivision inCounties Act 1946 in respect of the land described in subsection (7)of this section and the Permanent Building Society of Nelson is herebyauthorised and directed to transfer the ownership of the aforesaidamount on fixed deposit to the Corporation.(6) Commencing from the year ending on 31 March 1960, theCorporation shall and is hereby authorised and directed to pay fromits general funds the sum of 30 pounds each year to the Associationfor the general purposes of the Association.(7) The land to which this section relates is particularly described asfollows:Firstly, all that area in the Nelson Land District, being part Lot 1ADP 2371, being part of Part 1 of Section 22 District of Takaka, situatedin Block X, Waitapu Survey District, containing 4 acres 3roods2 perches and six-tenths of a perch, more or less, and being thebalance of the land comprised and described in certificate of title,Volume 75, folio 221, Nelson Registry.Secondly, all that area in the Nelson Land District, being part of Part1 of Section 22, District of Takaka, situated in Block X, WaitapuSurvey District, containing 9 acres 1 rood 38 perches and seven-tenthsof a perch, more or less, and being the balance of the land comprisedand described in certificate of title, Volume 62, folio 224 (limited asto parcels), Nelson Registry.As the same are shown on the plan marked L and S 22/3420A,deposited in the Head Office, Department of Lands and Survey, atWellington, and thereon edged red.[5] At this interim stage, the complete background to these provisions remain hazy.It is not, for example, all together clear:(a) why 750 pounds were transferred from the Association to the Councilunder subs (5); or(b) why the Council was required to pay 30 pounds annually to theAssociation under subs (6).2[6] I therefore merely record that Mr Linkhorn's suggestion that the formerpayment was made for the purposes of maintaining the grounds and buildings and thelatter represented interest on that sum does not seem beyond the realms of possibility.3[7] For present purposes, however, the critical provision is s 18(3) and the right itconfers on the Association to: use free of charge the buildings on the said land for the purpose of holdingmeetings and for storage of fittings and equipment to the same extent asimmediately prior to the coming into force of this Act.[8] And it is, I think, now accepted by all the parties that the reference to"meetings" in s 18(3) includes meetings of the kind referred to in s 10(i) of 1908 Actand, accordingly, the A&P show that has taken place on the land annually, on the thirdweekend in January, since 1896. Historically the Grandstand provided a covered,raised seating platform from which spectators could watch that show. A "Produce2 I was advised that this payment (decimalised to $60 per annum) is still made.3 He advised that the latter payments are referred to as "interest" in the Association's bank account.Hall" was built nearby and was also used by the Association for the purposes of itsannual show.[9] As I have said, the Grandstand has, over the years been modified andunsympathetically added onto. It is in a delipidated state. Whether or not it also nowposes an earthquake risk is the subject of divided expert opinion.The Grandstand's future: chronology of consultation and decision making[10] Much of what follows is taken from the applicants' statement of claim andevidence. Some aspects of the narrative are disputed and there may be materialomissions from it.4 But at this interim stage, I must deal with the issues as best I amable; I am unable to resolve factual contests. That is a point I return to later.[11] In August 2010, a public meeting discussed a proposal included in the TDC'sten-year plan involving a new shared community recreation complex for Golden Bay.[12] In October 2011, the Golden Bay Shared Recreational Facility (the SRF) wasincorporated by members of the Golden Bay community. The objects of the SRFincluded promoting a new building at the showgrounds for sporting and communitygroups. The SRF consulted with the Association in 2011 and 2012.[13] The SRF finalised its proposal for a new building and sought the TDC's supportfor its construction. This proposal:(a) located the new building where the Association's Produce Booth waslocated and therefore required demolition of the Produce Booth;(b) did not involve covered Grandstand (raised) seating; and(c) also involved the demolition of the Grandstand and the use of the spacethereby created for car parking adjacent to the new building.4 Although the Council filed evidence in support of its opposition, no statement of defence has yetbeen filed.[14] On 9 June 2016, the TDC resolved to demolish the Grandstand and the ProduceBooth and to approve the construction of the new building as proposed by the SRF.In making those decisions the Council did not specifically consult with the Associationor seek its agreement to the proposal.[15] By June 2016 the TDC had become aware that the Grandstand was an"archaeological site" (because parts of the building date back to pre-1900), whichmeant that consent from Heritage New Zealand Pouhere Taonga (HPT) would berequired for any modifications. An issue had also been raised as to whether theCouncil should (regardless of whether the buildings were an archaeological site)include them in its heritage register as part of the District Plan.[16] In January 2016, workers approved by the TDC demolished the ProduceBooth. The Association did not oppose and, indeed, assisted in this endeavour.[17] Between February and May 2016, contractors engaged by the TDC removedthe two staircases at either end of the Grandstand rendering it unusable.[18] In July 2016 the first applicant, the Golden Bay Grand Stand Community TrustIncorporated (the Trust), was established and incorporated as a charitable trust. Itspurpose is to "promote and assist in the preservation and restoration of the heritageGrandstand at the Takaka Recreation Park" and "raise funds and provide funding" forthe same.[19] Around October or November 2016, the TDC applied to HPT for approval todemolish the Grandstand. On 21 November 2016 that approval was given.[20] In December 2016, the Trust commenced proceedings in the EnvironmentCourt (the EC) seeking a review of the HPT decision to approve demolition of theGrandstand and enforcement orders preventing demolition and requiring that the stairsbe reinstated.[21] On 29 June 2017, the EC declined both the Trust's applications.5 In a carefuland thorough judgment the Court considered the historic and heritage values of theGrandstand at length. In relation to heritage value, it distinguished between nationalheritage values (which were HPT's concern) and local ones (which were not). Morespecifically, it said:[66] With regard to the heritage value of the Grandstand, matters agreedby the experts in conference included:• In the building's current state and with the historic information to handMr Blackburne, Ms Craig and Ms Coats agreed that the building doesnot attain a Category 1 or Category 2 threshold in terms of HNZlisting criteria but all acknowledged (to various degrees) that thebuilding exhibits heritage values which are specific to the Golden Bayregion (and to the Nelson/Tasman region in Mr Bowman's case);• In the absence of any unified national heritage criteria the expertsadopted the framework written by Mr Bowman in his statement ofevidence at Appendix 1 which contained a series of values to be givena high, moderate or low score. • The re-assessments using Mr Bowman's 'Framework" were recordedin Table 1 as follows:a. events value was rated 'high' by all experts;b. architecture, Technology, Rarity and Educationvalues were all rated 'high' by every witness otherthan Ms Coats who recorded each as having 'low'value;c. patterns was rated 'high' by all experts saveMr Bowman who rated it 'moderate';d. context or Group values were rated 'moderate' by allbut Mr Bowman who rated them as 'high';e. representativeness, Identity, People, Commemorativeand Public Esteem values were rated 'moderate' byall experts;f. scientific and Integrity values were rated 'low' by allexperts.• Messrs Blackburne and Bowman noted the possible 'Rarity Value' ofthe Grandstand and suggested that these points would be subject todetailed investigation should a Conservation Plan be commissioned;5 Golden Bay Grandstand Community Trust Inc v Heritage New Zealand Pouhere Taonga [2017]NZEnvC 92, [2018] NZRMA 133 as corrected by [2017] NZEnvC 93.• In Messrs Bowman's and Blackburne's and Ms Craig's view the1967-68, 1975, 1977 and 1992 elements reduce heritage value byobscuring the original form and character and remove some originalfabric of the 1899/1911 portion of the building. In Ms Coats' view theauthenticity of the remaining parts of that portion and its value areaffected and diminished due to the other parts. She agreed that theremoval of significant parts of the building to recapture its 1899/1911form could be used as a tool to re establish and increase value througha process of reconstruction and restoration.[22] Then, the Court went on:6[67] It is unfortunate that the process of development of the Facility wasundertaken in the way that it was, without a detailed appraisal of the heritagevalues of the Grandstand and the feasibility of its retention. It was apparentfrom the responses which Mr L McKenzie gave to questions from membersof the Court that the Council's approach to these considerations was driven bynon inclusion of the Grandstand in the Schedule and a lack of knowledge asto its history. He acknowledged that had the Council become aware earlier ofthe heritage issues which have been raised it would have taken a more detailedappraisal. It is apparent that all the experts agree that such an appraisal shouldhave included preparation of a Conservation Plan for the Grandstand.[68] Mr Bowman and Ms Craig agreed "that a Conservation Planproportionate to the heritage significance of the building shall include thefollowing:(a) Preparation of accurate measured drawings of the existingbuilding(b) a historical record of the building(c) a heritage inventory of all fabric and an assessment ofauthenticity(d) an assessment of heritage values and summary of significance(e) consideration of risks associated with the building(f) policies that will ensure the heritage values of the building aremaintained accepting appropriate adaptation; and(g) means of implementation of the policies"[23] In the end, however, the Court concluded that:(a) the historic heritage factors, and the Grandstand's historic heritagesignificance have been substantially diminished by the variousunsympathetic additions over the years;6 At [67]–[68] (footnotes omitted).(b) the structural integrity of the building and what might be required topreserve (or reconstruct) it was problematic;(c) the purpose of the proceedings appeared to be to permit further, moredetailed, analysis to be done of what might be necessary to enableretention, reconstruction and possibly relocation;(d) reconstruction on its present site would preserve the amenity andhistoric heritage values identified; but(e) the Court had no power to order the TDC to undertake reconstructionor relocation, even if that were to prove feasible; and(f) the replacement development was well advanced and no resourceconsent was required to demolish the Grandstand.7[24] Although the Court referred in passing to s 18, the Association was not a partyto the litigation and the Court made no determination as to the nature and extent of therights preserved by that section.[25] In July 2017, the TDC reaffirmed its decision of June 2016 to demolish thesquash court, rear lean to, and the front extension if possible. It also provided the Trusta three-month opportunity to submit a refined proposal for preservation of theGrandstand.[26] In October 2017, the Trust submitted its refined proposal for preservation ofthe Grandstand. The TDC rejected this proposal and reaffirmed its earlier decision thefollowing month.[27] In December 2017, a further proposal to save the Grandstand from demolitionwas put to the TDC by others in the community. This group went on to form theGolden Bay Grandstand Restoration Society (the Restoration Society) inJanuary 2018.7 Because not included in Schedule to District Plan.[28] On 24 May 2018, the TDC rejected the Restoration Society's proposals andagain resolved, by majority (8-6), to demolish the Grandstand.[29] On 31 May 2018, the TDC's Chief Executive rejected an approach seekingfurther discussion about the respondent's decision to demolish the Grandstand.The application for judicial review[30] The statement of claim pleads two causes of action:(a) breach of the Association's s 18 rights, by:(i) demolition of the Produce Booth;(ii) removal or the staircases;(iii) the proposed demolition of the Grandstand; and(b) unlawful decision-making by the TDC involving:(i) failure to engage with the Association of to consider its rightsunder s 18;(ii) failure to consider putting the Grandstand and Produce Boothon its heritage register;(iii) demolition of the Produce Booth without the consent of HPT;and(iv) removal of the staircases without the consent of HPT.[31] I refer to more specific aspects of the pleadings as necessary below.Should the interim orders be granted?[32] It is uncontroversial that, in order to grant the orders sought, the Court must besatisfied that the order is "reasonably necessary" to preserve the position of theapplicants.8 Nor is it disputed that the following factors are relevant to that inquiry:9(a) the strengths and weaknesses of the applicants' case;(b) the advantages and detriments to the parties;(c) the status quo;(d) the balance of convenience;(e) public and private repercussions; and(f) overall justice.Discussion[33] It is necessary accepted that the applicants have a position to preserve in thesense that if the orders are not granted there will be no impediment to the demolitionof the Grandstand and the amenity and heritage values that they seek to retain will belost. And while there is undoubtedly inconvenience to the TDC (and, perhaps, localresidents) arising from any further delay in progressing a development that is alreadypartly completed, I would not be inclined to place much weight on that, given that (asI made clear to counsel) the substantive application for review could be given an urgenthearing.108 Carlton & United Breweries Ltd v Minister of Customs [1986] 1 NZLR 423 (HC); [1986] 1NZLR 429 (CA).9 ENZA Ltd v Apple & Pear Export Permits Committee HC Wellington CP266/00,18 December 2000.10 Hearing dates of only a fortnight or so away were available.[34] No doubt for those reasons, the focus of the TDC's opposition to the grant ofinterim relief was its contention that the position that the applicants undoubtedly hadto preserve and any interest in maintaining the status quo (even on a short term andtemporary basis) was outweighed by the fact that the applicants' substantive position– that the TDC's decision(s) to demolish the Grandstand are unlawful – wasdemonstrably without merit. It was therefore that issue that was the focus of thehearing before me and the discussion that follows.[35] At the outset, I record that an assessment of the merit of the applicants' claimsis difficult. Were the issue simply one about the scope and application s 18 and anyunderlying arrangements, I would have little hesitation in finding in their favour (atthis interim stage). On the face of the section, it seems to me to be reasonably arguablethat the Association was entitled to expect that:(a) whatever rights of access and use it had in 1959 would continue on anequivalent basis;(b) those rights would include access to and use of buildings of a similarkind to those which existed in 1959;(c) such similarity should extend to access and use of a building suitable tothe Association's specific purposes and needs, and thus a to a buildingcontaining a raised and covered viewing platform, such as theGrandstand; and(d) it would be specifically consulted about any proposals that might alteror diminish these historic rights.[36] While Mr Winchester submitted that any right of user conferred by s 18 couldbe no more than a licence, I would not be prepared to express a concluded view aboutthat absent more detail as to the circumstances in which the land and buildings were(effectively) gifted to the Council in 1959. I do no more than record my provisionalview that the position may well be subtler, and the right conferred more substantive.[37] In any event, the material before the Court makes it tolerably clear thatthe existence of s 18, and any rights conferred on the Association by that section, havenot been considered by the TDC until very recently. Moreover, the evidence presentlysuggests that the advice received by the Council as to the legal effect of s 18 may bewrong. I do not, however, need to say more about that here.[38] The strength of the Association's position under s 18 has, however, arguablybeen diminished by certain other matters, including that:(a) the SRF's proposal for the replacement of the Grandstand did notinclude raised and covered seating;11(b) notwithstanding the absence of specific, targeted consultation,members of the Association saw, and did not object to that proposal orto the demolition of the Grandstand, which was implicit in it;(c) the Association reaffirmed that position in 2016 when it signed anMOU confirming its proposal that the land on which the Grandstandstands be used for carparks and that more of its own land would beavailable for netball courts (which had previously been proposed to beput on the Grandstand land); and(d) did not, until 2018, expressly and publicly refer to, or stand on, its rightsunder s 18.12[39] Mr Winchester said, and I accept, that these matters give rise to real questionsof waiver.[40] The extent to which heritage issues might form part of any rights conferred bys 18 is not clear. But they are certainly the concern of the first applicant and theyarguably have wider reach. The relevant pleadings are that:11 This is specifically pleaded in the statement of claim, although the principal deponent for theAssociation, Mr D McKenzie, said that the Association was not aware of this until later.12 By "publicly", I mean in its interactions with the TDC.At no stage has the respondent considered and determined whether or not thegrandstand should be included in its heritage register.The applicants legitimately expected that the respondent would considerwhether to include the grandstand and produce booth on its heritage register.The respondent failed to consider whether or not to include the grandstand andproduce booth on its heritage register.[41] During the hearing, however, it became apparent that a decision had (recently)been made by the TDC that the Grandstand not be placed on the heritage register. Anamendment to the claim may therefore be in prospect. I have already noted thecriticisms made of this aspect of the Council's decision-making by the EC.[42] Standing back, I am unable to agree with Mr Winchester that the claims asdrafted (and as possibly amended) have no reasonable chance of success. The meritsare not clear-cut and depend both on the interpretation and application of an unusualstatutory provision, and on factual findings which cannot properly be made at thisinterim stage. I also record that it seems to me quite possible that, even if theapplicants ultimately succeed in establishing any of their grounds for review, thematters which ultimately militated against making the orders sought in the EC mayalso militate against the granting of relief here.[43] Against all of that are the other matters relevant to the grant of interim relief.I have referred to them already. But in short, they favour the applicants. It is, in myview, appropriate to be cautious in a case such as this. Although I accept that furtherdelay is frustrating, the Court can, as I have said, accommodate an urgent substantivehearing. In my view that is where the interests of justice lie.[44] The interim orders were granted accordingly._____________________________Rebecca Ellis J