LITTLE v HOROWHENUA DISTRICT COUNCIL [2023] NZHC 2049

LITTLE v HOROWHENUA DISTRICT COUNCIL [2023] NZHC 2049 [3 August 2023]IN THE HIGH COURT OF NEW ZEALANDPALMERSTON NORTH REGISTRYI TE KŌTI MATUA O AOTEAROATE PAPAIOEA ROHECIV-2023-454-26[2023] NZHC 2049BETWEEN MALCOLM TIMOTHY LITTLE,AUDETTE LEE-ANNE LITTLE, andTANYA MICHELLE LITTLEApplicantsAND HOROWHENUA DISTRICT COUNCILRespondentOn the PapersCounsel: D G Livingston for the ApplicantsD D Vincent and N A A Platje for the RespondentJudgment: 3 August 2023JUDGMENT OF GWYN JIntroduction[1] The applicants Malcolm, Audette and Tanya Little seek leave of the Court tobring an appeal against a decision of the District Court out of time. In addition theyseek to file fresh evidence and stay enforcement of the District Court's judgment,pending resolution of the appeal.[2] The respondent, Horowhenua District Council (Council), opposes all threeapplications.Background[3] The background to this proceeding is neatly encapsulated in the judgment theapplicants seek to appeal, from Judge C N Tuohy, dated 21 June 2022:1[1] The late Ian Little was a passionate aficionado of trolley buses. In1988, with the support of the Foxton Borough Council, he installed a networkof tramlines around the central streets of Foxton on which trolley buses ran,providing an attraction for visitors and locals alike. The system consists notonly of the lines but also the poles and attached cantilevers which supportthem and other associated apparatus (the Loop).[2] Mr Little passed away in 2008, leaving the Loop to members of hisfamily (the respondents) including his son, Malcolm, who inherited hisfather's passion for trolley buses as well. The Foxton Borough Council hasalso ceased to exist. Its functions have devolved to the Horowhenua DistrictCouncil (the Council).[4] As Judge Tuohy records, the buses have not run for several years and the Loopis in a state of disrepair.2[5] The Council applied to the District Court for an order for the Loop's removalby the then respondents and for an order appointing the Council as the agent of therespondents in the event they failed to remove it within the time specified.[6] The respondents, now the applicants before this Court, opposed the orderssought by the Council and indicated that they had plans to revive the trolley busoperation.3[7] The Council's application to the District Court was for an order for removal ofthe Loop, pursuant to s 54 of the Government Roading Powers Act 1989 (Act).Section 54 provides:54 Removal of roadside structures(1) In this section, unless the context otherwise requires,—controlling authority, in relation to any road, means the authority inwhich is vested the control of the road; and includes the Minister orthe Agency, as the case may be, where the control of the road is vestedin the Minister or the Agency1 Horowhenua District Council v Little [2022] NZDC 9278 [Judgment] at [1]–[2].2 At [3].3 At [5].road includes any motorway or service lanestructure means any tower, pole, or post lawfully upon or in or overa road or any pipes, cables, chambers, drains, or other serviceslawfully under a road; and includes any equipment that must beremoved with the structure if the structure is removed; but does notinclude—(a) any part of a bridge or culvert:(b) any fence, gate, or cattle stop erected in accordance with thisAct or the Local Government Act 1974:(c) anything provided for the assistance or control of traffic:(d) any structure that was erected when the land was not a roadutility authority, in relation to any structure, means the Crown, orany Minister of the Crown, local authority, company, or personlawfully authorised to construct, maintain, utilise, or use the structure.(2) Where any structure has been erected upon, in, over, or under any roadby any utility authority, either before or after the commencement ofthis Act, and the controlling authority has by notice in writing to theutility authority or to a responsible officer of it required the removalof the structure because—(a) it is, or is likely to become, dangerous to vehicles and personsin them using the road; orthe utility authority shall remove the structure within such period asmay be specified in the notice.(4) Subject to any agreement to the contrary, the reasonable costs incurredby a utility authority in so removing any structure and (wherereasonably necessary) in re-erecting the structure (or an equivalentstructure provided by the utility authority at its expense), includingcompensation payable to the owners and occupiers of the alternativesite and a reasonable sum for proper overhead charges, shall, subjectto subsection (5), be borne by the controlling authority and the utilityauthority in equal shares, and the amount payable to the utilityauthority may be recovered as a debt.(5) A controlling authority or a utility authority may apply to the DistrictCourt to vary the proportions in which the costs and compensationshall be borne; and, in exceptional circumstances where it isreasonable to do so, the District Court may, after hearing the parties,vary those proportions, and the decision of the District Court shall befinal and binding on all parties.(6) Any dispute as to—(a) the length of the period within which any structure is requiredto be so removed; or(b) whether any structure is or is likely to become dangerous tovehicles and persons in them using a road; orshall be heard and determined by the District Court on applicationmade to it in that behalf; and the decision of the District Court shallbe final and binding on all parties. The costs and expenses ofdetermining any dispute under this subsection shall be borne as theDistrict Court may direct.(7) Notwithstanding anything to the contrary in subsection (6), the periodwithin which any structure is required to be so removed may fromtime to time be extended by agreement between the parties or by theDistrict Court on application made to it in that behalf.(8) If the utility authority, after receiving notice under subsection (2), failswithin the period so determined to remove the structure that is thesubject of the notice, the controlling authority, after giving 10 workingdays' further notice of its intention to do so, may apply to the DistrictCourt for an order requiring the utility authority to remove thestructure within such period as may be specified in the order; and inany such case, if the District Court orders the removal of the structure,the whole cost of carrying out the removal and re-erection of thestructure shall be borne by the utility authority and shall berecoverable from it by the controlling authority as a debt.[8] As the District Court Judge recorded,4 there was no dispute that the Council is"the controlling authority" and the applicants in this appeal are a "utility authority" interms of s 54. Nor is there any dispute that the notices referred to in s 54(8) had beengiven.[9] The Judge noted there was "a dispute whether the Loop is a 'structure', whichamounts to a challenge to both the validity of the notices and to the jurisdiction of theCourt to make the orders sought."5[10] The Judge noted that the primary issue is a factual one: whether the Loop is,or is likely to become, dangerous to vehicles and persons in them using the road. The4 At [7].5 At [7].Judge noted "that has been put in issue directly by the respondents by way of a cross-application under s 54(6)(b)".6[11] The key findings in the Judgment were:(a) the network of tramlines including the lines, poles, attached cantileversand associated apparatus (defined as "the Loop") is a singular structurefor the purpose of s 54 of the Act;7(b) the Loop was dangerous,8 and likely to become more dangerous overtime;9(c) the Loop must therefore be removed;10(d) the applicants were to do so within two months of the judgment (thatwas, by 21 August 2022);11 and(e) if the applicants failed to remove the Loop, the respondent waspermitted to file for enforcement of the Judgment on three days'notice.12Filing of appeal[12] On 3 November 2022 the applicants filed an application for an extension oftime to appeal on the grounds that it was not practical to exercise the right of appealwithin the usual period, the extension is minor, and the appeal has merit.[13] On 20 February 2023, an amended notice was filed by the applicants, seekingto extend the time for filing a notice of appeal, adduce new evidence, and stayenforcement of the District Court's judgment.6 At [8].7 At [29].8 At [61].9 At [70].10 At [72].11 At [73].12 At [75].Second judgment[14] The respondents did not comply with the District Court's orders, failing toremove the Loop within the time period set by the Court. The Council brought thematter back before the District Court for enforcement purposes.[15] The second hearing occurred on 3 March 2023. In the course of argument, itwas agreed that enforcement by the Court was not necessary as the Council, as aTerritorial Authority under the Local Government Act 2002 (LGA 2002), has thepower to remove the Loop under either the LGA 2002 or the Local Government Act1974 (LGA 1974).[16] In his second judgment (Second Judgment), Judge Tuohy awarded costs to theCouncil on the standard 2B basis and noted the Council's view that it has anindependent power to carry out the work necessary to remove the Loop. The Judgerecorded: " If it does carry out that work it would be entitled to recover the cost ofdoing so pursuant to s 54(8) as a debt by a separate proceeding."13Grounds of appeal[17] The substantive grounds of the appeal, if leave is granted, are set out in theapplicants' notice of appeal of 10 March 2023. They are:(a) The overhead trolley bus system is made up of individual structuresbecause:(i) the poles and their wires can be separated from one another;(ii) it is standard industry practice to treat the poles as individualstructures;(iii) interpreting the poles as a single structure has absurd resultswhen applied to other repair situations that may arise;13 Horowhenua District Council v Little (No 2) [2023] NZDC 3900 [Second Judgment] at [12].(iv) no evidence was presented to the District Court to indicate thatthe trolley bus system should be treated as a single structure;and(v) it is safer and easier to repair the system if the poles areacknowledged as individual structures.[18] The applicants seek a declaration that the poles in the overhead trolley bussystem are individual structures.Issues currently before the Court[19] Section 54(6) of the Act provides that any dispute as to the specified mattersheard and determined by the District Court shall result in a decision of theDistrict Court which is "final and binding on all parties".[20] The applicants submit that their intended appeal would be a general appeal ona confined point of statutory interpretation, that is, the interpretation of "structure" ins 54(1) of the Act. The applicants say there is a right of appeal in respect of this issue,which had to be exercised within 20 working days of the decision.[21] The applicants concede that if there were such a right of appeal it was notexercised within the requisite timeframe, but say that the Judgment had provided theapplicants with two months to remove the poles and they spent that time with anexpert, assessing the required task.[22] The applicants also argue that the Judgment was an interim decision and thefinal decision in the matter was not issued until the Second Judgment on3 March 2023. On that basis, the applicants submit that no extension for the time tofile an appeal is required.[23] The Council in response says there is no right of appeal from the Judgment.The source of the District Court's power to order removal of the Loop was s 54(6).That provision is clear that the District Court judgment is final and binding.[24] Further, the Judgment was a final decision. The matter came back before theDistrict Court only on the question of enforcement.Discussion[25] Establishing a right of appeal depends on the applicants establishing that theDistrict Court's decision that the Loop was, in its entirety, a "structure", was a separatedecision and therefore not caught by s 54(6) of the Act which says the decision of theDistrict Court shall be final and binding.[26] Section 54 anticipates a controlling authority (here, the Council) giving noticeto a utility authority (here, the applicants) requiring removal of a structure for specifiedreasons or conditions, which are set out in subs (2).[27] If any dispute then arises as to whether any one or more of those specifiedconditions is met, application is to be made to the District Court. The District Court'sdecision is "final and binding".[28] The applicants say, in effect, that the definition of "structure" is not one ofthose specified reasons or conditions listed in s 54(2).[29] In considering that submission it is necessary to look at the Judgment as awhole.[30] Having noted that the primary issue is a factual one (whether the Loop is, or islikely to become, dangerous), the Judge went on to consider whether the Loop in itsentirety is the "structure" for the purposes of the application. In deciding whether theLoop was a structure, the Judge's reasoning interlinked a careful assessment of all thefacts, underlaid by a purposive approach14 to the statutory interpretation of "structure".The Judge noted that the Council relied on:15the factual proposition that the Loop is a single system with a singlepurpose, that is, the conveyance of trolley buses in a circuit and that thecomponent poles mutually support each other and the system as a whole. TheCouncil also puts weight on the provisions of the Electricity (Safety)14 Legislation Act 2019, s 10.15 Judgment, above n 1, at [14].Regulations 2010 which define a 'trolley bus system' in terms which wouldencompass the Loop and treats a system as a single entity rather than a seriesof separate structures.[31] The Judgment records the applicants' submission that the word "structure" ins 54 could not be applied to the Loop as a whole. Their submission was that the useof the words "any pole" does not include the plural, so that the Court could do no morethan order the removal of individual poles, not the whole system. The Courtsummarised the applicants' argument that " the Court has power to order theremoval only of individual poles within the Loop and that wires and fittings attachedto the individual poles must be seen as 'equipment' which may only be subject to aremoval order in as much as it must be removed with a pole."16[32] The Judge canvassed the expert evidence presented by the Council. Mr Masonprovided detailed observations of the components of the system over its entire course,with reference to specific poles and associated apparatus. Mr Mason's conclusion isset out in the Judgment:17The overall loop system is in my view a risk to the safety of the public andshould be removed. There are consistent issues with the cantilevers, insulators,shackles and the use of Parafil cable which make it very concerning. There arealso a number of poles which need to be removed immediately[33] The Judgment also refers to the expert evidence of Mr McLaren Smith, whohad been commissioned by the Council to report on the Loop.[34] The Judge also canvassed the evidence produced for the respondents whichprimarily addressed the question whether the state of the Loop raised any immediatesafety concerns.[35] The Judge noted18 that the qualifications and experience of the Council'sexperts "far outweigh" those of the respondents, while acknowledging that therespondents' witnesses have knowledge and practical experience in the electrical areaand particularly in the area of power pole maintenance.1916 At [25] (emphasis in original).17 At [37].18 At [58].19 At [60].[36] Having considered the evidence before him, the Judge noted: "The maincomponents of the system are the poles, the overhead lines and the cantilevers whichconnect the poles to the lines and support them."20[37] The Judgment sets out the detail, from Mr Mason's affidavit of the issues witheach of the state of the poles, corroded and broken cantilever attachments, brokenwooden insulators and fittings, the use of Parafil rope (as a connector) and the use ofnon-rated shackles.21[38] The Judgment went on to record:22There is no dispute that all these components are integral parts of a singletensioned system in which the failure of any one part will inevitably alter andincrease the load on other parts of the system. The consequence is thatdeterioration or failure of a significant part of the system is likely to endangerthe stability of the system as a whole. Because of that factor, I consider thatthe Loop as a whole should be treated as a 'structure' in terms of s 54.[39] The Judge also observed that the respondents' submission that "any pole" doesnot include the plural overlooked ss 10 and 19 of the Legislation Act 2019. Section19 repeats the rule that words in the singular include the plural and vice versa. "Thus,the term 'pole' in s 54(1) can be read as 'poles'".23[40] Section 10 of the Legislation Act requires the Court to take a purposiveapproach in construing the meaning of "structure". The Judge concluded "it is plainfrom its content that the purpose of s 54 is to enable the removal of structures whichare or, are likely to become dangerous to vehicles and their occupants using a road."24[41] Adopting that purposive approach, the Judge concluded:25 I consider the phrase "any tower, pole, or post including any equipmentthat must be removed if that structure is removed", should be read as coveringthe entire Loop, providing the Council establishes the interdependent natureof its components.20 At [32].21 At [39]–[42].22 At [33].23 At [27].24 At [28].25 At [29].[42] The Judge concluded that the Loop is dangerous in its current state.26 TheJudge's description makes clear that he had assessed the safety or otherwise of theLoop as a whole structure:27The primary danger is that the overhead wires will continue to sag because ofthe compromised condition of a significant number of the poles supportingthem and the cantilevers and other fittings connecting them to the poles. Theoriginal poles are compromised primarily because, after nearly 35 years, theyhave reached the end of their safe life in Foxton's western coastal conditions.The cantilevers and their connectors have also deteriorated primarily throughcorrosion.[43] Further:28Although the extent of deterioration and resulting cracking, corrosion,bending and tilting differs from one pole to another, and from one cantileverand connector to another, the inter-dependent nature of the components of thecompromised system means that it is not possible to say what it will take totrigger a systemic collapse. [44] The Judgment also went on to consider whether the Loop is likely to becomedangerous,29 and concluded that, if it is not now dangerous, the Loop will shortlybecome dangerous "simply through further physical deterioration unless steps areimmediately taken to replace a very substantial part of the system".30[45] Finally, the Judge concluded that removal of the Loop was required.31[46] The conclusion that the Loop as a whole constituted a structure, was reachedin the context of the Judge's assessment of whether the Loop is dangerous. TheJudge's assessment of risk necessarily entailed a conclusion on what comprised therelevant structure.[47] Section 54(6) was the source of the Court's power to order removal of theLoop. The Court explicitly recorded,32 that the application before it fell forconsideration under s 54(6). The definition of "structure" is part of s 54. That26 At [61].27 At [61].28 At [62].29 Government Roading Powers Act 1989, s 54(2)(a).30 Judgment, above n 1, at [66].31 At [72].32 At [8].definition, and the other definitions in s 54, apply only to that section. They are anintegral part of s 54. I accept the submission for the Council that the definition of theterm "structure" is only relevant because it informs the Court's power under s 54(6).[48] It would be entirely artificial to attempt to separate out aspects of the Judge'sinterlinked reasoning to argue that the Court's finding that the Loop was a singlestructure is a discrete statutory interpretation question that can be appealed,notwithstanding s 54(6).[49] By contrast, I note that some other of the provisions in the Act (for example,ss 61(9C), 71(7) and 48(7C)) do provide a right of appeal, indicating that Parliamentintended to include the rights of appeal for some matters, but not others.[50] I conclude that the Court's decision that the Loop as a whole was a "structure"is not a discrete decision. It is an integral part of the Court's overall decision that theLoop was dangerous, or likely to become dangerous, and should be removed.[51] The effect of s 54(6) is that the Judgment, including the interpretation of"structure", is final and binding and there is no right of appeal to this Court.Was the Judgment an interim decision?[52] The second limb of the applicants' submission is that the Judgment was aninterim decision, not made final until the Second Judgment, and therefore the time forappeal had not expired prior to lodging the appeal in this Court.[53] There is an inconsistency in that argument, since the applicants' primaryposition is that the Judge's consideration of "structure" was a discrete decision andthat issue is not mentioned in the Second Judgment. In any event, my conclusionabove means that I do not need to consider this second limb. I address it only briefly.[54] The Judgment made an order requiring the respondents to remove the Loopwithin two months of the date of the Judgment.3333 At [76].[55] The Judgment then recorded that the Council's application for the remainingorders was adjourned sine die to be brought on by either party on three days' notice.34[56] The "other orders" were an order appointing the Council as the agent of therespondents in the event the respondents failed to remove the Loop within the timespecified and an order that the respondents bear the whole cost of removal in thatevent.[57] The Judgment was plainly a final decision on the Council's application for anorder for removal of the Loop. Leave was granted to allow the matter to be broughtbefore the Court again only in relation to matters of enforcement.Extension of time[58] In view of my conclusion that there is no right of appeal from the Judgment, itis strictly speaking not necessary for me to consider whether an extension of timeshould be granted. Nevertheless, I briefly canvass the relevant factors below.Reason for and length of the delay[59] The Judgment was given on 21 June 2022. The deadline for the filing of anappeal was on 19 July 2022.35 The initial application for leave to appeal was filed on3 November 2022 — that is, four months or 107 days after the time for appeal hadlapsed. The application was filed in reliance on an unsworn affidavit fromMalcom Little, which included the draft report of Allan Neilson, dated 11 August2022. Mr Neilson's report is the new evidence that the applicants seek to introduceon appeal.[60] Counsel for the applicants submit that the delay was caused by the need toconsult Mr Neilson, but, as the Council points out, there is no evidence as to that andno explanation of the gap between 11 August 2022 (the date of Mr Neilson's draftreport) and the filing of the appeal.34 At [77].35 High Court Rules 2016, r 20.4.Other features of the parties' conduct in the proceedings[61] The Council notes that the applicants did not attempt to comply with theDistrict Court's order that the Loop was dangerous and needed to be removed. Rather,they sought to engage services to repair the Loop.36 As Judge Tuohy noted, theappropriate approach, if the applicants sought to challenge his orders, was to apply fora stay.37 This was not done until February 2023.[62] That is a factor that would point against granting an extension.Prospective merits of the appeal[63] As discussed at [47]–[50] above, I have concluded there was no error in theDistrict Court's interpretation of what constitutes a "structure" for the purposes of s 54.[64] The substantive grounds of appeal are set out at [18] above. The Judge'sanalysis of the evidence is comprehensive and thorough. His application of ss 10 and19 of the Legislation Act is plainly correct.The appeal would have no effect[65] The Judgment ordered the applicants to remove the Loop. They did not complywith that order.[66] The Council has now removed most of the Loop in reliance on its powers inthe LGA 2002 and LGA 1974. As the submissions filed for the Council note, they didnot do so in reliance on the District Court's substantive judgment.38[67] Consequently, success or failure in the proposed appeal would have no effect.36 Second Judgment, above n 13, at [9].37 At [10].38 At [4].Application to adduce further evidence[68] The applicants seek to adduce further evidence from Allan Neilson, dated11 August 2022. Mr Neilson's evidence was not put before the District Court andtherefore, if I had found the applicants had a right of appeal, they would still haverequired the Court's leave to produce the evidence.39[69] Admitting further evidence on appeal is exceptional and generally the evidencemust be "fresh, credible and cogent". The overall test is the interests of justice.40[70] The purported appeal is only a question of law, that is, the District Court'sinterpretation of "structure". Mr Neilson's evidence does not address that question,relating as it does primarily to the state of the Loop in August 2022 and Mr Neilson'sopinion of the remedial work required.[71] I would have declined the application to introduce Mr Neilson's evidence onappeal.Application for a stay[72] The applicants have not specified the terms of the stay they seek.[73] The Council has already removed most of the Loop, relying on its powersunder the LGA 2002 and the LGA 1974, rather than on the Judgment or SecondJudgment. As the submissions for the Council note, success or failure in the proposedappeal would have no effect on the Council's power of removal.[74] Given a stay of the Judgment would have had no effect, I would have refusedit in any event.39 High Court Rules, r 20.16(2).40 Jessica Gorman and others McGechan on Procedure (looseleaf ed, Thomson Reuters) at[HR20.16.02].Result[75] I dismiss the applications for leave to appeal out of time, for the filing of furtherevidence and for a stay.Costs[76] I indicate that the respondent is the successful party for the purposes of thisapplication and is entitled to costs. I expect that the parties should be able to agreecosts but, failing that, memoranda as to costs (not exceeding five pages for each party)should be filed by 5.00 pm on Thursday 24 August 2023.Gwyn JSolicitors:Livingston & Livingston, WellingtonCullinane Steele Ltd, Levin