SPENCER v DUNEDIN CITY COUNCIL [2023] NZHC 410

SPENCER v DUNEDIN CITY COUNCIL [2023] NZHC 410 [7 March 2023]IN THE HIGH COURT OF NEW ZEALANDDUNEDIN REGISTRYI TE KŌTI MATUA O AOTEAROAŌTEPOTI ROHECIV-2022-412-82[2023] NZHC 410BETWEEN MARK SPENCER and MARRAFINTRUSTEE LIMITEDPlaintiffAND DUNEDIN CITY COUNCILDefendantHearing: 2 March 2023Appearances: G A Paine for PlaintiffM R Garbett for DefendantJudgment: 7 March 2023JUDGMENT OF DUNNINGHAM JThis judgment was delivered by me on 7 March 2023 at 9.30 am, pursuant tor 11.5 of the High Court RulesRegistrar/Deputy RegistrarDate:Introduction[1] On 14 April 2021 the Dunedin City Council (the Council) received anapplication from Mr Mark Spencer and Marrafin Trustee Ltd (the applicants) to erecttwo gates across Waitati Valley Road which bisects the applicants' property so thatMr Spencer's cattle could graze the roadside and use a feed pad situated on the road1during the winter months.[2] The issue of Mr Spencer placing gates across the road had been the subject ofmany earlier communications with the Council, and of complaints by neighbours.Consequently, when the application was received, the Council appointed anindependent hearing Commissioner to determine the application.[3] The application was heard on 2 July 2021. It was opposed by two of the threesets of neighbours. A report prepared by Council staff for the purpose of theapplication also recommended the application be declined (the Council Report). TheCommissioner's decision which issued on 29 July 2021 declined the application.[4] The applicants now seek to judicially review the Commissioner's decision.The grounds of review[5] The pleadings filed in this Court were diffuse and did not expressly articulatethe grounds of review.2 They simply sought "a declaration that the decision of theCommissioner is wrong in fact and law". However, the body of the pleadingssuggested there were the following procedural concerns:(a) a party which had not been identified by the Council as being affected,the Halo Trust, was permitted to file submissions and information at thehearing;1 The feed pad appears to be located on the legal road but fenced off from the gravel driveway onthe road.2 Which conventionally relate to the legality of the decision, the fairness of the decision-makingprocess and the rationality of the decision. Council of Civil Service Unions v Minister for the CivilService [1985] AC 374 (HL) at 410-411, [1983] All ER 935 at 950.(b) the applicants filed further information to the Commissioner which wascirculated to all affected parties. However, the written responses shereceived were not made available to the applicants and they did nothave the opportunity to comment on them;(c) the Commissioner inspected the road in the company of arepresentative of the Council, and without the applicants being giventhe opportunity to be present at the site inspection.[6] At the hearing Mr Paine confirmed he was not pursuing the last matter as aground of review, but maintained that the first two matters constituted a breach ofnatural justice warranting the Commissioner's decision being quashed.Background[7] The Waitati Valley Road is a rural road, located north of Dunedin. It joinsState Highway 1 at its northern end, approximately two kilometres south of Waitatitownship. Most of the road is maintained by the Council. However, the northernmostsection of the road, compromising some 700 m, is unsealed and is not maintained bythe Council (the gravel road). At the southern end of the gravel road, there is a fordwhich crosses the Waitati Stream, as well a pedestrian footbridge. At the northern endwhere it meets State Highway 1, there is an existing gate. It is unclear who authorisedthe presence of this gate and whether it is within the jurisdiction of the Council orWaka Kotahi, the Crown entity which administers the State Highway network.[8] There are four properties that adjoin the gravel road. The property owned bythe plaintiff is situated at 693 Waitati Valley Road. As already noted, this property isbisected by the road. To the south west of the applicants' land and on the western sideof the road, is 669 Waitati Valley Road which is owned by John Ransley andCarolyn Guytonbeck. To the north of the applicants' property and to the east of thegravel road, is 671 Waitati Valley Road which is owned by Peter and Wendy Clinch.Finally, to the north of the plaintiff's property and on the north side of the gravel road,is 673 Waitati Valley Road, which is owned by Mr Scott Kearney.[9] As the Council Report prepared for the hearing by Mr Michael Tannock, theCouncil Transport Network Team Leader, explains, the gravel road is treated byCouncil as a "privately maintained drive on legal road". When the relevant land wassubdivided to create the lots that include the plaintiff's land, the subdivision consentincluded an advice note which records the following:(ii) The Council maintains Waitati Valley Road to the ford only;maintenance of the remainder of the road lies with the surroundingland owners.(iii) It is recommended that a maintenance agreement be entered intobetween the land owners regarding the portion of Waitati Valley Roadnot maintained by Council.[10] It is apparent from the history of correspondence provided in the CouncilReport that Mr Spencer has been wanting to erect gates across the gravel road for sometime. A Council letter dated 11 August 2006 indicated that the Council was preparedto enter into an agreement for gates being erected across the paper road, subject toconsulting with the adjacent property owners. The issue arose again in 2013 becauseMr Spencer had put gates in place, but the neighbours objected and Council requiredthe gate to be removed. It also arose again in 2014 when the road had been blockedby an electric fence.[11] In 2018, the Otago Regional Council investigated cattle grazing in a waterwayknown as Semple Burn, which ran alongside, and partly within, the legal boundary ofthe gravel road. Concerns were both with cattle having access to Semple Burn andbeing fed on the gravel road. Mr Spencer again requested that Council allow him toerect gates, and Council sent an email on 24 December 2018 saying the Council wouldnot object if there were no reasonable objections from his neighbours. Mr Spencercanvassed his neighbours and all three sets of neighbours objected, althoughMr Spencer maintained their objections were not reasonable.[12] In late 2020 Mr Spencer had again installed gates and the Council receivedfurther complaints from neighbours about them, along with photos showing the gateswhich had been erected and the effect of cattle being in that section of the gravel road.The neighbours asked the Council to have the gates removed saying:While the Semple Burn has on the face of it been fenced off, over the wintersof both 2019 and 2020 cattle were again directed and held in this section – thebank was briefly planted with flax but this was quickly destroyed. By denyingaccess, the owner of 693 is obviously trying to avoid any further scrutiny andis now using the public road as a private feedlot. This area used to be open,attractive and used by many locals for picnics, walking and bike riding.[13] By letter dated 21 December 2020, Mr Spencer was told that the gates were inbreach of s 344(6) of the Local Government Act 1974 and the Dunedin City Council'sRoading Bylaw 2020, and, again, he was required to remove them.[14] The applicants, through their lawyer, Mr Paine, appealed to the Council topermit the gates to be erected, failing which there would be "an application to stop theroad which would enable my client to fence it off completely so as to preclude anyoneusing the unformed paper road".3The application[15] After Mr Spencer and his lawyer met with Council representatives on1 April 2021, it was proposed that Mr Spencer make a formal application to erect gateson the gravel road. That was duly done by way of letter dated 14 April 2021 to theCouncil. The proposal was: for a grazing permit to graze the berms on the side of the road known as"the unformed paper road". For that purpose, [the applicants] would erect twogates, one at the north side, and one at the south end where the road bisectsthe property.[16] The application went on to say:The amount of time the gates would need to be closed by my clients to enablethem to move stock would be seasonal, and it is difficult to be precise as it isweather dependent. However, as usage of the gates as a mechanism forcontrolling stock can be limited to after the spring growth, there needs to befrequent maintenance of the road which is usually one to two hours at leastonce a week. There is also movement up and down the road from one paddockto another, again dependent on growth. During the winter months, it ispossible to feed stock out on a feed pad for approximately two hours a dayand moving them then to their holding and wintering paddocks.3 Letter dated 19 March 2021.[17] The reasons given to support the application included the following:(a) it would enable the grass on the berms to be controlled avoiding firerisk in the summer; and(b) gates would better protect cattle from causing a risk to road users,particularly on State Highway 1.[18] Mr Tannock notes that the Council does not normally put such applications toa formal hearing. However, given the ongoing objections, the sustained applicationand the continued presence of the gates, the Council decided it was appropriate toappoint an independent hearing Commissioner, Ms Ros Day-Cleavin (theCommissioner), to hear the application.[19] The three sets of property owners who had frontage to the gravel road nearwhere Mr Spencer sought to erect the gates were advised of the proposed hearing asthey were considered the most directly affected. Two sets of property ownerssubmitted in opposition to the application.[20] Before the hearing, a submission was also received from the Halo Trust, agroup which had been working to restore riparian habitat along the Semple Burn andthe Waitati River. The submission comprised an 11 line e-mail explaining the work ofthe Trust, and asking the Council to "consider our project when deliberating anychanges to the public access in this area and its awa".4 This submission was attachedto the Council Report noting "it will be for the Commissioner to decide whether theHalo Trust submission should be considered as part of the hearing", andrecommending that this be determined "as a preliminary procedural matter at thecommencement of the hearing".[21] The Council Report then summarised the submissions in opposition from theowners of 669 and 671 Waitati Valley Road. In brief, the submitters raised thefollowing points:4 Awa means stream or river.(a) an objection to the use of public land by a private party;(b) the fact the gates would block both public access as well as access to671 and 673 Waitati Valley Road and the alternate access for669 Waitati Valley Road in times of flood when the ford wasimpassable;(c) concerns about cattle being in Semple Burn and the risk of effluentrun-off into Semple Burn;(d) the use of the gravel road for grazing was inconsistent with the worksbeing done to revegetate a portion of the Semple Burn and would hinderthe opportunity for the Council to work with the Halo Trust to enhanceSemple Burn where it is on legal road;(e) concerns that the applicant was already encroaching the road by havingfences erected inside the legal road;(f) concerns about the state of the road after cattle had been grazing on it,or being fed out on it; and(g) risks to road users having to walk past the cattle.[22] Despite the objection from Mr Spencer, the Commissioner decided to acceptthe submission from the Halo Trust, noting "the content of the submission was genericin nature and did not introduce material to the hearing process that had not alreadybeen raised by other submissions".[23] There was also a dispute over whether further photographs and videos couldbe introduced in evidence which had not been circulated prior to the hearing.However, as the Commissioner notes in her decision, the parties were able to discussand agree on which of these could be admitted in evidence.[24] After the hearing, the Commissioner undertook a site visit. She wasaccompanied by Ms Jeanine Benson, the Group Transport Manager from the Council,being a staff member who had had no direct involvement with the application, or withthe writing of the Council Report.[25] Following the hearing, on 6 July 2021, the Commissioner received anunsolicited email from the applicants' lawyer, Mr Paine. While no provision had beenmade for receiving further submissions, she determined that the email related tomatters discussed at the hearing, being potential conditions of consent, and thereforedid not constitute new evidence. She then issued a formal minute to the parties invitingthem to provide written comments on the applicants' email, by 15 July 2021. Shereceived written responses to the minute from the two sets of submitters, along withthe Dunedin City Council. She then formally closed the hearing.The requirement to observe natural justice[26] The applicants claim there were breaches of natural justice which impeach theCommissioner's decision and warrant it being quashed.5[27] It is fundamental to any decision making process that the principles of naturaljustice are appropriately observed. However, what is required to satisfy thatrequirement will vary according to the facts and circumstances of a particular case.As Elias J (as she was then) said in Ali v Deportation Review Tribunal:6Fundamental to the principles of natural justice is the requirement that wherethe circumstances of decision making require that someone affected by it begiven an opportunity to be heard, that person must have reasonableopportunity to present his case and reasonable notice of a case he has to meet.The more significant the decision the higher the standards of disclosure andfair treatment.[28] In that decision, she also endorsed the following explanation given by Fisher Jin Khalon v Attorney-General of what natural justice requires:7 a party should normally be given the opportunity to respond to an allegationwhich, with adequate notice, might be effectively refuted.5 Although noting this relief was not expressly sought in the pleadings.6 Ali v Deportation Review Tribunal [1997] NZAR 208 (HC) at 18.7 Khalon v Attorney-General [1996] 1 NZLR 458 at 466.[29] She agreed with Fisher J's view that "the key elements are surprise andpotential prejudice", saying:8[i]f, there is no surprise in an allegation or if, even if there is surprise, therecould be no prejudice because further notice would not have assisted theperson affected to meet the allegation, then there is no unfairness in theprocess.[30] With those statements about what natural justice requires in mind, I turn toconsider the concerns raised by the applicants.Did accepting the Halo Trust submission breach natural justice?[31] The first ground on which the applicants challenge the Commissioner'sdecision is that she took into account the submission from the Halo Trust despite theCouncil not identifying this entity as an affected party prior to the hearing. Theapplicants' legal submissions say that the Council "owed a duty of care to the plaintiffto ensure there would be a fair hearing with all identified parties circulating in advancethe evidence that they relied on and any legal submissions". In oral submissions,Mr Paine maintained that the admission of the email from the Halo Trust unfairlyprejudiced the applicants and it should not have been taken into account.[32] I do not accept this submission. First, all potentially affected parties wereentitled to be heard on the application. The fact the Council did not initially identifythe Trust as an affected party did not preclude it from submitting on the application ifits interests were affected by it. I consider the impact of allowing cattle in the road onthe riparian planting and restoration work on Semple Burn was a relevantconsideration. Furthermore, the information from the Halo Trust was circulated inadvance of the hearing because it was attached to the Council Report, so the applicantswere aware of its content and had the opportunity to respond to it.[33] In any event, I concur with the Commissioner's view that there was noprejudice to the applicants in admitting this submission. The submission was genericin nature and did not introduce material that had not already been raised by othersubmissions. The submissions simply pointed out the work of the Halo Trust in8 Ali, above n 6, at 18.undertaking work on riparian planting on waterways, including Semple Burn, whichwas a matter already raised in submissions from the neighbouring property owners.[34] There was no breach of natural justice in admitting the Halo Trust submission.Did a breach of natural justice result from the failure to circulate the responses to theapplicants' 6 July 2021 email?[35] The second ground of review relates to the receipt of further responses fromsubmitters following the hearing, and whether the failure to refer those to theapplicants led to a breach of natural justice. Ironically, it was the applicants' decisionto provide further unsolicited material to the Commissioner (and not to the othersubmitters), regarding the proposed conditions of the consent which prompted theCommissioner to circulate this material and seek responses to it, although she notedany response had to be confined to the matters the applicants raised. It isacknowledged by the Council that, through an oversight, the two responses receivedand Council's subsequent memorandum to the Commissioner, were not circulated tothe applicants.[36] Mr Paine considered the applicants had a right to have this material circulatedto them and the failure to do so breached the principle of natural justice. In assertingthat, he referred to legal authority on a duty to consult. However, the first decision hecited, Walsh and Ors v Pharmac, involved a statutory duty to consult prior to makinga decision on whether to fund a particular type of drug.9 That is clearly irrelevant hereas no statutory duty to consult is engaged.[37] The decision in Heinz Watties Ltd v MBIE involved new information beingreceived by the decisionmaker which was relevant to the outcome of the decision afterthe opportunity to make submissions had been given.10 The Court held that in thosecircumstances, the decisionmaker needed to afford a further opportunity to makesubmissions. However, here, no new information was provided in the responses, sono further opportunity to submit was required.9 Walsh and Ors v Pharmac HC Wellington CIV-2007-485-1386, 28 August 2007.10 Heinz Watties Ltd v MBIE [2018] NZHC 2309.[38] I accept that best practice dictates that all material which is placed before adecisionmaker should also be provided to the parties even where there is no right ofreply, as here. However, the real issue is whether the failure to circulate the responsesto the applicants' further submission resulted in surprise and prejudice to theapplicants. In my view, it did not. Nothing raised in those responses was new ormaterial to the substance of the Commissioner's decision. Having permitted a limitedright of reply by the other submitters, and being satisfied those did not raise new issues,it was appropriate that the Commissioner drew the hearing to close. Furthermore,Mr Paine could not point to any prejudice arising from the failure to have anopportunity to reply to the reply. All the topics raised in the responses were alreadysquarely before the Commissioner at the hearing.[39] There was no breach of natural justice resulting from the failure to circulatethe responses to the applicants' 6 July email.Result[40] Neither of the matters raised by the applicants demonstrate a breach of naturaljustice warranting the decision being quashed.[41] The application for judicial review is dismissed.Costs[42] Counsel addressed me briefly on costs. Mr Garbett pointed out that the partieshad already agreed this was a Category 2 proceeding for the purpose of costs andsought that 2B costs be awarded to the successful party.[43] Mr Paine, however, indicated I should exercise my discretion to awardsomething less than 2B costs should the application be declined.[44] I am not persuaded there is any reason to refuse or reduce costs. The principlesthat costs should follow the event11 and that the determination of costs should bepredictable and expeditious,12 prevail.[45] The defendant is awarded costs on a 2B basis.Solicitors:Shona Cumming Law, DunedinAnderson Lloyd, DunedinCopy To:Gordon Paine, Barrister, Dunedin11 High Court Rules, r 14.2(1)(a).12 Rule 14.2(1)(g).