GIBBS v FIRST GAS LTD [2022] NZCA 627

GIBBS v FIRST GAS LTD [2022] NZCA 627 [15 December 2022]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA29/2022[2022] NZCA 627BETWEEN RUSSELL VICTOR GIBBS, PARANIJOSEPHINE GIBBS AND TE AHURUTRUSTEE COMPANY LIMITED ASTRUSTEES OF THE RV AND PJ GIBBSFAMILY TRUSTAppellantsAND FIRST GAS LIMITEDRespondentHearing: 25 October 2022Court: Collins, Thomas and Muir JJCounsel: Appellants in personL P Wallace and H A Froude for RespondentJudgment: 15 December 2022 at 9.30 amJUDGMENT OF THE COURTA The appeal is dismissed.B The appellants must pay costs to the respondent for a standard appeal ona Band A basis and usual disbursements.____________________________________________________________________REASONS OF THE COURT(Given by Muir J)Introduction[1] The trustees of the RV & PJ Gibbs Family Trust (the Trustees) appeal adecision of Grice J, dated 3 December 2021,1 in which her Honour made declarationsthat First Gas Ltd (First Gas) be authorised to enter onto the Trustees' land withmachinery as required for the purposes of inspecting and repairing the Maui GasPipeline (Maui Pipeline) and to store and deposit such machinery adjacent to thepipeline while such works were occurring. Her Honour also issued a permanentinjunction prohibiting the Trustees from restricting First Gas in the exercise of itsrights.2[2] Broadly, the Trustees say that these rights are restricted to a 12 metre widestrip, six metres either side of the pipe's centreline and, since vehicular access alongthe length of the strip is not possible, any access across their land for maintenancepurposes must be the subject of negotiation and agreement.[3] The respondents say that Grice J correctly interpreted the relevant easementsand applied the relevant statutory framework with the result that the appeal should bedismissed with costs.Background[4] First Gas owns and operates the Maui Pipeline. It was formerly known asVector Gas Ltd and formerly still as Natural Gas Corporation of New Zealand Ltd(NGC). NGC was one of the companies employed by the Minister of Works andDevelopment to operate the Maui Pipeline which was developed and originally ownedby Maui Development Ltd (MDL). First Gas purchased MDL in June 2016. It istherefore now both the owner and operator of the pipeline.1 First Gas Ltd v Gibbs [2021] NZHC 3309 [Judgment of Grice J].2 At [278].[5] The pipeline itself was completed in 1979 and supplies over 90 per cent of thenatural gas used in the upper North Island. It runs 299 kilometres northward fromNew Plymouth to South Auckland, mostly underground at a depth of 1.2 to 1.5 metres.The Trustees' picturesque coastal property, owned by them and their predecessors forover 100 years, is one of those through which it passes. The relevant legal authorityderives from a pipeline authorisation under the Petroleum Act 1937 (the Act),3 dated31 July 1975, and two pipeline easement certificates (PECs) issued under it.4[6] The PECs apply to different parts of the Trustees' property but are essentiallyin the same form. Both were issued under s 70A of the Act5 which provided that afterany pipeline authorisation had been granted, the Governor-General could issue aproclamation defining the middle line of the pipeline and that, as soon as practicableafter construction was completed, the pipeline's owner was to undertake a survey ofthe actual position of the pipeline "showing the strip of land not exceeding 20 metresin width under, upon, or over which the pipeline passes",6 and to submit this to therelevant Minister who was to issue "to that owner such pipeline easement certificatesas may be necessary in the prescribed form".7[7] Both PECs identify the easement holders as MDL (as owner of the MauiPipeline) and NGC (as the pipeline's operator). Relevantly, they further provide: the Minister of Energy hereby certifies that a pipeline(x) (as defined inSection 49 of the Act) is authorised to pass on, over or through the land3 The Petroleum Act 1937 has been repealed but the saving provisions in the Crown Minerals Act1991 preserve the former's statutory provisions for authorisations granted under pt 2 of the Act.Clause 12(1) of the saving provisions in sch 1 to the Crown Minerals Act provides that the holderof an "existing privilege" (which includes an authorisation granted under pt 2 of the Act) has thesame statutory rights as it would have had if the Crown Minerals Act and the ResourceManagement Act 1991 (RMA) had not been enacted, unless "any consent in respect of theprivilege would, but for this subclause, be required and need to be sought under the [RMA]", inwhich case the RMA applies. Section 70A was inserted into pt 2 of the Act by the PetroleumAmendment Act 1974 on 8 November 1974. Part 2 was then entirely repealed and replaced bythe Petroleum Amendment Act (No 2) 1980. In the newly substituted pt 2, the former s 70A waslargely replicated in s 71. On 16 December 1982, s 71 was then repealed and replaced with ss 71,71A and 71B by the Petroleum Amendment Act 1982. It is this version of ss 71–71B whichremains in force under the Crown Minerals Act.4 The PECs are dated 28 March 1980 and were registered against the relevant titles on 21 July 1980.5 A pipeline authorised under s 70A was, by the operation of s 70A(12), deemed to be issued unders 70. Section 70 (as amended by the Petroleum Amendment Act 1988) remains in force under theCrown Mineral Act saving provisions.6 Section 70A(10).7 Section 70A(11).described in the Schedule herein (in this certificate referred to as the said land)upon the following terms and conditions:3. The pipeline(x) has been placed along the line(x) delineated on theplan annexed hereto marked, "Maui Pipeline["].84. Upon the issue of this certificate the easement holders shall have theright of entry on the said land pursuant to sub-section (6) of section70 of the Act for the purpose of exercising the rights conferred onthem by the Act and any regulations made thereunder and by thepipeline authorisation.5. For the purposes of subsection (11) of Section 70A of the Act, thiscertificate shall apply to the strip of land shown on the said plan andnot exceeding 20 metres in width under, upon or over which thepipeline(x) pass(es) (in this certificate referred to as the said strip) andeach of the easement holders shall have the right from time to timeafter the issue hereof to remove from the said strip all cultivated ornatural vegetation including trees and shrubs.6. The owner or occupier of the said land shall have the right to use it(except for such use as may be reasonably held to interfere with theenjoyment of the rights of any of the parties interested in thepipeline(x) hereunder or under the Act or under the pipelineauthorisation) but shall not erect any building, construction, or fenceor plant any tree or shrub on the said strip, disturb the soil of the saidstrip below a depth of 0.4 metre from the surface or do, cause or permitanything to be done which would or could damage or endanger thepipeline(x) without the consent of the operator(x) of the pipeline(x)being first obtained. Any such consent shall not be unreasonablywithheld.8. Where the pipeline(x) is below the surface of the ground, it is buriedso that it will not interfere with the ordinary cultivation of the saidland and in maintaining, repairing, renewing, changing or removingthe pipeline(x) the pipeline operator(x) shall restore the surface of thesaid land, as nearly as possible, to its former condition or state.9. Such of the rights, easements, or obligations hereinbefore recited orreferred to which place a burden on the said land or on the owner oroccupier of the said land shall be binding on him the said owner oroccupier his or their successors, executors, administrators, and assignsand such of them as place a burden on any of the easement holdersshall be binding on them, their successors, executors, administratorsand assigns.8 This is the description in PEC 269143. In PEC 269148 the reference is to "Gas Pipeline Maui".[8] The lands through which the pipeline passes are identified in schedules to thePECs and attached are Survey Office plans (11320 and 11042 respectively) showingthe pipeline course. These plans describe the land in the two schedules as "the servienttenements". In the top right appears a "Diagram of Easement" showing a 12 metrecorridor, 6 metres either side of the "Maui Gas Pipeline Centreline".[9] In 2018 a serious defect was identified in a five metre section of the pipelinewithin the boundary of the Trustees' property. The defect was likely caused by earthmovement and placed the pipeline at risk of failure. A remediation programme, namedthe "Pariroa Project", was settled involving, as a first phase, construction of a bypasspipeline and, as a second phase, replacement of the damaged section and reconnectionof the gas supply. The bypass pipeline ran for 800 metres above ground, outside the12 metre strip of land identified in the PECs and was the subject of separatenegotiations between First Gas and the Trustees.[10] However when in January 2021, First Gas tried to obtain access through theTrustees' land to commence the second phase of the remediation, it was blocked fromdoing so by the Trustees. The Trustees said access would not be permitted other thanon various terms and conditions which the parties were unable to agree.[11] On 16 April 2021, First Gas filed proceedings which included an applicationfor an interim injunction preventing the Trustees from restricting access for repairpurposes. This was granted by Isac J on 9 July 2021.9 First Gas planned to commencepreliminary investigative work and notified the Trustees accordingly on 26 July 2021.However, when its personnel and a surveyor arrived, each was served with a trespassnotice. The Trustees also blocked access down a track, used by First Gas and itspredecessors for almost 40 years, with two vehicles.[12] Eventually, the Trustees relented but, in evidence before Grice J, Mr Gibbs wasclear that this was only on account of the interim orders and that the trespass noticesagainst First Gas personnel otherwise remained in force. He maintained the positionthat the Trustees were necessarily involved in all decisions relating to the pipeline(including whether to repair the damaged section at all) and, in that context, required9 First Gas Ltd v Gibbs [2021] NZHC 1722.access to all plans, including engineering drawings, and to attend all planningmeetings.[13] These events played out against a long history of disputes between theTrustees, First Gas and its predecessors. Issues have also arisen in relation to a smallernatural gas pipeline running over their land known as the Kapuni Pipeline.The High Court decision[14] Grice J identified three central issues in the proceedings and her conclusionsin respect of each are conveniently collated in her judgment as follows:10(a) Is First Gas only permitted to use land within the 12-metre stripdelineated on the PEC as the pipeline corridor when it is repairing thepipeline (and carrying out other authorised works) and for entry andegress, storage and deposit of machinery and equipment anddepositing spoil incidental to those works?(i) AnswerFirst Gas is entitled to access and use the land legallydescribed in the schedules to the PECs for the purposesspecified under the Petroleum Act, including the repair of thepipeline, access to achieve that repair and incidental actions,as well as storage and deposit of spoil. Those rights are notlimited to the 12-metre strip of the pipeline corridorsdelineated in the diagrams attached to the PECs.(b) Is there an arrangement or agreement for a "collaborative process" orconditions for the use of land described in the PECs that binds FirstGas for the purposes of undertaking the Pariroa Project Phase 2 repairsor other authorised works on or to the pipeline by virtue of:a. The 2009 Court decision in Gibbs v Vector Gas and/orb. Previous dealings and agreements?(i) AnswerThere is no arrangement or agreement applying to futureworks including the Pariroa Project Phase 2, by virtue of the2009 court decision, nor as a result of previous dealings andagreements between the Gibbs' and First Gas (or itspredecessors).(ii) Answer10 Judgment of Grice J, above n 1, at [259] (footnotes omitted).First Gas' rights and powers are not conditional on its workingwith, or in consultation with, the landowners.(c) Are there legislative and other requirements or interests includingunder the RMA and health and safety legislation and/or rights andinterests flowing from the Gibbs'/Poutama's kaitiakitanga over theland which affect First Gas' rights of access and use of the land for thepurposes repairing or carrying out other authorised works on thepipeline?(i) AnswerFirst Gas has the absolute right to carry out the repairs andother authorised works on the pipeline and for that purposehas the power to enter and use the land.(ii) Separately, First Gas must observe any statutory obligationsaffecting their work on the pipeline and incidental to it,including the RMA and health and safety legislation andrequirements concerning artefacts and cultural requirements.Those obligations are separate from and do not affect therights and powers set out above.(iii) The issues relating to the Gibbs'/Poutama's kaitiakitanga overthe land and Poutama's claim to mana whenua do not affectthe issues under consideration in this proceeding as outlinedabove.(footnotes omitted)[15] Her Honour made declarations accordingly and issued a permanent injunctionprohibiting the Trustees from restricting, obstructing or otherwise interfering withFirst Gas' access rights.11 In doing so she noted that there was nothing in its conductthat disentitled it to the relief sought, that it had made attempts to work collaborativelywith the Trustees but that these had not been successful and that the relationshipbetween the parties had broken down with the Trustees actively attempting to disruptFirst Gas from undertaking the required repairs.12Issues on appeal[16] Three issues emerge from the Trustees' notice of appeal and submissions,namely, whether the High Court erred in:11 At [278].12 At [272].(a) finding that First Gas' rights are not limited to the 12-metre wideeasement strip;(b) finding that First Gas' rights are not subject to any binding arrangementor agreement; or(c) ordering a permanent injunction.DiscussionIssue 1: Did the High Court err in finding that First Gas' rights are not limited to the12-metre wide easement strip?[17] The Trustees argue that Grice J failed to ask and answer a threshold question— "exactly what land has been taken". They say that her Honour "wrongly appliedthe PEC[s] to an additional area of land that has never been taken", contrary to s 70(3)of the Act. They also say that the powers granted to First Gas under s 68 of the Actand the rights of entry onto land and storage of equipment recognised in s 75 arelimited by s 71 (in a former iteration, s 70A) of the Act. Accordingly, they say thatsuch rights can only be exercised within the 12 metre easement strip unless a furtheragreement is reached pursuant to s 69 of the Act or additional land is taken under s 78of the Act.[18] We are unpersuaded by these arguments. We reach that conclusion havingregard to the clear terms of the PECs and the statutory framework in which they sit.[19] We start with the PECs themselves. They define the several blocks of landreferred to in their schedules (through each of which the pipeline passes) as "the saidland". Clause 9 acknowledges the said land is subject to a "burden" as defined in theeasement.[20] Clause 4 is in unequivocal terms. It provides that the easement holders "shallhave the 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 and bythe pipeline authorisation".[21] Section 70(6) is in equally clear terms:70 Pipeline easement certificates(6) The effect of every pipeline easement certificate shall be to give theholder of the authorisation or his authorised agent a right of entry onthe land to which the certificate relates for the purpose of exercisingthe rights conferred on him by this Part of this Act and by hisauthorisation.(emphasis added)[22] The Part of the Act referred to includes s 68:68 Powers of holdersNotwithstanding the provisions of any other Act, regulation, bylaw, certificateof title, or other authority, any pipeline authorisation issued under this Part ofthis Act shall, subject to the provisions of this Part of this Act and of theauthorisation, confer on the holder, while the authorisation remains in force,an absolute right—(a) To construct and lay pipelines on, over, or under any land referred toin the authorisation:(b) To construct and lay pipelines along, on, over, or under any road,railway, tramway, bridge, navigable waters, river, or stream referredto in the authorisation:(c) To alter, remove, repair, operate, inspect, renew, and maintain anypipeline constructed under the authority of the authorisation:(d) To do such other things as are necessarily incidental to the exercise ofthe powers and authorities of the holder under this Part of this Act.(emphasis added)[23] In the result, First Gas has a right of entry on the land to which the certificaterelates for the purposes of, inter alia, inspecting, renewing and maintaining its pipeline.The "land to which the certificate relates" is a reference to the various parcelsidentified by the Certificate of Title, volume and folio in the schedules to the PECs.That is confirmed by s 70(2) which, at the time the relevant PECs were issued, statedthat "[e]very such [PEC] shall be accompanied by a diagram showing the actual lineof the pipeline on the land to which the certificate relates".[24] The scheme of the Act is to differentiate between the "land to which thecertificate relates" (corresponding to the definition of "the said land" in the PECs) andthe "strip of land" being the corridor through which the actual pipeline passes.[25] The latter is referred to in s 70(3) which provides that:(3) Every such [PEC] shall apply to a strip of land over, upon, or underwhich the pipeline is laid not exceeding 20 metres in width [26] Likewise, cl 5 of the PECs refers to a strip of land not exceeding 20 metres inwidth "under, upon or over which the pipeline(x) pass(es)" and authorises theeasement holders to remove all cultivated or natural vegetation within that area.[27] But the easement holders' rights are not simply confined to the strip, as anysuch interpretation would be in direct conflict with cl 4 of the PECs and s 70(6) of theAct. The "strip of land" which defines the limits within which the pipeline can belawfully constructed, and which has its own set of restrictions in terms of landowneruse, exists effectively as a subset within the wider easement which itself permits entryon and access across the land to "which the certificate relates".[28] Section 75 affirms that position and sets out the predictable notificationrequirements in the event of intended entry onto the servient lands. Relevantly, itprovides:75 Entry on land for purpose of exercising rights in authorisation(1) For the purpose of exercising any right conferred on him by hisauthorisation or by this Part of this Act, the holder of the authorisationmay enter upon such land as may be necessary for the exercise of anysuch right, with right of access to and egress from any such land withhis servants, workmen, and agents, from time to time and at all times,with or without any suitable or available means of conveyance, andwith all such equipment, articles, and materials as may be necessaryfor the carrying out of any works authorised by the authorisation orauthorised by this Part of this Act to be carried out by the holder, andmay also deposit and store from time to time upon any land adjoiningany such works all such machinery and material of any kind as maybe used in carrying out any such works.(2) Entry shall not be made on any land under this section unless—(a) A Proclamation has been issued under section 71 of this Act inrespect of the land; or(b) The holder of the authorisation has in respect of the landeither—(i) Entered into an agreement under section 69(1)(b) of thisAct; or(ii) Obtained a pipeline easement certificate under section 70of this Act.(2) Before entry under this section is made on any land to whichsubsection (2) of this section does not apply,13 the holder shall wherepossible give 21 days' notice to the owner or occupier of the land, andto any local authority having the control or management of the land,of his intention to enter thereon.[29] It is this provision which provided the statutory authority for that part ofGrice J's order permitting the deposit and storage of machinery upon land adjoiningthe pipeline during the repair period.[30] The Trustees suggest that all such powers must be read subject to the formers 70A, now, with amendments, s 71. As indicated, this provides for the Governor-General to make a middle line proclamation. Section 70A(2) provided:14(2) Every Proclamation under this section shall define, by reference eitherto the distance on each side of the middle line or to the more distantsection boundaries, or by reference to both, such land within 100metres from the middle line upon or in respect of which it is intendedto exercise the powers conferred by this Act or any other Act in respectof the construction, maintenance, and use of the pipeline:Provided that, in placing the pipeline in its final position, constructionwork (including the provision of access for vehicles and plant) shallbe confined to a strip of land—(a) Not more than 30 metres wide; or(b) Of such greater width as the Secretary (after consultation, ifpracticable, with the occupier of the land) may allow in anyparticular case owing to special circumstances—within the strip of land defined in the Proclamation.13 The phrase "subsection (2) of this section does not apply" was substituted with "subsection (2)(a)of this section applies" pursuant to s 19(2) of the Petroleum Amendment Act 1982.14 Section 70A(2) is replicated in substantively identical terms in s 71(3) and (4) (see PetroleumAmendment Act 1982).[31] The Trustees argue that because a middle line proclamation defines land inrespect of which it is intended to exercise construction and maintenance powers, it isonly within the designated distance of the middle line that s 68 powers may beexercised. We do not accept that interpretation. Section 70A(2) says nothing aboutaccess to the area required for construction or maintenance. Moreover, the middle lineproclamations relating to the Trustees' various titles were superseded by PECs asprovided for in s 70A(10) and (11)15 and there are now no proclamations registeredagainst them. As a result, even on the Trustees' interpretation of s 70A(2), that sectionis not determinative. And, as previously noted, s 70A(12)16 deemed every PEC issued,under subs (11) to have been issued under s 70 of the Act, thus invoking the "right ofentry" provisions contained in s 70(6) and cross-referenced in cl 4 of the PECs. It isthe PECs, together with ss 68, 70(6) and 75 which now provide the contractual andstatutory framework within which First Gas' access and storage rights are properlyassessed.[32] Nor do we accept the Trustees' argument that only as a result of a new easementunder s 69(1)(b) or as a result of a taking under s 78 could rights be asserted outsidethe 12 metre wide "strip" identified in the PECs. Although these provisions provide amechanism for the acquisition of additional rights, as for example, if a new pumpingstation was required to be established outside of the strip, the sections do not operateto limit or interfere with the rights and interests acquired under any existing easement.In particular, they do not limit First Gas' access rights to the 12 metre strip, nor itsrights under s 75 of the Act, and it is not necessary for land to be "taken" for First Gasto exercise those rights.[33] We have come to the conclusions expressed above based on ordinary principlesof statutory17 and contractual18 interpretation. We are unpersuaded that recourse to15 Section 70A(10) has no equivalent provision in s 71. However, it appears to have been replicated,albeit with some changes, in s 72 (see Petroleum Amendment Act 1982).16 The equivalent to the former s 70A(12) is s 71(9) (see Petroleum Amendment Act 1982).17 Considering the ordinary meaning of the words used, the context in which they have been used,the purpose of the enactment and the avoidance of manifest absurdity or injustice.18 In our view the PECs are in clear terms. Accordingly, recourse to extrinsic evidence has beenunnecessary in the interpretive exercise. In any event we note that the extent to which suchrecourse is permitted in the interpretation of instruments notified on a public register is not entirelysettled (see Green Growth No 2 Ltd v Queen Elizabeth the Second National Trust [2018] NZSC75, [2019] 1 NZLR 161 at [133], [158] and [161] in which a majority of the Supreme Court leftthe issue open).Hansard is necessary to interpret what we regard as a relatively straightforwardstatutory framework. However, we have reviewed those passages which the Trusteeshave referred us to19 and identify nothing in them which meaningfully supports anyalternative construction.[34] Likewise, we regard the issue of whether First Gas has rights under s 234(1) ofthe Public Works Act 198120 to enter the Trustees' land, which was the subject ofmemoranda from the parties after the hearing, as irrelevant to the proper constructionof the PECs or the Act, the scheme of which provides for access to ensure preventativemaintenance long before the emergency scenarios contemplated in s 234(1).Issue 2: Did the High Court err in finding that First Gas' rights are not subject tobinding arrangement or agreement?[35] The Trustees' argument under this head is now based on an agreement betweenMDL and Federated Farmers (FF), executed in or around 197421 and identifiedsubsequent to delivery of Grice J's judgment.22 They say that the rights conferred bythe PECs and the Act are subject to this agreement which was referred to in argumentas the Maui Pipeline Agreement (MPA).[36] The MPA predated construction of the pipeline and addressed, ostensibly onbehalf of all farmers through whose land it passed, issues such as: the width of what itreferred to as "the easement" (but which is in effect the pipeline "strip"); arrangementsfor removal of trees; farm access across the relevant area during construction; thedepth at which the pipe was to be laid; ongoing compensation arrangements ("fifty per19 Including (9 November 1962) 332 NZPD 2567–2568; (13 December 1962) 333 NZPD 3398–3401; (22 September 1967) 353 NZPD 3221–3225; (4 October 1967) 353 NZPD 3475–3488; (25October 1967) 353 NZPD 3609–3622; and (6 November 1974) 395 NZPD 5594–5602.20 Which provides for rights of entry on oral notice (as may be practicable in the circumstances)where there is imminent danger to life or property, or a likelihood of serious interference with ordamage to any public work from any cause whatever and which requires immediate remedialwork.21 The exact date is not in evidence. Indeed, it cannot be established with certainty that the agreementwas executed prior to the middle line proclamation made under s 70A of the Act which was signedon 6 August 1975.22 The Notice of Appeal also refers to a judgment and sealed order in proceedings relating to theKapuni Pipeline near Mangapukatea (Gibbs v Vector Gas Ltd HC New Plymouth CIV-2008-043-545, 27 April 2009) but the matter was not pursued in argument. For completeness, we recordthat we do not consider the judgment relevant. The agreement between MDL and FF was admittedon an application to adduce further evidence before this Court: Gibbs v First Gas Ltd [2022]NZCA 414 at [22].cent" of the "current 'paddock value' of the 12 or 18 metre strip as assessed by theValuation Department"); and related matters.[37] The Trustees rely, in particular, on cl A(2) and cl B(18).2. It is proposed that entry to land for construction purposes will beeffected on the basis of a standard easement which provides forpayment for the easement itself and makes separate provision forpayment for all damage done in the course of laying the pipes if notmade good. In entering upon land and carrying on the work specifiedor carrying out repairs or maintenance or inspecting the pipelines, theCompany and/or the Operators shall cause as little disturbance, ordisruption to the occupier or the farming operations conducted uponthe land, as is possible and shall do or permit as little damage as isreasonably possible to the land or to any improvements on the land oradjacent to the easement and shall restore and repair the land orimprovements so damaged, or shall pay compensation in lieu thereof.18. Additional AccessAny access required to the 30 metre construction strip other than alongthe construction strip itself shall be the subject of separatenegotiations.[38] They note that on the second reading of the Petroleum Amendment Bill (thevehicle by which s 70A came to be introduced into the Act), the Minister of Minesstated that the intended middle line proclamation procedure "in no way overridesdetailed arrangements at present being negotiated between the Ministry of Works andDevelopment and Federated Farmers for the use of land for construction of the MauiPipelines".23[39] They say that the MPA is consistent in all respects with their argument that therights under ss 68 and 75 are subordinated to the former s 70A and may only beexercised outside the 12-metre strip if the subject of further agreement or a s 78 taking.Further, they submit that such result is consistent with the "intent of the Minister ofEnergy" and representations to the Select Committee on Commerce and Energy on thePetroleum Amendment Bill (No 2) 1980.2423 (6 November 1974) 395 NZPD 5595.24 The Petroleum Amendment Act (No 2) 1980 repealed s 70A (refer above, n 3).[40] By contrast, First Gas emphasises that the parties to the MPA were MDL andFF; the only reference to First Gas (by its former name NGC) is in cl A(1) where NGCis described as being "employed" by MDL; MDL is no longer in existence, havingbeen struck off the register; First Gas never acquired MDL, simply its pipeline; andthat there is no evidence that the Trustees, or their predecessors, were even membersof FF at the time the MPA was executed. Accordingly, First Gas says that it is notbound by the MPA. We agree there is no contractual nexus.[41] First Gas further emphasises that, in the context of multiple subsequentamendments to the Act, there was ample opportunity for the MPA to have been givenlegislative imprimatur if that had been what was intended. The reality is that this didnot occur.[42] Its primary argument is, however, that approximately six years after the MPAwas entered into, the PECs were granted in favour of, inter alia, NGC. It submits thatthese superseded the MPA which, apart from a singular reference to repairs andmaintenance in cl A(2), was firmly focused on the construction phase,25 its purposebeing to provide a framework prior to the grant of easements which would in theinterim define the parties' rights. It says that "[t]o all intents and purposes, the MPAis therefore spent in respect of the relevant land."[43] We agree. Section 70A clearly contemplated a process whereby at theconclusion of the construction period, a survey would occur and the issuing ofeasement certificates would follow. Such certificates were deemed to be issued unders 70 of the Act, subss (2) and (6) of which we have already referred to and which aredeterminative of the rights of entry which First Gas asserts. In turn, the PECs confirmthat position. Compensation has and continues to be paid by reference to the relevantinstruments and the statutory context in which they sit. It is not open to the Trusteesto attempt qualification of these rights which are pursuant to a registered interest inland by reference to a prior and superseded agreement to which First Gas (or itspredecessor) is not even a party.25 We note that cl B(18) on which the Trustees particularly rely is specifically directed as access tothe "30 metre construction strip", the clear inference being that this relates to the constructionperiod.Issue 3: Did the High Court err in granting a permanent injunction?[44] The Trustees argue that the permanent injunction granted by Grice J was a"mallet to crush a nut" and that the declarations made by her Honour were a sufficientremedy.[45] An injunction was sought by First Gas based on what it described as theTrustees' generally "hostile" attitude and the long and disputatious history betweenthe parties. In this Court it emphasises the physical obstructions to employee andcontractor access in January and July 2021, and Mr Gibbs' evidence before Grice Jthat, from his perspective, the trespass notices issued in July 2021 remained extant.Indeed, when asked whether, "if any of those people tried to go now, you'll trespassthem", he responded, "they've been trespassed". As Grice J noted, Mr Gibbs alsomade it clear that he would not willingly grant First Gas access, nor allow it to exerciseits statutory rights without a court order.26 She observed that "[f]uture denial of access,or access subject to conditions, has been threatened by Mr Gibbs."27[46] We agree with the Judge that the history between the parties demonstrates apattern of unreasonable interference by the Trustees with the rights of First Gas witha significant risk that this will again occur in the future. Accordingly, there is aresulting premium on ensuring that the Trustees are restrained by appropriate courtorder. This is particularly so given the importance of ensuring that an item ofnationally significant infrastructure is properly maintained and operated and that FirstGas' lawful rights are not effectively defeated or derogated from.28[47] In any event, the Judge's decision to grant the permanent injunction was withinher discretionary powers. There is no basis to suggest that discretion was exercised ina manner which might invite review by this Court.2926 Judgment of Grice J, above n 1, at [263].27 At [248].28 As identified by Grice J, above n 1, at [265].29 See Shell (Petroleum Mining) Co Ltd v Todd Petroleum Mining Co Ltd [2007] NZCA 586, [2008]2 NZLR 418 at [110]–[111].Result[48] The appeal is dismissed.[49] The appellants must pay costs to the respondent for a standard appeal on aBand A basis and usual disbursements.Solicitors:Govett Quilliam, New Plymouth for Respondent