ALAN JAMES HUME AND LYNETTE LAURA HUME v AUCKLAND REGIONAL COUNCIL [2002] NZCA 274 (4 September 2002)

IN THE court of appeal of new zealand

ca262/01

	between	alan james hume AND lynette laura hume
		Appellants

	AND	AUCKLAND REGIONAL COUNCIL
		Respondent

Hearing:	19 August 2002
Coram:	Blanchard J Tipping J Glazebrook J
Appearances:	R B Brabant for Appellants R J Asher QC for Respondent J Verry for Rodney District Council B H Arthur for Director-General of Conservation
Judgment:	4 September 2002

judgment of the court delivered by GLAZEBROOK J

Introduction

[1] This is an application to recall the unsealed judgment of this Court in Hume v Auckland Regional Council (unreported, CA262/01, 17 July 2002). The case concerned whether members of the public could use the jetty constructed by the Humes to give access to their property on Kawau Island. There was also, as recognised in the judgment, a wider issue as to how the answer to that question affects all other structures in the coastal marine area.

[2] The appeal arose out of a decision of the Environment Court of 19 February 2002 (upheld in the High Court).In the Environment Court Judge Treadwell made a declaration in the following terms:

Except to the extent that it expressly provides otherwise, a coastal permit that authorises the consent holder to occupy part of the coastal marine area with a structure, namely a jetty, gives to the consent holder an exclusive right to occupy the space being part of the coastal marine area occupied by the physical structure (i.e. piles, decking etc) but does not authorise the consent holder to exclude members of the public with or without transport from using the unoccupied space under, beside or above the jetty including the surface of the jetty and other parts of the structure that is within the coastal marine area for the purpose of providing public access to, from, and along the foreshore of the coastal marine area.

[3] The Humes submit that the declaration no longer fully states the law as set out in this Court's decision.They apply for recall of the judgment to enable this to be rectified.

The arguments of the parties

[4] In their written submissions the Humes claim that the effect of this Court's judgment was to modify the legal conclusions expressed in the original declaration granted by the Environment Court.They claim that this Court's conclusions embraced not only jetties but also all other structures within the Coastal Marine area.They also submit that this Court qualified the bald authorisation of public access in the Environment Court declaration with the observation that such access must be exercised "in a reasonable manner" without "unreasonably imped[ing]" the access and use of the structure by the permit holder.The applicants seek to recall the decision so that the Court may modify the Environment Court's original declaration in these two respects. They also suggest some simplification of the declaration.

[5] The Humes acknowledge that the position is perfectly clear as between the parties but the amendments are submitted to be in the public interest, as the public would otherwise have to read the Environment Court's declaration in conjunction within the reasoning of this Court on appeal.The Humes acknowledge that, in light of Rainbow Corporation Ltd v Ryde Holdings Ltd (1992) 5 PRNZ 493 and Horowhenua County v Nash (No 2) [1968] NZLR 632, the grounds for seeking recall are very limited.It is submitted, however, that the aforementioned public interest meets the third criterion outlined in those cases that, for a very special reason, justice requires that the judgment be recalled.

[6] The Humes therefore in their written submissions suggested a modification to the declaration in the following terms:

Except to the extent that a coastal permit expressly provides otherwise, the public may use a structure in the coastal marine area in a reasonable manner for the purpose of gaining access to, from and along those parts of the coastal marine area which are adjacent to the structure, but in doing so they may not unreasonably impede the coastal permit holders' access to and use of the structure.

[7] Three sets of submissions were filed in response to the application.The same arguments are repeated throughout.In essence, the Auckland Regional Council, the Director-General of Conservation and the Rodney District Council submit that the `public interest' specified by the Humes does not meet the high threshold set by the authorities for recalling the judgment.It is submitted that this Court dealt exactly with the questions of law put to it and that any attempt at recall is in effect an attempt to amend the questions of law put. The public (noted as realistically being the legal community and local authorities) can and should read the Environment Court declaration subject to this Court's decision.It is also submitted that court orders are not to be drafted by committee, but are to be the natural product of litigation on a discrete and concrete issue.An attempt to broaden the effect of the declaration without full argument in the context of a concrete dispute would be unwise.There is insufficient reason to recall the judgment.

[8] In oral argument Mr Brabant, for Mr and Mrs Hume, conceded that the application was too broadly worded.He thus asked for one modification only, so that the declaration on its face shows the disjunctive interpretation of s122(5) set out in this Court's judgment.This could be done by using the wording of the statute itself.The declaration would thus be phrased along the following lines, the words in italics being added:

Except to the extent that it expressly provides otherwise or that is reasonably necessary to achieve the purpose of the coastal permit, a coastal permit that authorises the consent holder to occupy part of the coastal marine area with a structure, namely a jetty, gives to the consent holder an exclusive right to occupy the space being part of the coastal marine area occupied by the physical structure (i.e. piles, decking etc) but does not authorise the consent holder to exclude members of the public with or without transport from using the unoccupied space under, beside or above the jetty including the surface of the jetty and other parts of the structure that is within the coastal marine area for the purpose of providing public access to, from, and along the foreshore of the coastal marine area.

[9] As this suggested modification arose during the hearing none of the parties opposing the application were able to consider this modification fully.Nor were they able to take instructions.Mr Asher in particular still had concerns about any modification to the declaration without full argument and consideration of the consequences.

Discussion

[10] There is no doubt that the declaration as set out by the Environment Court is incomplete and that the declaration using the wording of s122(5) as set out in para [8] aboveis a more accurate statement of the law as articulated by this Court.We can understand the submission that it is somewhat unsatisfactory to have an incomplete declaration which is misleading if not read in conjunction with this Court's judgment.

[11] On the other hand, the declaration even in the expanded form would be incomplete.For example, as Mr Asher pointed out, since it was not in issue in the case neither the declaration nor this Court's decision deals with the question of who decides whether any restriction is reasonably necessary to achieve the purpose of the coastal permit.Nor do they deal with enforcement issues.

[12] In addition, any declaration must always be read in the context of the whole of any relevant judgment and a person would be most unwise to rely just on the wording of a declaration.Lawyers asked to advise will be well aware that a declaration is not to be read in isolation from the judgment in question and any publisher of such a declaration should always point to the relevant judgment.

[13] In the circumstances therefore we do not consider it appropriate to recall the judgment in order to amend the declaration.This is particularly because the declaration is satisfactory as between the parties and because the opposing parties had no opportunity to consider fully the wording now proposed and therefore a further hearing might have been required in that regard.The grounds for recall are very limited and this case does not reach that threshold.

Result and Costs

[14] For the reasons given the application for recall is dismissed.

[15] Mr and Mrs Hume are ordered to pay costs to the Auckland Regional Council, the Rodney District Council and to the Department of Conservation in the sum of $1500 to each plus reasonable disbursements including travel and accommodation costs to be set by the Registrar in the absence of agreement.

Solicitors:

Martelli McKegg Wells & Cormack, Auckland for Appellants

John A Burns, Auckland for Respondent

John F Verry, Auckland for Rodney District Council

Crown Law Office, Wellington for Department of Conservation