Gibbs v New Plymouth District Council [2010] NZCA 108; [2010] NZAR 439 (30 March 2010)

Last Updated: 17 January 2012

IN THE COURT OF APPEAL OF NEW ZEALAND

CA366/2009

[2010] NZCA 108

BETWEEN RUSSELL VICTOR GIBBS
Appellant

AND NEW PLYMOUTH DISTRICT COUNCIL
Respondent

CA367/2009

AND BETWEEN PARANI JOSEPHINE GIBBS
Appellant

AND NEW PLYMOUTH DISTRICT COUNCIL
Respondent

Hearing: 18 March 2010

Court: O'Regan, Rodney Hansen and Simon France JJ

Counsel: M P Armstrong for Appellants
S W Hughes QC for Respondent

Judgment: 30 March 2010 at 11 am

JUDGMENT OF THE COURT

A The application for special leave to appeal is dismissed.

2. The applicants must pay to the respondent costs according to the scale in the Costs in Criminal Cases Regulations 1987.

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REASONS OF THE COURT

(Given by O’Regan J)

Introduction

[1] This is an application for special leave to appeal against a decision of Harrison J,[1] upholding a decision of Judge Hubble to convict the applicants for building a building without obtaining a building consent as required by s 40 of the Building Act 2004.[2] Harrison J declined leave to appeal.[3]

Criteria for leave

[2] The application is made under s 144(3) of the Summary Proceedings Act 1957. As this Court stated in R v Slater,[4] the requirements for leave to be granted are that:

(a) There is a question of law;

(b) The question is one which, by reason of its general and public importance or for any other reason, ought to be submitted to this Court; and

(c) The Court must be of the opinion that it ought to be so submitted.

Facts

[3] There was no dispute that a building (a wharenui) had been constructed on land held by the applicants and one other as trustees and that no building consent had been obtained. The trustees’ land is Māori freehold land and part of this has been set aside as a Māori reservation (as an urupa) by a Gazette Notice issued pursuant to a recommendation of the Māori Land Court under s 338 of Te Ture Whenua Māori Act 1993. The argument which the applicants made unsuccessfully in both the District Court and the High Court was that the Building Act did not apply to buildings constructed on land which was a Māori reservation. They claimed that trustees of land set apart as a Māori reservation had the power to issue permits for activities including building work on the reservation and that they had given themselves a permit to erect the building on the urupa in this case.
[4] The District Court Judge accepted, without requiring proof, that the building was, in fact, located on the urupa. As the applicants’ argument relied at least in some aspects on the fact that the building was located on a Māori reservation, this is a matter which should have been subject to proof. However, as Harrison J did, we will proceed on the basis that the building is, in fact, located on the urupa, that is the area of land set aside as a Māori reservation. It was common ground in the District Court that the applicants were responsible for the work involved in erecting the building on the land and that no building consent had been sought or obtained.

Questions of law

[5] The questions of law for which leave to appeal is sought are as follows:

(a) Whether or not a wharemate (building) on a Māori reservation set apart as an urupa by Gazette Notice pursuant to a recommendation of the Māori Land Court under s 338 of Te Ture Whenua Māori Act is subject to the Building Act having regard to:

(i) protection of rangatiratanga embodied in Te Tiriti o Waitangi as reaffirmed by Te Ture Whenua Māori Act, (Preamble of Act);

(ii) general legislative intent of s 338 of Te Ture Whenua Māori Act and the Māori Reservation Regulations 1994;

(iii) specific provision included in the Māori Reservation Regulations.

(b) Whether or not the applicants are Trustees of the Reservation by virtue of them being Trustees of the surrounding lands.

Building Act issue

[6] The applicants seek to run the same argument before this Court as was considered by the District Court and High Court. In brief, their argument on the first question is as follows:

(a) The preamble to Te Ture Whenua Māori Act refers to the desirability that the spirit of exchange of kāwanatanga for the protection of rangatiratanga embodied in the Treaty of Waitangi be affirmed.

(b) Section 2(2) of Te Ture Whenua Māori Act says that it is Parliament’s intention that powers, duties and discretions conferred by Te Ture Whenua Māori Act shall be exercised, as far as possible, in a manner that facilitates and promotes the retention, use, development and control of Māori land as taonga tuku iho.

(c) This emphasises the importance of protecting rangatiratanga which includes control (and this is even clearer from the Māori version of the preamble).

(d) Where a reading of Te Ture Whenua Māori Act can include an interpretation which exempts Māori land from the Building Act, that interpretation should be taken in order to fulfil the statutory requirement under s 2(2).

(e) This argument is applicable to all Māori land but is stronger in relation to land which is set aside as a Māori reservation because s 338(4) of Te Ture Whenua Māori Act provides that land may be set apart or included in a Māori reservation “notwithstanding any provisions of this Act or any other Act as to the disposition or administration of that land”, and this indicates an intention that other Acts should not apply to lands so set aside.

(f) Land which is set aside as a Māori reservation is subject to the Māori Reservation Regulations. Regulation 8(b) provides that trustees of any Māori reservation may, subject to any order of the court, “issue permits in relation to any activity on a reservation”. The argument was that this indicated an intention that trustees of a Māori reservation would have the power to issue a building consent similar in kind to that which would otherwise be required under s 40 of the Building Act. That argument was made in the face of the context, including reg 9, which sets out the activities on a reservation that require authorisation from the trustees (these include “the use of any building”, but not the erection of any such building).

[7] Counsel for the applicants, Mr Armstrong, accepted that High Court authority was against him: in particular a similar argument was rejected by the High Court in Taiwhanga v Thames-Coromandel District Council.[5] Mr Armstrong sought to distinguish that case on the basis that it related to Māori freehold land rather than a Māori reservation, but, as a fallback position, argued that Taiwhanga ought to be overruled by this Court.
[8] The Building Act gives no indication that it applies only to buildings on land other than Māori freehold land or Māori reservations. It is an Act of general application. Mr Armstrong sought to argue that s 4 of the Building Act, which requires that a person exercising powers under that Act take into account the importance of recognising any special traditional and cultural aspects of the intended use of a building, provided support for his contention that the Building Act did not apply at all to buildings located on Māori freehold land or, at least, on a Māori reservation. With respect to Mr Armstrong we cannot see how that provision could lead to a tenable argument that Parliament has expressed an intention that the Building Act would not apply to buildings on Māori freehold land or Māori reservations.
[9] We put it to Mr Armstrong that if his argument were accepted, the logical consequence would be that any legislation requiring consents or permits to be issued for any activity would not apply to activities on Māori freehold land and/or Māori reservations: the reach of the authority of Parliament and of local government would not extend to such land. He sought to limit the argument, but realistically this is the proposition which the Court would need to accept in order for the proposed appeal on the first question of law to succeed.
[10] Mr Armstrong said the issue was one of some consequence to Māori and therefore of sufficient public importance to justify a second appeal. Ultimately it is not necessary for us to reach a concluded view on that submission because, even if that were so, we are satisfied that the argument which the applicants propose to run if leave is given is not tenable. In those circumstances we do not consider that there is any proper basis for leave to be given to rehearse again the arguments which failed in the District Court and High Court.

Trustee issue

[11] The second question of law relates to the status of the applicants as trustees. There is no doubt that they hold the Māori freehold land as trustees, but the order of the Māori Land Court setting aside part of that land as a Māori reservation did not formally make them trustees of the reservation. This state of affairs led Harrison J to the view that, even if trustees of a Māori reservation could issue permits for building work on the reservation, this power would not have applied to the applicants in this case.
[12] It is largely a question of fact as to whether the applicants are trustees of the urupa reservation for the purposes of the Māori Reservation Regulations. But even to the extent that there is a legal component to that question, it is a matter which is unique to this area of land and to the Māori Land Court orders applying to it and clearly not a question of sufficient public importance to justify a second appeal. Given the conclusion reached in the High Court that trustees of Māori reservations do not have power to give permits for building work on the reservation to the exclusion of the power of the local territorial authority under the Building Act, the question is essentially academic in this case.
[13] Mr Armstrong argued that, if the applicants were not trustees then Mrs Gibbs should not have been convicted because she did not undertake building work herself. There are two problems with that contention. First, it is not a question for which leave to appeal has been sought. Secondly, it runs counter to the accepted position in the District Court that the applicants were responsible for the building work in question. That responsibility applies whether they were formally appointed as trustees of the reservation or not.

Result

[14] In all the circumstances, we decline special leave to appeal on either of the questions of law identified by the applicants.

Costs

[15] On behalf of the respondent, Ms Hughes QC sought costs. She argued that the applicants had been intransigent in the face of clear decisions in the District Court and High Court and had spurned offers of assistance from the Council to regularise matters. She argued that the ratepayers of New Plymouth should not be expected to bear the cost of this litigation.
[16] We agree that an award of costs is appropriate in this case. As this is a criminal matter, it falls to be decided under the Costs in Criminal Cases Regulations 1987. We award costs according to the scale in those Regulations. The fact that the Regulations are now well out of date makes this a small award, but we do not see any basis for an award in excess of scale.

Solicitors:
Rangitauira & Co, Rotorua for Appellants

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[1] Gibbs & Gibbs v New Plymouth District Council HC New Plymouth CRI-2008-443-28,
26 March 2009.

[2] New Plymouth District Council v Gibbs & Gibbs DC New Plymouth CRI-2008-043-796,
11 August 2008.

[3] Gibbs & Gibbs v New Plymouth District Council HC New Plymouth CRI-2008-443-28, 4 June 2009.
[4] R v Slater [1997] 1 NZLR 211 (CA).

[5] Taiwhanga v Thames-Coromandel District Council HC Hamilton CRI-2005-075-1321, 17 August 2006.