Grueber v New Zealand Transport Agency [2014] NZHC 2924 (24 November 2014)

Last Updated: 8 December 2014

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-404-000231
CRI-2012-404-000232
CRI-2012-404-000233

CRI-2012-404-000234 [2014] NZHC 2924

BETWEEN	HANS GRUEBER Appellant
AND	NEW ZEALAND TRANSPORT AGENCY Respondent

Hearing:	4 November 2014
Appearances:	Appellant in Person A McClintock and B Hamlin for Respondent
Judgment:	24 November 2014

_{JUDGMENT OF VENNING J}

This judgment was delivered by me on 24 November 2014 at 11.30 am, pursuant to Rule 11.5 of the

High Court Rules.

Registrar/Deputy Registrar

Date...............

Solicitors: Meredith Connell, Auckland

Copy to: Appellant

GRUEBER v NEW ZEALAND TRANSPORT AGENCY [2014] NZHC 2924 [24 November 2014]

Introduction

[1] Dr Hans Grueber does not accept the legality of the tolling on the extension of the Northern Motorway north of Auckland. In November and December 2011 he drove his car on the tolled section of the motorway but refused to pay the tolls. He was charged with four counts under s 54 of the Land Transport Management Act

2003 (the Act) of, without reasonable excuse, refusing to pay a toll. He was convicted on all counts at the North Shore District Court. Dr Grueber does not dispute that he drove his car on the toll road at the relevant times without paying the toll. He appeals against the convictions on the basis the Order in Council which established the toll road is illegal.

The issues

[2] Dr Grueber’s appeal raises two issues:

(a) whether it is open for him to mount a collateral challenge to the validity of the decision of the Minister to recommend the establishment of a road tolling scheme on that section of motorway; and, if it is,

(b) whether on the facts Dr Grueber’s challenge is made out.

The collateral challenge issue

[3] On the first issue Dr Grueber relies on the line of authorities discussed in the House of Lords’ decision of Boddington v British Transport Police¹ and the recent Court of Appeal decision on an interlocutory matter in this appeal Grueber v New Zealand Transport Agency.² Dr Grueber relies on the observations of the Court in that case that, on this appeal, the Court will need to address the issue of whether a

_{collateral challenge to the convictions is possible.}³

¹ _{Boddington v British Transport Police [1998] UKHL 13; [1999] 2 AC 143, [1998] 2 WLR 639 (HL).}

² _{Grueber v New Zealand Transport Agency [2014] NZCA 267, [2014] NZAR 851.}

³ At [10].

[4] Since Anisminic Ltd v Foreign Compensation Commission⁴ established there was a single category of errors of law, all of which rendered a decision ultra vires, and no distinction is to be drawn between a patent (or substantive) error of law and a latent (or procedural) error of law, it has been open to litigants to argue that an ultra vires act or subordinate legislation is unlawful simplicter. If the presumption in favour of legality is overcome by a litigant then the ultra vires act or subordinate legislation is of no legal effect whatsoever.

[5] It has also been open to defendants to criminal proceedings to collaterally attack their convictions on the ground that the statute, regulation or bylaw creating the offence was itself unlawful or was void by some other error of law. In R v Wicks,⁵ the local planning authority had issued an enforcement notice against the defendant under the Town and Country Planning legislation. Mr Wicks’ appeal against the notice to the Secretary of State was dismissed. Mr Wicks still failed to comply with the notice and the Authority issued a summons alleging a breach of the legislation. In the criminal proceedings which ensued Mr Wicks sought to defend

himself on the ground the enforcement notice was ultra vires, maintaining the Authority had acted in bad faith and been motivated by irrelevant considerations. Ultimately the House of Lords upheld the conviction. Lord Hoffman emphasised the ability of a defendant to criminal proceedings to challenge the validity of an act done under statutory authority depended on the construction of the statute in question. On the proper construction of the relevant sections in that case all that was required to be proved in the criminal proceedings was that the notice issued by the local planning authority was formally valid.

[6] In Quietlynn Ltd v Plymouth City Council⁶ a company was operating sex shops in Plymouth under transitional provisions which allowed them to do so until their application for a licence under a recent scheme introduced by the Local Government (Miscellaneous Provisions) Act 1982 had been determined. The local authority refused the application and the company was prosecuted for trading

_{without a licence. The company sought to argue that because the local authority had}

4. Anisminic Ltd v Foreign Compensation Commission [1968] UKHL 6; [1969] 2 AC 147, [1969] 1 All ER 208 (HL); see also Peters v Davison [1999] 2 NZLR 164 (CA) at 181.

⁵ _{R v Wicks [1997] UKHL 21; [1998] AC 92, [1997] 2 WLR 876 (HL).}

⁶ Quietlynn Ltd v Plymouth City Council [1988] QB 114, [1987] 3 WLR 189.

failed to comply with procedural provisions its application had not yet been determined. It was held that in the particular statutory context an act which might turn out for a different purpose to be a nullity (so as to require the local authority to hear the application again) was nevertheless a determination for the purpose of bringing the transitional period to an end.

[7] In Boddington v British Transport Police the defendant was convicted for breaching a bylaw by smoking a cigarette in a railway carriage where smoking was prohibited by British Railways Board bylaws.⁷ The House of Lords permitted Mr Boddington to raise a challenge to the bylaws in defence of the prosecution. Underlying the decision of the Law Lords was their concern that both the rule of law and the requirement of fairness to accused persons facing criminal charges required that defendants have a fair opportunity to challenge legal measures promulgated by

executive bodies and to vindicate their rights in Court proceedings.

[8] Lord Irvine delivered one of the leading speeches. He distinguished R v Wicks and Plymouth City Council v Quietlynn Ltd on the basis that it had been an important feature of both cases that they were concerned with administrative acts specifically directed at the defendants where there had been “clear and ample opportunity” provided by the scheme of the relevant legislation for those defendants to challenge the legality of those acts before being charged with an offence. He went

on to say:⁸

By contrast, where subordinate legislation (eg statutory instruments or byelaws) is promulgated which is of a general character in the sense that it is directed to the world at large, the first time an individual may be affected by that legislation is when he is charged with an offence under it: so also where a general provision is brought into effect by an administrative act, as in this case. A smoker might have made his first journey on the line on the same train as Mr Boddington; have found that there was no carriage free of no smoking signs and have chosen to exercise what he believed to be his right to smoke on the train. Such an individual would have had no sensible opportunity to challenge the validity of the posting of the no smoking signs throughout the train until he was charged, as Mr Boddington was, under byelaw 20. In my judgment in such a case the strong presumption must be that Parliament did not intend to deprive the smoker of an opportunity to defend himself in the criminal proceedings by asserting the alleged unlawfulness of the decision to post no smoking notices throughout the train.

⁷ _{Boddington v British Transport Police, above n 1.}

⁸ Boddington v British Transport Police, above n 1, at 161-162, 653.

I can see nothing in s 67 of the Transport Act 1962 or the byelaws which could displace that presumption. ...

[9] It has been suggested that the New Zealand Courts’ approach to the doctrine of collateral attacks is somewhat simpler.⁹ In Attorney-General v P F Sugrue Ltd Blanchard J explained the New Zealand approach in the following way:¹⁰

[47] The validity of certain administrative actions can be challenged indirectly in civil proceedings for the purpose of determining private law rights. Such a challenge is referred to colloquially as a “collateral attack” or “collateral challenge”. For example, in Cooper v Board of Works for the Wandsworth District [1863] EngR 424; (1863) 14 CB (NS) 180, the plaintiff successfully sued a public authority in trespass after the authority had demolished the plaintiff’s house. The authority was purporting to rely upon its powers under dangerous building legislation, but this was challenged by the plaintiff and held to provide no justification because the authority had acted contrary to principles of natural justice by not allowing the plaintiff a right to be heard. It is to be remembered that at the time Cooper v Wandsworth was decided collateral challenge was a primary means of impugning judicial and administrative action.

...

[49] Over recent decades New Zealand law concerning the remedies available in respect of administrative action has largely avoided some of the complexities to be seen in cases such as O’Reilly v Mackman [1983] 2 AC

237, Boddington v British Transport Police [1998] UKHL 13; [1999] 2 AC 143 and Neat

Domestic Trading Pty Ltd v AWB Ltd [2003] HCA 35; (2003) 77 ALJR 1263: see, for example, Royal Australasian College of Surgeons v Phipps [1999] 3 NZLR

1 at pp 11 – 12 (an issue not affected by the decision of the Privy Council in

Phipps v Royal Australasian College of Surgeons [2000] 2 NZLR 513 at para [2]). We need not consider what the limits to collateral challenges may be because we have come to the conclusion that Sugrue would not have succeeded in a direct challenge to the seizure in review proceedings for the reasons we now give.

[10] More recently in Siemer v Solicitor General the Supreme Court considered whether the Boddington approach applied to Court orders. The majority concluded it did not and noted (in a footnote):¹¹

We observe that the greater accessibility and particular importance of judicial review in New Zealand leaves scope for argument that the Boddington approach to collateral challenges to administrative decisions would not have general application in New Zealand. The approach, to date, of the New Zealand courts to collateral challenge to administrative action is

⁹ Dean Knight “Ameliorating the Collateral Damage Caused by Collateral Attack in

_{Administrative Law” (2006) 4 NZJPIL 117.}

10. Attorney-General v P F Sugrue Ltd [2003] NZCA 204; [2004] 1 NZLR 207, (2003) 7 HRNZ 137 (CA) (additional inline citations omitted).

¹¹ Siemer v Solicitor General [2013] NZSC 68, [2013] 3 NZLR 441, at [206], n 255.

discussed in Dean Knight “Ameliorating the Collateral Damage Caused by Collateral Attack in Administrative Law” (2006) 4 NZJPIL 117. We are not required to decide the question in this appeal.

[11] There have been previous cases in the High Court where the issue of collateral challenge to subordinate legislation or bylaws have been raised on appeals against convictions: Harwood v Thames Coromandel District Council and Moore v Police.¹² In addition, in an earlier decision Elias J (as she then was) considered the issue in a civil claim: Brady v Northland Regional Council.¹³ Relevantly for present

purposes, in this case there is the earlier decision of Courtney J on the interlocutory application for further disclosure.¹⁴

[12] In Harwood v Thames Coromandel District Council Mr Harwood had been convicted on a charge of failing to register his dog contrary to the relevant provisions of the Dog Control Act 1996. His defence was the registration fees charged by the District Council were unreasonable. Randerson J concluded that the statutory context of the registration and prosecution provisions under the Dog Control Act and other statutory provisions displaced the general principle that in criminal proceedings an accused person was entitled to challenge the validity or lawfulness of

a public act or decision upon which his conviction depended.¹⁵

[13] In Moore v Police Mr Moore was convicted in the District Court at Wanganui of an offence under s 12 of the Wanganui District Council (Prohibition of Gang Insignia) Act 2009. Mr Moore challenged the validity of the bylaw. After reviewing the decisions of Wicks and Boddington MacKenzie J considered that a close examination of the particular circumstances in the relevant statutory context was necessary to determine whether a collateral challenge was available. After considering the relevant statutory provisions and the scheme of the Act, he concluded that aspects of Mr Moore’s challenge required a close examination of the Council’s decision-making process. The Council would be a necessary party to such proceedings. The Judge did not consider Parliament was to be taken to have

_{contemplated these matters should be examined in the absence of evidence and in}

¹² Harwood v Thames Coromandel District Council [2008] NZAR 518 (HC); and Moore v Police

_{[2010] NZHC 760; [2010] NZAR 406 (HC).}

¹³ _{Brady v Northland Regional Council [2008] NZAR 505 (HC).}

¹⁴ _{Grueber v New Zealand Transport Agency [2013] NZHC 645, [2013] NZAR 456.}

¹⁵ Harwood v Thames Coromandel District Council, above n 12, at [29].

proceedings to which the Council was not a party. The legislative scheme did not permit a challenge of the sort Mr Moore sought to raise in a prosecution for an offence under the Act. The Judge noted that an application for judicial review was clearly an available procedure. So too was the procedure in s 12 of the Bylaws Act

1910. Finally, the Judge noted that the offence was against the Act, not the bylaw, and it was appropriately prosecuted by the police, not the Council. For those reasons he confirmed that the Court did not have jurisdiction to hear a collateral challenge to the validity of the bylaw.

[14] In Brady v Northland Regional Council Mr Brady operated a charter yacht out of Whangarei. The yacht was licensed annually by the Northland Harbour Board to carry 12 passengers and was required to pay a fee. He failed to pay the fee. The Regional Council sued to recover the fee. While accepting in principle that where the challenge was central to the case actually before the Court and that if the assessment of the validity of the delegated legislation was central to a defence in

civil or criminal proceedings then collateral challenge “must be available”,¹⁶ Elias J

rejected it in Mr Brady’s case as his challenge was effectively too remote. He wished to challenge the validity of the Harbour Board’s expenditure on the Paihia Wharf but that was not central to his defence to the claim for payment of the licence fee. The challenge was too far removed from the central issues.

[15] Finally, in her decision on appeal from a decision of the District Court in the interlocutory stages of the current appeal, Courtney J concluded that the function of the New Zealand Transport Agency (the Agency) in managing tolls, including the prosecution of offences under s 54 was far removed from the process by which the tolling system had been established under s 46. The Agency had no part to play in the statutory process for the establish of the toll system and those with the knowledge and control over the documents relevant to the establishment of the road tolling system would need to be before the Court in order for there to be any challenge to the road tolling system. Courtney J considered that pointed inevitably to the conclusion Parliament could not have intended such a challenge would be

_{permitted in the context of a prosecution under s 54(1). However, as noted by the}

¹⁶ Brady v Northland Regional Council, above n 13, at 516.

Court of Appeal, that was an interlocutory decision and the issue is open for this

Court on this appeal against conviction to come to its own conclusion.

[16] In summary, while a collateral challenge may, in principle, be raised in the defence of a criminal prosecution, whether it is applicable in any particular case will depend on the circumstances of the case. That requires consideration of the challenged act, bylaw or decision in issue, the relationship between the decision- maker and prosecuting authority, the nature of the alleged offending and the statutory context.

Is a collateral challenge available in this case?

[17] The Order in Council establishing the road tolling scheme for the extension of the Northern Motorway (known as ALPURT B2) was made on 11 April 2005. It was made on the recommendation of the Minister. It is the decision to make that recommendation which Dr Grueber seeks to challenge.

[18] The recommendation was made in purported compliance with the Act. The purpose of the Act is set out in s 3 of the Act which at material times provided:

3 Purpose

(1) The purpose of this Act is to contribute to the aim of achieving an [affordable], integrated, safe, responsive, and sustainable land transport system.

[19] Sub-part 2 and ss 46 to 55 of the Act provide for road tolling schemes. Section 46(1) provides:

46 Authority to establish road tolling scheme

(1) The Governor-General may, by Order in Council made on the recommendation of the Minister, establish a road tolling scheme to provide funds that may be applied by or on behalf of a public road controlling authority for the purposes of—

(a) 1 or more of the following activities, namely, the planning, design, supervision, construction, maintenance, or operation of a new road; and

(b) meeting any conditions or requirements set out in the order.

[20] Section 47 provides for when the tolling power is exercisable. It is not in issue in this case.

[21] Section 48 is particularly relevant. It sets out the matters which the Minister has to be satisfied on before making a recommendation under s 46. The version of s 48 applying at the time provided:

48 Procedure for recommending making of order under section 46

(1) The Minister must not recommend the making of an Order in

Council under section 46(1) unless—

(a) he or she is satisfied that the activity contributes to the purpose of this Act; and

(b) he or she has taken into account how the activity—

(i) assists economic development; and

(ii) assists safety and personal security; and

(iii) improves access and mobility; and

(iv) protects and promotes public health; and

(v) ensures environmental sustainability; and

(c) he or she has taken into account—

(i) any current national land transport strategy, relevant regional land transport strategies, [relevant regional public transport plans,] [any relevant GPS,] and National Energy Efficiency and Conservation Strategy; and

(ii) the availability of alternative land transport options and the impact of the activity on those options; and

(iii) the land transport options and alternatives that have been considered by the public road controlling authority; and

(iv) whether the activity is consistent with current priorities for land transport expenditure; and

(v) the outcome of consultation undertaken by the public road controlling authority; and

(d) either—

(i) the activity is included in the current national land transport programme; or

(ii) the Minister is satisfied that there is a high degree of support from affected communities; and

(e) he or she is satisfied that—

(i) the requirement in subsection (2) (if applicable) is met; and

(ii) there is available to road users a feasible, untolled, alternative route.

(2) The Minister, must not recommend that an existing road or part of it be tolled unless he or she is satisfied that the existing road or part is located near, and is physically or operationally integral to, the new road in respect of which the tolling revenue will be applied.

(3) If [the [[Agency]] ] has assessed an activity against any criterion in subsection (1) in the course of performing its functions and duties under section 19 or section 20, the Minister is entitled to rely on that assessment and need not separately assess the activity against that criterion for the purpose of this section.

(4) The Minister may, at his or her discretion,—

(a) recommend or decline to recommend the making of an order under section 46(1):

(b) after consulting the public road controlling authority about his or her proposal, recommend the making of an order under section 46(1) that contains provisions different from those requested by the public road controlling authority.

(5) The application of subsection (1)(d)(i) is subject to section 109.

[22] The decision provided for by ss 46 and 48 is decision to be made by the

Minister.

[23] Dr Grueber argues ALPURT B2 was not a “new road” as s 46(1)(a) requires. He also submits that the decision was pre-determined and made without proper consultation. Finally, he argues that the Minister could not have been satisfied there was a high degree of support from affected communities, as s 48(1)(d)(ii) requires.

[24] After providing in ss 46–48 for the Order in Council following the Minister’s recommendation, the Act then goes on to provide for practical issues in the event that a toll road is approved. In s 51 it provides for payment of the tolls at the time the toll

was due for payment under s 52¹⁷ and by a method required by the toll operator.¹⁸

The toll operator is the Agency. The Agency is established by s 93 of the Act. Its objective is to:¹⁹

undertake its functions in a way that contributes to an affordable, integrated, safe, responsive, and sustainable land transport system.

[25] Section 52(1) then provides the driver of a motor vehicle is liable for payment of the toll to the toll operator when the vehicle reaches the toll payment point.

[26] Section 54 provides for offences and penalties including the offence that Dr

Grueber was convicted of, namely s 54(1):

A person commits an offence if the person, without reasonable excuse, refuses or fails to pay a toll payable by that person.

[27] Having regard to that statutory context and the other relevant features of this case I consider the general principle that permits a collateral challenge as a defence is displaced in this case. A collateral challenge to the validity of the Order in Council is not available to Dr Grueber in defence of the charge under s 54 of the Act. I have come to that view for the following reasons:

(a) The statutory provisions leading to the establishment of ALPURT B2 as a toll road are quite different to and distinct from the specific provisions relating to offences under the Act. The prosecuting authority, the Agency, is removed from and has no relationship to the decision of the Minister to make the recommendation to the Governor General to establish the toll road. Although Transit New Zealand (Transit) was responsible for the consultation, for example, ultimately it was the Minister’s decision to recommend the establishment of

_{ALPURT B2 as a toll road.}²⁰

¹⁷ _{Land Transport Management Act 2003, s 51(1).}

¹⁸ _{Section 51(2).}

¹⁹ _{Section 94.}

²⁰ Transit New Zealand was confirmed by s 75 Land Transport Management Act 2003 when it was originally enacted. Transit continued from 13/11/03 to 31/7/08 when the Act was amended and the Agency created.

(b) Any challenge to the validity of the Order in Council must involve a challenge to the decision-making process undertaken by the Minister in making the recommendation. The Minister should be a party to such a challenge. The Minister and his or her office would have the documentation necessary to respond and would be able to (and entitled to) provide full evidence in response to such an attack on his decision-making process. The Agency, the prosecuting authority in this case, does not hold that material.

(c) While the Minister’s decision was not specifically directed at Dr Grueber, the process leading to the recommendation involved consultation with the community. Dr Grueber was entitled to take part in that consultation and indeed the material before the Court suggests he engaged in correspondence with the Minister about the proposed toll road.

(d) This case is quite different to the case of Boddington. An important factor in the reasoning of the House of Lords is that the bylaw in question would not necessarily have been known by a potential defendant until the offence had been committed supported the collateral challenge in that case. In this case, given the consultation and publicity concerning the toll road that reasoning does not apply.

(e) The appropriate form of challenge to the Minister’s decision is by way of judicial review. Dr Grueber has had the opportunity to take judicial review proceedings to challenge the Minister’s decision. Indeed he apparently drafted judicial review proceedings. Some of the material he relies on was prepared for the purposes of judicial review proceedings. Dr Grueber candidly advised the Court the main reason he decided not to pursue such proceedings was because of the risk of an adverse costs award.

(f) Apart from judicial review there are other means by which the decision could be challenged. The Order in Council is a regulation for

the purpose of the Legislation Act 2012.²¹ Dr Grueber could have sought to have the Regulations Review Committee review it.

[28] For the above reasons, like Courtney J, I conclude that this Court has no jurisdiction to consider the validity of the Minister’s recommendation leading to the Order in Council in the context of a prosecution or an appeal from conviction following prosecution under s 54.

Is there merit in the collateral challenge?

[29] However, in the event that I am wrong and because of the material presented to the Court I go on to consider the second issue, namely whether on the material before the Court Dr Grueber’s challenge is made out.

[30] A preliminary point is the lack of evidence to support the proposed collateral challenge. There was no evidence before the District Court to support a collateral challenge. The only witness called in the District Court prosecution was Mr Carroll, a senior business adviser for the New Zealand Transport Agency. His evidence covered the elements of the offence under s 54. Dr Grueber cross-examined Mr Carroll but the only passage of evidence remotely related to the issues Dr Grueber now seeks to raise is the following passage of evidence:

Q. Okay and – however you say in your brief of evidence that this northern gateway toll road or toll allowed the road to be constructed “10 years earlier than planned”. That’s what you said before. How do you know that to be correct?

A. That is what I had been led to believe.

There were no further relevant answers given by Mr Carroll to the issues that Dr Grueber seeks to raise on this appeal. Dr Grueber chose not to give evidence himself in the District Court.

[31] Dr Grueber subsequently sought further disclosure under the provisions of the Criminal Disclosure Act 2008. That application was determined against him.

_{Despite that, Dr Grueber has managed to obtain a number of documents which he}

²¹ Land Transport Management Act 2003, s 46(4).

has presented to the Court. The Agency has also presented a bundle of documents it has been able to obtain, in an effort to assist Dr Grueber and the Court.

[32] The difficulty with all this is that the documents and material presented to the Court in this way have not been adduced as evidence. The documents have never been verified and produced to the Court through a witness. Leave has not even been sought to lead further evidence on appeal. I recognise Dr Grueber is a litigant in person, and accept that some documents can be taken to be what they purport to be, such as Cabinet papers, draft business cases reports, the Hearing Panel Report, the report from Environmental Management Services Ltd, correspondence with the

Minister, brochures produced by Transit New Zealand and the like.²² The difficulty

remains, however, that they are only part of the picture and without a witness producing them and being available to provide further explanation of their context, there is a limit to the weight the Court can put on the submissions made on the basis of those documents.

[33] Dr Grueber also seemed to be under a misapprehension that it was for the Agency to adduce evidence to disprove his thesis. That is not the position. The Agency had to prove the core elements of the offence beyond reasonable doubt. That was done. They were effectively conceded. The presumption of validity for legislation applies. It is insufficient to merely argue invalidity, except perhaps in

cases of flagrant or patent invalidity.²³ So the issue becomes whether there was

evidence before the Court to support Dr Grueber’s collateral challenge to the underlying Order in Council.

[34] While the fundamental principle is that it is for the prosecution to prove the guilt of a defendant beyond reasonable doubt, which extends to negating to the same standard any positive defences raised, the principle is subject to exceptions. For example, in the regulatory content the burden of proving absence of fault lies with

_{the defence. It would be logical that, where a collateral challenge is raised as a}

²² Dr Grueber also included historical newspaper articles and an affidavit of William Andrew McNeilly sworn on 10 December 2004. Clearly those materials fail the test of not reasonably being able to be produced at the hearing in the District Court.

²³ Knight, above n 9, at 121; F Hoffmann-La Roche & Co AG v Secretary of State for Trade and Industry [1975] AC 295, [1974] 3 WLR 104 (HL) at 365, 131; A J Burr Ltd v Blenheim Borough [1980] 2 NZLR 1 (CA) at 4.

defence, the burden of making out the challenge should lie with the defendant (on the balance of probabilities).

[35] In Bennett v Superintendent, Rimutaka Prison the Court of Appeal noted the disparity in the burden of proof between judicial review and an application for habeas corpus, but also noted that in practice the difference in burden would be very unlikely to cause any difference in the respective applications.²⁴ Practically, placing the onus on the prosecuting authority to defend a collateral challenge (which may or may not have access to the material needed to refute the claim) could very well result

in a disparate standard between collateral challenges and judicial review. It is difficult to see how this disparity could be justified given the nature of the challenge. Given the ready availability of judicial review in New Zealand there is arguably less reason to distinguish between challenges of this nature brought collaterally in defence of a prosecution and those brought by way of review as well as a basis for coherence and consistency in procedure between the two approaches.

[36] However, it is not necessary to determine this aspect of the matter in this case, (particularly in the absence of full submissions) first because of the lack of evidence and secondly because, for the reasons that follow, I am satisfied that wherever the burden may lie in this case, the challenge to the validity of the Order in Council cannot succeed on the material that is before the Court.

[37] I turn to Dr Grueber’s collateral challenge. Dr Grueber says the consultation was not serious in that there was an effective pre-determination that ALPURT B2 would be a toll road. There is a related argument, that ALPURT B2 was not a “new road”. He also argues that the project did not have the high degree of support from affected communities as required by s 48(1)(d)(ii). Dr Grueber particularly submits the Minister wrongly relied on the inclusion of the views of Whangaparaoa residents

_{in concluding there was a high degree of support.}

²⁴ Bennett v Superintendent, Rimutaka Prison [2001] NZCA 286; [2002] 1 NZLR 616 (CA) at [70].

Consultation

[38] Dr Grueber referred to the approach taken to consultation by McGechan J in

West Coast United Council v Prebble:²⁵

Consulting involves the statement of a proposal not yet finally decided upon, listening to what others have to say, considering their responses and then deciding what will be done.

[39] Dr Grueber referred to an advertisement in the New Zealand Herald calling for expressions of interest from suitably qualified suppliers to be expert traffic and toll modelling advisers on major public/project developments. Registrations were required to be received by 17 October 2002. Dr Grueber submitted that showed that there was a pre-determination that ALPURT B2 would be a toll road. That is, however, an over simplification and highlights the difficulty in taking matters out of context and, in this case, presenting the document without any evidence to explain it. The advertisement is consistent with the then Government’s intention to consider toll roads and the introduction of public private partnerships for road development projects. But in the absence of contextual evidence the advertisement does not support Dr Grueber’s submission that there was no effective consultation as a final decision had been made in relation to ALPURT B2 by October 2002. A number of other documents before the Court suggest otherwise. For example, the Cabinet paper for the Cabinet Business Committee of 19 November 2004 records the extent of the consultation:

33. Transit undertook a process of public notices, public meetings and mail outs and appointed a consultation panel to hear submissions.

[40] Dr Grueber criticised the consultation panel, noting an article in the New Zealand Herald of 25 August 2004 reported that the panel had effectively said it saw no compelling reason why the 7 kilometre extension could not be built as a toll road:

This is despite the fact Transit needs to satisfy Transport Minister Pete Hodgson of strong local support for tolls, and that only 210 of 656 submissions gave unreserved backing.

²⁵ West Coast United Council v Prebble [1988] NZHC 32; (1988) 12 NZTPA 399 (HC) at 405; cited in Wellington

International Airport Ltd v Air New Zealand [1993] 1 NZLR 671 (CA) at 675.

That article however overlooks that the survey provided for respondents to confirm they “strongly supported” or that they “somewhat supported” the toll road. When the “somewhat support” was taken into account there was an approximate 60 per cent in favour of the toll road. Further, the article does not support Dr Grueber’s argument of pre-determination. The issue was still undetermined as at August 2004.

[41] There is no direct evidence to support Dr Grueber’s submission of predetermination nor that there was not proper consultation. To the extent the material before the Court is considered, it confirms there was a consultation process.

Was ALPURT B2 a “new” road?

[42] Dr Grueber’s related point is that ALPURT B2 was not a new road, as such. There are various decisions of the Environment Court relevant to the issue of whether ALPURT B2 was a “new road”. As counsel from the Agency submit the following emerges from a review of those decisions:

(a) On 12 February 1997 the Environment Court approved the designation for the “Link Road” between State Highway 1 and the then end of the Northern Motorway until 31 December 2003.

(b) An extension was sought by Transit, and on 24 October 2003 the time frame was extended until 1 November 2004. In the decision the Environment Court noted:²⁶

... very little physical work has been carried out on it at all. The formation of the motorway open to traffic, has only got as far as a roundabout at the end point, west of Orewa.

It appears from the draft order submitted at the time that Transit’s strategic documents had the construction of the planned ALPURT B2 starting in 2006/2007, if it was to be funded as a toll road.

(c) In August 2004, Transit sought a further extension on the basis of further progress made, including further proposals for road tolling. A

²⁶ Re Transit New Zealand EC Auckland A183/2003, 24 October 2003 at [7].

further extension until 7 February 2005 was granted on the basis that a final extension would be granted once construction had begun. The Court noted that if it became clear funding from tolls was not likely to be approved, Transit would be required to report to the Court on alternative plans for completing ALPURT B2.²⁷

(d) A further extension was sought in December 2004 and on 21 January

2005 and further extension was granted until 1 August 2005. The CEO of Transit was recorded as indicating a “high level of confidence” tolling would be approved.

(e) Additional extensions were granted until 1 September 2005, 1

December 2005, 1 December 2006, 18 December 2006, 28 February

2007, 2 April 2008 and 1 April 2009.

[43] Dr Grueber refers to the Transit New Zealand Limited draft business case from June 2004 in which it says:

In the case of ALPURT B2 there is an additional complicating factor – the original designation was granted for an untolled route. Implementing a toll road under the current designation adds complexity and, if it is not possible, Transit will need to seek an alteration to the designation. Such a process could require a notified hearing and appeals to the Environment Court.

[44] However, despite the designation, construction had not commenced in June

2004. That is apparent from the Environment Court decisions and the ALPURT B2 news bulletin issued 5 December 2004, which reports that construction of ALPURT B2 was to start on Monday, 13 December 2004. The same bulletin noted that implementation of the full construction programme remained subject to the Minister’s final decision on tolling and the statutory criteria being met which was

_{anticipated to be in March/April 2005.}²⁸

²⁷ Dr Grueber refers to a passage from the 2003 decision draft orders in which Transit accepts that

“[t]he use of the Link Road as a temporary State Highway shall cease no later than 1 November

2010” (order 6.1). He refers to this as evidence construction had to commence in 2005. There was no room for delay. However, it was clear from draft order 6.3 that Transit’s strategic documents had construction of ALPURT B2 starting in 2006/07 on the basis it would be a tolled road.

²⁸ The Order in Council was made on 11 April 2005.

[45] In this context it is relevant that s 46(1) refers to establishing a tolling scheme for one or more of the purposes of planning, design, supervision, construction, maintenance, or operation of a new road, and the definition of “new road” extends to include a lane added to an existing road.

[46] There are also two relevant Cabinet papers prepared for the Cabinet Business Committee, the first 19 November 2004 with a proposed road tolling scheme for ALPURT B2, and the second, the Cabinet Policy Committee Paper of 25 March

2005.

[47] In the 19 November 2004 paper the Minister reported that:

11. Transit is seeking the approvals necessary to construct ALPURT B2 at this time in part to demonstrate progress on building the road to the Environment Court. Since 1997, the Environment Court has required Transit to show progress on ALPURT B2 as a condition for continued use of the Link Road (the road that currently connects the terminus of the Northern Motorway to the existing SH 1 in Orewa) as a State Highway. Transit advises that the practical effect of not being able to use the Link Road as a State Highway would require closure of the motorway between Silverdale and Orewa (ALPURT B1) and returning traffic to the existing SH1 route through Silverdale.

...

13. ALPURT B2 was to have been funded fully by Transfund New Zealand (Transfund) in 2001-2002 at a then estimated cost of $145 million but was delayed by an Environment Court case. Subsequent changes in funding priorities ... resulted in urban congestion relief projects in Auckland being prioritised above ALPURT B2 by both Transit and Transfund.

...

15. Based on conservative estimates of high construction costs and low traffic volumes, Transit has estimated that the costs of advancing ALPURT B2 through tolling by 10 years could be covered by toll revenues collected over a tolling period of approximately 33 years.

The report went on to note the current proposal for an electronic free-flow tolling system before noting the Act’s requirements for tolling approval, a matter to which I return.

[48] In the ALPURT B2 Draft Business Case earlier prepared by Transit in June

2004 it was said:

The untolled programme date for ALPURT B2 is an important input into the advancement analysis for the project. Unfortunately, the untolled date for the construction of ALPURT B2 is uncertain because of a number of factors. Firstly, the project was notionally programmed as an untolled project at number 34 in the draft 2003/04 State Highway Programme. However, when the 2003/04 State Highway Programme was finalised the project was programmed at number 26 on the list but as a toll road.

Assuming the untolled project was at number 34 on the list it would have been unlikely the project would have proceeded within 10 years. For the purposes of the analysis for advancement a notional 10 year delay had been assumed. Inherent in this assumption is the understanding that the project could have been programmed later or early around this notional 10 year horizon however this was the date used for the purposes of the advancement analysis.

[49] The material before the Court satisfies me that, although ALPURT B2 may initially have been intended to be built as an untolled road, it was a “new road” as that phrase is used in s 46(1) in the sense that it did not physically exist at the time the recommendation was made. The fact that it might have earlier been planned as an untolled road (and even that construction of part of it may have commenced) did not mean that it was an existing road, or not a “new road” for the purposes of s 46(1). Nor does the fact that previous Governments may have earmarked funds for ALPURT B2 as a non-tolled road, affect its status as a new road. (It is in any event, accepted by Dr Grueber that the funds were apparently re-allocated elsewhere).

The Whangaparaoa issue

[50] The last point Dr Grueber raised was the lack of support by affected communities. He submitted the requirement for the Minister to be satisfied there be a high degree of support from affected communities was not met. Dr Grueber criticised the inclusion of the Whangaparaoa communities within the survey carried out to gauge support.

[51] “Affected communities” was, at the time defined as:

means a group of people who are affected by the proposed activity because of living, studying or working in close geographical proximity to the activity.

That definition rather begs the question however as to what can be said to be “close geographical proximity”. The document entitled “Assessing the level of support from affected communities” prepared for Transit by Environmental Management Services Ltd notes that Transit convened a technical reference group to consider alternative approaches and develop a rationale for defining “close geographical proximity.” In the absence of a definition in the legislation or relevant case law, the approach favoured by the reference group was to identify the effects of the activity and consider which of the effects could reasonably be expected to impact to a greater extent on local communities than on the general public. The effects likely to impact to a greater extent on local communities than on the general public were taken as relevant considerations in terms of defining the boundary of close geographical proximity.

[52] The reason given for including Whangaparaoa residents in the survey was:

The reference group considered the effects of traffic diversion along Grand Drive and the existing SH1 between Silverdale and Puhoi and concluded that the traffic diversion effects would affect local communities to a greater degree than the public. On this basis the reference group agreed the eastern boundary of the area in close geographic proximity to be the coast immediately east of the Silverdale interchange and extending north to the Puhoi River estuary.

This area includes the Silverdale settlement, Red Beach, the Whangaparaoa Peninsula, Orewa, Hatfields Beach and Waiwera. No attempt was made to exclude people in the few small areas between ALPURT B1/B2 and the coast, whom through a combination of topography and/or distance from the motorway or the diversion routes, might not in practice be affected.

[53] As Mr Hamlin submitted, traffic using the toll road follows State Highway 1 and shares the same route as traffic driving to the Whangaparaoa Peninsula. Residents of Whangaparaoa Peninsula intending to travel north could use the toll route or the alternative Hibiscus Coast Highway route, which would be affected by the development of the toll road.

[54] While Dr Grueber maintained his criticism of the inclusion of Whangaparaoa residents he has not provided any evidence to suggest a flaw in the above reasoning other than to assert Whangaparaoa residents are not affected by reference to a geographical map and predicted traffic forecasts/volumes material produced by

Hyder Consulting Pty Ltd. That material is an extract from a larger report which is not before the Court. It does not detract from the above reasoning.

[55] There is no evidence to support Dr Grueber’s challenge on the basis of the approach to affected communities.

[56] The level of support or opposition was broken down into both household and workplace surveys and area breakdowns. On the household surveys the totals of those supporting (strongly or somewhat) varied between 63 per cent for those living in the area and 71 per cent for those studying in the area. Work place surveys disclosed a 57 per cent level of support. In terms of the area breakdown 65 per cent of the residents of the survey participants from Whangaparaoa strongly or somewhat supported the toll road, while 60 per cent of those from the main coast strongly or somewhat supported it.

[57] Dr Grueber submitted that if the Whangaparaoa residents were removed from the survey then the remaining main coast supporters of the toll road (still a 60 per cent support base) were so few in number, as to be within the margin of error and statistically meaningless. However, for the reasons given above there is no basis for removing the Whangaparaoa residents from the survey.

[58] The support of 60 plus per cent can be said to be a high degree of support (as opposed to a low degree of support). I do not overlook that Dr Grueber submitted some of the survey recipients had only given conditional support noting amongst the reasons given for that conditional support that they already paid taxes (and inferentially expected roads to be built from that source). However, while taking that view, they still confirmed overall support for the tolled road.

[59] Further, given the variable nature of the concepts underlying the decision, namely that the Minister was required to be satisfied of a “high degree of support” from “affected communities”, I accept Mr Hamlin’s submission that it would only be if the Court could be satisfied the Minister have exercised his or her judgment in a way contrary to the true and only reasonable conclusion available on the facts that

the Court could uphold the challenge.²⁹ The concepts call for the exercise of judgment in determining if they are satisfied. The Minister’s conclusion was reasonably open to him.

Result

[60] For those reasons I am satisfied that even if collateral challenge was open to Dr Grueber, which for the reasons given above I have found it is not, the evidence does not support such a ground for review or challenge of the Minister’s decision in this case.

[61] The appeal against conviction is dismissed.

Costs

[62] The respondent has not sought to reserve the issue of costs in its submissions. I make no order for costs.

_{Venning J}

²⁹ Edwards v Bairstow [1955] UKHL 3; [1956] AC 14 (HL) at 36, applied in Vodafone NZ Ltd v Telecom NZ Ltd

[2011] NZSC 138; [2012] 3 NZLR 153 at [52].