Whanarua Beachfront Property Owners Group Incorporated Society v Opotiki District Council and Others

• Jurisdiction: New Zealand
• Judge: Moore J
• Judgment Date: 07 October 2022
• Neutral Citation: [2022] NZHC 2589
• Docket Number: CIV-2021-470-000098
• Court: High Court
• Year: 2022

UNDER the Judicial Review Procedure Act 2016

Between

Whanarua Beachfront Property Owners Group Incorporated Society

Applicant

and

Ōpōtiki District Council

First Respondent

and

Minister for Treaty of Waitangi Negotiations

Second Respondent

and

Te Rūnanga O Te Whānau

Third Respondent

[2022] NZHC 2589

Moore J

CIV-2021-470-000098

IN THE HIGH COURT OF NEW ZEALAND

TAURANGA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TAURANGA MOANA ROHE

Indigenous, Judicial Review — application for judicial review of the decision of the respondent, following a Treaty of Waitangi settlement, that certain property be administered by a joint administering body of iwi and the respondent — doctrine of legitimate expectation — representation for easement over land to grant road access to properties — Judicial Review Act 2016

Appearances:

Richard Fowler KC and Tim Conder for the Applicant

Mary Hill and Kathryn Stubbing for the First Respondent

Matthew McMenamin and Nopera Dennis-McCarthy for the Second Respondent (via VMR)

Matanuku Mahuika (via VMR), Tara Hauraki and Joanna Judge for the Third Respondent

The application for review was declined.

JUDGMENT OF Moore J

[Judicial review]

This judgment was delivered by me on 7 October 2022 at 10:00 am pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

Date:

Contents	Paragraph Number
Introduction	[1]
The land at Whanarua Bay	[5]
The existing access arrangement across Lots 66 and 75	[10]
Steps towards a grant of an easement	[13]
Intervening Treaty of Waitangi claim settlement	[21]
The Statement of Proposal	[29]
The Staff Report	[31]
Resolution to accept the proposal transferring Lot 66 to the joint administering body	[35]
The Property Owners' claim	[39]
Did the Council breach the Property Owners' legitimate expectations in making the Decision?	[41]
Is the Property Owners' expectation procedural or substantive?	[43]
The legal test for claims of legitimate expectation	[49]
What is the proper approach in this case?	[54]
Did the Council give a clear and unambiguous promise or commitment to act a certain way?	[60]
(a) Are the statements and practices relied on by the Property Owners attributable to the Council?	[62]
(b) Do the statements and practices attributable to the Council amount to a clear and unambiguous commitment to guarantee the Property Owners some form of continued access over Lot 66?	[68]
Was the Property Owners' reliance or expectation reasonable or legitimate in the circumstances?	[84]
Conclusion	[98]
Was the consultation process prior to the Decision procedurally unfair?.…	[100]
Did the Council change the terms of the consultation by deferring resolution of the access arrangement until a later date, effectively rejecting potential outcomes in advance?	[102]
Did the Council wrongfully provide additional opportunities for Te Whānau ā Apanui to respond to matters raised without advising the Property Owners or providing a right of response?	[110]
Were the resolution discussions poisoned by a member of the Council who belatedly declared a conflict of interest and was biased?	[122]
Conclusion	[128]
Did the Council fail to take into account relevant considerations or take into account irrelevant considerations when making the Decision?	[129]
Result	[134]
Costs	[135]

Introduction

1 Since the late 1970s members of the Whanarua Beachfront Property Owners Group Incorporated Society (“the Property Owners”) have used a road through a recreational reserve to access their properties. Despite this longstanding practice, the access arrangement has never been legally formalised by the grant of an easement from the owner, the Ōpōtiki District Council (“the Council”).

2 On 1 June 2021, the Council decided to approve a transfer of the land to the Te Whānau ā Apanui iwi (“the Decision”), following a Treaty of Waitangi claim settlement between the iwi and the Minister of Treaty of Waitangi Settlements. The iwi is represented in these proceedings by one of its hapū, Te Rūnanga o Te Whānau (“Te Whānau”).

3 The Property Owners seek judicial review of the Decision on the basis that:

• (a) their legitimate expectations of continuity of access were not properly considered or given effect through the consultation and decision;

• (b) the consultation process was procedurally unfair; and

• (c) the Council failed to take into account relevant considerations and took into account irrelevant considerations.

4 The Council, the Minister of Treaty of Waitangi Settlements and Te Whānau oppose the application.

The land at Whanarua Bay

5 It is first necessary to set out the history of the land at Whanarua Bay. This explains how the existing access arrangements came about and the potential for the Property Owners' beachfront properties to become landlocked.

6 An aerial photograph of the land and adjacent areas at Whanarua Bay is reproduced below: 1

7 Part of the focal land was previously Maori land known as Motuaruhe 2B. 2 In 1956, the sole owner applied to vest approximately 25 acres in the Maori Trustee. The Maori Trustee was to then subdivide the land, sell half of the sections and lease the remainder. Three sections, denoted Lots 67, 74 and 75, did not sell. They were revested in the sole owner. He died in 1976. Lots 67, 74 and 75 were transferred to his eight children.

8 Lots 67 and 74 were previously used by the beachfront property owners as a right of way. State Highway 35 (“SH35”) is visible running below the beachfront properties at the left edge of Lot 75. It appears that Lots 67 and 74 provided access to these properties from SH35.

9 The owners of Lots 67 and 74 subsequently blocked this accessway. This left the Property Owners with the only feasible access route being through Lots 66 and 75.

Although it appears from the aerial photograph that the beachfront properties back onto SH35, the bush clad incline behind the properties rises steeply over the 30 to 40 metre distance to the highway. Constructing an access driveway up such a gradient would seem to be impracticable, hence the Property Owners' claim that the present accessway is their only viable means of access.

The existing access arrangement across Lots 66 and 75

10 Following the blocking of the previous access, the Property Owners used an accessway over Lots 66 and 75. Quite how that occurred has been lost in the mists of time, but it appears that one of the owners took it upon themselves to build the road. The Council denies that at the time it knew the road was being constructed. It has, however, since allowed members of the public and the Property Owners to use it. Throughout, Lot 66 has been owned by the Council and managed as a reserve.

11 Access over Lot 75, however, has been resolved. In 2002, the Maori Land Court determined that the Property Owners had a recognised legal right to pass and repass over the Lot. It is common ground that an easement was then formally granted, although the date when this occurred is disputed. For present purposes it is sufficient to simply record that there is such an easement.

12 However, although the road over Lot 66 has routinely been used by the Property Owners to access their properties, no legal access arrangement has been formalised.

Steps towards a grant of an easement

13 Despite the lack of an enduring legal accessway, there have been multiple efforts to secure such a right. Between 2002 and 2018 discussions took place between the Property Owners and the Council. Over that period the Council and its officers made statements which the Property Owners claim led them to expect that an easement would be granted.

14 The first evidence of this is a letter dated 28 March 2002 sent from the then Chief Executive of the Council to one of the beachfront property owners. That letter said:

“It has long been accepted by Council that there is a need for some property owners to use the track through recreation reserve (Lot 66) to obtain access to their properties. These properties have legal access from state highway 35 but this is impractical and therefore their only practical access is through Lot 66.

You indicated that there is some small amount of unease that practical access through Lot 66 may be denied by Council at some time in the future. As Chief Executive I can assure you that there has never been any consideration by Council to restrict property owners access through Lot 66. Council appreciates this is as a result of a Maori Trustee mistake in the 1950's. Until this matter is resolved I cannot see Council ever restricting the use of the track subject to the following qualification:

• • Physical capability and safety of the track

• • Reserve management plan prepared pursuant to the Reserves Act

• • Any Council decision concerning the area at Whanarua Bay”

15 A few months later the Council's solicitors sent a letter dated 10 July 2002 to the Property Owners' lawyers. They said that the “appropriate mechanism” to formalise the access arrangement was to “commence the preparation of a reserve management plan for Lots 66 and 80, and at the same time to establish a right of way easement across part of Lot 66”. The letter advised that the Council had passed a resolution which included:

“… work[ing] towards establishing appropriate access easements across Lot 66 to be in favour of the Whanarua Bay property owners, the Maori owners and the Council, subject also to appropriate arrangements for maintenance and access management to the satisfaction of the Council.”

16 The Council's solicitors noted that a right of way easement across a reserve may be created under s 48 of the Reserves Act 1977 (“the Reserves Act”). A statutory notification and...