Max Barber is a Senior Solicitor with Franks Ogilvie. He joined the firm in early 2023 as a Law Clerk and was admitted as a barrister and solicitor in March 2023. Max joined the firm from BNZ, where he worked in client relations and personal banking while completing his Bachelor of Laws at Victoria University.
Since joining Franks Ogilvie, Max has been involved in all aspects the firm’s work, including litigation matters ranging from a Commerce Act appeal through to appearing at a coronial inquest, a major commercial negotiation in the biosecurity sector, and law reform projects relating to water infrastructure, local government, and primary sector governance.
A member of Tuhoe successfully challenged a decision to demolish a number of huts in Te Urewera.
In 2013, the Crown and Tuhoe signed a settlement deed that agreed, among other things, that Te Urewera would have legal personality rather than merely being a national park. Te Urewera Act 2014 (“Act”) gives effect to the settlement deed, and the deed of key importance in interpreting the Act.
The Act specifies that Te Urewera is governed by Te Urewera Board (“Board”), established under s 16 of the Act. Board members were a mix of Tuhoe - Te Uru Taumatua trustees (“TUT”) and appointees of the Minister of Conservation. The Director-General of the Department of Conservation and the chief executive of TUT are responsible for operational management of Te Urewera.
The Act requires that that TUT and DOC must prepare an annual plan for the “following year” to provide for the operational management of Te Urewera. A draft plan must be approved by the Board under Schedule 2 cl 24 of the Act before it can become final.
The Crown retains property rights in certain improvements in the area, including the hut network, but can only take certain actions in respect of them (including demolition) in accordance with the annual operational plan. The Act provides certain residual powers to the Crown to act where no annual operational plan has been agreed.
No annual operational plan was approved for the 2021/22 and 2022/23 operational years due to disagreements between the Crown and TUT.
In 2022, the Board announced its decision to demolish 43 huts in Te Urewera. Wharenui Tuna (a local hapu member who had used the huts for recreation and the gathering of food since he was a child) filed judicial review proceedings in the High Court. He claimed the Board and the Crown acted unlawfully in their decision to destroy the huts, as did TUT in acting on that decision (“Respondents”).
Tuna was granted an interim order in an earlier proceeding, which stopped any further demolition activity pending a decision in the case. Nonetheless, several further demolitions did occur, although it is yet to be discovered who was responsible.
On 24 August2023, after the interim order was granted, the respondents attempted to retrospectively validate the demolitions by approving annual operational plans for the relevant years.
Mr Tuna argued that the decision to demolish the huts was unlawful on several grounds. The actual demolition of the huts by TUT was similarly unlawful as it had been based on the unlawful demolition decision.
Failure to act in accordance with annual operational plan
Mr Tuna argued that the demolition decision had not been in accordance with a prevailing annual operational plan and was therefore unlawful.
It was not disputed that there had been no annual operational plan in place at the time the relevant actions had been taken. However, the Crown argued the plans published after the decision had retrospectively validated the decision.
The court accepted Mr Tuna’s argument that the absence of an annual operational plan meant that the demolition decision (and subsequent demolition) was unlawful. The existence of a plan was not a technical matter. The Crown’s right to exercise its powers as the owner of the huts was subject to authorisation by a relevant plan.
The court was particularly scathing about the purported retrospective adoption of the plans, which it noted was endorsed by the Crown 367 days after the end of the year to which it related. A retrospective approach was at odds with the use of future-oriented language in the Act such as “plan” and “the following year”. Additionally, the need for such a plan was not established given that the Crown could still act in relation to Crown property in the area under residual powers set out in the Act.
Breach of principles of the Act
Section 5 of the Act requires that persons performing functions under the Act must act to preserve ecological systems and biodiversity, freedom of entry and access to the area, and Tūhoetanga.
Mr Tuna argued that the decision breached s 5, because it resulted in a reduction of facilities that could be used by DOC in their biodiversity functions, as well as impeding the public from tramping safely in the area. The Crown argued that this ground should fail as the principles in s 5 were aspirational rather than legally binding.
The court agreed with Mr Tuna, holding that the imperative language used in s 5 (“must”)strongly suggested that a legal obligation was intended. While the court accepted that the Board and the Crown were entitled to significant leeway as to how they upheld these principles, there was no leeway to give in this case. Neither the Crown nor the Board had attempted to justify how the demolition decision would uphold the s 5 principles. The court would have given such a justification significant weight in line with the principle of deference had it been advanced.
Accordingly, the demolition decision was unlawful on this ground.
Failure to consult
The court rejected Mr Tuna’s argument that the Board and TUT were required to consult before the demolition decision. No party had a legitimate expectation of being consulted in relation to the decision, and there was no express or implied requirement for consultation in the Act. The presence of express consultation requirements in relation to other matters under the Act pointed strongly against an implied requirement of consultation in this case.
Additionally,this case did not fall within the rare class of case where fairness required consultation to take place.
The court did not decide on the appropriate relief and costs, ordering a further hearing. Submissions for the Crown were due in March 2024, but a hearing date has yet to be allocated.
Pending the relief hearing, the interim order will remain in place.
The case is a notable example of a senior court providing significant criticism of Crown actions during litigation. The court was particularly unimpressed with the Crown’s contention that annual operational plans were merely a ‘technical’ requirement and their attempt to validate their actions through adopting a retrospective plan.
Summary
A decision by a local authority to appoint a chair for a major council-controlled organisation was unlawful for failure to consider the relevance of knowledge of tikanga Māori.
Background
Watercare is the council-controlled organisation (“CCO”) responsible for providing water and wastewater services to Auckland. Auckland Council is the sole shareholder of Watercare, and is entitled to appoint its directors, that power being delegated to a Committee.
Section 57 of the Local Government Act 2002(“LGA”) sets out requirements for the appointment of CCO directors. Section 57(1) requires local authorities to adopt policies that set out procedures for identifying knowledge and skills in CCO directors generally. Section 57(2), meanwhile, requires that when appointing a director for a particular CCO, that the local authority is satisfied that the appointee has the necessary skills, knowledge, and experience to lead the organisation.
Section 57(3), introduced by a 2019 amendment to the LGA, states “[w]hen identifying the skills, knowledge, and experience required of [CCO directors], the local authority must consider whether knowledge of tikanga Māori may be relevant to the governance of that [CCO]”.
On 12 March 2024, Council staff reported to the Committee that Watercare needed a new chair. The staff identified that te ao Māori knowledge was a skills gap on the current board. This advice reflected wording from the Council’s overall CCO board member appointment policy, which described “knowledge of te ao Māori and established Māori networks” as a core competency for CCO directors.
Following this, the Committee nominated a selection panel, which considered a shortlist of four candidates including Person A and Mr Hunt. The panel recommended that Person A be appointed as chair, and recommended against Mr Hunt’s appointment. The judgment redacted the name of the recommended appointment, so this brief refers to them as Person A.
At the 25 June Committee meeting scheduled to consider the chair appointment, a councillor moved for Person A’s appointment, in accordance with the panel recommendation. However, another councillor moved an amendment that Mr Hunt replace Person A as the candidate (“Appointment Decision”). A majority of the Committee present and voting voted in favour, and the Council went on to announce his appointment as Watercare chair.
The plaintiff, an independent Māori board established under statute, filed judicial review proceedings against the Council
The case
The plaintiff alleged that the Appointment Decision was unlawful on three grounds. They sought a declaration to this effect, as well as orders setting aside the decision, removing Mr Hunt from his role as chair, and making the decision afresh.
First ground – Breach of standing orders
Standing Orders adopted by the Council under the LGA barred “direct negative” motions – those that, if carried, would have the same effect as defeating a motion. The Plaintiff argued that the Appointment Decision breached this rule, as it negated the purpose of the original motion (namely, to appoint Person A as chair).
The Court disagreed. In this case, the purpose of the motion was to appoint a Watercare chair, not to appoint Person A as chair specifically. The Appointment Decision achieved this objective, notwithstanding that it had substituted one candidate for another.
Accordingly, there was no breach of the Standing Orders and the first ground failed.
Ground2 – Failure to consider knowledge of tikanga Māori
The plaintiff argued that the Council had unlawfully failed to consider the relevance of tikanga Māori knowledge in the Appointment Decision.
The Council disputed this. They argued that while there was no direct consideration of tikanga Māori knowledge, s 57(3) had been met as “knowledge of Te Ao Māori” had been identified as a core director competency in the Council appointment policy and in the specific Watercare appointment criteria.
The Court rejected the Council’s arguments for two broad reasons.
First, the wording of s 57(3) clearly required consideration for each individual director appointment. Even if the overall appointment policy showed an expectation that the relevance of tikanga Māori knowledge be considered, this could not establish that such consideration had actually occurred.
Second, the Council had not in fact considered tikanga Māori knowledge at any stage. While they had considered the broader criterion of knowledge of te ao Māori (broadly translated at “the Māori world view), s 57(3) specifically referred to tikanga Māori (a narrower concept relating to rules, practices, and the right way of doing things within te ao Māori).
Knowledge of the former did not imply knowledge of the latter. Section 57(3) required the Council to give attention to knowledge of tikanga Māori specifically. As they had not done so, the Court upheld the second ground.
Ground3 – Significant decision in relation to body of water
The plaintiff argued that the Appointment Decision was a “significant decision…in relation to a body of water”. The Council had failed to consider the cultural and spiritual relationship of Māori to relevant bodies of water, in breach of s 77(1)(c) of the LGA.
While the Court did not reach a final decision on this point, it held that the Appointment Decision was probably not a decision to which ss 77(1)(c) applied. While s 77(1)(c) was likely to apply to many of Watercare’s strategic and operational decisions, the Appointment Decision related to governance, not to any specific body or bodies of water.
Result
The Court held that failure to consider the relevance of tikanga Māori knowledge rendered the Appointment Decision unlawful. The decision was set aside.
This means that the Council must make the decision again. However, in doing so, they are free to reappoint Mr Hunt, provided they comply with s 57(3) in doing so. Mr Hunt was re-appointed 3 months after his original appointment and one month after the High Court made this judgment.
This raises legitimate questions about the merit of the proceedings.
Litigants in dispute with public bodies should view this case as an illustrative example that a win in court does not mean a good return on investment.
For further information on this case or similar issues, please contact Director, Brigitte Morten.
Summary
A husband and wife were unsuccessful in claiming against a local authority for a mistaken assurance that their pool complied with the Fencing of Swimming Pools Act 1987 (“FOSPA”).
Background
In 2008, Ms Buchanan and Mr Marshall (“Plaintiffs”) purchased a property in Nelson. A selling feature of the property was its centrally located open-plan swimming pool area.
The Tasman District Council had certified in 2006 that the pool complied with the FOSPA. This was confirmed in subsequent pool inspections in 2009 and 2012.
However, the Council’s advice was incorrect– the pool had never been FOSPA-compliant. The Council made this clear to the Plaintiffs in a pool inspection in 2019, and required the Plaintiffs to undertake expensive remediation, including installing a barrier that undermined the open-plan layout of the pool area and thereby reduced the market value of the property.
It was undisputed that the Plaintiffs were outside of the statutory deadline to make a claim in respect of the 2006certification. Well-established case law recognised that the Council owed a duty of care to the Plaintiffs in respect of that certification.
To get around the claims deadline, the Plaintiffs claimed against the Council in respect of the 2009 and 2012 inspections. They argued the claim on the basis that the inspections had given them a false sense of security that the pool complied with the FOSPA, thereby depriving them of an opportunity to sue in respect of the 2006 certification within the statutory limitation period.
The Council admitted negligence but disputed the existence of a duty of care.
The case
The Plaintiffs claimed against the Council in negligence, negligent misstatement, and breach of statutory duty. They claimed damages reflecting lost market value of their property, remediation cost, and general distress.
The deciding issue in the case was whether the Council owed the Plaintiffs a duty of care in respect of the 2009 and 2012 inspections.
The High Court
The High Court found that the Council owed the Plaintiffs a novel duty of care in negligence.
They found that a duty existed because the Council, as the sole body responsible for conducting FOSPA inspections, was the appropriate party to bear responsibility for failure to undertake them properly. Their statutory function meant it was inevitable that they would provide assurances to homeowners about FOSPA compliance, and that homeowners would take their assurances as read. The court drew an analogy with well recognised duty of care councils owe to those to whom they issue building and code of compliance certificates under the Building Act.
The court found that a duty in negligent misstatement existed, largely on the same basis.
However, the breach of statutory duty claim was rejected as there was no suggestion Parliament intended that a breach of the FOSPA would be enforceable as a civil action for damages.
The court went on to find that while the 2009 inspection was barred by the 10 year limitation period under the Building Act, the 2012 inspection was within time. Accordingly, the court awarded the Plaintiffs the majority of their claimed damages for lost amenity value, remediation costs, and general distress.
Court of Appeal
The Court of Appeal held that no duty of care existed, overturning the High Court. The result was that the Plaintiff’s claim against the Council for damages failed in its entirety.
The court held that it was wrong for the High Court to analyse the matter as a novel duty of care. They should have applied the orthodox test for negligent misstatement. The requirements for a duty of care in negligent misstatement were as follows:
a) Advice is given for a purposethat is made known to the adviser (expressly or implicitly);
b) The advisor knows that advice will be communicated to advisee (individually or as a class);
c) The advisor knows that the advice is likely to be acted on without independent inquiry; and
d) The advisee acts on the advice to its detriment
Requirements (a) and (d) were not met in this case.
Requirement (a) was not met because there was no connection between the purpose for which the advice was given and the loss suffered. The court drew on prior case law that established that the existence and extent of a duty of care owed in respect of a statutory function will be coloured by the purpose of the empowering statute.
The purpose of the Council’s inspection function under the FOSPA was to minimise the risk of harm to children. However, the claimed duty related to economic interests of property owners (who were the subjects rather than the beneficiaries of FOSPA regulation) in preserving their ability to sue the Council in respect of prior acts of negligence. Recognising such a duty would have clashed with the scheme of the FOSPA.
Requirement (d) was also unmet, in that the Plaintiffs had in no way relied on Council statements in the 2009 and 2012 inspections. They were not planning to sue the Council at any point prior to 2019. Reliance on the statements may have promoted a false sense of security, but it did not lead the Plaintiffs to take any step they would not otherwise have taken.
Accordingly, no duty of care in negligent misstatement existed. Following from this, the court refused to recognise a novel duty of care in negligence, holding that to do so would cut across the already well-established law.
Result
The Plaintiffs failed in their claim for damages against the Council on the basis that no duty of care existed.
The decision has the hint of unfairness, given that the Council was admittedly negligent in their original and subsequent inspections. However, as the Court of Appeal noted, the unfairness arose as an inevitable side effect of statutory limitation periods. It was not appropriate for principles underpinning the law of torts to be distorted, however harsh the consequences may have been for the Plaintiffs.
Update: On 20 August 2024, the Supreme Court granted the Plaintiffs leave to appeal. The sole question on appeal will be whether the Court of Appeal was correct to hold that there was no duty of care owed by the Council to the Plaintiffs when carrying out FOSPA inspections.
For future information on this case or similar issues please contact Brigitte Morten, Director
