Hutt City Council v Cassells
s181(2) of the Local Government Act 2002
Two sewage pipes were buried within the backyards of two adjoining properties owned by the Cassells. The larger of these pipes serviced over 600 properties. In August 2006, a large landslip damaged the pipes and the Hutt City Council (‘Council’) carried out emergency repair works which involved suspending temporary PVC pipes over the gully created by the slip, with ground anchors on the Cassells” land.
Subsequently, the Council notified the Cassells of its intention to replace the emergency pipes under Schedule 12 of the LGA 2002 with permanent sewage pipes that would also be suspended over the gully. The Cassells objected. The Council”s hearings committee determined that the Council could proceed with the proposed works and the Cassells appealed to the District Court. On appeal District Court Judge Walker concluded that the Council was not authorised to complete the proposed work.
The Council filed an application in the High Court for judicial review of the District Council decision.
The LGA 2002 provides for the decision of the District Court to be final (and therefore not subject to appeal). However, the supervisory role of the High Court meant that the decision could be set aside if, on review, the High Court concluded that the decision was founded upon a reviewable misinterpretation of s181(2) of the LGA 2002.
Decision of the High Court
In reaching his decision, Justice Collins considered the text, purpose, context, and policy values reflected in s181(2).
Section 181(2) states:
‘A territorial authority may construct works on or under private land or under a building on private land that it considers necessary for sewage and stormwater drainage.’
The Council argued that ‘on…private land’ means above the ground anywhere within the property and that it did not matter that the sewage pipe was suspended above the gully as the support structures were attached to the land.
However, Justice Collins considered that the text of s181(2) requires a sewage pipe to be either under or placed upon the surface of the land, not suspended. He then went on to consider whether the purpose, context, and policy values supported this textual analysis.
In considering the purpose of s181(2), Justice Collins considered the provisions of the LGA 2002 more widely and recognised the obligation of the Council to maintain sewage and stormwater services. Justice Collins found that the aim of s181(2) was to balance the Council”s powers with the rights of private property owners to use and enjoy their properties. This balance is achieved by requiring:
works to be ‘under’ buildings only (ie not attached above grass level), thereby protecting owners of buildings;
that the works be necessary (ie not able to be reasonably accommodated on public land) and be undertaken in a way that minimises interference with owner”s rights;
that the owner”s consents for the works are obtained or, alternatively, that the Schedule 12 process is complied with (which sets out the procedure to be followed where the owner”s consent has not been obtained);
the Council to act reasonably; and
consideration of the interface with the Public Works Act 1981 (‘PWA’), which is specifically referred to in s181(6) and enables the Council to acquire the private land.
Justice Collins went on to consider the legislative history of the provisions, the interface with the PWA and a comparison with other legislation. He found that:
Based on the legislative history, since 1980 the Council has been required to obtain either written permission of the landowner or to follow the Schedule 12 procedure before placing a sewage pipe on or under private land and that, over time, more weight has been given to the rights and interests of private landowners.
Section 181(2) is subject to the PWA which enables the Council to compulsorily acquire a specific property interest. Justice Collins considered it significant that this option (ie land acquisition) was available to the Council if the powers under s181(2) were not sufficient to authorise construction of the suspended works.
The word ‘over’ had been used in other related statutory provisions to clearly provide for work over (as opposed to on) land. If s181(2) was intended to grant the Council the power to erect works in the zone above the surface of the land it should have been expressly stated, which was not the case. It is interesting that Justice Collins drew a distinction between s181(2) of the LGA and s38 of the Canterbury Earthquake Recovery Act 2011, which includes ‘the erection, reconstruction…of all or any part of any building structure, or other erection on or under land’, finding that in the case of the CERA legislation the Act refers to structures that may ‘normally be a significant height above the ground’.
Justice Collins summarised the policy values within s181(2) as being to ensure that the decision-maker not curtail the rights of private landowners more than is clearly required by the text of the legislation. This was to balance the rights of landowners with the duties and powers of the Council.
The text of s181(2) alone was not conclusive. However, when the purpose, context, and policy of the section were analysed, the conclusion was that the Council”s proposed works were not authorised by s181(2).
The decision of Judge Walker was endorsed and the Council”s application for judicial review was dismissed.