Post on 13-Jan-2022
WEIR v KAPITI COAST DISTRICT COUNCIL [2013] NZHC 3516 [19 December 2013]
IN THE HIGH COURT OF NEW ZEALAND
WELLINGTON REGISTRY
CIV-2012-485-2577
[2013] NZHC 3516
UNDER
the Judicature Amendment Act 1972 and
Part 30 of the High Court Rules
IN THE MATTER OF
an application for judicial review
BETWEEN
M and V Weir
Applicants
AND
KAPITI COAST DISTRICT COUNCIL
Respondent
COASTAL RATEPAYERS UNITED INC.
Intervenor
Hearing:
24 June 2013
Counsel:
P Milne and G Holgate for Applicants
T C Stephens and S Fairbrother for Respondent
M Smith for Intervenor
Judgment:
19 December 2013
INTERIM JUDGMENT OF WILLIAMS J
Background
[1] The coast is a dominant social, cultural and economic feature of life in these
islands. The coastline itself is constantly evolving, but the climate change
phenomenon seems to be accelerating and accentuating the processes that drive these
changes. This case is about how coastal communities are learning to cope with both
the inevitability of marine incursion onto the foreland, and the difficulty of
predicting where and at what rate, incursion will occur.
[2] The site of this debate is the humble LIM: the local authority’s land
information memorandum familiar to every purchaser of property in New Zealand.
The question is how much information about future changes to the shoreline must be
included in a LIM.
[3] In 2005, the Kapiti Coast District Council (KCDC or the Council)
commissioned Dr Roger Shand, an applied coastal scientist, to undertake a coastal
hazard erosion assessment for the Kapiti Coast District. He issued two reports – one
in 2008 and a second final report in 2012. These reports have provided the scientific
basis for the Council’s coastal erosion planning going forward.
[4] When the second Shand Report was delivered in August 2012, the Council
decided to place on its cadastral maps, a series of coastal erosion hazard “prediction
lines” derived from Dr Shand’s findings. These lines covered the entire
38 kilometres of open coastline within the Kapiti Coast District, together with the 12
separate river or estuarine inlets along that length. The lines predicted the possible
extent of incursion of the shoreline at 50 years and 100 years from the present day.
There were two separate 50 year lines – a “managed line” (in areas where there are
coastal protection structures operated by the Regional Council) in which it is
assumed the Regional Council’s coastal protection structures are maintained by that
Council at current levels; and an “unmanaged line”, predicated on the Regional
Council allowing current protection structures to fail over time without repairing or
replacing them, or applicable where, as in most of the coastline, there are no such
structures. The 100 year line was “unmanaged” only. There was no ‘managed’
equivalent – presumably because over 100 years, sea incursion was predicted to be
so significant that no realistic coastal protection measures could succeed in holding
back the tide.
[5] 1800 coastal properties in the Kapiti Coast District were affected by these
new lines in some way. For most, the lines bisected their titles on the Council
cadastral, the 50 year managed prediction line shaving off a few metres of beach
frontage, the 50 year unmanaged lines, a little more, while the 100 year unmanaged
line penetrated more deeply. In some cases though, the relevant line completely
overtook the title indicating that the entire property could become swamped by sea
within the relevant prediction period. Dr Shand adopted sea level rise indices of
0.3m over 50 years and 0.9m over 100 years.
[6] The applicants in this case, the Weirs, own a property in Olliver Grove,
PekaPeka South. It is bisected by the Shand 100 year line. The intervenors Coastal
Ratepayers United (CAU) represent many more land owners whose properties are
affected by one or more of the lines.1
[7] As Dr Shand was at pains to point out in his report, these lines were not based
on any probability assessment. Coastal science, he said, was not yet sufficiently
sophisticated to attach probabilities to any particular lines. Rather, his lines were
“deterministic”. They identified a single worst case under each of the three scenarios
– 50 year managed and unmanaged and 100 year unmanaged. They were calculated
on an intentionally precautionary basis. For example, they do not factor in coast line
accretion even though it is known that accretion is occurring in some parts of the
Kapiti Coast including at the Weirs’ frontage. Dr Shand says accretion was written
out of the assessment because science cannot yet predict where accretion will occur
or at what rate. As a result, the Shand lines predict the worst that could happen over
50 and 100 years absent the most extreme set of environmental circumstances. In
short, the lines predict the maximum width of coastal land likely to be impacted by
coastal erosion over 50 and 100 years.
[8] Ultimately, the Council plans to use these lines to ground coastal land use
planning controls in its review of the Kapiti Coast District Plan. The new Proposed
District Plan was notified in November 2012. Chapter 4 – the coastal environment
chapter – contains proposed “no build” areas and “relocatable build” areas based
around the Shand lines. Building seaward of these lines would either be prohibited,
or only allowed if the building itself was relocatable. Submissions on Chapter 4
closed at the beginning of April this year and the period during which cross-
submissions may be lodged commenced in the second half of 2013.
[9] It is in the context of the plan review process involving hearings before
independent Council appointed commissioners, and possible merits appeals to the
Environment Court, that Dr Shand’s science will be fully tested. As will the
1 A memorandum was also filed, with leave, by Mr Maassen on behalf of the North Otaki Beach
Residents Group Inc. That group of residents are also affected by the Shand lines, although
apparently to a somewhat lesser extent. I will come back to those submissions at the end of the
judgment.
proposed planning controls I have outlined above, all of which are built on that
science.
[10] The Shand Report was, it was said, completed as required by the
New Zealand Coastal Policy Statement (NZCPS) which came into effect in 2010.
The fact that the NZCPS was promulgated after the first Shand Report in 2008,
explains why a further iteration of that report was produced in 2012. Policy 3 of the
NZCPS mandated a precautionary approach to regulation of the coastal environment.
It provides:
(1) Adopt a precautionary approach towards proposed activities whose
effects on the coastal environment are uncertain, unknown, or little
understood, but potentially significantly adverse.
(2) In particular, adopt a precautionary approach to use and management
of coastal resources potentially vulnerable to effects from climate
change, so that:
(a) avoidable social and economic loss and harm to
communities does not occur;
(b) natural adjustments for coastal processes, natural defences,
ecosystems, habitat and species are allowed to occur; and
(c) the natural character, public access, amenity and other values
of the coastal environment meet the needs of future
generations.
[11] Paragraph 24 relates to the identification of coastal hazards. It requires
hazard risks to be assessed over at least 100 years. That requirement in particular, is
why Mr Shand went back to the drawing board in 2012, his first report only
providing for 50 year predictions. Policy 24 provides as follows:
(1) identify areas in the coastal environment that are potentially affected
by coastal hazards (including tsunami), giving priority to the
identification of areas at high risk of being affected. Hazard risks,
over at least 100 years, are to be assessed having regard to:
(a) physical drivers and processes that cause coastal change
including sea level rise;
(b) short-term and long-term natural dynamic fluctuations of
erosion and accretion;
(c) geomorphological character;
(d) the potential for inundation of the coastal environment,
taking into account potential sources, inundation pathways
and overland extent;
(e) cumulative effects of sea level rise, storm surge and wave
height under storm conditions;
(f) influences that humans have had or are having on the coast;
(g) the extent and permanence of built development; and
(h) the effects of climate change on:
(i) matters (a) to (g) above;
(ii) storm frequency, intensity and surges; and
(iii) coastal sediment dynamics;
taking into account national guidance and the best available
information on the likely effects of climate change on the region or
district.
[12] Meanwhile, on receipt of the final Shand Report in August 2012, senior
management within the Council took the view that the report was information caught
by s 44A(2)(a) of the Local Government Official Information and Meetings Act 1987
(LGOIMA). That section relates to LIMs. It provides:
The matters which shall be included in that memorandum are–
(a) information identifying each (if any) special feature or characteristic
of the land concerned, including but not limited to potential erosion,
avulsion, falling debris, subsidence, slippage, alluvion, or
inundation, or likely presence of hazardous contaminants, being a
feature or characteristic that–
(i) is known to the territorial authority; but
(ii) is not apparent from the district scheme under the Town and
Country Planning Act 1977 or a district plan under the
Resource Management Act 1991.
[13] The Council considered that the information in the Shand Reports, including
the predicted shorelines, met the description in paragraph (a). That is that it
contained information:
identifying a special feature or characteristic of the land;
in particular, potential erosion;
that, as a result of the Shand Reports, is known to the Council; and
is not apparent in the Kapiti Coast District Plan. The definition of
District Plan in the Resource Management Act does not cover a Proposed
District Plan.
[14] This in turn meant, in the view of officials, that any applicant for a LIM in
relation to a coastal property affected by the Shand lines, must be notified in the LIM
of the Shand Reports’ conclusions as they affect that property.
[15] Officials considered that subsection (6) of s 44A removed from the Council
any discretion in that respect. Subsection (6) provides:
Notwithstanding anything to the contrary in this Act, there shall be no
grounds for the territorial authority to withhold information specified in
terms of subsection (2) or to refuse to provide a land information
memorandum where this has been requested.
[16] Emily Thompson, Senior Analyst at the Council, included in her affidavit an
example of the information placed in LIMs as a result of the Shand Reports. The
information is a five page document – including two pages showing the unmanaged
50 and 100 year lines across the particular title in question. The 50 year line cuts a
sliver off the beach frontage. The 100 year line encroaches to within a few metres of
the dwelling on site. The lines capture the viewer’s attention immediately.
[17] The written information by contrast to the eye catching simplicity of the
lines, is relatively dense. Among other things, it confirms that these prediction lines
are worst case scenarios and that they are not site specific assessments but are
instead “local level” in scale. It also confirms that no account has been taken of
privately owned protective structures such as sea walls, nor of shoreline accretion,
even though the Council is aware that some parts of the coast are presently
“undergoing long term accretion”. This issue is of particular relevance and
significance to the applicants. They say contrary to Dr Shand’s prediction, their
coastline has been advancing in a seaward direction for some years.
[18] As noted in [7] above, accretion was excluded as a relevant factor because of
Dr Shand’s advice that current understanding of accretion processes is too imperfect
to make any useful prediction of their effect on shoreline change on the Kapiti Coast.
[19] The LIM information also notes that a 100 year sea level rise of 0.9m is
adopted in the Shand predictions, and that the Council takes a precautionary
approach to any uncertainties in predictive modelling.
[20] In summary form, those are the facts, or at least sufficient of them to resolve
the legal controversy before me. I turn now to address the issues raised. I begin
with certain objections that Mr Stephens on behalf of KCDC took with respect to
certain affidavit evidence filed by the applicants and the intervenor. I then turn to the
substantive debate.
Admissibility objection
Arguments
[21] KCDC objects to admitting the affidavits of the following witnesses who
purported to give opinion evidence on areas within their expertise: Jeffery Ashby as
a geologist; Christopher Packer as a real estate expert; Donald Frampton as a coastal
scientist; Sharon Strong as an expert valuer; and Bryce Wilkinson as a public policy
expert.
[22] These affidavits are objected to both because they have each of them failed to
comply with cls 3(a), (b) and (c) of the Code of Conduct for expert witnesses, and
because the deponents are each of them, owners affected by the decision under
review. Alternatively, Mr Stephens argued that, if they are admissible, then they
should be given little or no weight.
[23] There was a further objection with respect to the evidence of
Willem de Lange, a coastal scientist. He provided the challengers’ primary counter
to the Shand Reports. Although this evidence was filed in reply, KCDC complains
that it is in fact evidence in chief, and is filed well out of time. Mr Stephens pointed
out that a fixture in this matter had already been adjourned once due to the late filing
of evidence but the de Lange evidence, upon which the applicants placed much
weight, was filed a week and a half prior to the new fixture. This, Mr Stephens
argued, was in such gross breach of both the letter and spirit of successive
timetabling orders, that the affidavit should not be read.
Analysis
[24] In dealing with public interest litigation being advanced by unfunded or
poorly funded community groups against public authorities, there is a need to give
such groups some latitude so as to ensure that the actual dispute is fully and properly
aired before the court. Here Mr Weir began the process by acting for himself and his
wife but instructed counsel at a very late stage. The ratepayers’ organisation also
instructed counsel but it is clear that they too are operating on a very limited budget.
[25] Evidence from experts who have their own interest in public issue litigation
of this kind will still be admissible, although the court must be alive to issues of
objectivity, and the weight accorded such evidence may be affected accordingly. As
to Mr de Lange’s evidence, it simply seems to underscore the point that the science
deployed by Dr Shand (and the scientists who reviewed his work for KCDC) is both
hotly debated and (all readily accept) imperfect. Mr de Lange’s evidence must be
admissible for that purpose and I have read it accordingly. I do not see how KCDC
is unduly prejudiced by the applicants being given an opportunity to demonstrate
how and why the science of predicting coastal erosion hazard is so controversial.
The point is probably obvious anyway. Beyond that of course, it is not the role of
this court on judicial review to choose whose science it prefers.2
[26] I hold the affidavits to be admissible accordingly and they have been read.
2 In that respect see New Zealand Climate Science Education Trust v National Institute of Water
and Atmospheric Research Ltd [2013] 1 NZLR 75 at [48] and New Zealand Pork Industry Board
v Director-General of the Ministry of Agricultural and Forestry [2012] NZHC 888 at [111].
The Court’s role on review in this case
Arguments
[27] Mr Smith for CRU argues that this is essentially a case about the
interpretation of s 44A(2) of the LGOIMA. It is therefore, he said, a case within the
core competency of the court and it is not appropriate for the court to take a
deferential approach on judicial review as suggested by the Court of Appeal in
Wellington City Council v Woolworths New Zealand Ltd.3
[28] KCDC argued that there is no room for discretion under s 44A(2) and judicial
review is either entirely inappropriate or very narrow in compass. If the information
in question fits the description in subsection (2) then it must be included in the LIM.
Secondly, while construing that description is a matter of interpreting the subsection,
KCDC argued that the rules for construing imprecise statutory language such as that
contained in subsection (2) are different where the description is imprecise. It is
sufficient, the Council argued, relying on the Supreme Court judgment in Vodafone v
Telecom that the decider applies a rational construction of the language to the
particular facts, even if different deciders each acting rationally might reach different
conclusions in applying the imprecise language to the particular case.4
Analysis
The legislation
[29] Provision for LIMs was introduced into LGOIMA in 1991 by way of the
LGOIMA Amendment Act 2003. Paragraph (a) of the clause upon which this case is
focused was contained in the original draft, but a number of additional categories
have been added since that time. As William Young P (as he then was) noted in the
Byron Avenue case:5
The LIM system was introduced as part of the same statutory package as the
Building Act 1991 and was plainly intended to promote a simple mechanism
by which potential purchasers can inform themselves as to potential property
risks.
3 Wellington City Council v Woolworths New Zealand Ltd [1966] 2 NZLR 537.
4 Vodafone v Telecom [2011] NZSC 138, [2012] 3 NZLR 153 at [54] to [55].
5 O’Hagan v Body Corporate 189855 [2010] NZCA 65, [2010] 3 NZLR 486 at [136].
[30] The LIM was created to empower purchasers in the real estate market by
giving them access to information that could affect price, land suitability or even
saleability. For that reason, speed of delivery and certainty of information to be
provided were built into the design. LIMs have to be provided by councils within 10
days of application,6 and the 11 categories of information described in subsection (2)
must be supplied to the applicant. There are no grounds for the Council to withhold
subsection (2) information, or more generally to refuse to provide a LIM.7
[31] I have cited some parts of s 44A, but it is useful to set out subsection (2) in
full. The categories of information described in subsection (2) are as follows:
(a) information identifying each (if any) special feature or characteristic
of the land concerned, including but not limited to potential erosion,
avulsion, falling debris, subsidence, slippage, alluivion, or
inundation, or likely presence of hazardous contaminants, being a
feature or characteristic that–
(i) is known to the territorial authority; but
(ii) is not apparent from the district scheme under the Town and
Country Planning Act 1977 or a district plan under the
Resource Management Act 1991:
(b) information on private and public stormwater and sewerage drains as
shown in the territorial authority’s records:
(ba) any information that has been notified to the territorial authority by a
drinking-water supplier under section 69ZH of the Health Act 1956:
(bb) information on–
(i) whether the land is supplied with drinking water and if so,
whether the supplier is the owner of the land or a networked
supplier:
(ii) if the land is supplied with drinking water by a networked
supplier, any conditions that are applicable to that supply:
(iii) if the land is supplied with water by the owner of the land,
any information the territorial authority has about the
supply:
(c) information relating to any rates owing in relation to the land:
(d) information concerning any consent, certificate, notice, order, or
requisition affecting the land or any building on the land previously
6 Local Government Official Information and Meetings Act 1987, s 44A(1).
7 Section 44A(6).
issued by the territorial authority (whether under the Building Act
1991, the Building Act 2004, or any other Act):
(e) information concerning any certificate issued by a building certifier
pursuant to the Building Act 1991 or the Building Act 2004:
(ea) information notified to the territorial authority under section 124 of
the Weathertight Homes Resolution Services Act 2006:
(f) information relating to the use of which the land may be put and
conditions attached to that use:
(g) information which, in terms of any other Act, has been notified to
the territorial authority by any statutory organisation having the
power to classify land or buildings for any purpose:
(h) any information which has been notified to the territorial authority
by any network utility operator pursuant to the Building Act 1991 or
the Building Act 2004.
[32] It will be seen at once that all categories of information other than that set out
in (a) relate to standard Council-sourced or received information pertaining to water,
drainage, rates, building consents, leaky building issues, land use rules and
permissions, land use or building classifications, and network utility operator issues.
It will, I suggest, always be a straightforward matter to determine whether a
document on file fits the particular description in s 44A(2)(b)–(h).
[33] Paragraph (a) is altogether different. There are a number of components in
this paragraph to which I will return below, but for now it is sufficient to note that
whether the potential for erosion (amongst other things) is a special feature of the
land in question, is inevitably going to require a judgement call on the part of some
official. The necessity for judgement in applying the words of paragraph (a) to the
application in question, very much distinguishes paragraph (a) from the other
paragraphs. Latitude is plainly required in that respect, in light of the administrative
and non-discretionary format of the section; the volume of applications that must be
addressed by Council on an annual basis, and the mandatory and short timeframe
available to process LIM applications.8
[34] That said, it is not the case that the Council will make a decision on whether
to include the Shand lines in relation to any particular property on a LIM by LIM
8 I understand that KCDC receives on average three such applications a day.
basis. In fact, in this case, the Council’s senior management team made a general
decision after careful consideration of the Council’s statutory obligations, to include
the Shand lines on Council maps believing that KCDC was duty bound to do so
because the Shand Reports and lines fitted the paragraph (a) description. That
decision at senior management level was subsequently noted by the Council itself at
a Council meeting. So the decision to include in the LIM, the particular information
at issue in this case, was far from administrative in nature. It was carefully
considered over a longer timeframe than the 10 day statutory timeframe. Mr
Stephens’ argument that these decisions are workaday administrative ones does not
really fit the unique circumstances of this case.
[35] I note also that, if there is an obligation to include the Shand lines on the
LIM, that obligation lasts only so long as they have not been transposed onto the
Operative District Plan as a result of the statutory district plan review process. That
is the process in which Dr Shand’s science and the reliability of his 50 and 100 year
lines will be put to the test by the affected community. I must be careful not to usurp
the role of the review under cover of a purported exercise in statutory interpretation.
[36] But I must still in the end be satisfied that the information referred to in the
LIM fits the description in paragraph (a) in light of the text and purpose of s 44A and
the practical context within which it applies in this case. I derive no particular
assistance from considering broader abstract contentions about the intensity of
review beyond the obvious and constantly useful markers to which I have just made
reference.9
[37] I will turn to the words of s 44A(2) below, but I note here the purposes and
principle of the LGOIMA is set out in ss 4 and 5. I realise that s 44A was parachuted
in to the LOGIMA, four years after its enactment, but that does not mean that the
purposes and principles of LGOIMA do not apply to it. On the contrary, the fact that
s 44A was placed in LGOIMA indicates that where applicable, the legislature must
have intended that ss 4 and 5 applied to s 44A. The relevant purpose is in my view
contained in s 4(a):
9 See for example, Commerce Commission v Fonterra [2007] 3 NZLR 767 (SC) especially at [22]
per Tipping J as the classic modern New Zealand restatement of these principles.
To provide for the availability to the public of official information held by
local authorities…
[38] I do not consider that s 4(c) relating to the protection of official information
in the public interest, and the preservation of personal privacy has application in this
case. The Shand Reports do not raise any privacy issues and there are no relevant
public interest bases for withholding the reports. The interest based considerations
argued for by the applicants and the intervenor are private interests rather than public
ones.
[39] Section 5 provides:
The question whether any official information is to be made available, where
that question arises under this Act, shall be determined, except where this
Act otherwise expressly requires, in accordance with the purposes of this Act
and the principle that the information shall be made available unless there is
a good reason for withholding it.
[40] That section seems more focused on the exercise of discretion, than the
interpretative exercise with which I am primarily pre-occupied here, nonetheless the
flavour of this legislation is to disclose unless there is good reason for withholding.
The terms of s 44A(2)
[41] There are various ways in which the terms of paragraph (a) can be sliced.
Mr Smith suggested as many as six elements to be addressed and separately
construed: is the Shand Report (a) information, (b) that identifies, (c) potential
erosion, (d) as a special feature or characteristic of the land concerned, (e) that is
known to the territorial authority, and (f) not evident on the district plan.
[42] I have found it more useful to assess the applicability of the subsection by
asking three key questions:
(a) Does the information in the Shand Reports (including the 50 and 100
year prediction lines) relate to potential erosion?
(b) Does that information relate to a feature or characteristic of the
applicants’ land (or indeed any other individual title)?
(c) Is it information that is “known” to KCDC?
These questions I hope address each of Mr Smith’s elements, but in a way that is less
fragmentary. I simply assume the Shand Reports are information. I cannot see how
they can be anything else.
Potential erosion
Arguments
[43] Mr Milne, for the Weirs argued that the Shand Report did not relate to
potential erosion and therefore did not qualify as information to be included under
paragraph (a). That was because, as the reports themselves confirmed, their
prediction lines are deterministic, not probabilistic. They do not assess the
probability of erosion occurring all the way to the 50 and 100 year lines over those
respective timeframes. Thus, there is, Mr Milne argued, no way of knowing how
reliable the lines are. They cannot therefore be considered to reflect potential
erosion at all. “Potential”, he said, requires an assessment of probability of the
hazard actually eventuating.
[44] Mr Smith argued that the Shand lines are in fact no more than speculative.
That is partly because the lines ignore obviously relevant factors in relation to
predicting coastal erosion such as accretion history at the location, land contour, and
privately owned coastal protection structures. Although Mr Smith accepted that
“potential” is capable of a very wide meaning – merely possible – a narrower
meaning should, he argued, be adopted here. Where otherwise would the line be
drawn, he asked? Earthquakes and meteor showers are all possible too, he argued.
Should they also be referred to on the LIM?
[45] Mr Smith argued further that “potential” erosion should be interpreted
consistently with the adjective adopted in relation to the second sub-category of
examples in paragraph (a), namely the “likely” presence of hazardous contaminants.
Mr Smith argued that the use of “likely” in that context suggests that potential should
be construed narrowly.
[46] Mr Stephens on the other hand argued that “potential” should be given its
fullest meaning – “possible or capable of coming into being”. He argued that Dr
Shand’s deterministic predictions were necessary because probabilistic analyses of
coastal erosion are not scientifically feasible at this point. He argued that predicative
timeframes of at least 100 years are required by the NZCPS and it is simply not
possible to be exact over that required timeframe. All scientists who filed evidence
in this case agreed with that proposition.
[47] It is also reflected, Mr Stephens argued, in the Ministry for the Environment’s
Coastal Hazards and Climate Change Guidelines:10
Coastal erosion, on the other hand, at present tends not to be expressed
probabilistically. As it is an ongoing process (a creeping hazard) it is usually
defined as the expected position of the coast at a certain future point in time.
[48] The thrust of the evidence of scientists for KCDC was that the lines provide a
sound worst case prediction over the assessment period using orthodox and up-to-
date methods, together with an appropriately precautionary approach as required by
the NZCPS.
Analysis
[49] The Shand Reports do contain information in relation to potential erosion.
The term erosion is to be construed widely in accordance with the purpose of s 44A
which is to inform the market of special features or characteristics of the land that
may affect value, suitability or saleability. Incursion from the sea is erosion.
“Potential” is to be distinguished from “likely” as the two terms are used in
paragraph (2). Information in relation to hazardous contaminants must show that
they are “likely” to be present in the land before the duty to include that information
in a LIM is triggered. “Likely” is the standard because it relates to a present fact or
probability – discernible to a certainty if necessary by testing. Presumably that is
why subsection (5) which declares the information in the LIM to be sufficient
evidence of its “correctness”, is subject to the important rider that the sufficiency
presumption applies only “[i]n the absence of proof to the contrary”.
10
Coastal Hazards and Climate Change, a guidance manual for local government in New Zealand
(Ministry for the Environment), 2nd
ed, July 2008) at 5.3.3.
[50] The point is that “likely” unquestionably refers to probability – specifically a
state of facts that is more probable than not.
[51] The future possibility items are different. Erosion, avulsion, falling debris,
subsidence, slippage, alluvion, or inundation all refer to physical effects on the land
that have not yet occurred and, it is accepted, may never occur. I consider that the
drafter carefully selected the term “potential” as opposed to “likely” when referring
to these possible future events. That is because it is not feasible to attach
probabilities to them. Instead, there is an obligation to refer in the LIM to
information held by the Council and relating to such future events only if there is a
possibility that they may occur in the future. By possibility, I mean a reasonable
possibility objectively determined.
[52] In my view, the assessment by Shand does raise such reasonable possibilities
objectively determined. He admits that his lines are a very worst case scenario,
partly because he has removed certain mitigating factors from the calculation on the
basis that science has not yet worked out how to reliably include them. But a worst
case scenario objectively identified and evidentially based, must, by definition, be a
reasonable possibility – albeit the worst one. Indeed, the worst case is the boundary
line between reasonable possibility and mere speculation.
[53] I am satisfied that Mr Shand’s science is sufficiently robust to satisfy that
relatively low threshold requirement. Of course I say nothing at all about whether
the Shand Report and the Shand lines should survive a more rigorous merit-based
review through the District Plan Review process under the Resource Management
Act 1991. That is not my arena.
Does that feature relate to the applicants’ land (or indeed any other title)?
Arguments
[54] Mr Milne argued that the information in the Shand Reports does not relate to
any specific land and therefore cannot meet the description of “special feature or
characteristic of the land concern” as required by paragraph (a).
[55] That, Mr Milne argued, is because the assessment undertaken by Dr Shand
was never site-specific. No assessment was made, he argued, of the particular
features or characteristics of any individual lots to which LIMs will attach. Rather,
his assessment was done at the “local” level. The practical effect of this was, as I
have said earlier, that Dr Shand took no account of information that might have a
particular impact on erosion at the site, such as any history of accretion, the presence
of privately owned coastal protection structures or individual land contours that
might affect the extent of incursion on a site-specific basis.
[56] Mr Smith echoed that submission and added that the requirement that LIM
information must relate to particular land was intentionally built into s 44A. He
cited the Explanatory Note to the Building Bill in relation to what would become
s 44A. The Explanatory Note provided that LIMs:
… will contain information held by a territorial authority in relation to a
particular area of land, for instance whether the land is subject to subsidence,
or whether there are [orders] or consents affecting the land.
[57] Mr Stephens argued that the information does not need to be land specific. It
is sufficient, he argued, that Dr Shand’s local level analysis will be the basis for site-
specific development controls. There is therefore a specific connection to particular
land sufficient to require the Council to advise the market of the existence of the
information held.
Analysis
[58] I agree that the information is sufficiently site-specific to be caught by
paragraph (a). Information can relate to a special feature or characteristic of the land
without a site-by-site analysis being undertaken. The special feature or characteristic
of all land the subject of the Shand lines is that it is situated on the coast at a time of
gradual sea level rise. The Shand analysis is an assessment of the potential erosion
effect of that general trend. His conclusions in that regard may be right or they may
be wrong – that is to be assessed in a separate process. The analysis may or may not
be sufficiently “granular” to withstand attack in that other process. But, it is
unquestionably about potential erosion as a special feature or characteristic of all
coastal land along the Kapiti Coast, and therefore of every individual property fitting
that description. Here, the Council is trying to warn the market about the potential
local effects of a global phenomenon. It would be inconsistent with the purpose of
s 44A if that could not be done because a far more expensive site-by-site analysis is
required but unaffordable.
[59] The sound approach, in my view, is to leave challenge to the site-by-site
analysis to the plan review process and in the meantime, to think far more carefully
about how the Shand information is actually recorded on the LIM.
Is the Shand information “known to” KCDC?
Arguments
[60] Mr Milne argued that the information in the Shand Reports is not “known to”
KCDC because neither Dr Shand nor the Council know how probable the posed
outcomes at 50 and 100 years are. Mr Milne relied on s 44A(5) in particular. This
provides:
In the absence of proof to the contrary, a land information memorandum
shall be sufficient evidence of the correctness, as at the date of its issue, of
any information included in it pursuant to subsection (2).
[61] This provision deems the LIM to be sufficient evidence of the correctness of
the information it contains in the absence of proof to the contrary. That requirement
operates, Mr Milne argued, as an implied filter on the kinds of information caught by
paragraph (a). Only information that is known to a reasonable degree of certainty
was, he argued, intended to be caught. That is to read paragraph (a) consistently
with the other paragraphs in subsection (2). Other information can be included, but
such inclusion is via the discretionary provision in subsection (3). That subsection
provides:
In addition to the information provided for under subsection (2), a territorial
authority may provide in the memorandum such other information
concerning the land as the authority considers, at its discretion, to be
relevant.
[62] Mr Smith argued that “known” was used intentionally. The legislature could
have used “has notice of” or “is aware of”, if paragraph (a) was intended to relate
merely to information received by the Council, rather than information processed
such that it is “known” to the Council. Mr Smith cited the Collins English
Dictionary to the effect that to “know” is “to be or feel certain of the truth or
accuracy of (a fact, etc).11
Thus, it was argued that KCDC must be certain of the
truth or accuracy of the Shand predictions in order to be required to include that
information in the LIM.
[63] Mr Stephens argued that “known to” the Council means what it says. In this
case, KCDC commissioned Dr Shand to produce his reports and they were presented
to and noted by the Council at a formal Council meeting. There is no doubt, he
argued, that the Shand Reports are known to the Council in accordance with
paragraph (a). The requirement that the information be known was not, he argued,
intended to benefit landowners by restricting the amount of information making it
through the LIM process. Rather, Mr Stephens argued, it was designed as a
safeguard for the Council. It ensures that there is no obligation (and therefore no
responsibility) to put on a LIM, information that is not known to the Council.
Analysis
[64] I agree that the Shand Report and its implications are “known to” Council as
required by paragraph (a). The Council needs to know about the report but it does
not need to believe that the predictions in them are accurate or even probably
accurate. The subsection (5) deeming provision does not change matters. It does not
mean that only probabilistic predictions can be placed on a LIM. “Correctness” in
subsection (5) must mean correct according to its own terms and within its stated
limitations. Subsection (5) must be read alongside the express predicting wording in
paragraph (a). That paragraph relates to potential erosion (amongst other potential
physical effects), not probable erosion and certainly not inevitable erosion. It is
illogical therefore to read the “known to” requirement as if it cancelled the meaning
of “potential” out or narrowed it so as to have the same meaning as ‘likely’ as used
in relation to contaminants.
Conclusion in respect of s 44A(2)(a)
[65] I conclude therefore that the Shand Reports –
11
Collins Dictionary of the English Language (London: Collins, 1979).
(i) contain information that relates to potential erosion;
(ii) being a special feature or characteristic of the individual titles
including the land of the applicants; and
(iii) that is known to the Council and not evident on the District Plan.
[66] Some reference to that information must therefore be included on LIMs in
relation to affected titles if there is to be compliance with s 44A(6). For what it is
worth, these findings seem to be consistent with the spirit and intendment of the
purposes and principles of the Act set out in ss 4 and 5.
[67] But that is not an end to the matter. There is still the question of how that
information should be rendered on the actual LIM. That information is required to
be included in the LIM by the introductory words of subsection (2), but this can only
be by way of reference and summary. Obviously LIMs cannot and do not include
both of the reports in their entirety. Rather, they contain, as I have said, brief
summaries of those reports and conclusions together with the coastal erosion hazard
prediction lines.
[68] Council has a very broad discretion as to how it represents the Shand
information on its LIM. The information on the LIM must of course be accurate,
state the position fairly, and it must not mislead.12
[69] It must in my view be relevant in considering how to summarise the Shand
material, that the reports and, particularly the lines, have the potential to seriously
affect the value and marketability of coastal properties in the district. That
consideration ought at least to sharpen the obligations of accuracy and fairness.
After all, across 1800 properties there must be many millions of dollars at stake. It
would be a callous Council indeed that was unmindful of that potential impact.
12
See Lyttleton Harbour Residence Association v Banks Peninsula District Council HC
Christchurch M49/96 22 March 1996 at 17; and note also Athendale Property Limited v Western
Bay of Plenty District Council [2013] NZHC 965 at [25] as to a duty of care to provide accurate
information in LIMs. Mr Smith also cited R (on application of Dimmock) v Secretary of State
for Education and Skills [2008] 1 All ER 367 (QBD), but that case seems very much focused on
its particular statutory context and facts – as must this case be.
[70] In light of that, I am struck, as I noted earlier, by the stark simplicity of the
prediction lines. None of the many and important conditions and assumptions
contained in the Shand Reports are obvious in the graphic. To understand what they
really mean one must go through the five pages of relatively densely written
material. With respect to the Council, those five pages are hardly an exemplar of
clear communication of the big points that a potential purchaser must know in order
to properly understand the meaning of the lines.
[71] There is in my view a good argument for placing in script along the lines
wording to the general effect of “very worst case scenario at 100 years”, and an
equivalent on the 50 year line. Together, I suggest, with confirmation that, at this
stage they are draft only. There is also a very good argument for sharpening and
reducing the detail in the written text and including reference to the scientific
challenges to the Shand conclusions. This would help to ensure fair balance in the
LIM. The Council itself has acknowledged that the Shand lines are still to be tested
and that its mind is very much open on that front. It is legally required to adopt that
approach.
[72] Mr Maassen who appeared (as I noted earlier at footnote 1) for the North
Otaki Beach Residents Group Incorporated, suggested a modus vivendi in his
memorandum filed in court and dated 21 June 2013. I commend his suggestions in
paragraphs 5 and 13 for possible inclusion in some form in the LIM.
[73] This judgment is not the place (at least at this stage) to give detailed direction
on the way in which the Shand Reports should be rendered in LIMs.
[74] I propose to adjourn this matter to allow the parties to confer over appropriate
amendments to ensure clarity, fairness and balance. The application is adjourned
accordingly. I will have the Registrar recall the matter in February 2014 in order to
gauge progress.
Williams J Solicitors: Simpson Grierson, Wellington