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