IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE	
CIV-2019-441-26
[2019] NZHC 1977	

BETWEEN	THE FRIENDS OF ONEKAWA AQUATIC CENTRE SOCIETY INCORPORATED
Applicant	
AND	NAPIER CITY COUNCIL
Respondent	

Hearing:	18 and 30 July 2019	
Appearances:	M J E Williams for Applicant
D J S Laing and O L Rego for Respondent	
Judgment:	30 July 2019	

JUDGMENT OF GRICE J
(Interim orders)

[1]	The applicant, The Friends of Onekawa sought an interim order pending the final hearing of judicial review proceedings.1 The interim orders sought were to restrain the Napier City Council from implementing actions toward the constructions of a community swimming pool facility, the new Napier Aquatic Centre at a greenfields site owned by the Council on Prebensen Drive in Napier.

[2]	The Friends of Onekawa was incorporated as a society primarily for the purposes of opposing construction of the new swimming pool facility. The Society says that the existing site of the Onekawa Aquatic Centre at Onekawa should be retained and developed as the new Napier Aquatic Centre rather than allowing the existing pool facilities there to be closed and demolished which is their likely fate.

1	This decision was delivered orally on 30 July 2019. The written form has been edited and footnoted before distribution.
THE FRIENDS OF ONEKAWA AQUATIC CENTRE SOCIETY INCORPORATED v NAPIER CITY COUNCIL [2019] NZHC 1977 [30 July 2019]

[3]	There is no dispute that a new Napier Aquatic Centre is needed for the area. However, the Friends of Onekawa, say that the ratepayers and public of Napier have given a mandate to the Council to spend $41 million on a new 50 metre pool facility at Onekawa and to follow through the implementation of that decision through the Council’s long-term plan. But, it says, the ratepayers did not give the Council authority to spend the substantial money involved otherwise to construct a new Napier Aquatic Centre at the greenfields site nor not to include a 50 metre pool as part of the complex.

[4]	The Onekawa Aquatic Centre and the proposed new greenfields site for the Napier Aquatic Centre are approximately 1.5 kilometres apart.

[5]	A comprehensive Napier aquatic strategy was adopted by the Council in 2015. Further work was then done to identify options for the new Napier Aquatic Centre. Those options were the subject of consultation.

[6]	The issue of whether a 50 metre pool (which is an Olympic size pool) should be included in the new Napier Aquatic Centre has been contentious. At the end of the day the Council said it made the decision not to include the new 50 metre pool following consultation because it would not cater for the needs identified in the strategy. In addition, a 50 metre pool is planned for a regional facility proposed in a neighbouring Council’s area. Budget constraints play a part in the decision.

[7]	The Onekawa Aquatic Centre site redevelopment was an option, but the Council says the redevelopment of the existing Onekawa facility became problematic due to emerging problems with contamination of the site and the substantially increased costs for redevelopment of that site when compared to constructing the new Napier Aquatic Centre facility on a greenfields site.

[8]	The Council acknowledges that there had earlier been an option to expand the Onekawa Aquatic Centre in order to construct the new Napier Aquatic Centre, that option only remained viable, the Council says, until it received advice on the contamination and the likely costs involved to construct the new Aquatic Centre on that site. The Council says it took into account the fact that the likely useful life of an

Onekawa based new Aquatic Centre would be 15 years compared to that expected for the proposed greenfield Napier Aquatic Centre. That would be 50 years. Its economic life (following Council accounting guidelines) would be 30 years. This would lead to a lower cost over the relevant life of the facility and so a lesser cost to ratepayers.

[9]	The Council says sufficient consultation on both the site and the size of the pools for the new Napier Aquatic Centre has been carried out. It was on that basis that it was planning to construct the Napier Aquatic Centre on the greenfields site.

[10]	Friends of Onekawa, in these proceedings, say its primary concern is the legality of the process leading to the decision to construct the Napier Aquatic Centre on the greenfields site rather than at the existing Onekawa Aquatic Centre site. It says that the decision not to build the 50 metre pool is inextricably linked the Council’s decision-making process in relation to the exclusion of the 50 metre pool suffers from the same failures as the decision to construct it at the greenfields site.

[11]	The jurisdiction to grant interim orders is set out in s 15 of the Judicial Review Procedure Act 2016. It confirms the jurisdiction of the Court to make interim orders when necessary to preserve the position of an applicant. The essential elements are that “the Court may make an interim order” and secondly, “if in its opinion it is necessary to do so”.2 This approach was originally stated in Carlton and United Breweries v Minister of Customs3 and approved in the Supreme Court in Easton v Wellington City Council.4 In Carlton and United Breweries the Court of Appeal emphasised the two criteria and the need to avoid circumscribing them.5

[12]	A four stage approach is often used to reach a decision on the granting of an interim order. First, consideration of the plaintiff’s position; secondly, the necessity for the order to preserve that position; thirdly, whether the order sought has as its purpose one of the purposes in s 15(2)(a)–(c) of the Judicial Review Procedure Act

2	Graham Taylor Judicial Review A New Zealand Perspective (4th ed, LexisNexis, Wellington, 2018) at 273.
3	Carlton v Minister of Customs [1986] 1 NZLR 423 (CA).
4	Easton v Wellington City Council [2010] NZSC 10, (2010) 20 PRNZ 360.
5	Carlton v Minister of Customs, above n 3, at 430–433.

2016; and finally, it becomes an exercise in the balancing various factors relevant to the exercise of Court’s discretion.6

[13]	Taylor describes the jurisdictional threshold for an interim order as establishing the necessity to protect the plaintiff’s position.7 It will always be a question of fact based on circumstances of the case. In order to protect the applicant’s position the applicant must have a position to protect. An interim order cannot enhance the position of the applicant and an order must be “necessary” to protect that position.8

[14]	The issue of whether or not there is a necessity to protect the applicant’s position in this case has now been shortcut by collaboration between the parties. They have agreed on what is the necessary extent to hold the applicant’s position or protect its position in this case pending a final hearing. However, this agreement did not occur until the matter had been the subject of a day’s hearing. A further half day was then allocated to enable completion and the joint approach by counsel was largely possible by the allocation of an early three day fixture for the hearing of the substantive applications commencing on 30 September 2019.

[15]	The terms proposed by the parties acknowledge the extent to which interim orders are necessary to protect the plaintiff’s position. Nevertheless, the proposed terms are substantially different and more circumscribed than the terms originally sought by the applicant in the interim application. The outcome reflects the willingness of both the Council and the Friends of Onekawa to realise a robust, practical and sensible solution in order to hold matters pending a full hearing. In the circumstances I am satisfied the interim orders on the terms proposed are appropriate. They support the existence of the threshold requirement and articulate the extent to which it is reasonably necessary to protect the plaintiff’s position pending full hearing in this case.

[16]	Therefore, I propose to make the following interim orders which incorporate the terms proposed by counsel:

6	Walsh v Pharmaceutical Management Agency HC Wellington CIV-2007-485-1386, 28 August 2007 at [20]; Graham Taylor, above n 2, at 275.
7	Graham Taylor, above n 2, at 282.
8	Walsh v Pharmaceutical Management Agency, above n 6, at [20].

(a)	Except as provided in (b) the Council is prohibited until these proceedings are determined or further order of this Court from taking any further steps, incurring any further costs, or entering into any legal or other commitments with any third parties, pursuant to the decision made by the Council on or about 29 June 2018 in the context of the Council’s 2018–2028 Long Term Plan (the Decision), to establish a new Napier Aquatic Centre on a site owned by the Council on Prebensen Drive.

(b)	Nothing in (a) will apply to the following actions of the Council:

(i)	Continuing with and making all necessary steps to obtain resource consent for a new aquatic centre on the Council’s land at Prebensen/Tamatea Drive, Napier;

(ii)	Carrying out all and completing preloading on the Council’s land at Prebensen/Tamatea Drive including the supply, delivery and placement on site of fill for pre-loading purposes;

(iii)	Continuing with the tender evaluation process for the design and construction of an aquatic centre at Prebensen/Tamatea Drive up to the point where a preferred tenderer is identified and approved by the Council, but no contract is tendered with the preferred tenderer.

(c)	The Council undertakes that it will not, directly or indirectly, claim or raise prejudice from (or the fact of) progression or completion of the actions referred to in (2)(b) above as a reason why relief should be refused by the Court, including in the event that it finds a reviewable error has been established by the applicant on all or any of the substantive causes of action pleaded.

(d)	The applicant records that it has agreed to the preloading works in (2)(b)(ii) progressing on the understandings received through advice

from the Council that the costs in those works would not exceed the sum stated in Mr Jack’s affidavit contained in the table at paragraph 184, second column headed “Preload” that this cost includes all necessary removal of existing fill or topsoil on the Prebensen Drive site prior to deposition of preloading fill. (As recommended at s 5.6.1 of the Tonkin & Taylor report ‘Proposed Napier Aquatic Centre’ June 2018 (Job No 1006598v1)) and that the necessary resource consent has been obtained to complete those works. The Council has agreed to supply the necessary information to the applicant to confirm this advice by 5 pm Monday 5 August.

Costs

[17]	Costs are reserved pending an application (if any). The application must be filed on or before 30 August 2019.9

Grice J
Solicitors:
Langley Twigg, Napier for Applicant Simpson Grierson, Wellington for Respondent

9	Counsel indicated following the hearing that this was the preferred approach in the event of counsel being unable to reach agreement on the issue.