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Concern About Need To Pursue Court Action

5 April 2001

Councillor Kay McKelvie, Chairperson of Auckland City Council’s Finance and Property Committee, said today she was extremely irritated by the need to yet again pursue court action against businessman Mr John Spencer.

Mr Spencer has been in dispute with the Council since 1983 on the matter of public ownership of roads at the eastern end of Waiheke Island.

The disputed 7.3 kilometres of public road built by the Waiheke County Council in 1969/1970 completes the loop around Waiheke and provides the only public road access to the vicinity of the historic gun emplacement known as Stony Batter.

In 1997 the High Court found that the disputed roads were public roads belonging to the Council. This was followed by two Appeal Court dismissals of appeals lodged by Mr Spencer. He has now obtained leave from the Court of Appeal to appeal to the Privy Council.

The Finance and Property Committee has recommended that the Council defend Mr Spencer's appeal to the Privy Council and that the matter of costs in the High Court be pursued.

"Auckland City Council has no realistic option other than to oppose Mr Spencer's appeal to the Privy Council and conclude this dispute," said Councillor McKelvie.

"Over a period of nearly 20 years, the Council has spent $1.2 million, mainly in legal costs, on this case and we must look to recouping some of those costs, as well as ensuring the public has the access to property that is rightfully theirs," she said.


For further information, please contact:
Councillor Kay McKelvie, tel: 864 7076 or 025 279 6448.


BACKGROUND INFORMATION ATTACHED.

The following is a brief summary of events to date in this case:

1969/70 Roads built by the Waiheke County Council with financial assistance from Government’s 8:1 Backblocks Roading Fund.

1979/80 Mr Spencer buys the relevant land. It was soon clear that he did not accept the Council’s view that the roads were public roads.

1983 Council filed its claim in the High Court to resolve the dispute.

September/ October 1996 Trial of the case in the High Court at Auckland before Justice Anderson.

August 1997 First decision of the High Court. The Court found that approx. 7.3 kilometres of the disputed roads were public road belonging to Council. Council’s claim failed only in respect of two parts of the roads – a short distance of a few hundred metres from the boundary of one of the Spencer titles to Stony Batter, and ‘the south western deviation’ (which connects the road at Man O’War Bay to the south western entrance of the Spencer properties).
As a consequence of these decisions the Court awarded damages of $15,000 to Mr Spencer for Council’s trespass over the parts of road that were not found to be public. There was also an award of $5,000 to Mr. Spencer to compensate for gates removed from the roads from time to time by the Council. On the other hand the Court dismissed a counterclaim brought by the Spencer interests against Council for approximately $2 million.

July 1998 Second decision of the High Court. This was necessary because Mr Spencer had refused to agree about the width of the roads dedicated as public road. The Court upheld Council’s argument that a minimum width of one chain applied. This decision also clarified various details of the earlier decision and allowed the parties to formally seal the judgement and initiate to appeal process.
Page Four

March 2000 First Court of Appeal hearing. At Mr Spencer’s request a full court of 5 Judges was convened.

April 2000 First decision of the Court of Appeal. Mr Spencer’s appeal was dismissed. A cross appeal by Council was allowed with the result that (a) the south western deviation was found to be public road belonging to Council and (b) the award of damages in Mr Spencer’s favour was reduced by $10,000. The decision was unanimous. The Court also ordered Mr. Spencer to pay Council costs of $15,000. and disbursements in connection with the case in the Court of Appeal.

May - July 2000 Mr Spencer initiated the process for an appeal to the Privy Council in London.

27 November 2000 Second decision of the Court of Appeal dismissing Mr Spencer’s claim. The Court also awarded Council further costs of $3,500 and disbursements in connection with the second Court of Appeal hearing.

December 2000 Mr Spencer obtained conditional leave from the Court of Appeal to appeal both the substantive decision and the subsequent bias decision to the Privy Council. The significant condition related to the preparation of the Record of Proceedings for filing in the Privy Council within three months.

February 2001 Final leave to pursue the appeal is given by the Court of Appeal.


ENDS


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