By: Kirstie Wyss
Published: 21/04/2013
Section 181(2) of the Local Government Act 2002 empowers territorial authorities to construct sewage and stormwater drainage works "on or under private land". This case was the first occasion the High Court has been required to interpret section 181(2) of the Act.

In 2006, a large landslide occurred on residential properties in Lower Hutt. The slip took out portions of two sewer pipes that were previously buried beneath the backyard of two of the properties. The Hutt City Council (the "Council") carried out emergency repairs to the sewer pipes, which involved suspending temporary sewer pipes through the airspace of the gully created by the slip. These sewer pipes are suspended for 10 metres at a height of approximately four metres above the floor of the gully. The pipes are attached by ground anchors, which are on private land.

The Council intended to replace the emergency pipes with permanent sewage pipes that would also be suspended above the gully. The question for the Court was whether section 181(2) permits the Council to suspend the sewage pipes above private land.

The Council argued that "on or under" private land, included above the ground where the pipes were supported by structures attached to the land. Justice Collins assessed the section as striving to achieve a "careful balance of Council's powers with the rights of private property owners to enjoy their property, free from unreasonable interference". His Honour found private property rights were supported by the purpose and context of section 181(2), in particular:
  1. Works pursuant to s 181 of the Act must be necessary;
  2. The requirement to obtain the landowner's consent, or follow a statutory procedure;
  3. The Council's decision to carry out the works must be reasonable;
  4. The Public Works Act 1981 provides an option for the Council if section 181(2) does not permit the works; and
  5. Underlying policy values require the Courts not to curtail the rights of private land owners more than is required by the text and purpose of legislation.
Justice Collins concluded that section 181(2) did not authorise the Council to suspend sewage pipes above the land. This case provides a clear assertion of private property rights in the context of public works undertaken by local authorities pursuant the Local Government Act.
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