1. STANDING COMMITTEES:

APPOINTMENT OF MAYOR AS MEMBER

The Legal Services Manager reports: "At its meeting on 20 September 1995 the Council resolved to adopt the New Zealand Model Standing Orders 9202:1992, with minor amendments. The former 1989 Model Standing Orders provided that the Mayor was an ex officio member of every committee but was not an ex officio member of a community board. I also understand that in practice it was not intended that the Mayor be an ex officio member of subcommittees. The 1992 Model Standing Orders provide that the Mayor "... may be appointed an ex officio member of any committee in accordance with s.114P of the Local Government Act 1974, but is not entitled to ex officio membership of a community board". It will be apparent that the Mayor, under the new Standing Order, is not automatically a member of Council committees and the Council must resolve that she be appointed a member. If the Council wishes to maintain the traditional approach of the Mayor being a member of all Standing Committees then the following recommendation can be considered. Recommendation: That pursuant to section 114P of the Local Government Act 1974 the Mayor is appointed an ex officio member of all standing committees of the Council." 2. APPOINTMENT OF COMMISSIONERS The Legal Services Manager reports: "At its meeting on 20 September 1995 the Council resolved to appoint the then current Councillors of the Council as commissioners, for the purpose of being members of a hearings panel of not less than three members. The resolution stated that the appointments would expire on 22 December 1995. The purpose of this resolution was to enable resource consent hearings to be held in the period between October and December 1995. It was anticipated that any such hearings would have been concluded by 22 December 1995. It has now become apparent that there are two hearings where decisions will not be issued by the commissioners prior to 22 December 1995. These hearings are: (a) An application by Telecom Mobile Communications Limited for a cell site at 148A Colombo Street; and (b) An application by C J Rowse of 64 The Esplanade for a resource consent for the installation of dormer windows.

2 Cont'd With regard to the former, the hearing commenced on 28 November 1995, resumed on 7 December 1995 and will resume again in late January 1996. With regard to the latter, the hearing will be held on 20 December 1995, but it is unlikely that a decision will be issued by 22 December 1995. In respect of both applications there are two commissioners who were formerly City Councillors and who were not re-elected, namely Mr R Arbuckle and Mr A Clark. To enable these hearings to conclude it is necessary to appoint all the persons involved as commissioners until the hearings have been concluded and a decision issued by those commissioners. Recommendation: 1. That, pursuant to section 34(3) of the Resource Management Act 1991, the Council appoint Mrs M Murray, Mr D O'Rourke and Mr R Arbuckle as commissioners for the purpose of hearing the application by Telecom Mobile Communications Limited for a cell site at 148A Colombo Street, Christchurch. 2. That, pursuant to section 34(3) of the Resource Management Act 1991, the Council appoint Mr A Clark, Mr N Dodge and Mr C Manning as commissioners for the purpose of hearing an application by C J Rowse for the installation of dormer windows at 64 The Esplanade, Sumner. 3. That the term of appointment of the commissioners in recommendations 1 and 2 expire upon decisions being issued by the commissioners, or if there is any appeal to the Planning Tribunal, upon any decision being issued by the Planning Tribunal. 4. That, pursuant to section 34(3) of the Resource Management Act 1991, the Council delegate to the commissioners described in recommendations 1 and 2 above, the powers: (a) To hear and make decisions on the respective applications; (b) To make any orders required for the protection of sensitive information during the course of a hearing pursuant to section 42 of the Resource Management Act 1991; (c) To consider and resolve any consent orders requested in respect of any proceedings before the Planning Tribunal. 5. These recommendations shall commence on 23 December 1995."

3. WHEEL CLAMPING: CHRISTCHURCH PUBLIC HOSPITAL

The Legal Services Manager reports: "At its meeting on 28 November 1995 the City Services Committee resolved that options for legal action against the hospital authorities currently using wheel clamps at the hospital car parks be reported direct to the Council meeting on 13 December 1995. The purpose of this report is to outline the legal options that may be open to the Council to restrain Canterbury Health Limited from using wheel clamping at the Public Hospital. However, in the time available it has not been possible to carry out the substantial amount of research which is involved to provide a full opinion to the Council for the meeting on 13 December 1995, as requested by the City Services Committee. In this report I propose to outline the general law relating to wheel clamping together with possible legal avenues of redress for the Council and I will provide a full opinion together with a recommendation to the Council at its meeting on 28 February 1996. At the present time there is certainly no statutory authority for the Company, or any other landowner to wheel clamp trespassing vehicles. The only statutory provision relating to wheel clamping is contained in the Summary Proceedings Act 1957 where by a 1993 amendment Court bailiffs are given the power by Parliament to wheel clamp vehicles to recover unpaid fines. Such wheel clamping by the bailiffs can occur on private or public land and if the fine has not been paid within fourteen days of the vehicle being clamped, then the vehicle is seized and sold. It is an offence punishable by a fine of $1,000 to interfere with the clamping device. Outside of that specific situation, with any other landowner there is no equivalent statutory provision. The common law (being the law as established through Court judgments) has always provided a right to a landowner to seize chattels (in this case motor vehicles) which are unlawfully on the landowner's land and which are doing damage. The landowner can detain those chattels until compensation for that damage to the land has been paid. Historically that legal right was developed in relation to cattle trespass but has been recognised by the Courts as being available in modern times for trespassing vehicles. However, the Courts have always been clear that the right to detain the motor vehicle does not apply where the owner is present and requests the release of the chattel. The rationale for this exception is that to allow the vehicle to continue to be detained in those circumstances would be to lead to breaches of the peace and personal injury to the trespasser. The Courts have been careful to avoid that type of situation. So in the context of wheel clamps there will invariably be contact between the landowner, through the agent he uses to clamp and release vehicles, and the vehicle owner. There have been occasions where that meeting has led to breaches of the peace and in one case involving wheel clamps, the District Court in 1993 held that the landowner had no lawful right to continue to clamp the vehicle where the owner requested the release of the vehicle.

3 Cont'd In legal terms the landowner should release the vehicle and subsequently sue for the $60 fee through the Courts. The law does not permit the landowner to refuse to release the vehicle until the fee or some form of security has been given by the vehicle owner. If the landowner refuses to release the wheel clamp the landowner is breaching the law by committing a trespass to the motor vehicle and the law affords the vehicle owner the right to sue the landowner in general damages. Such general damages may today range from $500 to $1,000. In practical terms a vehicle owner could pay the $60 to have the vehicle released and then consider taking proceedings in the Disputes Tribunal or the District Court against the landowner to recover the $60 and also seek general damages for trespass to the vehicle. The Courts appreciate that in modern times illegal parking of vehicles is a great problem but they are not prepared to give landowners absolute right to interfere with other people's property simply because they have parked in the wrong parking space, or over-stayed their time. They place prominence on the fact of avoiding confrontation between landowner and motor vehicle owner and for that reason afford protection to the motor vehicle owner. As I have noted above, even if the landowner releases the vehicle, it still has the right legally to sue the motor vehicle driver for trespass in the Courts and prove in the appropriate way, the actual damage to the landowner through the occupation of the parking space. The landowner could also possibly recover the actual costs involved in placing the clamp on the vehicle before it was released. The Courts have stated that given that wheel clamps are common in New Zealand and that if landowners are to have the right to wheel clamp, then Parliament should legislate on the matter. Only Parliament can properly balance the competing rights of the landowner and the vehicle owner and impose the necessary regulations and safeguards. The Courts acknowledge that their holding that a landowner loses the right to detain the motor vehicle if the owner is present would destroy the utility of the practice. In a 1993 District Court decision the Judge stated: "I realise in coming to that conclusion it inevitably destroys any utility in the practice of private wheel clamping because, as distinct from the towing away of vehicles where the owner is rarely likely to be present at the time the vehicle is towed away, in the case of clamping it is almost inevitable that the vehicle owner or his agent will physically confront the distrainor or his agent. In those circumstances the potential for breaches of the peace is too significant to ignore, and the right to distress damage feasant is lost."

The phrase "distress damage feasant" is the technical term for the right of the landowner to detain a trespassing vehicle. 3 Cont'd With regard to Parliament intervening in this area, I understand that the Ministry of Transport will be releasing a discussion paper in approximately March or April of 1996 seeking public comment on proposed legislation relating to both the towing away of motor vehicles and wheel clamping. It would appear that if there is to be any legislation then the discussion paper would also refer to what types of controls should be in place on private landowners in those situations. I refer to Councillor Fahey's notice of motion in tonight's agenda that my advice be sought on whether the Council can make a bylaw to prevent the use of wheel clamps by private landowners. On this matter, I have reached the view that the Council does not have the power to make a bylaw prohibiting the use of wheel clamps by Canterbury Health Limited, or any other landowner. There is no power to make such a bylaw provided for in the Local Government Act 1974 and if the Council wished to pursue that as an option, then it would have to promote an amendment to the Local Government Act or alternatively, promote a local Bill giving the Council the power to make such a bylaw. Traditionally I believe Parliament has been reluctant to permit local authorities to have specific bylaw making powers of this type. With regards to options open to the Council, one option could be for the Council to apply to the High Court for a declaration in injunction against Canterbury Health Limited to restrain it from wheel clamping in hospital car parks. There are a number of possible grounds for such an application and some of these are: (a) That the company is the provider of effectively monopoly services within the city and as such is abusing its powers as a monopoly provider; (b) That the company is causing a public nuisance through wheel clamping in that it is intentionally interfering with private property, namely the cars of patients and visitors. While these are potential grounds they have yet to be fully researched because if the Council was to commence High Court proceedings against the Company then clearly it would have to be done on a proper basis and after full research has been carried out. Given the novelty of some of these grounds it would also be appropriate for the Council to take a second opinion on these issues. I would propose that a full opinion be provided to the Council at its 28 February 1996 meeting on the question of applying to the High Court for an order against Canterbury Health Limited to restrain it from using wheel clamps. Recommendation: That the Legal Services Manager prepare a full opinion for the Council meeting on 28 February 1996 on the merits of the Council applying to the High Court for an order against Canterbury Health Limited to restrain it from using wheel clamps on land controlled by that company." 4. DELEGATION TO COUNCIL SECRETARY

The Legal Services Manager reports: "At its meeting on 6 November 1995 the Council resolved to establish the Road Closure Subcommittee and appointed the Administration Officer, the Community Managers and the Principal Committee Secretary, Mr Max Robertson, as members of that Subcommittee. The position of Principal Committee Secretary has now been given the new title of Council Secretary and accordingly it will be necessary for the Council to alter its 6 November 1995 resolution to reflect this change in job title. Recommendation: That the Council's resolution dated 6 November 1995 appointing the Road Closure Subcommittee be altered by deleting the words "Principal Committee Secretary", and substituting the words "Council Secretary"." P W MITCHELL

LEGAL SERVICES MANAGER

Top of Page ~ Council Proceedings ~ Council & Councillors