[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	The Judicial Committee of the Privy Council Decisions
You are here: BAILII >> Databases >> The Judicial Committee of the Privy Council Decisions >> Manukau City Council v. Ports of Auckland Limited and Others (New Zealand) [1999] UKPC 38 (21st July, 1999) URL: http://www.bailii.org/uk/cases/UKPC/1999/38.html Cite as: [1999] UKPC 38

[New search] [Help]

Manukau City Council v. Ports of Auckland Limited and Others (New Zealand) [1999] UKPC 38 (21st July, 1999)

Manukau City Council Appellant

v.

(1) Ports of Auckland Limited

(4) Auckland Regional Services Trust Respondents

FROM

THE COURT OF APPEAL OF NEW ZEALAND

---------------

JUDGMENT OF THE LORDS OF THE JUDICIAL

COMMITTEE OF THE PRIVY COUNCIL OF THE

Delivered the 21st July 1999

------------------

Present at the hearing:-

Lord Hoffmann

[Delivered by Lord Cooke of Thorndon]

------------------

1. Some twelve miles as the crow flies to the east of the main port of Auckland, there are two marinas in Half Moon Bay on the far side of the Tamaki River estuary. When the Port Companies Act 1988 came into force, the easternmost of the two, the Half Moon Bay Marina, was being operated by the Auckland Maritime Foundation, a charitable trust, under a lease of reclaimed back-up land and a seabed licence granted by the now defunct Auckland Harbour Board. The back-up land included a commercial and shopping centre and other facilities, catering largely for the needs of boating people. Adjoining that marina on the south west, the Buckland’s Beach Marina was being operated by the Buckland’s Beach Yacht Club, partly under a seabed licence granted by the Harbour Board. The Yacht Club had no back-up land; but its clubhouse projects over the water, and it held the seabed beneath the projecting portion under sublicence from the Manukau City Council ("Manukau") which in turn held it from the Board. The landward end of the clubhouse is on land owned by Manukau; it was not an asset of the Harbour Board, and its ownership is apparently unaffected by this litigation. Since the commencement of the Act and the approval of the port company plan hereinafter mentioned, there have been changes in the head titles, to which their Lordships will return, but the marinas continue to be operated by the Maritime Foundation and the Yacht Club.

 

2. The Port Companies Act 1988 is one of a number of New Zealand statutes effecting a policy of "corporatising" functions hitherto discharged by central or local government. It required every Harbour Board to form and register a public company to be a port company within the meaning of the Act, and to carry out port related commercial activities with the principal objective of operating as a successful business. The port related commercial undertakings of each Board were to be identified in a port company plan submitted for approval to the Minister of Transport, who had certain discretionary powers. By section 23 of the Act, such of these undertakings as were to be transferred to the port company in accordance with the plan were to be transferred as soon as practicable after the Minister had approved the plan.

 

3. The chief issues in this litigation are whether the interests of the Harbour Board in and over the seabed and land occupied by the two marinas were included in the port company plan approved by the then Minister on or about 6th October 1988; and, if not, whether a decision of a subsequent Minister, set out in a letter of 10th July 1995, declining to exercise his discretion to amend the plan so as to include those interests, was invalid. The interests in question may conveniently be described as the marina assets, but it has to be borne in mind that the marinas were not in fact operated by the Harbour Board.

 

4. The litigation was begun in September 1995 by a judicial review proceeding issued by the port company, Ports of Auckland Limited, against the Minister of Transport and other defendants, including Manukau. The sixth defendant, formerly named the Auckland Regional Services Trust, holds 80 percent of the shares in the port company and has supported the company in the litigation, whereas the Minister has supported Manukau. It is common ground that as the appropriate territorial authority Manukau is entitled to the marina assets unless the port company can establish a right to them.

 

5. In the High Court the case came before Smellie J., who held that the marina assets, although within the statutory definition of "port related commercial undertaking", were not included in the port company plan and the approval of October 1988; but that the Minister’s decision in 1995 was invalid for errors of law and procedure. The judge accordingly set aside the latter decision and ordered reconsideration by the Minister. On appeal and cross-appeal to the Court of Appeal the case came before Gault, Henry and Keith JJ. In their judgment, given by Gault J., the court held that the marina assets were included in the original port plan and approval, and thereafter had validly been transferred to the port company. Subsequently, being satisfied that an appeal lay as of right, the Court of Appeal granted Manukau leave to appeal to Her Majesty in Council.

 

6. The Act and the Auckland port company plan were first considered by the High Court and the Court of Appeal ten years ago, in Auckland City Council v. Minister of Transport [1990] 1 N.Z.L.R. 264, where the port company succeeded in establishing that certain disputed land had validly been included in the port company plan and approved by the Minister. In that case the land was very close to the main wharves and predominantly used, under leases or licences granted by the Board, for the commercial purposes of port related industry; it was also described as a prime development area and vital for the future development of the port. The Minister had undoubtedly approved its inclusion in the plan. The issues were thus very different on the facts from those in the present case.

 

The Statutory Provisions

7. With an immaterial exception the Act came into force on 1st May 1988. It received the Royal Assent on 29th April 1988. The long title began:-

"An Act to promote and improve efficiency, economy, and performance in the management and operation of the commercial aspects of ports and, to this end, -"

 

8. A timetable bespeaking expedition was laid down. By section 21(1), not later than 1st June 1988 or such later date as the Minister, in any particular case, might allow, every Harbour Board was to constitute and adequately fund an Establishment Unit, whose function was to prepare and agree upon a port company plan with the Harbour Board. In so doing, by section 21(2) the Unit was required, inter alia, to identify the port related commercial undertakings of the Harbour Board, to value them, and to determine the price that should be paid by the port company. Not later than 1st July 1988 or such later date as the Minister in any particular case might allow, it was to report on the matters specified in section 21(2) to the Board and make the report available to the public. By section 22(1), the Board and the Unit were each to use their best endeavours to agree upon the matters specified in section 21(2). By section 22(2), not later than 1st August 1988 or such later date as the Minister in any particular case might allow, the Board and the Unit were to report to the Minister as to the extent of their agreement and any disagreement relating to a range of matters (a) to (g), including:-

"(a) The identification and valuation of the port related commercial undertakings of the Harbour Board."

 

9. And in each case they "shall give full details". By section 22(3) disagreements were to be resolved by the Minister. Most of the remaining subsections of section 22 should be set out in full:-

" (4) Notwithstanding that the Harbour Board and the Establishment Unit may have agreed on any matter referred to in subsection (2) of this section, the Minister may determine the matter on a different basis if the Minister is satisfied that, having regard to the interests of the Harbour Board and the port company, and, if appropriate, the interests of other Harbour Boards and port companies, it is fair and equitable to do so, and, in so doing, the Minister may exclude from the port company plan any port related commercial undertaking that the Minister does not consider ought to be transferred to the port company or vary the manner in which any undertaking is to be transferred to the port company.

 

(5) Before making any determination under subsection (4) of this section, the Minister shall advise the Harbour Board and the Establishment Unit of the Minister’s intention to do so, and give a reasonable opportunity for each to make submissions on the matter.

 

(6) …

 

(7) Where any matter is not included in a port company plan and the Minister considers that it should be so included, the Minister may direct the Harbour Board and the Establishment Unit to consider the matter and report to the Minister concerning its inclusion in the port company plan.

 

(8) The Minister may, on the application of a Harbour Board, Establishment Unit, or port company, and after consultation with such of them as the Minister considers appropriate, amend any approved port company plan.

 

(9) The Minister may, on the application of a Harbour Board, made with the approval of the Establishment Unit or port company, include in any port company plan, as part of the approval of the plan or by way of amendment to an approved port company plan, any undertaking of the Harbour Board, notwithstanding that it is not a port related commercial undertaking.

 

(10) Where any undertaking is included in a port company plan pursuant to subsection (9) of this section, this Act shall apply in all respects as if that undertaking were a port related commercial undertaking.

 

(11) No port company plan shall be put into effect until it has been approved by the Minister; and every port company plan shall be put into effect in the form approved by the Minister. The Minister may grant approval of part of a port company plan if the Minister considers it appropriate, and this Act shall apply to that part as if it were a port company plan."

 

10. The concept of a port related commercial undertaking is a key feature of the Act. It is as well to set out the definition in section 2 in full also, with the words of particular significance in the present case italicised:-

"‘Port related commercial undertaking’, in relation to any Harbour Board, -

 

(a) Means the property and rights of the Harbour Board that -

(i) Relate to the activities of commercial ships and other commercial vessels, and commercial hovercraft and commercial aircraft, or to the operation of facilities on a commercial basis for ships, vessels, hovercraft, and aircraft of any kind; or

 

(ii) Facilitate the shipping or unshipping of goods or passengers; and

 

(b) Without limiting the generality of paragraph (a) of this definition, includes -

(i) The provision by a Harbour Board of any building or facility wherever situated for use in connection with the handling, packing, or unpacking of goods for shipping or unshipping through any port; and

 

(ii) Items such as breakwaters and dredges and other items that, although they may not themselves be revenue producing and may have a number of purposes or uses, are nevertheless related to the operation of the port on a commercial basis; but

 

(c) Does not include any undertaking that is a statutory function or duty of the Harbour Board relating to safety or good navigation:"

 

11. That definition, in some respects perhaps more long than luminous, led to differences of judicial opinion in Auckland City Council v. Minister of Transport. So, too, whether the marina assets fell within the definition was in issue in this case in the courts below. Considerations bearing on that issue include the facts that the marinas undoubtedly provide facilities for vessels and that the leases and licences contain certain covenants. The licence agreements require the marinas to be conducted, operated and managed in an efficient manner and in accordance with modern marina practice. That in favour of the Maritime Foundation goes on to require that the licensee shall also manage the boat harbour and marina on such a basis that if tested by ordinary commercial standards the operation would be judged economically sound and profitable. The back-up land leased to the Foundation is to be used for marina, boat harbour and commercial purposes so that the licenced premises and the leased land are used for an overall boat harbour and marina complex. On the other hand it is arguable that the marinas are not in the ordinary sense in fact operated by the two charitable organisations on a commercial basis. Also they are many miles distant from the main port of Auckland and the port in Manukau Harbour at Onehunga, although not from the Subritzky Wharf (to which further reference will be made shortly).

 

12. The marinas generated some income for the Harbour Board and in time would produce more. The lease to the Foundation for the back-up land was for 21 years from 1st October 1974 with perpetual rights of renewal. Until 30th September 1995 the annual rent was only $200, but on renewal it was to be reviewed to market levels. The licence to the Yacht Club was for 20 years expiring on 19th April 2008 with an annual rental of $54,250. The licence to Manukau was for 15 years with one right of renewal beyond 31st March 1995 at an annual rent of $1,300.

 

13. Both Smellie J. and the Court of Appeal found that the marina assets were port related commercial undertakings of the Harbour Board. Before the Judicial Committee Mr. Galbraith Q.C. for Manukau accepted these concurrent findings; nor did Ms. Scholtens for the Minister challenge them, although she did draw attention to the difficulties and uncertainties inherent in the application of the statutory definition to the particular facts. In these circumstances their Lordships will deal with the case on the footing that the marina assets were indeed port related commercial undertakings of the Harbour Board. It is relevant to add, however, that the contrary view, which (as will be seen) was ultimately taken by the Minister, although found by the courts below to have been wrong, could at least be supported by respectable arguments. In truth, in the light of the policy and terms of the Act, the marina assets fell into something of a grey area.

 

How the Port Company Plan dealt with the Marina Assets

14. The port company plan for ports of Auckland began with a brief report dated 12th July 1988 from the Establishment Unit to the Harbour Board. Annexed was an extensive document consisting of a summary and nine further sections. On the same day the plan was made available to the public by the Establishment Unit in accordance with section 21(4), and it was at the same time forwarded to the Minister. Then, by letter to the Minister dated 12th August 1988, the General Manager of the Harbour Board, Mr. Robert Cooper, writing on behalf of the Board and the Establishment Unit, expressed appreciation for an extension of time granted from 1st August to 12th August for the submission of this report. The letter advised that the Board and the Unit had agreed on all aspects of the plan and now submitted their joint proposal to the Minister in terms of section 22. It said that all of the port related commercial undertakings identified in the port company plan forwarded to the Minister and made public on 12th July "are agreed". It was a long letter going on to deal with many matters. There was no express reference to the marina assets. Consequently the question becomes whether the marina assets were identified as port related commercial undertakings in the port company plan.

 

15. As to that crucial question, section 3 of the plan, headed "Port Related Commercial Undertakings", began as follows:-

"INTRODUCTION

 

16. Section 21(2)(a) of the Port Companies Act requires the Establishment Unit to identify the port related commercial undertakings of the Harbour Board. Section 2 of the Act provides statutory definitions of ‘port related commercial undertaking’, ‘property’ and ‘rights’. The assets, property and rights relating to these undertakings shall be transferred to the Port Company at an agreed price.

 

17. For present purposes, the port related undertakings are broadly identified below. A detailed list of assets relating to the commercial undertakings is being compiled and will be made available for inspection."

 

18. There is no evidence that any detailed list of assets relating to the commercial undertakings was in fact compiled and made available. As for the broad identification, under the subheading "3.2.1.4 Outlying Cargo Facilities" there was included a reference to "Half Moon Bay - general cargo". This is not apt to cover the marina assets. It is apt to cover facilities at the Subritsky Wharf, which is the terminal for the car ferry service to Waiheke Island and also handles general cargo. The wharf lies to the west of the marinas. There is no doubt that the wharf assets were part of the port related commercial undertakings of the Board to be transferred to the company.

 

19. The section of the plan then includes a subheading dealing expressly with marinas. This begins with a reference to the Westhaven Marina complex, which is close to the main Auckland wharves and was operated by the Harbour Board itself:-

"3.2.1.5. Marinas

 

Westhaven Marina complex, with its associated facilities and back-up land, is particularly identified for transfer because it is in accordance with the definition of ‘Port-related commercial undertaking’ as including ‘… the operation of facilities on a commercial based [sic] for … vessels … of any kind …’, and it is strategically located in terms of the current port activities and future port development options.

 

In transferring Westhaven Marina complex to the Company, it may be considered appropriate by the Board to also transfer the other interests in marina facilities and related assets to gain advantages of unified management under the commercial organisation."

 

20. The two marinas in Half Moon Bay were not the only outlying marinas not operated by the Harbour Board. The Harbour Board’s interests in the other such areas were ultimately disposed of in various ways no longer in dispute and not requiring consideration now. Nor is it necessary to consider certain proposed marinas. The argument for the company is that, the first paragraph under subheading 3.2.1.5 having identified the Westhaven Marina complex as a port related commercial undertaking to be transferred to the company, the second paragraph went on to identify also as such undertakings the Board’s interests in all other marinas, including the two existing marinas in Half Moon Bay with which the present appeal is concerned.

 

21. Their Lordships must observe at once that this is by no means the ordinary and natural meaning of the second paragraph. Not only does the second paragraph suggest that it remains for the Board to consider whether transfer of the other marina interests is appropriate, but the ground given is advantages of unified management under the commercial organisation. At no time has there been any intention that the Auckland Maritime Foundation or the Buckland’s Beach Yacht Club marina will be managed by the port company. In that respect they contrast with the Harbour Board’s own Westhaven complex. Nor are they strategically located like that complex. Taken together, the two paragraphs fall, in their Lordships’ opinion, pointedly short of an identification of marina assets other than Westhaven as port related commercial undertakings of the Harbour Board.

 

22. The argument for the company makes much of the fact that table 1, following section 4 of the plan and headed "Port Related Land - Valuations Summary", includes opposite the entry "Tamaki/H.M. Bay" figures of $11.2 million for leases and $1.4 million for licences, a total of $12.6 million; though a note indicates that the grand total of the table, $168.4 million, includes licences which will continue to be controlled by the Board. These, the note says, will be identified and their capital value will be excluded. An affidavit sworn by Mr. R.L. Jefferies, consultant, dated 31st August 1996, explains that the valuation of the Board’s assets for the purposes of the port company plan was carried out by Southpac Corporation Limited, to which Mr. Jefferies’ firms supplied certain information. He indicates, giving considerable particulars, that the valuation summarised in table 1 included $1.5 million for the Board’s interests as lessor and licensor of the Maritime Foundation marina and $706,900 for the Board’s interest as licensor of the Yacht Club marina.

 

23. No doubt the evidence of Mr. Jefferies, which is supported by other evidence, is correct; but the difficulty is that what was covered by the entry "Tamaki/H.M. Bay" did not appear on the face of the table or elsewhere in the plan. Apparently the gross figures had simply been transferred from the Southpac valuation, which itself included no breakdown. They could well have been taken to refer only to the Subritzky Wharf interests. The Southpac report, dated 4th July 1988, had noted that at that time there were three principal outstanding issues, one of which was agreement on the identification of the assets to be transferred. "The areas still in doubt include the marina and parts of the property portfolio". There is no evidence, however, that the Minister ever saw that report at the time; indeed the oral evidence of Mr. A.M. Patrick, who was responsible at the time for the consideration within the Ministry of port plans submitted by the various Establishment Units and Harbour Boards, was that in formulating advice to the Minister in 1988 he did not have access to that report. Still less, of course, could it be suggested that Southpac’s working papers were furnished to the Minister.

 

24. On applying an objective test - namely what should have been apparent to a reasonable Minister considering the application of 12th August 1988 in the light of all the material made available to him - it becomes plain that no reasonable Minister would have understood that it had been agreed that any marina assets (other than Westhaven) were port related commercial undertakings of the Harbour Board or that they were to be transferred under the plan. Rather, a transfer was signalled as a possibility for the Board to consider. In expressing that view their Lordships do not overlook the vague entry "HK Maritime", being the last in a list of 13 perpetual leases in the Tamaki estuary provided on request to Ministry officials while the plan was under consideration by the Ministry. All the other entries in the list were on their face leases to industrial concerns; there was no indication that the last entry related to a marina interest.

 

25. The conclusion just expressed could be supported by referring to the affidavit evidence of Mr. Patrick and of the Minister at the time, the Hon. W.P. Jeffries. In an affidavit sworn on 1st November 1996 Mr. Patrick, referring to a meeting in Wellington on 26th September 1988 with representatives of the Harbour Board and the Establishment Unit, deposed that he recalled no reference to the marinas and back-up land at Bayswater, Whakatakataka and Half Moon Bay, or to the Auckland Maritime Foundation area. Had it been intended that these assets were to be included, he would have expected to have discussed them. He was not aware that any marinas apart from Westhaven were proposed for transfer at this stage. Again, at a further such meeting on 3rd October 1988, he recalls no reference to marinas or related assets, other than Westhaven, or to the Maritime Foundation area. Alone of the deponents, Mr. Patrick was cross-examined, and their Lordships have perused the transcript. No significant qualification of his affidavit emerges.

 

26. The former Minister, Mr. Jeffries, in an affidavit sworn on 12th September 1997, explains the approach which he took in 1988 to the exercise of his discretion under the Act. His letter to Mr. Cooper of 6th October 1988 approved the plan in part under section 22(11), excluding certain land at Te Atatu, not relevant to the present case, as to which he wished to receive further representations. The most material paragraphs of his affidavit are as follows:-

"15. I also had in mind, when exercising my discretions, that the objectives of the reforms included avoiding hidden or disguised subsidies in the port businesses, and promoting competition among the ports. To allocate assets not reasonably necessary for the commercial operation of the port could distort the relative competitive position of the company.

 

16. ONE can see from the approach outlined above, that in deciding whether or not particular assets would be transferred to the new Port Company, I was concerned to identify those that were necessary for the businesses’ effective commercial operations. Recreational assets such as marinas and slipways, and ‘social’ assets such as parks and shopping centres, would not naturally qualify for inclusion.

 

17. LOOKING at the terms of the plan, I do not take the references to marinas on page 8, paragraph 3.2.1.5, as including any beyond the Westhaven complex. I do not recall my attention being drawn to the reference, on page 17 in the valuation section of the plan, to ‘Tamaki/Half Moon Bay’. I was principally concerned with the policy decision as to what assets were identified for transfer to the port company. I was also advised by officials and their consultants as to the appropriate valuation of those assets. However, I was made aware that there were outlying cargo facilities identified for transfer in the Tamaki River vicinity, including the Subritzky Wharf which I understand is adjacent to the Bucklands Beach Yacht Club in Half Moon Bay. Those assets were identified for transfer on page 8, paragraph 3.2.1.4 of the Plan.

 

18. HAD I been asked to approve the transfer of the assets in issue, I believe I would have declined to do so in the absence of reasons which relate to the efficient operation of the Port business. The controversy over the Viaduct Basin and adjoining areas focused my mind on the split between commercial and recreational related land. My policy view, reflecting the Act, was that recreational assets should generally remain in local body ownership. It is, to my mind, simply at odds with the philosophy of the port reform legislation that social and recreational assets might pass to port companies. The circumstances such as those which applied to the Westhaven Marina complex related to the submission that the Port company future extension would advance to the west and I did not wish to foreclose this option."

 

27. While the evidence of Mr. Patrick and Mr. Jeffries provides for their Lordships the comfort of knowing that the objective test previously mentioned results in no injustice to the port company, their Lordships repeat that they have arrived at their conclusion that the Minister’s approval did not extend to the marina assets by applying that test, as is appropriate on a matter of interpretation. Ex post facto evidence of intention, such as that of Mr. Patrick and Mr. Jeffries, could not be permitted to derogate from the fair objective meaning of the approval; but there is no question of that.

 

28. A passage in the case for the respondent company lodged in this appeal appeared to forecast a contention that the plan left to the Harbour Board the final decision whether individual marina facilities would transfer or not. In his oral argument, however, Mr. Fardell for the company disclaimed any such contention, no doubt recognising that a delegation of the Minister’s powers back to the Harbour Board would have been inconsistent with the scheme of the Act. An approval by the Minister, sufficient to cover the assets in question, either initially or on an application for amendment under section 22(8) or (9), was essential.

 

29. On the relevant scope of the plan, the judgments in the High Court and the Court of Appeal differed. Smellie J. thought that clause 3.2.1.5 talked of a possible unilateral action by the Board at some future time. He decided that the marina assets were not included in the original approval. The Court of Appeal thought that the reference to marinas in clause 3.2.1.5 when considered in its full context pointed towards rather than away from the inclusion of the marinas in the plan as approved. For the reasons already stated their Lordships prefer on this issue the findings of the trial judge.

 

30. The Court of Appeal said correctly that by the time the plan was submitted to the Minister on 12th August 1988 the Establishment Unit and the Harbour Board were able to advise that all port related commercial undertakings identified in the plan made public on 12th July were agreed. They continued "It is to be inferred that such agreement included the marina assets which had been highlighted in clause 3.2.1.5". They regarded this inference as confirmed by a letter written by Mr. Cooper to the Ministry on 3rd May 1990 in which he said inter alia that in 1988 an assessment of the desirability of transferring the Harbour Board’s interests in the other marinas was carried out by the port company and the Board and it was agreed appropriate that the marina facilities on Half Moon Bay transfer. The company was incorporated on 27th September 1988. It is to be noted that the letter speaks of an agreement between the company and the Board, not between the Establishment Unit and the Board, although it does go on to say that the Establishment Unit had already made provision for the transfer in the asset valuations as they appeared on page 17 of the plan (a reference to table 1).

 

31. Their Lordships have examined the relevant correspondence, including a letter dated 12th July 1989 from the Board to the Minister, with an annexed working paper, and letters from the Board’s and the company’s solicitors, Messrs. Russell McVeagh McKenzie Bartleet & Co., to the Ministry, dated 27th September 1989 and 9th February 1995. Without encumbering the present judgment with further detail, their Lordships record their conclusion that Mr. Galbraith has made good his contention that the only credible interpretation of the statements made in the company’s own communications to the Minister is that it was not until some time after approval of the plan and the port company getting down to business that a working paper was produced and a discussion held with the Harbour Board that resulted in the decision by the Board to transfer the other marina interests.

 

32. In response to a question during the argument of this appeal as to whether there was any direct evidence of the agreement by 12th August 1988 inferred by the Court of Appeal, Mr. Fardell claimed that this was provided by Mr. Cooper’s letter to the Minister of that date, recording agreement between the Harbour Board and the Establishment Unit on all aspects of the port company plan, and stating that all of the port related commercial undertakings identified in the plan were agreed. The insuperable obstacle in the way of this contention is that, in the view taken by the trial judge and approved by their Lordships, the marina assets were not identified in the plan as port related commercial undertakings. It is also significant that, in his affidavit sworn on 28th September 1995 in support of the application for judicial review, Mr. Cooper appears to stop short of claiming clearly an express agreement by 12th August 1988. He does say that the broad description in the plan was employed in contemplation of the individual identification of assets in a subsequent sale and purchase agreement. An agreement for sale and purchase dated 14th June 1989 and said by Mr. Cooper to include the marina assets by a schedule reference "Half Moon Bay" was executed by the Harbour Board and the company. But that was after the Minister’s approval of the plan and could not enlarge the approval.

 

 

 

The Amendment Application

33. It thus becomes necessary to consider the second chief issue in the case. On their view of the first, the Court of Appeal did not need to consider the second and did not do so. By letters to the Minister dated 12th July 1989 and 3rd December 1990 the Harbour Board and the port company sought (inter alia) confirmation that the marina assets (and certain other properties) had been approved for transfer as part of the port plan; and, if not, application was made that these assets be transferred on the basis that they formed part of the Board’s port related commercial undertakings. Alternatively, if they were not part of the Board’s port related commercial undertakings, the company sought an exercise of the Minister’s power to include the assets in the plan. Prolonged correspondence and consultations with various interested parties ensued. It was not until 10th July 1995 that by a letter to Mr. Cooper as chief executive of the company the Minister by that time in office, the Hon. Maurice Williamson, notified his decisions. He considered that none of the properties in question were included in the plan. Treating the applications therefore as made under section 22(8) or section 22(9), he took the view that they were not port related commercial undertakings and he declined the application for amendment. He said that for a port company to own an interest in facilities providing services to recreational boating would clearly conflict with the policy of the Act, unless there were other overriding reasons; and that the company had failed to provide any such reasons in this case.

 

34. The penultimate paragraph of his letter read:-

"In summary, I consider that: