Road tolls opponent loses High Court appeal

Photo / Dean Purcell.

Road tolls opponent Hans Grueber has lost a High Court appeal against convictions for using Auckland's Northern Gateway motorway without paying for the privilege.

Dr Grueber, 73, alleged in court this month that the former Transit New Zealand had used a "bogus survey" to gain ministerial approval for a tolling scheme on the basis that there was a high degree of support for it from affected communities.

He said Transit, which evolved into the Transport Agency in 2008, cast its net too far in surveying residents of Whangaparaoa Peninsula after submissions from residents closer to the 7.5-kilometre motorway route north of Orewa showed divided views.

But Justice Geoffrey Venning, in a reserved decision issued today, has ruled such a "collateral" challenge to four convictions entered against Dr Grueber in North Shore District Court two and a half years ago was not available to the Waiwera resident.

He said the Transport Agency, as the prosecuting authority, was removed from and had no relationship to the decision in 2004 of then Transport Minister Pete Hodgson to make a recommendation to the Governor-General of the day, Dame Silvia Cartwright, to establish the toll road.

Although Transit NZ was responsible for the consultation, making the recommendation was ultimately the minister's decision, and the appropriate form of challenge to that was through a judicial review.

He noted an acknowledgement to the court by Dr Grueber, a retired lawyer representing himself, that the main reason he decided not to seek such a review was because of a risk of having costs awarded against him.

But Justice Venning said even if had been open to Dr Grueber to challenge the ministerial decision as a defence against his own convictions, for which he was fined $160 and ordered to pay $583 costs in 2012, there was insufficient evidence to support such a challenge.

Even if the views of Whangaparaoa residents had been discounted, tolls would still have found support from 60 per cent of those surveyed closer to the route.

The judge said he did not overlook a submission by Dr Grueber that some survey participants gave only conditional support for tolls, noting that they had already paid taxes and therefore expected roads to be built from that source.

"However, while taking that view, they still confirmed overall support for the toll road."

But although the Transport Agency disclosed in June that it has spent $9970 in external legal expenses responding to Dr Grueber's challenges, which have involved several interlocutory legal hearings as far as the Court of Appeal, Justice Venning noted that it had not sought a costs order from him.

He therefore made no such order.

Dr Grueber said he had yet to study the decision in detail, but believed it unlikely he would seek to lodge another appeal.

Despite being disappointed at being unable to "beat City Hall", he was relieved the High Court had not awarded additional costs.

He presumed the Transport Agency had declined to seek extra costs in recognition of the public interest aspect of his defence.