Alpha Dairy NZ Ltd v Auckland Council

[2019] NZHC 2263

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2018-404-2455

[2019] NZHC 2263

BETWEEN

ALPHA DAIRY NZ LIMITED

First Applicant

GEUMSOON SHIM AND LIAN SENG BUEN

Second Applicants

AND

AUCKLAND COUNCIL

First Respondent

TONEA INVESTMENTS (NZ) LIMITED

Second Respondent

- continued

Hearing:

5 September 2019

Appearances:

E J Sheppard for the applicants

W M C Randal for the first respondent R B Brabant for the second respondent

R B Enright for Wiri Oil Services Ltd, proposed intervener

Judgment:

10 September 2019

JUDGMENT OF PALMER J

The judgment was delivered by me on 10 September 2019 at 1pm.

Pursuant to Rule 11.5 of the High Court Rules

……………………………… Registrar/Deputy Registrar

ALPHA DAIRY NZ LIMITED v AUCKLAND COUNCIL [2019] NZHC 2263 [10 September 2019]

CIV 2019-404-1130

BETWEEN  ALPHA DAIRY NZ LIMITED

First Applicant

GEUMSOON SHIM AND LIAN SENG BUEN

Second Applicants

AND  THE ENVIRONMENT COURT

First Respondent

TONEA INVESTMENTS (NZ) LIMITED AND STUDIO NEW ZEALAND

LIMITED
Joint Second Respondents

AUCKLAND COUNCIL
Third Respondent

Counsel/Solicitors:

R B Brabant, Barrister, Auckland R B Enright, Barrister, Auckland Berry Simons, Auckland

DLA Piper, Auckland

Keegan Alexander, Auckland K3 Legal Ltd, Auckland

Context

[1]    These proceedings concern resource management aspects of film-making in Auckland. The applicants apply for judicial review of Auckland Council’s decision to grant resource consent to Tonea Investments (NZ) Ltd (Tonea) and Tonea counter- claims. The applicants also apply for judicial review of the Environment Court’s decision in Tonea Investments (NZ) Ltd v Auckland Council.1 The declarations sought in the first of these proceedings by the applicants and Tonea, respectively:

The creation/manufacture of motion pictures, including development, pre- production, production and post-production, distribution/merchandising, as described in [Tonea’s resource consent] by reference to the definitions, controls and context (including relevant objectives and policies) does not constitute “manufacturing” as defined in the AUP, and is a non-complying activity in the Business – Light Industry Zone and the Business – Heavy Industry Zone.

And

The creation/manufacture of motion pictures, including pre-production, production and post-production, is an Industrial Activity, being Manufacturing

– “making items by physical labour or machinery” – by reference to the Definitions, controls and context in the Auckland Unitary Plan (AUP).

[2]    A hearing is set down for three days commencing 7 October 2019. A timetable is in place, leading up to the hearing. On 19 July 2019, when I made directions in relation to Tonea’s application for a declaratory judgment, I stated:

I do not propose the Court will take any particular steps to identify those who may be interested in applying to intervene in the proceedings regarding the generic issues. However, I expect the parties will wish to advise those they consider have direct interests in these issues of the proceedings. I would be open to considering application for leave to intervene, though that may not necessarily include making oral submissions, depending on the time the hearing takes.

[3]    On 26 August 2019, Wiri Oil Services Ltd (WOSL), applied for leave to join the proceeding against the Auckland Council as intervener. The applicants support the application. Tonea opposes it. Auckland Council did not wish to be heard and abides the Court’s decision. I heard argument at the call of the matter in the Judicial Review List on 5 September 2019.

1      Tonea Investments (NZ) Ltd v Auckland Council [2019] NZEnvC 61.

Law regarding interveners

[4]    The High Court has inherent jurisdiction to grant leave to an interested party to intervene in a proceeding by providing evidence, written submissions and/or oral submissions on specified terms but has no right of appeal. In summary, in deciding whether to grant leave to intervene, the Court weighs the likelihood the intervener will assist the Court against the risk of prejudice or unfairness to the parties.2 The decision is guided by the overall interests of justice.

[5]    In 2014, in Capital and Merchant Finance Ltd v Perpetual Trust Ltd, Thomas J distilled the following principles from the case law:3

(a)An applicant must show that its legal rights against or liabilities in relation to the subject matter will be directly affected. Commercial, financial, or reputational interests in the outcome will only be sufficient in exceptional circumstances.

(b)If the intending intervener's presence before the Court will not improve the quality of information before the Court, that will count heavily against its addition to the proceedings.

(c)A relevant consideration is the extent to which the proposed intervener can rely on one of the parties to protect its rights and obligations.

(d)If either party would be prejudiced by the intervention, or if the intervention would create an impression of partiality, the application will not be granted.

(e)In cases where development of the law is likely, the application is more likely to be granted if the proposed intervener has special expertise to assist the Court on wider public policy issues.

(f)The underlying issue is whether it would be unjust to adjudicate on the matter in dispute without the intervener being heard. Several of the factors mentioned above tie into this issue.

(g)Where intervention is justified, the degree of participation granted to the intervener should be the minimum necessary to protect the intervener's interests.

[6]Later the same month, a full court of the High Court stated:4

2      DN v Family Court at Auckland [2019] NZHC 2028 at [11].

3      Capital + Merchant Finance Ltd (in rec and in liq) v Perpetual Trust Ltd [2014] NZHC 3205, [2015] NZAR 228 at [41].

4      Taylor v Key (No 1) [2014] NZHC 3306, [2015] NZAR 730 at [9] (footnotes omitted).

The jurisdiction may be exercised when the Court is satisfied that intervention is likely to improve the quality of information before the Court on issues wider than those that the parties may wish to address. Intervention has been allowed where the party seeking leave has an interest in the outcome of the case that will be directly or indirectly affected or even where that party has a distinctly arguable case that they will be affected. In such cases, this Court has held it would be unjust to decide the issues in the absence of the party so affected, or potentially affected.

Submissions

[7]    Mr Enright, for WOSL, submits the single issue of interest to WOSL is whether the counterclaim declaration is correct in relation to the Business – Heavy Industry zone. He submits WOSL is directly affected by the wide terms of the counter-claim declaration, because of the risk of reverse sensitivity from higher population density activities associated with film-making activities. WOSL submits relevant provisions in the AUP were not brought to the attention of the Environment Court which means the Court’s declaration, and the counter-claim declaration, are overly broad and must be qualified to reflect the AUP correctly. This is WOSL’s first opportunity to be involved, because the Environment Court process was not publicly notified. Mr Enright submits WOSL could arguably apply for a similar declaration itself but it would be better to have all affected parties involved in the same proceedings. WOSL provided its affidavit evidence to the parties on 22 and 23 August 2019. It seeks leave to file submissions of no more than 15 pages, at the same time as the applicants, and to make oral submissions for up to 45 minutes. WOSL would not seek costs and would seek not to have costs awarded against it. If leave is granted, Mr Enright seeks a small extension of time to file and serve submissions, until 17 September 2019.

[8]    Mr Brabant, for Tonea, submits the question of whether industrial activity is permitted across various zones is the outcome of plan provisions not of this litigation. He submits that WOSL’s concern is really about a potential gap in the AUP in relation to what is permitted in the emergency management plan area, rather than about whether film-making is manufacturing. Accordingly, he submits the application to intervene should be declined because it is misconceived. If leave to intervene is granted, Mr Brabant objects to an extension of time to file and serve submissions.

[9]    Mr Sheppard, for the applicants, submits the applicants are not specialists in relation to the heavy industrial zone and are not well placed to assist in the argument

in that respect. By contrast, he submits WOSL is and it would be unjust for the declaration applications to be determined without hearing from WOSL. Counsel for the applicants would coordinate with WOSL if leave to intervene is granted, to ensure the hearing time is managed efficiently and consents to the requested extension of time to file and serve submissions. Mr Sheppard also foreshadowed a potential evidential issue but, if required, that can be determined at the substantive hearing.

Should WOSL be granted leave to intervene?

[10]   On balance, I consider WOSL’s participation in these proceedings is likely to assist the Court. WOSL has an interest in the planning regime touched on by the proceedings, can improve the information before the Court and has a different perspective than do the parties. As long as the terms of WOSL’s participation are confined, I do not consider it is likely to prejudice the parties, materially. Accordingly, I do not grant the extension requested to file and serve submissions and whether, and to what extent, WOSL can make oral submissions will lie entirely in the discretion of the judge presiding at the hearing.

[11]   I grant leave to WOSL to intervene in these proceedings, to offer the evidence they have already served on the parties, to make written submissions of no more than 15 pages by 4 pm Friday 13 September 2019. Costs will not be awarded in favour of, or against, WOSL.

Palmer J