Auckland Council v Cable Bay Wine Limited
[2021] NZHC 3290
•3 December 2021
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2021-404-358
[2021] NZHC 3290
UNDER Section 296 of the Criminal Procedure Act 2011 UNDER
Section 338 of the Resource Management Act 1991
BETWEEN
AUCKLAND COUNCIL
Appellant
AND
CABLE BAY WINE LIMITED
Respondent
DAVIDE MAZZOCCHINI
RespondentMATTEO COZZOLINO
Respondent
Hearing: 16 November 2021
Further submissions on 25 November 2021
Appearances:
S F Quinn for the Appellant
K de Silva for Cable Bay Wine Ltd and M Cozzolino D Mazzocchini on own behalf
Judgment:
3 December 2021
JUDGMENT OF GORDON J
This judgment was delivered by me on 3 December 2021 at 12 pm
Registrar/Deputy Registrar Date:
Solicitors: DLA Piper, Auckland
K de Silva, Auckland
Copy To: D Mazzochini
AUCKLAND COUNCIL v CABLE BAY WINE LTD [2021] NZHC 3290 [3 December 2021]
[1] This judgment concerns appeals on questions of law arising in a prosecution of Cable Bay Wine Ltd (Cable Bay) and two of its duty managers by the Auckland Council (Council) which charged Cable Bay and the two duty managers with breaches of a condition of Cable Bay’s resource consent relating to noise levels on three occasions.
[2] There are two appeals, both brought by the Council. One relates to a preliminary ruling made by Judge Kirkpatrick at the commencement of the hearing. That ruling (preliminary ruling) affected the charges for Cable Bay in relation to alleged events on 3 March 2018 and 23 June 2018 and the charge against Davide Mazzocchini, who was the duty manager on 3 March 2018.1
[3] The prosecution of the remaining charges proceeded immediately following the Judge’s preliminary ruling. There were two charges arising out of alleged events on 9 February 2018, one against Cable Bay and the other against the second duty manager, Matteo Cozzolino. For reasons relating to the loss of the sound recordings made by the Council officer on 9 February 2018, the Judge found both Cable Bay and Mr Cozzolino not guilty of the charge laid against each of them (substantive decision).2 In the second appeal, the Council alleges the Judge made errors of law in the substantive decision.
[4] Cable Bay, Mr Mazzocchini and Mr Cozzolino oppose both appeals. In relation to the preliminary ruling, the respondents say that this Court does not have jurisdiction to hear the appeal as it does not fall within s 296 of the Criminal Procedure Act 2011 (CPA) and in any event the application for leave to appeal was filed out of time. As to the substance of the appeal against the preliminary ruling, they say that there were no errors of law. In terms of the appeal in relation to the charges that proceeded to a hearing, the respondents say the appeal raises no questions of law. The Judge simply made findings of fact on relevant issues.
1 Auckland Council v Cable Bay Wine Ltd [2021] NZDC 8837 (preliminary ruling).
2 Auckland Council v Cable Bay Wine Ltd [2021] NZDC 12236 (substantive decision).
[5] Mr Mazzocchini appeared on his own behalf and adopted the submissions made on behalf of Cable Bay and Mr Cozzolino.3
Background
[6] Cable Bay operates a winery and hospitality business from a property at 12 Nick Johnstone Drive, Oneroa, Waiheke Island (the property). The use of the property as a restaurant and function centre is not permitted by a rule in the relevant district plan, the Hauraki Gulf Islands section of the Auckland Council District Plan (the District Plan). There is a general rule in the District Plan which requires a resource consent to be obtained for any activity which is not permitted. At the hearing before Judge Kirkpatrick there was no dispute that there was a resource consent in place which expressly allowed the use of the property but which was subject to a range of conditions (the 2006 consent).4 One of those is condition 25, which limits the levels of noise that can be generated at different times.
[7] The property totals 4.5566 hectares. Relevant for the purposes of the preliminary ruling is that part of the property is subject to a lease. The current owners of the leasehold property are not connected with the operation at Cable Bay. The lease was granted in 2002 and the address of the leasehold property is 85 Church Bay Road. A separate record of title (formerly known as a certificate of title) has been issued for 85 Church Bay Road. The lease is for a term of less than 35 years, which means the grant of the lease did not constitute a subdivision under the Resource Management Act 1991 (RMA).5
[8] The sound measurements which the Council relied on for the 3 March 2018 and 23 June 2018 charges were taken by the Council officer from a position on the leasehold property at 85 Church Bay Road. It was the location of these recordings that gave rise to the argument decided in the preliminary ruling. The Judge held that
3 In relation to the latter two respondents, I will refer to them collectively as Cable Bay.
4 Independent Commissioners granted Cable Bay’s application for resource consent in August 2005. There was an appeal to the Environment Court. The appeal was resolved by consent and on 22 May 2006 the Environment Court issued a consent order confirming the grant of resource consent subject to amended conditions.
5 Resource Management Act 1991, s 218.
the measurements from 85 Church Bay Road were insufficient to prove the 3 March and 23 June 2018 charges.
[9] Following the preliminary ruling, the Council sought and was granted leave to withdraw the charges under s 146 of the CPA. There was no opposition to the application.6 The Judge then continued the hearing on the remaining two charges.
[10] The sound recordings made by the Council officer on 9 February 2018 were taken from a different property and there was no issue as to the location from which the recordings were made. However, although the Council officer had retained a record of the sound levels, the sound recordings themselves had been lost. While there was no suggestion of bad faith for reasons arising out of the absence of the sound recordings, the Judge dismissed the two charges alleging offences on 9 February 2018.
[11] The charges for each of the three dates (9 February, 3 March and 23 June 2018) against Cable Bay and the two duty managers were all in the same terms. They alleged offending at 12 Nick Johnstone Drive, legally described as Lot 21 DP 159304 in contravention of s 9(3) of the RMA:
… through using land to operate a winery, vineyard, restaurant and function centre, with associated outdoor use, in a manner which contravenes a rule in the Auckland Council District Plan – Hauraki Gulf section, namely General Rule 4.2, as an activity not provided for in activity table 10A.20.5 and in breach of condition 25 of Resource Consent R/LUC/2004/8789 through the generation of noise.
[12] The element of the offence which was disputed in the District Court was whether the use was one that was not expressly allowed by a resource consent. In the circumstances of the case, this turned on whether the use complied with the limits in condition 25 of the 2006 consent on the maximum noise level that could be generated by that use.7 Condition 25 of the 2006 consent in relation to noise control states:
At all times any activity on the site shall comply with the following noise levels:
6 In the substantive decision, above n 2, at [12], it refers to the charges being “dismissed”. The Judge later corrected that slip replacing the word “dismissed” with the word “withdrawn” at [12].
7 Substantive decision, above n 2, at [5].
The noise level arising from any activity measured 20m from any adjacent dwelling or visitor facility (on another lot) shall not exceed the following limits:
[13] There is then a table setting out noise limits for times on various days of the week. To comply with condition 25, the noise generated by any activity on the site must reduce to no more than 35 dBA after 10 pm from Monday to Saturday and after 6 pm on Sunday.8 There was no issue at the hearing that this was the relevant noise level.
Appeals on questions of law
[14] Section 296 of the CPA provides for appeals on questions of law. Leave of the first appeal court (in this case, the High Court) is required for an appeal. The Council has applied for leave to bring both appeals. The application for leave to appeal the preliminary ruling was filed out of time.
[15] The nature of a question of law was considered by the Supreme Court in Bryson v Three Foot Six Ltd in the context of a similar provision in the Employment Relations Act 2000 as follows:9
[25] An appeal cannot, however, be said to be on a question of law where the fact-finding Court has merely applied law which it has correctly understood to the facts of an individual case. It is for the court to weigh the relevant facts in the light of the applicable law. Provided that the Court has not overlooked any relevant matter or taken account of some matter which is irrelevant to the proper application of the law, the conclusion is a matter for the fact-finding Court, unless it is clearly insupportable.
[26] An ultimate conclusion of a fact-finding body can sometimes be so insupportable – so clearly untenable – as to amount to an error of law; proper application of the law requires a different answer. That will be the position only in the rare case in which there has been, in the well-known words of Lord Radcliffe in Edwards v Bairstow, a state of affairs “in which there is no evidence to support the determination” or “one in which the evidence is inconsistent with and contradictory of the determination” or “one in which the true and only reasonable conclusion contradicts the determination”. …
8 Substantive decision, above n 2, at [9].
9 Bryson v Three Foot Six Ltd [2005] NZSC 34, [2005] 3 NZLR 721 at [25] and [26].
[16] In Brown v R, the Court of Appeal confirmed in the context of s 296(2) of the CPA, that questions of law must raise one or more of the three standard errors classified by modern authorities as creating questions of law:10
…
(a)a misdirection of law apparent in the decision (what Fisher J called “a conventional legal question on unchallenged facts”);
(b)oversight of a relevant matter, or consideration of an irrelevant matter; or
(c)a factual finding unsupported by any evidence, or an omission to draw an inference of fact which is the only one reasonably possible on the evidence.
(citations omitted)
Issues in relation to preliminary ruling
[17] Cable Bay says that this Court does not have jurisdiction under s 296 to hear the appeal. I will first set out the ruling itself. Then I will consider the jurisdiction issue. If I consider the Court does have jurisdiction to hear the appeal, I will then consider the substance of the appeal and finally whether leave should be given to appeal out of time.
Preliminary ruling of District Court Judge
[18] The Judge commenced his decision by stating that he would “make my ruling now on whether or not the measurements taken from 85 Church Bay Road are sufficient to prove any of the charges”. The Judge referred to condition 25, noting that:11
[1] … That condition controls noise from any activity on the site and says: “It shall comply with noise levels measured 20 metres from any adjacent dwelling or visitor facility (on another lot) and it is not to exceed the following limits.”
10 Brown v R [2015] NZCA 325 at [16].
11 Preliminary ruling, above n 1, at [1].
[19] The Judge noted that the words “site” and “lot” were similarly defined in the District Plan by reference to a certificate of title and also that those two words were not defined in the RMA.12
[20] The Judge said that he considered that the word “adjacent” applied to both a dwelling and a visitor facility and the words in brackets “(on another lot)”, also applied to both the dwelling and visitor facility “so that the phrase “from any adjacent dwelling or visitor facility on another lot” is a single phrase”.13
[21] The substance of the six-paragraph decision is contained in three paragraphs which I set out in full:14
[3] Having carefully considered the submissions of counsel, I consider that there is a possible interpretation of the words “another lot” to mean a separate property separate in the sense of capable of being dealt with separately. I think that this arises from the way in which separate interests may be differentiated from separate titles in terms of the way the Land Transfer Act is now worded. I think also that there are differences between the treatment of subdivision and the avoidance, remediation or mitigation of off-site effects under both the RMA and the District Plan and for what it is worth I think that different terms would be helpful particularly now that the term “Certificate of Title” is no longer used in the Land Transfer legislation.
[4] The upshot of these matters is that the words in the plan are unclear and it seems to me quite possible that the focus of the definition of site and of lot in the circumstances that apply to 85 Church Bay Road is in terms of considering whether or not the leasehold interest is for longer or less than 35 years, and that is of significant for the purposes of the Resource Management Act in terms of whether or not the lease amounts to a subdivision but that, of course, is not particularly relevant in this case.
[5] That brings me back to my view as to what “on another lot” means and I think in that context a reasonable interpretation is that it means a separate property. I consider that that is an interpretation which is available to the defendants in this case and as such it follows in my judgement that the prosecutor cannot prove that the noise as measured on or near 85 Church Bay Road was measured on another lot in terms of the charge.
[22] The Judge “therefore rule[d] that any measurement of noise levels that were taken in respect of 85 Church Bay Road are insufficient to prove the charge of contravention of s 9 by non-compliance with condition 25 of the resource consent”.15
12 Preliminary ruling, above n 1, at [2].
13 At [2].
14 At [3]–[5].
15 At [6].
Does the Court have jurisdiction to hear the appeal against the preliminary ruling?
[23] It is necessary for the Council to bring the appeal within s 296 of the CPA, which provides:
296 Right of appeal
(1)This section applies if a person has been charged with an offence.
(2)The prosecutor or the defendant may, with the leave of the first appeal court, appeal under this subpart to that court on a question of law against a ruling by the trial court.
(3)The question of law in a first appeal under this subpart must arise—
(a)in proceedings that relate to or follow the determination of the charge; or
(b)in the determination of the charge (including, without limitation, a conviction, an acquittal, the dismissal of the charge under section 147, or a stay of prosecution).
…
[24] In his written submissions, Mr Quinn for the Council, framed the Council’s argument under s 296(3)(a). Unsurprisingly, Ms de Silva, for Cable Bay, responded in her submissions addressing s 296(3)(a). At the hearing, counsel’s oral submissions were similarly focused.
[25] In short, Ms de Silva submits the Court has no jurisdiction to hear the appeal as the charges were withdrawn; the Council’s position is not supported by case law; and it is not correct for the Council to say its only option was to withdraw the charges. Ms de Silva further submits that in any event, with the charges having been withdrawn, the Council is out of time to relay charges for the alleged offending on 3 March and 23 June 2018.16
[26] Mr Quinn, for the Council, submits the argument on behalf of Cable Bay misses the focus of the appeal by the Council. The appeal is on the determination of
16 At the time of the alleged offending in March and June 2018, s 338(4) of the Resource Management Act 1991 provided that the limitation period ended on the date that is six months after the date on which the contravention giving rise to the charge first became known, or should have become known, to the local authority or consent authority. On 1 July 2020 s 338(4) was amended so that the limitation period is now 12 months.
the preliminary legal point the Court made about the meaning of “another lot”. The appeal in this Court is not against the District Court Judge’s decision to grant the application for leave to withdraw the charges. Mr Quinn submits that the legal interpretation of “another lot” impacted on the validity of the charges to such an extent that there was no option but to withdraw the charges. He therefore submits that the Judge’s decision was clearly a ruling in a proceeding that related to the determination of the charges for the purposes of s 296(3)(a).
[27] Mr Quinn further submits that using the “but for” approach, if the District Court Judge had not made his ruling, the charges would have been progressed and any appeal rights in respect of the Judge’s substantive determination would have existed. For that reason, the preliminary ruling had a sufficiently close connection to the determination of the charges to give this Court jurisdiction to hear the appeal (subject to leave being granted) under s 296(3)(a).
[28] There is no issue over whether the Judge made a “ruling” in terms of s 296(2). The issue as framed by the Council was whether the preliminary ruling has a sufficiently close connection to the determination of the charges to be within the scope of s 296(3)(a).
[29] Following the hearing it seemed to me that the better approach might well be to consider the issue under s 296(3)(b). I therefore sought submissions from counsel on this point. I am grateful for their assistance. Having considered the submissions, I consider the applicable provision is s 296(3)(b). I therefore do not analyse counsel’s submissions under s 296(3)(a) but I list the authorities they referred to below.17
[30] Proceeding under s 296(3)(b), the first issue to consider is the procedure adopted in the District Court leading to the preliminary ruling. There was no application filed in the District Court by either the Council or the defendants.
17 Anderson v R [2015] NZCA 518, [2016] 2 NZLR 321; Paice v Police [2018] NZHC 1548; Linfox Logistics (NZ) v WorkSafe NZ [2018] NZHC 583; D (CA716/2015) v R [2016] NZCA 190; R v Le Breton [2019] NZHC 3016; and Maangi v R [2017] NZCA 534.
[31] However, the District Court has an inherent power to regulate its own procedure (provided the procedure adopted does not conflict with statute or the relevant rules). In Commissioner of Police v Ombudsman, the Court of Appeal stated:18
Inferior Courts have by implication the necessary powers to control their own proceedings and to determine incidental or preliminary questions of law and fact.
[32] Earlier, in Mihaka v Police, when considering an appeal against conviction in the Magistrates Court, Hardie-Boys J said:19
The right of the Judge or other judicial officer to regulate the proceedings of his Court is an essential attribute of judicial independence, itself one of the cornerstones of our liberty.
[33] In addition to the inherent power to control its own proceedings, the District Court also has powers under s 147 of the CPA in relation to the dismissal of a charge. A Court may dismiss a charge on its own motion or on the application of the prosecutor or the defendant at any time before or during the trial but before the defendant is found guilty or not guilty or enters a plea of guilty.20
[34] Rule 2.12(2)(i) of the Criminal Procedure Rules 2012 provides that an application under s 147 of the CPA for the dismissal of a charge must be made in writing. However, r 2.12(4) provides that the judicial officer to whom the application is to be made may direct that an application to which subcl (2) applies be made orally. Additionally, r 2.11(3) provides that:
(3) Subject to subclauses (1) and (2), the court may grant leave for an application to be made or determined otherwise than in accordance with this subpart if it is satisfied that to do so would be consistent with the objective in rule 1.3(b).
[35]Rule 1.3(b) provides:
1.3 Objective
The objective of these rules is to —
18 Commissioner of Police v Ombudsman [1988] 1 NZLR 385 (CA) at 399.
19 Mihaka v Police [1981] 1 NZLR 54 (HC) at 58.
20 Criminal Procedure Act 2011, s 147(1).
…
(b) secure the just and timely determination of proceedings under the Act.
[36] Accordingly, the District Court had the inherent power to make a preliminary determination as the Judge did and the Judge also had the ability to dismiss the charges (the issue which I have yet to come to is whether he in fact did so) although there was no formal application in writing. This process or procedure was not inconsistent with the Criminal Procedure Rules.
[37] The next issue to consider is whether it can be said that what was before the District Court Judge was, in substance, an application to determine sufficiency of evidence to prove the March and June 2018 charges, although there was no formal application filed.
[38] Mr Quinn submits that the issue of whether 85 Church Bay Rd was a separate site or lot was signalled to the Court as a key issue from the early stages in the proceeding. On 9 November 2018, counsel filed a joint memorandum seeking an adjournment, noting that the issue of whether 85 Church Bay Rd is a separate site was anticipated to be considered by the Environment Court in a separate proceeding involving Cable Bay and the Council. In two further joint memoranda dated 26 February 2019 and 19 March 2019, counsel advised the Court that the “site” issue was not addressed in the second interim decision from the Environment Court and in the second memorandum that no further decision had been released by the Environment Court.
[39] In a further joint memorandum dated 30 October 2019, filed for case review on the following day, counsel noted that there were “legal issues which are for determination by the Court” but did not identify those legal issues.
[40] On 4 November 2020, Cable Bay filed an application seeking orders under s 30 of the Evidence Act 2006 to exclude the noise measurements taken by the Council at 85 Church Bay Rd on 3 March and 23 June 2018 on the basis that the evidence was improperly obtained.
[41] In the Council’s notice of opposition dated 13 November 2020 to the application by Cable Bay, there is the following:
30. The noise measurements are important to the prosecution. The measurements form the basis for two of the three charges against Cable Bay. As Cable Bay identifies in its application, the exclusion of these measurements would mean the end of the proceeding in relation to these charges …21
[42] On 12 April 2021, Cable Bay filed a memorandum in which it proposed that submissions on the issue of whether noise measurements can be taken at 85 Church Bay Road to determine compliance with condition 25 of the 2006 consent (along with another legal issue relating to the 9 February 2018 charges), be heard at the commencement of the hearing.
[43] The Council responded in a memorandum dated 14 April 2021 confirming that it was open to legal submissions being filed in advance but sought to confirm the scope of the issues, including whether the first legal issue identified by Cable Bay was confined to the legal issue of the meaning of “site” or whether it also included the application to exclude evidence. The Council’s memorandum also stated:
8. … It is not clear if the defendants intend these issues to be heard (and determined) prior to the substantive hearing to inform the basis of an application to dismiss in advance of the substantive hearing, or if this is simply a request to set out the order of the hearing of the matter.
[44] Cable Bay filed a memorandum in response, dated 15 April 2021, stating that whether the hearing of the issue related to an application to dismiss or the order of the hearing is “for the Court after hearing submissions”.
[45] On 16 April 2021, Judge Kirkpatrick issued a minute of a telephone conference held that day. The minute refers to the memorandum of counsel for Cable Bay dated 12 April 2021 regarding “the process for addressing two issues at the commencement of the trial”. The Judge stated:
21 The application by Cable Bay to exclude the evidence under s 30 of the Evidence Act 2006 came before Judge Harland (as she then was) on 26 November 2020. In her judgment of 23 December 2020, Auckland Council v Cable Bay Wine Ltd [2020] NZDC 26727) Judge Harland adjourned the application, saying it should be considered at the substantive hearing.
[6] How the Court proceeds, having heard submissions on those preliminary issues will be a matter to be decided during the hearing. The issues might be answered immediately, or might require consideration of the evidence, including that given in cross-examination, or might have to be reserved.
[46] Written submissions were subsequently filed by the defendants and the Council addressing the definition of “site” and “lot” in relation to 85 Church Bay Road. At the commencement of the hearing of the charges on 10 May 2021, the Judge heard oral submissions and then delivered his preliminary ruling.
[47]What can be drawn from the above was that the Court had before it:
(a)a clear indication from the Council and the defendants that the meaning of “site”, and “lot” was an important issue;
(b)the Council’s position that the noise measurements taken from 85 Church Bay Rd were crucial to the prosecution and the March and June 2018 charges would fail without that evidence; and
(c)a proposal by the defendants that this issue be dealt with in advance as a legal issue and the defendants’ position that the issue could relate to a dismissal of the charges (but that was for the Court).
[48] I accept Mr Quinn’s submission that it is clear what would happen if the Court determined the legal issue against the Council and in favour of the defendants. The Judge made his ruling in advance of hearing any evidence. I consider it can be said that what was before the Court in substance, was essentially an application to determine sufficiency of evidence to prove the March and June 2018 charges.
[49] The next issue is whether the Judge’s ruling on insufficiency of evidence to prove the charges was in substance a dismissal of the charges, i.e. a determination of the charges for the purposes of s 296(3)(b).
[50]Section 147(4)(b) provides:
Without limiting subsection (1), the Court may dismiss a charge if –
…
(b)in relation to a charge for which the trial procedure is the Judge-alone procedure, the Court is satisfied that there is no case to answer;
…
[51] In Haw Tua Tau v Public Prosecutor, an appeal arising from proceedings in Singapore, the Privy Council commented on the test to be applied in determining whether there is “no case to answer”, saying:22
At the conclusion of the prosecution’s case what has to be decided remains a question of law only. As decider of law, the judge must consider whether there is some evidence (not inherently incredible) which, if he were to accept it as accurate, would establish each essential element in the alleged defence. If such evidence as respects any of those essential elements is lacking, then, and then only, is he justified in finding “that no case against the accused has been made out …”
[52]In the present case, the Judge’s opening words in the preliminary ruling were:23
I will make my ruling now on whether or not the measurements taken from 85 Church Bay Rd are sufficient to prove any of the charges.
[53] The Judge then concluded his decision, ruling that any measurements of noise levels taken at 85 Church Bay Rd were insufficient to prove the charge(s). The Judge’s ruling was, in substance, the same as a finding that there was no case to answer. No one, including the Judge and counsel, can have been unaware of what the ruling meant. The lack of any formal incantation by the Judge saying the charges were dismissed, is not material. The charges had been dismissed, i.e., they had been determined.
[54] The next issue that arises is whether the Judge had the jurisdiction to grant leave for the Council to withdraw the charges when his ruling constituted a dismissal of the charges.
[55] First, s 146 of the CPA permits a charge to be withdrawn. However, following what I have found to be a dismissal of the charges, there were no longer any live charges to be withdrawn. Second, if a charge is dismissed, then the defendant is
22 Haw Tua Tau v Public Prosecutor [1982] AC 136 (PC) at 151.
23 Preliminary ruling, above n 1, at [1].
deemed to be acquitted on that charge.24 There is then a bar on further proceedings that relate to the same matter.25 Allowing a withdrawal to follow a dismissal would be contrary to the distinction made between s 146 and s 147.
[56]Further, and in any event, a charge can only be withdrawn before “the trial”.
In Maangi v R, the Court of Appeal considered the meaning of “trial” as follows:26
[37] While there is no definition of “trial” in the Act itself, the Criminal Procedure Act defines it in this manner:
(i)in subpart 1 of Part 4, means a Judge-alone trial:
(ii)in subpart 2 of Part 4, means a jury trial:
(iii)in the other provisions of this Act, means a Judge-alone trial or jury trial.
Definitions of “judge-alone trial” and “jury trial” identify the respective applicable parts of the statute.
[38]A definition of “before the trial” is also provided:
(i)in the case of a Judge-alone trial, before the proceedings under section 105 begin; and
(ii)in the case of a jury trial, before the defendant is given in charge to the jury.
[57] The Judge in his 16 April 2021 minute clearly accepted what had been said by counsel for the defendants in her memorandum that the two issues would be addressed at the commencement of the hearing. The Judge-alone trial had commenced. For this separate reason, the Judge had no jurisdiction to give leave to the prosecution to withdraw the charges.
[58] In summary then, the Judge’s preliminary ruling was in substance a determination of the March and June 2018 charges. The question of law has arisen in the determination of the charges and this Court has jurisdiction under s 296(3)(b) of the CPA to hear the appeal, subject to leave being granted.
24 Criminal Procedure Act, s 147(6).
25 Section 47 (unless an exception under ss 151–154 applies, which is not relevant here).
26 Maangi v R, above n 17 at [37] and [38]..
[59] The Judge had no jurisdiction to grant leave to withdraw the charges as they had already been determined. As a separate jurisdictional point, in any event, the Judge could not have granted leave to withdraw the charges as the trial had commenced. Should the Council succeed on the substance of the appeal against the preliminary ruling, there is no impediment to the Judge rehearing the March and June 2018 charges.
The grounds of appeal – preliminary ruling
[60] The Council submits that the District Court Judge erred in the preliminary decision:
(a)by not determining the legal issue on the meaning of “another lot” despite the benefit of extensive legal submissions from counsel for all parties on that issue; and
(b)by providing insufficient reasons for finding that 85 Church Bay Road could be considered to be “another lot”.
[61]I will address the alleged errors in reverse order.
First alleged error of law - insufficient reasons
[62] Mr Quinn submits the failure to provide adequate reasons (or the provision of inadequate reasons) can amount to a question of law in the context of an appeal in the criminal jurisdiction. Mr Quinn submits that the Court gave insufficient reasons for its finding that there were two potential interpretations: either 85 Church Bay Rd could be considered “another lot”, or it could also be considered to be the same site as Cable Bay. Mr Quinn submits that the Judge did not engage with the detailed legal submissions filed by both parties in relation to the meaning of “another lot”. Mr Quinn says the reasons were extremely brief and the Judge did not address, in any detail, the factors which influence interpretation. Mr Quinn says the Judge effectively acknowledged competing arguments but avoided a determination on the basis that the words of the District Plan were unclear and accordingly this resulted in a finding against the prosecution.
[63]Ms de Silva submits that the Judge provided adequate and sufficient reasons.
[64] There is no invariable rule that Courts must give reasons for their decisions, but the provision of reasons is desirable.27 No New Zealand Court has yet gone so far as to decide that there is an “inflexible rule of universal application” requiring judges to provide a reasoned decision.28 That question was left open by the Court of Appeal in Lewis v Wilson & Horton Ltd, declining to consider whether to revisit what had been said in an earlier decision of the Court of Appeal in R v Awatere.29 In that case, the Court referred to the need to provide reasoned decisions as “good judicial practice”:30
Nonetheless, Judges and Justices should always do their conscientious best to provide with their decisions reasons which can sensibly be regarded as adequate to the occasion. Indeed, failure to follow that normal judicial practice might well jeopardise the decision on appeal. It could do so because a potential appellant might seem to be unduly prejudiced or it could do so by leaving it open for the appellate Court to infer that there are in fact no adequate reasons to support it, and so in either case act more readily than otherwise it would have done to order a rehearing or to rehear the case itself, or to make an order that proper and adequate reasons are to be supplied or even to quash the verdict outright.
[65] In R v Jefferies, the Court of Appeal referred to R v Awatere as the leading authority on the giving of reasons.31 The Court of Appeal said:32
It follows that faced with an absence or insufficiency of reasons for the decision of the District Court the High Court may, on hearing and determining the appeal, adopt whichever of the statutory courses it considers feasible and best calculated to meet the interests of justice in the particular circumstances, those interests including Bill of Rights considerations. The statutory options are:
(1)hearing and determining the appeal on the material before the Court, including rehearing any part of the evidence and receiving further evidence;
(2)directing the District Court to provide adequate and proper reasons;
(3)remitting the matter to the District Court for rehearing; and
(4)simply quashing the conviction.
27 Lewis v Wilson & Horton Ltd [2000] 3 NZLR 546 (CA) at [75].
28 Potter v New Zealand Milk Board [1983] NZLR 620 (HC) as cited in Hollander v Auckland Council [2017] NZHC 2487 at [50]; R v Awatere [1982] 1 NZLR 644 (CA) at 648–649; R v MacPherson [1982] 1 NZLR 650 (CA); and R v Jefferies [1999] 3 NZLR 211 (CA).
29 Lewis v Wilson & Horton Ltd, above n 27, at [85], referring to R v Awatere, above n 28.
30 R v Awatere, above n 28, at [649].
31 R v Jefferies [1999] 3 NZLR 211 (CA) at [14].
32 At [22].
That final option will be exercisable where the High Court concludes that the interests of justice so require, notwithstanding the other courses available. As it was put in Awatere, there may be cases where the appellant would otherwise be unduly prejudiced or where the High Court could infer that there were in fact no adequate reasons to support the District Court decision.
[66] In Lewis v Wilson & Horton Ltd, the Court of Appeal acknowledged that “reasons may be abbreviated” and, in some cases, “will be evident without express reference”.33 In that case the District Court Judge had made an order suppressing the name of a defendant facing drugs charges without giving reasons. In the circumstances of that case, the Court of Appeal held the failure to give reasons was an error of law.34 More recently, on an appeal concerning the Auckland Unitary Plan, the Court of Appeal reiterated the principles from Lewis v Wilson & Horton Ltd.35
[67] In this case, the Judge did not discuss and analyse the competing the arguments which were addressed in much detail in the parties’ written submissions. The Judge made his decision on the basis that the words in the District Plan were unclear (whether adopting that approach involved an error of law is for consideration in the next part of this judgment). I agree that the Judge’s reasons are somewhat limited and could be said to be overly abbreviated, but the Judge nevertheless gave some reasons for saying why he considered the words “on another lot” could reasonably be interpreted to mean a separate property.
[68] It would have been desirable in a criminal prosecution and one which clearly was of importance to the parties, for the Judge to have been more generous in explaining his reasons. But I do not consider it can be said that the reasons given were so inadequate as to constitute an error of law.
Second alleged error of law – meaning of “another lot”
[69] Mr Quinn submits that the Judge erred in not determining the legal issue regarding the meaning of “another lot”. The Council says the Judge made an error of law in applying the lenity principle and that the Judge should have determined the
33 Lewis v Wilson & Horton Ltd, above n 27 at [81].
34 At [86].
35 Belgiorno-Nettis v Auckland Unitary Plan Independent Hearings Panel [2019] NZCA 175, [2019] 3 NZLR 345 at [46]–[51].
appropriate meaning of “another lot”. Mr Quinn submits that this was an error of law both in terms of the interpretation of the District Plan and condition 25 of the 2006 consent. Mr Quinn says that the Judge reached a conclusion based on the onus of proof but erred because he did not first determine the legal issue of the meaning of “another lot”.
[70] Ms de Silva submits the District Court Judge correctly applied the principle of lenity. There is genuine ambiguity.
Lenity principle
[71] In Tan v Auckland Council,36 an appeal from a decision of the District Court in a pre-trial ruling in a prosecution under the Building Act 2004, the appellant submitted that the principle of lenity should be applied so that any criminal liability does not apply beyond the plain meaning of the words used. In this Court, Brewer J expressed the view that the principle of lenity does not override the need for a purposive interpretation and criminal statutes are not immune from purposive interpretation.37Brewer J referred to, and agreed with, the writers of Burrows and Carter Statute Law in New Zealand, quoting from that text as follows:38
There have been shifts in the old attitudinal presumptions that prescribed certain Acts, in particular criminal and tax Acts, must be strictly construed in favour of the individual.
Thus, a person was not to be found guilty of crime unless the words of the Act covered that person beyond any doubt. Sometimes, in fact, this presumption favouring the individual led the words of the Act being so narrowly construed as to amount almost to distortion. This presumption has lost some of its force with the growing emphasis on purpose. Section 5(1) [of the Interpretation Act 1995] applies to enactments in general and draws no distinction between different classes of Act. If a person is clearly within the prohibition of the Act read sensibly in line with its purpose, that person is unlikely to be allowed to ride free on deficiencies and of expression…
[72] Brewer J then referred to the example in Burrows of R v Karpavicius where the Privy Council, in the context of interpreting the Misuse of Drugs Act 1975, said:39
36 Tan v Auckland Council [2015] NZHC 3299.
37 At [70].
38 Ross Carter Burrows and Carter Statute Law in New Zealand (5th ed, LexisNexis, Wellington, 2015) at 233–234.
39 R v Karpavicius [2004] 1 NZLR 156 (PC) at [15].
[15] In a more literalist age it may have been said that the words of s 6(2A)(c) are capable of bearing either a wide or narrow meaning and that the fact that a criminal statute is involved requires the narrower interpretation…nowadays an approach of concentrating on the purpose of the statutory provisions is generally to be preferred.
[73] In R v QF,40 a prosecution relating to the business of money remittance and currency exchange where charges were laid under the Anti-Money Laundering and Countering Financing of Terrorism Act 2009, Walker J, after referring to Tan, stated:41
Although a defendant is entitled to the benefit of doubt in cases of genuine ambiguity in a criminal enactment, the principle does not override the need for a purposive interpretation.
[74] In this case, the Court is interpreting a condition of a resource consent issued under the District Plan as opposed to a statute. But I accept the same approach to interpretation as referred to above can be applied. First, the rules in a plan are treated as regulations. Section 76(2) of the RMA provides:
(2)Every such rule shall have the force and effect of a regulation in force under this Act but, to the extent that any such rule is inconsistent with any such regulation, the regulation shall prevail.
[75] Next, in Powell v Dunedin City Council,42 the Court of Appeal referred with approval to the approach of Chambers J in Beach Road Preservation Society Inc v Whangarei District Council,43 where Chambers J, after referring to s 76(2) of the RMA, considered that the Interpretation Act 1999 applied to the interpretation of rules in district plans.
[76] In this case, the District Court Judge was required to interpret “on another lot” by reference to a definition in the District Plan. The Judge should have adopted a purposive interpretation. The Judge did not interpret the expression at all but incorrectly conflated the burden of proof with interpretation on a legal issue. This was an error of law.
40 R v QF [2019] NZHC 3058.
41 At [212(d)].
42 Powell v Dunedin City Council [2004] 3 NZLR 721 (CA).
43 Beach Road Preservation Society Inc v Whangarei District Council [2001] NZRMA 176 at [33]– [37].
Meaning of “another lot”
[77]I have already set out the relevant part of condition 25 of the 2006 consent in
[12] above but I repeat it here for ease of reference:
At all times any activity on the site shall comply with the following noise levels:
The noise level arising from any activity measured 20m from any adjacent dwelling or visitor facility (on another lot) shall not exceed the following limits:
[78] “Lot” is defined in the 1996 District Plan (the plan in place at the time the 2006 consent was issued) as follows:
Lot is an area of land:
(i)comprised in a single certificate of title: or
(ii)defined on an approved survey plan for which a separate title could be issued without further consent of the Council;
being in any case the smaller land area at (i) or (ii) and includes an access lot.
[79]The definition of “site” in the 1996 District Plan is as follows:
Means either:
(i)an area of land which is:
(a)Comprised in a single certificate of title; or
(b)Contained in a single lot on an approved survey plan or subdivision for which a separate certificate of title could be issued without further consent of the council;
Being in any case the smaller land area of (a) or (b); or …
[80]Thus, in order to establish a breach of condition 25, the noise measured:
(a)had to exceed the limits in condition 25 of the 2006 consent; and
(b)had to be measured on “another lot”.
[81] If the resource consent was not breached, the land use was expressly authorised by that consent. For the 3 March and 23 June 2018 charges, the Council relied on
noise monitoring results taken from 85 Church Bay Road, on the basis that it was “another lot”. The Council therefore was required to establish that the meaning of “another lot” in condition 25 included 85 Church Bay Road. This was in issue because, as already noted, 85 Church Bay Road is a leasehold site which has its own record of title as opposed to being a freehold site.
[82] The Judge’s finding and decision are set out in [20][22] above. In short, the Judge said that the words “site” and “lot” are similarly defined in the District Plan by reference to a certificate of title;44 the words in the plan are unclear;45 and it was a reasonable interpretation that another lot means a separate property, which is an interpretation available to the defendant.46 The Judge held that the prosecutor could not prove that the noise as measured on or near 85 Church Bay Road was measured on another lot in terms of the charge.47
[83] Mr Quinn submits that the proper interpretation of “another lot” is that 85 Church Bay Road is a separate lot (and it therefore follows that the noise measurements taken by the Council officer from 85 Church Bay Road were sufficient to prove the charges). Mr Quinn relied heavily on the decision of Campbell J in this Court in Cable Bay Wine Ltd v Auckland Council.48 The decision was on an appeal and judicial review by Cable Bay of a decision of the Environment Court. The proceeding in the Environment Court was an appeal by Cable Bay against a decision of the Council refusing a retrospective resource consent for certain activities on the same property involved in this case and also a hearing of the Council’s application for an enforcement order. The Environment Court granted consent for some of the activities, subject to conditions. In the appeal and judicial review, Cable Bay took issue with conditions imposed by the Environment Court, submitting they were unlawful.
[84] Mr Quinn submits that while the decision in that case was in a civil context, the same property was involved and the same legal arguments were presented to the
44 Preliminary ruling, above n 1, at [2].
45 At [4].
46 At [5].
47 At [5].
48 Cable Bay Wine Ltd v Auckland Council [2021] NZHC 2596.
Court in relation to the issue I am presently considering. Mr Quinn acknowledges that the judgment is not binding but submits the judgment is correct and should be followed.49
[85] Mr Quinn submits that the interpretation of “site” by Campbell J (that 85 Church Bay Road was another site) means that the District Court Judge should have determined that 85 Church Bay Rd was “another lot”. That is because of both the reference to “site” in condition 25 (i.e. the reference to the requirement for an activity on the “site” to comply with noise levels) and because the definition of “site” and “lot” in the 1996 Plan are essentially identical, both referring to a “single certificate of title”.
[86] Ms de Silva submits it is clear that 85 Church Bay Rd is not on “another lot” when condition 25 of the resource consent is interpreted “on its face” and in accordance with the plain and ordinary meaning of the words and when read in context with the application for resource consent and relevant extrinsic material.
[87] Ms de Silva submits that the Council itself had previously acknowledged there was genuine ambiguity over whether 85 Church Bay Road was “another lot”. She refers to a letter from the Council dated 7 December 2016 to counsel then acting for Cable Bay. That letter provided a summary of the legal advice of solicitors then acting for the Council (without waiving privilege in all of the advice) about the definition of “site” in the 2018 District Plan. The letter includes the following:
The treatment of the Vineyard/Leased area as a single site is more consistent with the objectives, policies and purposes of the District Plan, compared with treatment of this area as multiple sites.
[88] Ms de Silva submits that further support for the Council’s earlier position that there was genuine ambiguity is apparent from the decision of the Council to seek clarification by way of declaration proceedings in the Environment Court.50 In that regard, the 7 December 2016 letter goes on to say:
5.Given that Council has conflicting legal opinions from several lawyers (including yourself) in respect of the application of the
49 While the hearing in the High Court was in April 2021, in other words prior to the prosecution in the District Court, the High Court judgment issued on 30 September 2021, after Judge Kirkpatrick’s preliminary ruling.
50 The Council did not pursue an application for declaration.
definition of site in this case, Council has decided that the best course of action is to seek clarification by way of declaration proceedings in the Environment Court.
…
7. Until the Environment Court has determined this matter, Council will continue to process consent applications on the basis that the land comprised in the Computer Freehold Register NA95D/318 is a site. The current practice of measuring noise for enforcement purposes at the boundary of this site will also continue.
[89] Ms de Silva submits that it is also relevant that the Council had, prior to the December 2016 letter, treated the whole of the 4.5566 hectares (Lot 21 DP 159304) as a site. For example, in a decision dated 31 July 2015 on notification of a resource consent application for helicopter landings, there is the following:
It is also noted that the site at 85 Church Bay Rd is a leasehold property, and therefore cannot be considered as the nearest receiving site as it is regarded as part of the subject site and therefore the notional boundary for noise does not apply.
[90] Ms de Silva further notes that in October 2017 the Council installed a Noise Monitoring Terminal (NMT), to the fence separating 20 Nick Johnstone Drive from the Cable Bay site (and not to the fence of 85 Church Bay Rd).
[91] Ms de Silva acknowledges that in his decision, Campbell J held that the area of land that constitutes 85 Church Bay Rd is “another” site/lot from the Cable Bay site. However, she submits that the leased dwelling remains on the principal fee simple lot as well, no subdivision having been consented to or undertaken. She submits further that 85 Church Bay Rd is “adjacent to” but within the consented application site both physically and legally. In other words, 85 Church Bay Rd is not “on another lot” when condition 25 is interpreted “on its face” and in accordance with the plain and ordinary meaning of words.
[92] Ms de Silva also refers to context by reference to the application for resource consent and extrinsic material. Ms de Silva notes that condition 30 of the 2006 consent includes the requirement that the proposed activity “be carried out in accordance with the plans and all information submitted with the application …”. Ms de Silva submits where a resource consent incorporates by reference other documents or plans lodged
in connection with the application then those other documents can be referred to as assisting in the interpretation and construction of the planning permission.51 Ms de Silva says it follows that the original application material referred to in condition 30 ought necessarily be referred to as relevant contextual information in order to interpret the meaning of condition 25.
[93] In that regard, Ms de Silva refers to a location plan which accompanied the application for resource consent, which identified the entirety of lot 21 as “the site”. Also, the s 42A Report52 contains a location plan depicting the entirety of Lot 21 (i.e. including 85 Church Bay Road) as the “site”.
[94] Ms de Silva also notes that the area of 85 Church Bay Rd and the building coverage of the dwelling and other buildings already on the site, were not deducted from the assessment of the application by the Council planner at the time of considering such matters as non-compliance with lot coverage.
[95] Finally, Ms de Silva relies on s 134(1) of the RMA which provides that land use consents “shall attach to the land to which each relates and accordingly may be enjoyed by the owners and occupiers of the land for the time being, unless the consent expressly provides otherwise”. She submits that the resource consent attaches to the entirety of the land comprising 4.556 hectares. There is nothing in the consent which expressly provides otherwise.
Discussion
[96] I have carefully considered the decision of Campbell J.53 I consider there is nothing in the decision that enables it to be distinguished as regards the legal issue I am presently considering. I also respectfully agree with Campbell J’s interpretation. He posed as an issue whether the Environment Court erred by treating 85 Church Bay Rd as a separate site in some of the conditions imposed on the (new) resource consent. The Judge noted the submission for Cable Bay that the leasehold property at 85 Church
51 Attorney-General v Codner [1973] 1 NZLR 545 (SC) at 551.
52 A report prepared under s 42A of the RMA by an officer of a local authority or a consultant engaged by the local authority on information provided by an applicant for resource consent.
53 Cable Bay Wine Ltd v Auckland Council, above n 48.
Bay Rd was, in terms of noise controls in the Operative Plan not a separate “site” from Cable Bay’s property. Counsel for Cable Bay submitted that it followed the Environment Court could not impose conditions to control noise effects at the boundary of 85 Church Bay Rd.54 The Judge then set out General Rule 4.7 of the Operative Plan which stipulates the methodology for the measurement for all noise controls in the Operative Plan:55
All noise levels must be measured at or within 20m of any building where people may reside overnight on a permanent or temporary basis (on another site from the noise source) or within the legal boundary, when this is closer to the building. This may be referred to as the notional boundary.
[97] The Judge then set out the definition of “site” in the Operative Plan.56 There is an immaterial difference, in that the definition Campbell J was considering has the words “contained in a single certificate of title” as opposed to the definition this judgment is concerned with, which is “comprised in a single certificate of title”.
[98] The Judge then noted that the area of land shown in the certificate (now record) of title for the Cable Bay property is the entire freehold land, including the area known as 85 Church Bay Road and that there is no record of title showing only the part of the land that is not subject to that lease. Campbell J also noted that there was a separate record of title for 85 Church Bay Rd which shows only the area of land over which the lease is enjoyed.57 That, of course, is all part of the relevant background here.
[99] The Judge next recorded the submission for Cable Bay that in the above context, 85 Church Bay Rd was not a separate “site” from the Cable Bay site. Counsel had submitted that the “site” that was the subject of the application for resource consent was the entire area of freehold land, including 85 Church Bay Rd. The Judge was shown documents in the resource consent application where the “site” was described as the entire area of freehold land.58 That is the case with the resource consent application leading to the 2006 consent, which this Court is concerned with.
54 At [139].
55 At [140].
56 At [141].
57 At [142].
58 Cable Bay Wine Ltd v Auckland Council, above n 48, at [143].
[100] The Judge considered that the key words were those in General Rule 4.7: “on another site from the noise source”. He considered three questions arose in applying those words. The first question was whether 85 Church Bay Rd was a site. The Judge noted that the area of land known as 85 Church Bay Rd is contained in a single record of title – the record of title issued for the leasehold estate. It is therefore a “site”. 59 With respect, that must be right. It is also a “lot” in terms of the 1996 definition.
[101] The Judge then considered, as a second issue, the meaning of the “noise source”. He considered that it was implicit that the rule was referring to the “site of the noise source”. The Judge agreed that the site of the noise source was the entire area of freehold land (including 85 Church Bay Rd), notwithstanding that the activities were not occurring on 85 Church Bay Rd.60 The Judge then moved to consider the third question and I set out the relevant paragraphs as follows:61
[149] The third question is whether the 85 Church Bay Road site is “another” site from the Cable Bay Site. In this context “another” must mean a site that is not the same as or has a separate identity from the site of the noise source. The area of land that constitutes the 85 Church Bay Road site is plainly not the same as the area of land that constitutes the Cable Bay Site. It is therefore “another” site from the Cable Bay Site.
[150] I accept this means the area of land that constitutes 85 Church Bay Road is its own site as well as being part of the larger Cable Bay Site. As noted, Mr Webb submitted this would not make practical sense in applying the provisions of the Operative Plan. He did not explain why it would not make practical sense. General Rule 4.7 applies only to the measurement of noise for noise controls. It is equally practical to measure noise at the notional boundary of 85 Church Bay Road as it is to measure noise at the notional boundary of any other neighbouring site.
[151] I do not accept Mr Webb’s argument that finding 85 Church Bay Road to be a separate site is illogical when the lease term was chosen to avoid creating a subdivision under the RMA. That there was no subdivision is irrelevant. The definition of “site” in the Operative Plan turns (in this case) on the area of land at 85 Church Bay Road being contained in a single record of title. It does not turn on whether the grant of the lease constituted a subdivision under the RMA.
[152] For all these reasons, in my view the Environment Court was correct to treat 85 Church Bay Road as a separate site for the purpose of measuring noise in the noise conditions it imposed.
(footnotes omitted)
59 At [147].
60 At [148].
61 At [149]–[152].
[102]The Judge’s reasoning in [149] is directly applicable here and I adopt it.
[103] Referring to Ms de Silva’s submissions, I do not consider the fact that the Council has previously expressed doubt over the issue or that the Council appears to have treated the site, in relation to the application for resource consent, as the entire area of freehold land (including 85 Church Bay Rd) is material, when what is involved here is a matter of legal interpretation.
[104] Standing back, the purpose of the condition is to protect people in nearby (i.e. adjacent) dwellings or visitor facilities from excessive noise. The property at 85 Church Bay Rd contains a dwelling on a separate freehold lot that is adjacent to the larger Cable Bay site.
[105] Notwithstanding Ms de Silva’s submissions that the Council had treated the whole of NA95D/318 as a site, the purpose of the condition and thus its meaning, is apparent from the way in which approvals to the original application were sought by Cable Bay. In the s 42A report prepared on behalf of the Council for the Hearing Commissioners, it is recorded that Cable Bay had obtained the written approval from various persons. Among those listed are the lessees of 85 Church Bay Rd. If 85 Church Bay Rd were, for the purposes of the noise condition, to be incorporated in the overall site, it would hardly make sense for the approval of the lessees of that property to be sought and filed.
[106] For all the above reasons, 85 Church Bay Rd is on another lot for the purposes of measuring noise levels as specified in condition 25 of the 2006 consent. The Judge erred in his decision.
Application to extend time to file appeal against preliminary ruling
[107] The Council’s appeal against the preliminary ruling was filed out of time. The Council applies for an extension of time to file the appeal.
[108] Under s 298(3) of the CPA, a notice of application for leave to appeal must be filed within 20 working days after the date of the ruling to which the appeal relates.
Under s 298(4) the first appeal court may, at any time, extend the time allowed for filing a notice of application for leave to appeal.
[109] The preliminary ruling was delivered orally on 10 May 2021 and provided in writing on 8 June 2021. The time for filing the appeal commenced on 10 May 2021. That was the date on which the ruling was given. The application for leave to appeal should therefore have been filed on or before 7 June 2021 (in fact, 8 June 2021, as Monday 7 June 2021 was a public holiday).
[110] The notice of application for leave to appeal (in respect of both decisions) was filed on 22 July 2021. It was therefore six weeks and two days (32 working days) late in relation to the preliminary ruling.
[111] Mr Quinn submits this is a minimal delay. He says it arose due to the Council awaiting the substantive decision prior to making any decision on whether to appeal. Mr Quinn further submits that any prejudice to the respondents is minimal.
[112] Cable Bay opposes the application for an extension of time. Ms de Silva submits there was no need for the Council to await the substantive decision before making any decision on whether to appeal because the preliminary ruling and the substantive decision relate to different charges on different dates with different facts. She submits the Council, as the largest local authority in the country, must have been aware of the time limits in s 298(3) of the CPA. The Council could have filed a pro- forma application for leave to appeal, or at the very least notified counsel for Cable Bay of the Council’s position.
[113] The touchstone for granting an application to extend time is the interests of justice in the particular case.62 Assessing the interests of justice requires the wider interests of society in the finality of decisions to be balanced against the interest of the individual applicant. Factors of relevance to the overall balancing test approach include:63
62 R v Knight [1998] 1 NZLR 583 (CA) at 587.
63 R v Knight, above n 62, at 589.
… The strength of the proposed appeal and the practical utility of the remedy sought, the length of delay and the reasons for delay, the extent of the impact on others similarly affected and on the administration of justice, that is floodgates considerations, and the absence of prejudice to the Crown.
[114] More recent authorities acknowledge that extension of time applications will routinely reduce to the reasons for the delay and the merits of the proposed appeal.64 An extension will more readily be granted where the delay is short (and explained) than where the delay is longer and unexplained.65
[115] I accept Ms de Silva’s submission that the Council should have filed an appeal on a precautionary basis as a “holding position”. However, I take into account that the appeal has merit, the delay in filing was relatively short, and the prejudice to the respondents can be put no higher than the stress caused by the disappointed expectation that once the appeal period had expired there would be no appeal.66 Accordingly, I grant leave to the Council to file its appeal against the preliminary ruling out of time.
Appeal of substantive decision
[116] Before addressing the substance of the appeal against the substantive decision I refer to some preliminary submissions made on behalf of the Council. Mr Quinn submits that the management and enforcement of noise limits is a critical issue under the RMA. He refers to Cox v Kāpiti District Council,67 where the (then) Planning Tribunal stressed the importance of noise in relation to the RMA and to the impact of noise on the surrounding environment.
[117] In addition, Mr Quinn submits the management of noise is a significant part of a Council’s regulatory role. The Council has responsibilities as a regulator under the RMA to ensure that noise is controlled to appropriate levels. This includes the actions of noise officers in responding to complaints, the setting of noise limits in plans under the RMA, the assessment of resource consents and compliance and enforcement of those obligations.
64 Mikus v R [2011] NZCA 298 at [26], citing R v Slavich [2008] NZCA 116 at [14].
65 R v Knight, above n 63, and R v Lee [2006] 3 NZLR 42, (2006) 22 CRNZ 568 (CA) at [115].
66 R v Hong [2018] NZCA 97 at [5].
67 Cox v Kāpiti District Council [1994] NZRMA 282.
[118] Mr Quinn notes that despite many plan and resource consent appeals dealing with noise management issues, neither the parties nor the District Court were able to find any record of a defended noise prosecution under the RMA. Mr Quinn submits, as a consequence of the lack of case law, the decision on this appeal will set the standard for noise prosecutions for Councils in the future. Mr Quinn submits the decision of the District Court under appeal creates a future where enforcement of breaches of noise standards will be very challenging, if not impossible.
[119] Mr Quinn acknowledges, as pointed out by Ms de Silva, that there are other options open to the Council apart from prosecution such as excessive noise directions; a breach of an excessive noise direction; a Council enforcement officer accompanied by a constable may enter private property to seize or render inoperable any equipment producing or contributing to the excessive noise; abatement notices; infringement notices; and applications for interim and final enforcement orders. But Mr Quinn says there is significant focus on the setting of noise standards in relation to the granting of resource consents and conditions imposed on resource consents. All of that would be pointless if those conditions could not be effectively enforced.
[120] Turning to the appeal itself. It relates to two aspects of the substantive decision:
(a)The application of the Special Audible Characteristics (SAC) Penalty.
In this case the SAC was the base element in music; and
(b)The adjustment for residual sound.
[121] The Council’s concern relates to the Judge’s application of the New Zealand Standards. In this case NZS6801:1999 (NZS6801) and NZS6802:1999 (NZS6802), which relate to measurement of environmental sound and assessment of environmental noise respectively.
Are there questions of law?
[122] Cable Bay submits there is no jurisdiction to hear the appeal from the substantive decision because there is no question of law to be determined.
[123] The first ground of appeal is that the Judge erred in determining that the application of the New Zealand Standards (NZS) required noise measurement data and sound measurement files to establish the appropriate adjustments, including a SAC penalty and adjustments for residual sound.
[124] I accept the Council’s submission that the interpretation of a noise standard is a question of law.
[125] The second ground of appeal is that the Judge erred by taking into account an irrelevant matter, namely the unavailability of the sound measurement file, in determining that adjustments could not be made.
[126] I accept the Council’s submission that, as framed, the second ground of appeal falls within the second category of a question of law in Brown v R,68 namely consideration of an irrelevant matter.
[127] The third ground of appeal is that the District Court Judge erred by failing to consider evidence that appropriate adjustments (in relation to the SAC penalty and for residual sound) could be made.
[128] Again, I accept that this ground raises an error of law, whether failure to consider a relevant matter, or an omission to draw an inference of fact which is the only one reasonably possible on the evidence. Such an error may also be described as a finding or decision that is plainly wrong.69
NZS 6801 AND NZS 6802 – incorporation into District Plan
[129] Rule 4.7 of the District Plan states that noise levels must be measured in accordance with NZS 6801 and the measured noise must be assessed in accordance with NZS 6802. Clause 30 of Schedule 1 of the RMA sets out the documents which can be incorporated by reference into a plan, including standards. Clause 30(3) of Schedule 1 provides: material incorporated by reference in a plan or proposed plan has legal effect as part of the plan or proposed plan.
68 Brown v R, above n 10.
69 R v Taulapapa [2018] NZCA 414 at [17]; and R v Malu [2017] NZCA 546 at [10(c)].
[130] Condition 25 itself does not contain a reference to NZS 6801 or NZS 6802. But it was not disputed at the hearing that they were the standards to be applied in interpreting both the provisions of the District Plan and condition 25 of the 2006 consent. That was the Judge’s conclusion70 and the Council does not appeal that finding.
[131] In this context, Mr Quinn emphasises his submission I referred to earlier that reference to noise standards is how consent conditions and plan provisions are framed across New Zealand. Accordingly, he says the application of noise standards is a critical issue for any person dealing with the interpretation of a noise rule in a plan or a noise condition in a resource consent.
Application of NZS 6801 and NZS 6802
[132] In his decision, the Judge referred to the requirement to make adjustments to measured noise levels as contained in NZS 6802. The Judge said:71
[77] The provisions of NZS 6802:1999 deal with the assessment of environmental noise, including adjustments to measured levels. This standard operates in tandem with NZS 6801:1999 which addresses matters of measurement of environmental sound. The process of assessing environmental noise under NZS 6802:1999 is summarised by the general statement in section A1 at the beginning of Appendix A of the standard:
For the purposes of comparing measured Leq values against any applicable Leq numerical noise limits set by a local authority, a rating level (LR) shall be determined. The rating level is an A-frequency weighted decibel value (dBA). It is derived from a measured sound level adjusted or corrected, if necessary, for:
(a)The contribution to the measured level of the sound under investigation from sources other than the sound under investigation: and
(b)The presence of special audible characteristics in the sound under investigation.
[133]As is apparent, (a) above relates to residual sound and (b) relates to any SAC.
70 Substantive decision, above n 2, at [28].
71 Substantive decision, above n 2, at [77].
[134] On the basis that NZS 6801 and NZS 6802 applied to condition 25, the Council was required to establish that the noise generated from Cable Bay’s activities was in breach of the consent condition limit of 35 dBA LA10 at the time of the noise measurements at 10 pm, taking into account post-event adjustment to the measured sound level in accordance with NZS 6802.
Adjustment of noise levels
[135] The adjustment to the measured noise levels was a matter in contention in the District Court.72 There was, however, no challenge to the calibration of the meter used by council officer Jacob Faafua to measure noise levels nor to the qualifications of the two noise experts.
[136] John Styles gave expert evidence for the Council. Relying on Mr Faafua’s measurements, Mr Styles’ expert opinion was that following the adjustments, the adjusted noise levels were:
LAeq 44dB LA10 45dB.
[137] The Council’s case in the District Court was that the evidence of Mr Faafua and Mr Styles, taken together, established that the sound emitted from the site was 45dB LA10, which is 10dB greater than the noise limit in condition 25 of the 2006 consent.
[138] The defendants called Rhys Hegley, a noise expert, whose evidence in relation to a SAC penalty was described by the Judge as follows:73
[83] Mr Hegley went on in his statement, however, to observe that the combination of Mr Faafua’s primary evidence and Mr Styles’ opinion evidence is a valid approach and that “in all likelihood” a 5 dB penalty for a special audible characteristic should be applied to the measured level.74
72 At [10].
73 Substantive decision, above n 2, at [83].
74 The Court understands that a SAC penalty, if imposed, i.e., added to the measured sound level, will always be at a level of 5 dBA. In other words, there is no variation in the dBA level if imposed. It is either 5 dBA or nothing (if not imposed).
[139] Having referred to Mr Hegley’s evidence, the Judge then went on to make his decision in relation to the SAC penalty, saying:
[84] In my judgment, an adjustment based on “all likelihood” is insufficient to meet the test of proof beyond a reasonable doubt in a criminal proceeding. The inherently subjective nature of adding 5 dB to a measured level based on the degree to which a single person, even one as experienced as Mr Faafua, considers that bass frequencies are present is insufficient to reach the standard of proof required to convict a person of an offence. Had the measurement file been available for review, or had the NMT75 been able to make a recording of the noise at the time, then the evidential foundation for such an adjustment might well have had an objectively sufficient foundation.
[140] As far as adjustments for residual sound, the Judge referred to the evidence regarding the appropriate allowance as follows:
[79] Mr Hegley was concerned with the residual sound present in the area. Relying on the noise measurements taken by the NMT, Mr Hegley noted that the noise level did not drop below 40 dBA L10 even after the premises at 12 Nick Johnstone Drive had closed. Even the background noise, measured by the L95 value (being the level exceeded for 95 per cent of the time) was higher than 35 dBA for almost the entire night. He opined that this residual level would likely be generally present and not limited to the immediate area of the NMT and therefore would have had an effect on Mr Faafua’s measurement.
[80] Mr Hegley was particularly concerned about the noise of crickets, which Mr Faafua had remarked on in his evidence and which he had been unable to pause out. In Mr Hegley’s experience, the noise of crickets could make a significant contribution to an overall sound measurement, by up to as much as 14 dB, although he accepted that this was an extreme example. He noted that measurements of cricket noise on another date in this area varied between 2 and 7 dB.
[81] Mr Styles accepted that some allowance ought to be made for the presence of cricket noise, as observed by Mr Faafua. He offered an allowance of a 5 dB reduction of the measured level.
[141] The Judge then made his decision on the evidence relating to the allowance for residual sound, in the following way:76
[85] Even more significant [than the evidence in relation to the adjustment for SAC], in my judgment, is the impact of the loss of the measurement file and the absence of any recordings of the noise on identifying all the sources of sound and analysing the residual sound. The evidence of Mr Styles and Mr Hegley seeks to provide possible explanations of what the various sources may be and what effect they may have had on Mr Faafua’s measurement, but without the aid of measurement data and sound recordings, those possibilities
75 The Noise Monitoring Terminal referred to at [90] above.
76 Substantive decision, above n 2, at [85] and [86].
do not provide a sufficient basis for proving what the level of the offending noise was.
[86] I conclude that the loss of the measurement file and the consequence of being unable to address the issues of the level of residual sound and the particular effect of noise from crickets raises a reasonable doubt about whether the measured level of 44.6 dBA L10 (which does not include a 5 dB penalty for a special audible characteristic) accurately represented the noise from 12 Nick Johnstone Drive at Mr Faafua’s location at 10 pm on 9 February 2018.
Did the Judge err in determining the application of the NZS requirements?
[142] Mr Quinn submits that the Judge incorrectly applied and interpreted NZS 6801 and NZS 6802, both in terms of the application of the SAC penalty and the adjustment for residual sound. In response, Ms de Silva submits that the Judge was doing no more than correctly deciding the case in accordance with the burden and standard of proof in a criminal prosecution.
SAC penalty
[143] In relation to the SAC penalty, Mr Quinn submits the Court had before it the following evidence:
(a)The direct evidence of Mr Faafua that he could hear music with a base noise element coming from the site.77 Mr Faafua added an adjustment of 5dB for the SAC of the base element in the music;
(b)Mr Styles’ evidence that the adjustment for a SAC of plus 5 dB should be made; and
(c)The expert evidence of Mr Hegley that the combination of the evidence in (a) and (b) above is a valid approach and that “in all likelihood” a 5 dB penalty for a SAC should be applied to the level measured by Mr Faafua.
[144] Mr Quinn submits that despite the available evidence referred to above, the Judge erred in law in his conclusions reached in [84] of his decision set out at [139]
77 Substantive decision, above n 2, at [31].
above. Mr Quinn submits the effect of the Judge’s decision on adjustments for SAC is that a sound recording must always be produced in a prosecution. That is inconsistent with the Judge’s conclusion earlier in the judgment when the Judge was considering the loss of the sound measurement file. The Judge held that, in the absence of any express requirement in NZS 6801 to retain data files, he did not find there was a failure by the Council to comply with r 4.7.2 of the District Plan.78
[145] As noted above, Ms de Silva disagrees that the effect of the Judge’s decision is that the sound measurement file is always required in order for the prosecution to succeed in a prosecution relating to excessive noise levels. She accepts that in some cases, for example, if there is no suggestion that another noise source contributed to the measured sound level, the sound measurement file might not be required.
[146] I consider the Judge erred in a number of respects in the conclusions he reached in [84]. The Judge was of course correct in his statement, when applied in general terms, that “all likelihood” is insufficient to meet the test of proof beyond a reasonable doubt in a criminal proceeding. However, the error is that there was available evidence, not contradicted, that a penalty of 5 dB should be added to the sound level measured for the SAC of music noise with a base element. That was the evidence of Mr Faafua. That was the evidence of Mr Styles.
[147] Mr Hegley’s position for the defendants was that was a valid approach. He did not disagree with the approach. It was Mr Hegley’s opinion rather than the evidence of the Council witnesses that “in all likelihood” a 5 dB penalty should be added. In circumstances where there was available evidence of two witnesses whose approach was not challenged and whose approach was said to be a “valid approach”, in the opinion of the defence expert, I consider the Judge erred when he characterised the totality of the evidence on the SAC adjustment as being based on “all likelihood”.
[148]The Judge next erred in the second sentence of [84] when he said that:
The inherently subjective nature of adding 5dB to a measured level based on the degree to which a single person, even one as experienced as Mr Faafua,
78 At [76].
considers that base frequency are present, is insufficient to reach the standard of proof required to convict a person of an offence.
[149] The point is, as the Judge recognises, that making the assessment to add 5 dB for a SAC is always going to be a subjective exercise. It is not an objective exercise. And again, there is Mr Hegley’s evidence that Mr Faafua’s approach was a valid one.
[150] Third, I consider the Judge erred when he said that had the sound measurement file been available for review, or had the NMT been able to make a recording of the noise at the time, then the evidential foundation for such an adjustment might well have had an objectively sufficient foundation. But even had those files been available, they would not have provided an objective foundation. The experts would be required to listen to the sound recording and then make a subjective assessment as to whether there should be a penalty by adding 5 dB for a SAC (for the base element of the music).
[151] For the above reasons the Judge erred, in the circumstances of this case, in concluding that the absence of the sound measurement file meant that the prosecution could not establish the appropriate SAC penalty. To the extent that the Judge was saying in [84] of his decision that a sound measurement file is always required for this purpose (and I am not sure that he necessarily was saying that given his conclusion that there is no express requirement to retain sound data files), that would also have been an error.
Residual sound
[152] Mr Quinn submits that in terms of any adjustment for residual sound, the Court had before it the following evidence:
(a)The direct evidence of Mr Faafua that there was a “slight cricket noise” which could not be “paused out”.79 Mr Faafua’s evidence was that the noise of seven vehicles which drove by were able to be “paused out” and the weather conditions were overcast with “nil wind”;80
79 As the Judge explains in the substantive judgment, above n 2, at [31], to pause out in this context means to pause the metering operation while an extraneous noise occurs so that such extraneous noise does not affect the measurement of the noise which is to be measured.
80 Substantive judgment, above n 2, at [31].
(b)Mr Styles’ evidence that appropriate adjustments could be made for residual sound. Mr Styles gave evidence on the appropriate adjustment and that allowance ought to be made for cricket noise of 5 dB; and
(c)The expert evidence of Mr Hegley who was concerned with the residual sound and particularly the noise of crickets which he considered could make a significant contribution to an overall sound measurement of up to 14 dB, although he acknowledged this was an extreme example.
[153] Mr Quinn notes that although the noise experts provided possible explanations for the residual noise, the Court found that without the aid of measurement data and sound recordings, those possibilities did not provide a sufficient basis for proving what the level of offending noise was, saying:
[87] Whether those other sounds could be removed by suitable analysis and whether that removal would result in an assessed level of more or less than 35 dBA L10 becomes a matter of debate between the expert witnesses on noise. With all due respect to them, that is too uncertain to be the basis of a finding of fact beyond reasonable doubt. It is accordingly insufficient to be the basis for convicting the defendants.
[154] Mr Quinn submits that similar to the application of the SAC penalty, the Court imported a requirement into NZS 6801 and NZS 6802 which goes beyond the words of the standard. He submits the approach of the Court requires a recording of the noise generated to enable post-event processing. He submits that the consequence is that no first-hand account of residual noise will be able to comply with the requirement of NZS 6801 or 6802 in the context of a prosecution. He submits this approach is incorrect as a matter of law.
[155] I do not consider the Judge erred in his approach to his assessment of whether the prosecution could prove beyond reasonable doubt the level of the necessary adjustment for residual sound. In particular, I do not consider the Judge was importing an invariable requirement that the sound measurement file should always be available in a prosecution for breach of allowable noise levels. In the absence of a challenge to the evidence of a Council noise officer and/or expert evidence, and even where there is a challenge to such evidence but depending on the challenge, the evidence of
Council witnesses, in the absence of a sound recording, may well be sufficient to prove a charge beyond reasonable doubt.
[156] In this case, while the Court did have the evidence and assessment of Mr Faafua and Mr Styles, unlike the position with the SAC adjustment, Mr Hegley was able to point to evidence that the Judge considered raised a doubt in relation to the prosecution evidence. In other words, the Judge was applying the burden and standard of proof in a criminal prosecution. In particular, the Judge referred to the noise measurements taken by the NMT even after the subject premises had closed for the evening. I repeat [79] of the decision:
[79] Mr Hegley was concerned with the residual sound present in the area. Relying on the noise measurements taken by the NMT, Mr Hegley noted that the noise level did not drop below 40 dBA L10 even after the premises at 12 Nick Johnstone Drive had closed. Even the background noise, measured by the L95 value (being the level exceeded for 95 per cent of the time) was higher than 35 dBA for almost the entire night. He opined that this residual level would likely be generally present and not limited to the immediate area of the NMT and therefore would have had an effect on Mr Faafua’s measurement.
[157] In short, the Judge did consider the evidence that appropriate adjustments could be made for residual sound, but in this instance, there was other evidence that raised a doubt in relation to those adjustments. There was no error of law. The Judge was simply applying the burden and standard of proof in a criminal prosecution.
Conclusion on appeal of substantive decision
[158] I have found the Judge erred in law in his approach to his assessment of the evidence in relation to the SAC penalty, but there was no error of law in his approach to his assessment of adjustments for residual sound. The remedy sought by the Council is a referral back to the District Court for a reconsideration of the evidence on the basis of my decision. Even though I have found the Judge erred in his approach to the SAC penalty, because there was no error by the Judge in his approach to adjustments for residual sound, there would be no point in a referral back to the District Court. The overall sound level would lack the necessary certainty for proof beyond reasonable doubt.
The Judge’s obiter comments
[159] The Judge made some obiter comments as a postscript at the end of his substantive decision.81 Mr Quinn expressed concern about what the Judge said. However, the comments were not part of the Judge’s reasoning. I therefore do not address the Judge’s observations.
Result
Preliminary ruling
[160] I grant leave to the Council to appeal out of time in relation to the preliminary ruling dated 10 May 2021. I allow the appeal and remit the matter to the District Court for the Judge to hear the charges against Cable Bay for 3 March 2018 and 23 June 2018 and against Davide Mazzocchini for 3 March 2018.
Substantive decision
[161] I grant leave to the Council to appeal the substantive decision of 24 June 2021 but refuse the appeal.
Gordon J
81 Substantive decision, above n 2, at [89]–[90].
2
12
0