Auckland Council v Noe
[2023] NZHC 1674
•30 June 2023
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2023-404-000213
[2023] NZHC 1674
IN THE MATTER OF An application for leave to appeal a decision of the District Court. BETWEEN
AUCKLAND COUNCIL
Applicant
AND
ROBERT WILLEM NOE
Respondent
Hearing: 12 June 2023 Appearances:
J Magrath and C R Sleigh for Applicant Respondent in person
Judgment:
30 June 2023
JUDGMENT OF HINTON J
This judgment was delivered by me on 30 June 2023 at 3.00 pm, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar Date: ………………………….
Solicitors: Rice Speir, Auckland
AUCKLAND COUNCIL v NOE [2023] NZHC 1674 [30 June 2023]
[1] Auckland Council (the Council) applies for leave to appeal the decision of Judge Dickey in the District Court dated 6 March 2023 (the District Court decision),1 on the following question of law:
Does service in accordance with s 352(1)(b)(ii) of the Resource Management Act 1991 (RMA) comply with a Court direction that an applicant for an enforcement order application “… serve the Respondent direct”?
[2] The District Court decision concerns a charge brought by the Council under s 338(1)(b) of the Resource Management Act 1991 (RMA) against the respondent, Robert Noe, for failing to comply with enforcement orders issued by Chief Judge Kirkpatrick in the Environment Court on 3 December 2020 in Auckland Council v Noe (the enforcement orders).2 Judge Dickey acquitted Mr Noe on the basis that the element of the offence pertaining to service was not established.
[3]The Council’s case on appeal is that Judge Dickey erred in law by finding that:
(a)the Environment Court, by directing in the enforcement orders that the applicant “serve the Respondent direct” had, pursuant to s 352(1AA) of the RMA, expressly required a different method of service to the methods prescribed in s 352(1) of the RMA; and
(b)service in accordance with s 352(1)(b)(ii) of the RMA, that is by delivery to the usual or last known residence of the person, did not comply with the directions as to service in the enforcement orders.
Background
The enforcement orders
[4] Mr Noe owns and occupies a property at 2294 State Highway 16, RD 2, Helensville, Auckland.
1 Auckland Council v Noe [2023] NZDC 2810 (The District Court decision).
2 Auckland Council v Noe [2020] NZEnvC 201.
[5] In about February 2019, the Council became aware that unlawful fill material had been placed at the property in contravention of the Auckland Unitary Plan and the RMA. Ultimately, the Council sought and obtained:
(a)interim enforcement orders from the Environment Court under s 320 of the RMA to address the immediate harm posed by the unlawful works; and
(b)enforcement orders from the Environment Court under s 316 of the RMA to address the environmental harm caused by the unlawful works.
[6] On 3 December 2020, Judge Kirkpatrick issued the enforcement orders. These required Mr Noe to:
(a)complete certain remedial works at the property by 25 January 2021; and
(b)within seven days of completing the remedial works, submit a written report from a qualified person confirming that the property had been remediated (i.e. by 1 February 2021).
[7] Materially, the enforcement orders also provided the following direction as to service (Order 5):
Service
5. The Applicant is directed pursuant to s 317 of the RMA to serve the Respondent direct and that the orders shall take effect from when they are served.
[8] As the Council notes, the reference in Order 5 to “s 317 of the RMA” appears to be in error, as s 317 pertains to the service of an application for an enforcement order (as opposed to service of the orders themselves):
317 Notification of application
(1)Except as provided in section 320 (which relates to interim enforcement orders), where an application for an enforcement order
is made, the applicant shall serve notice of the application in the prescribed form on every person directly affected by the application.
(2)Every notice required to be served under this section shall be served within 5 working days after the application is made to the Environment Court.
[9] The relevant provision here is s 315 of the RMA, which provides that the requirement for a person to comply with an enforcement order is engaged when the order is served on that person:
315 Compliance with enforcement order
(1)Where an enforcement order is made against a person, and that enforcement order is served on that person, that person shall—
(a)comply with the order; and
(b)unless the order directs otherwise, pay all the costs and expenses of complying with the order.
…
Service of documents under the RMA
[10] Service of any document for the purposes of the RMA is governed by s 352 of the Act, and in the case of service on a person, by s 352(1), which provides:
352 Service of documents
(1)Where a notice or other document is to be served on a person for the purposes of this Act,—
(a)if the person has specified an electronic address as an address for service for the matter to which the document relates, and has not requested a method of service listed in paragraph (b), the document must be served by sending it to the electronic address:
(b)if the person has not specified an electronic or other address as an address for service or if the person has requested any of the following methods of service, the document may be served by the requested method or any of the following methods:
(i)delivering it personally to the person (other than a Minister of the Crown):
(ii)delivering it at the usual or last known place of residence or business of the person:
(iii)sending it by pre-paid post addressed to the person at the usual or last known place of residence or business of the person:
(iv)posting it to the PO box address that the person has specified as an address for service:
(v)leaving it at a document exchange for direction to the document exchange box number that the person has specified as an address for service:
(vi)sending it to the fax number that the person has specified as an address for service.
[11] The other subsection of relevance is s 352(1AA) which provides that s 352(1) will not apply if the court, in the course of court proceedings, expressly requires a different method of service:
(1AA) However, if the document is to be served on a person to commence, or in the course of, court proceedings, subsection (1) does not apply if the court, whether expressly or in its rules or practices, requires a different method of service.
Service of the enforcement orders
[12] On 9 December 2020, the Council engaged a process servicing agency to serve the enforcement orders on Mr Noe. On 15 December 2020, Sebastian Roman, a process server, attended at Mr Noe’s property. The door was answered by Mr Noe’s brother, Paul, who confirmed his relationship with Mr Noe and agreed to pass the documents on to him. Shortly thereafter, Mr Roman sent a text message to Mr Noe informing him that the enforcement orders had been left with his brother. Mr Noe advised me that Paul lives at his property, though they are estranged.
[13] Mr Roman recorded the above actions in a service report dated 16 December 2020, and subsequently swore an affidavit of service confirming the same on 22 December 2020.
Breach of the enforcement orders
[14] The Council subsequently determined that the enforcement orders had been breached and filed a charge against Mr Noe in the Waitakere District Court for failure to comply, which is an offence under s 338(1)(b) of the RMA.
The District Court decision
[15] At the hearing of the charge under s 338(1)(b), the Council had to prove beyond reasonable doubt that:
(a)the enforcement orders were made against Mr Noe;
(b)the enforcement orders were lawfully served on Mr Noe; and
(c)Mr Noe had failed to comply with the orders.
[16] Mr Noe represented himself at the hearing and argued that service of the enforcement orders had not been properly effected. He therefore denied that there had been any breach of the enforcement orders as they had not taken effect.
[17] Mr Roman was called to give evidence and outlined the steps that he had taken to effect service, as described above.
[18]The Council submitted that:
(a)Order 5 required service of the enforcement orders on Mr Noe in the ordinary way under the RMA (that is, in accordance with s 352(1) of that Act);
(b)lawful service of the enforcement orders had been effected by Mr Roman by delivery to the usual or last known place of residence or business of Mr Noe (in accordance with s 352(1)(b)(ii)); and
(c)it was sufficient for the enforcement orders to have been served on Mr Noe through his brother, and the subsequent text from Mr Roman to Mr Noe further alerted him to the service of the documents.
[19] In her decision Judge Dickey accepted the evidence of the officer in charge regarding the breach but held that service had not been lawfully effected. After referring to s 352(1AA), the Judge said:3
The Court required that the orders be served directly on Mr Noe. The Council did not apply to the Court for substituted service and relied instead on having left the documents with Mr Noe’s brother and Mr Roman’s subsequent text message. That does not meet the requirements of the Court’s direction.
[20]On that basis, the Judge acquitted Mr Noe.4
Application for leave to appeal
[21] Section 296 of the Criminal Procedure Act 2011 (CPA) provides that the prosecutor may, with the leave of the first appeal court, appeal to that court on a question of law against a ruling by the trial court in specific circumstances:
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).
(4)The question of law must not be one that—
(a)arises from a jury verdict; or
(b)arose before the trial and has already been decided under subpart 2.
[22] The Council says Judge Dickey erred in law by finding, not explicitly but in effect:
3 The District Court decision, above n 1, at [24].
4 At [35].
(a)that the direction in Order 5, that the Council “serve the Respondent direct”, was a direction pursuant to s 352(1AA) of the RMA expressly requiring a different method of service to the methods provided in s 352(1); and
(b)service in accordance with s 352(1)(b)(ii) (i.e. by delivery to the usual or last known place of residence or business of the person) did not comply with that direction.
[23]First, I agree these were the effective findings of Judge Dickey.
[24] I also agree that the appeal involves a question of law. As Fisher J said in Auckland City Council v Wotherspoon,5 whether there is a right to an appeal on a question of law is simple enough where the facts are not challenged on appeal, and the argument is limited to the legal consequences of those facts in the conventional sense. This case falls into that category. The Council does not seek to challenge the underlying facts on which the Judge reached the conclusion that service had not been lawfully effected but rather the interpretation given to Judge Kirkpatrick’s direction in Order 5, and whether that direction expressly required a different method of service in terms of s 352(1AA).
[25] The other requirements of s 296 of the CPA are clearly also met. The question of law arises “in the determination of the charge”. It did not arise from a jury verdict and did not arise before trial.
[26] Finally, I agree that the public interest favours leave to appeal being granted. The appeal raises an important question as to the application of the provision regulating service, and hence the standard of service that is expected of local authorities when operating under the RMA.
5 Auckland City Council v Wotherspoon [1990] 1 NZLR 76 (HC) at 85.
[27] I agree with the Council that local authorities need to have clear guidance regarding the courts’ expectations for service in order to be able to fulfil their functions under the RMA. As Judge Skelton stated in Wellington City Council v Taylor:6
… service … especially where it is intended to provide the foundation for a subsequent prosecution, is a matter of considerable importance and prosecuting authorities must ensure that if they are called upon to do so, they can prove service to the required standard.
[28] Not surprisingly, there is little, if anything, in the way of relevant caselaw on the subject.
[29]For all of the above reasons, I consider that leave should be granted.
The substantive appeal
Did Order 5 amount to a direction under s 352(1AA) of the RMA?
[30] Section 352(1AA) provides that s 352(1) will not apply if the court, “whether expressly or in its rules or practices”, requires a different method of service.
[31]Judge Dickey clearly considered the Environment Court to have made an
express direction requiring a different method of service to that in s 352(1).
[32] There is no known “rule or practice” (the other scenario where s 352(1) will not apply) of the Environment Court that requires enforcement orders to be served on a respondent in a specific way. In particular, service in terms of s 352(1) is not qualified or otherwise affected by the Environment Court’s own Practice Note.7
[33] I agree with the submission on behalf of the Council that the natural and ordinary meaning of the word “expressly” in the context of s 352 would require a court, where it intends to displace or limit the methods of service available under s 352(1) other than in accordance with its rules or practices, to do so explicitly and without ambiguity.
6 Wellington City Council v Taylor [1997] NZRMA 265 (DC) at 269.
7 Environment Court Practice Note 2023.
[34] I also agree that there are sound policy reasons for requiring directions under s 352(1AA) to be made in a manner that does not leave room for doubt as to what is required of the party effecting service. Failure by a party to lawfully effect service of a document under the RMA can have significant consequences, including affecting the commencement of proceedings, undermining parties’ appeal or participation rights, exposing parties to costs, and as demonstrated in the present case, undermining the success of criminal prosecutions.
[35] I have been provided with an appendix of nine cases which indicate that, in practice, where the Environment Court has previously made directions as to service both under s 352(1AA) and its predecessor s 352(1)(h), those directions have been quite specific and tend to follow a somewhat formulaic pattern. The cases provided are all those the Council was able to locate by searching under the two provisions. Interestingly, in almost all of the located cases, the directions under s 352(1AA) related to service of enforcement orders, indicating that is the situation in which such directions are likely to be made. All bar one were the result of an application by the Council for substituted service i.e. expanding on the standard categories of service, not limiting them. Only one of the cases required personal service and I am advised by Ms Magrath for the Council that personal service is seldom required.
The service directions in the nine cases share the following characteristics:
(a)they all expressly cite the relevant provision pursuant to which the direction is made (but this is not surprising given the nature of the search);
(b)they provide detailed directions as to the mode of service required;
(c)in most, the direction specified in detail the relevant address for service of the recipient;
(d)in most, the direction specified that service conducted in accordance with the court’s direction shall constitute service in accordance with the relevant provision of the RMA; and
(e)in some, an explanation or rationale was provided for why a specific method of service was directed.
[37]I set out one example, from a direction made by Judge Kirkpatrick himself:8
For the foregoing reasons under ss 281(1)(a)(iii) and (iv) and s 352(1)(h) of the Act I direct the Council to serve the first respondent, Liansen Mao, in terms of the application for substituted service and as set out in Order A at the beginning of this decision.
[38]The fullest example of a direction comes from a judgment of Judge Dickey:9
D:Pursuant to s 352(1AA) of the Act, service of all the Respondents will be via email to their counsel (Mr D Clark) via his email address of [email protected].
E:Pursuant to s 352(1AA) of the Act, service on the property owners of the property at 3893 State Highway 1, Riverlands, Blenheim (legal description Part DP 751 BLK V Taylor Pass SD) and the property at 3853 State Highway 1, Riverlands, Blenheim (legal description Lot 5 DP 365088) will be undertaken by a Council officer delivering it personally to Mr and Mrs Thynne and by emailing the Orders to Mt Riley Wines Estate Limited.
[39] In contrast to the examples cited, Order 5 is unspecific and unclear. It does not reference s 352(1AA) or offer any explanation or rationale to support a direction for service to be other than in the ordinary way, whether within Order 5 itself or in the Environment Court’s reasons for the enforcement orders. It also does not list an address at which service was required to be effected.
[40] While Judge Dickey has or seems to have interpreted the words in Order 5 to “serve the Respondent direct”, to mean that personal service of the enforcement orders on Mr Noe was required, the terminology of serving “direct” does not feature in the RMA service provisions. Further, personal service is one of the modes of service specifically identified in s 352(1AA) so if that method of service were being “expressly required”, reference to the specific subsection and the correct language would be expected to follow.
8 Auckland Council v Mao [2017] NZEnvC 125 at [16].
9 Marlborough District Council v Gifford [2021] NZEnvC 161.
[41] In my view, Judge Kirkpatrick did not intend to make any express requirement as to a different method of service. Rather, as Mr Noe confirms, he had been represented by counsel until August 2020, shortly before Judge Kirkpatrick’s decision. Service of documents had previously been by email to his lawyer. Ms Magrath says the Judge knew that Mr Noe’s representation had ended. In my view, Judge Kirkpatrick meant only for the Council to serve Mr Noe, rather than his former counsel. That would explain the otherwise incongruous use of the word “direct”. Alternatively, I note the Judge had mistakenly referred to s 317. That section refers to service “on every person directly affected”. That may be the source of the word “direct” in Order 5. However, I consider that interpretation much less likely. Judge Kirkpatrick is a highly experienced and careful Judge who would be unlikely to inadvertently adopt the language of s 317 in that way. Either way, I do not consider the Judge was making a direction to depart from the standard rules of service in s 352(1). The Council was free to serve Mr Noe by any of the means listed.
[42] For all of the above reasons, I agree with the Council that Order 5 was not intended to be, nor could it reasonably function as, a direction under s 352(1AA) of the RMA expressly requiring a different or specific method of service. It was meant only to indicate that service was no longer to be on Mr Noe’s lawyer or it was a statement or word used by mistake. If neither of those, it was too vague and unclear to amount to a direction for purposes of s 352(1AA).
[43] In the absence of a clear and express direction displacing the ordinary methods of service provided in s 352(1), any method of service in that provision, including the method set out in s 352(1)(b)(ii), was available to the Council.
Did the Council’s method of service comply with Order 5?
[44] If I am wrong in the above finding, and Order 5 is a direction under s 352(1AA) of the RMA, then I consider that the service effected by the Council complied with the requirement that it “serve the Respondent direct”. “[D]irect” in that context is not or should not be treated as synonymous with personal service. If that had been what was intended, then that language would have been used, it being standard and contained as one of the options in s 352(1)(b).
[45] I agree with the Council that, considering the orders in context, there is no reason, policy-based or otherwise, why Judge Kirkpatrick would have considered only personal service to be appropriate. The enforcement orders were issued at the end of a lengthy enforcement and judicial process throughout which Mr Noe had engaged with the Council and the Court (including through his lawyer) to negotiate the terms of the orders, such negotiation being apparently standard procedure. Some of that context is set out in Judge Kirkpatrick’s decision. This was not a scenario in which the Court’s reasons, or the requirements of the enforcement orders, were unknown to Mr Noe. Furthermore, as noted above, previous documents had not been served on Mr Noe personally. They were emailed to his lawyer. Service of the enforcement orders, although essential because the date of service is the date on which the orders take effect, was effectively a formality required by s 315 of the RMA. The enforcement orders were of no surprise.
[46] As discussed above, orders under s 352(1AA) restricting service only to personal service are seldom made. Even under the Criminal Procedure Rules 2012 a document imposing orders can usually be served by a range of methods.10 Specific service requirements are imposed in matters such as summonses to initiate certain proceedings against an accused, and applications by a prosecutor for a retrial or rehearing. Even then, an application for a summons can be served either personally or by leaving it at the person’s place of residence with a member of their family who appears to be over 18 years of age.11 There is no obvious reason why, on these facts, the Environment Court would need to have imposed more onerous service requirements on the enforcement orders than those imposed on documents initiating criminal proceedings.
[47] The Council notes further that unlike Police officers, who have a range of powers that enable them to locate and effect personal service on defendants, Council officers generally have fewer means to locate and serve recipients. It would therefore be reasonable to expect that a direction limiting service to personal service would be made only in limited circumstances and in circumstances where it was clearly required.
10 Rule 2.5.
11 Rule 2.6.
[48] For the above reasons, I consider, as the Council submits, that if Order 5 were to be interpreted as limiting the full list of service options provided in s 352(1), the appropriate interpretation of the word “direct” is that the Council serve Mr Noe through either of the methods described in s 352(1)(b)(i) or (ii). Both require delivery either personally or to the person’s residence or business address, in contrast with the other methods (email, post or fax) that could be described as less “direct”.
[49] Delivery of the enforcement orders to the usual or last known place of residence or business of Mr Noe, which is the method adopted by the process server, would therefore still satisfy the requirements of Order 5.
[50] I note that in this case the Council went further than that. The overall steps the Council took, as described above, went beyond delivery to the last known place of residence. The documents were handed to Mr Noe’s brother who said he would pass them on (i.e. they were not just left at the place of residence) and Mr Noe was texted afterwards by the process server to inform him about service.
Orders
[51]Leave to appeal is granted.
[52]I allow the appeal, finding that the District Court decision erred in law.
[53]I answer the question on appeal as follows:
(a)Order 5 did not amount to a direction under s 352(1AA) of the RMA “expressly” requiring a different method of service to the methods provided in s 352(1) of the RMA, and as such, any of the methods provided in s 352(1) of the RMA were available to the Council.
(b)In the alternative, if I am wrong and Order 5 did amount to a direction under s 352(1AA) of the RMA, the Council’s delivery of the enforcement orders to Mr Noe’s usual or last known place of residence or business and/or such delivery coupled with the other steps taken by
the Council would have complied with the direction that the Council “serve the Respondent direct”.
[54] The error of law in the District Court decision has undermined the integrity of Mr Noe’s acquittal and a miscarriage of justice has occurred. Accordingly and pursuant to s 300(1)(b)(ii) and (e) of the CPA, I refer this matter back to the District Court and direct a new trial of the charge based on the evidence heard by Judge Dickey.
Hinton J
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