Auckland Yacht and Boating Association (Inc) v Waikato Regional Council HC Auckland CIV 2006-404-007598

[2007] NZHC 1872

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2006-404-007598

UNDER  the Resource Management Act 1991

IN THE MATTER OF     an additional Appeal on Points of Law under Section 305 of the Act

AND BETWEEN            THE AUCKLAND YACHT AND BOATING ASSOCIATION (INC) Appellant

AND  WAIKATO REGIONAL COUNCIL First Respondent

AND  COROMANDEL MARINE FARMERS ASSOCIATION (INC)

Second Respondent

AND  I & M JAMES Third Respondent

Hearing:         7 June 2007

Appearances: R B Brabant for Appellant

K G Parker for 1st Respondent

D R Clay & A F Buchanan for 2nd Respondent

P T Cavanagh QC for 3rd Respondent

Judgment:      20 June 2007

JUDGMENT OF KEANE J

This judgment was delivered by Justice Keane on 20 June 2007 at 3pm pursuant to Rule540(4) of the High Court Rules.

Registrar/ Deputy Registrar

Solicitors:

Date:

McVeagh Fleming, Auckland for Appellant Tompkins Wake, Hamilton for 1st Respondent DLA Phillips Fox, Auckland for 2nd Respondent

AUCKLAND YACHT & BOATING ASSN V WAIKATO REGIONAL COUNCIL & ORS HC AK CIV 2006-

404-007598  20 June 2007

[1]      On  10  November  2006  the  Environment  Court  directed  that  a  proposed variation to the Waikato Regional Council’s coastal plan, Variation 3, be amended to confirm that an existing marine farm in the Coromandel Harbour, MFP 364, owned by Coromandel Marine  Farmers Association,  CMFA,  constituted  a  discretionary activity as long as it complied with certain standards and terms.

[2]      CMFA, I understand, wholly or almost completely, accepts those standards and terms and will, as the Court stipulated, apply, within six months of the rule becoming operative, for a coastal permit. CMFA accepts, I understand, that if it does not apply within time or its application is refused, the farm will cease, as the Court stipulated, to have discretionary activity status.

[3]      The Auckland Yacht and Boating Association, AYBA, appeals the decision, contending that it involves two errors of law, the first of which is that the decision is anomalous. It is inconsistent with Variation 3 as a whole, which envisages, AYBA contends, that marine farms either be established in a designated area or that they be activities already authorised, if not under the Resource Management Act 1991, then under the Marine Farming Act 1971. MFP 364 is not authorised in either sense.

[4]      The second issue taken is that the Court lacked jurisdiction to direct that the proposed rule be varied in this way. The Court’s jurisdiction was confined, AYBA contends, by the relief then sought and the only related application was by Mr and Mrs James to amend the form of relief they had claimed. They had first sought an order directing the removal of the farm. On advice they applied instead for leave to seek relief more congruent with Variation 3. The Court, in granting their application, went further and made the direction complained of. That, it will be contended, was beyond the Court’s power, except under s 293, and the Court disclaimed relying on that power.

[5]      CMFA contests each of these points and seeks before the hearing of the appeal an order under s 303 directing the Environment Court to lodge with this Court six documents, comprising some 141 pages, that it  contends are essential to the appeal. That application is opposed by AYBA and Mr and Mrs James, who make common cause. The Waikato Regional Council abides the decision of the Court.

Section 303

[6]      This Court may, on application, or may itself, direct the Environment Court to  lodge  with  the  Registrar  of  this  Court  anything  in  that  Court’s  possession: s 303(1)(a). But only ‘if it is satisfied that a proper determination of a point of law so requires’: s 303(3). An applicant, usually the appellant, here a respondent, must demonstrate why any such evidence or document will be relevant: Phillips v Hopper Nominees Ltd [1998] NZRMA 102, 107, Potter J.

[7]      There  are two  considerations to  balance.  The  purpose of s  303  must  be respected. The right of appeal from the Environment Court to this Court, given by s 299, is limited to  error of law  and  the  material  before this Court  must  be so confined: Manos & Anor v Waitakere City (1993) 2 NZRMA 622, 626, Holland J. As against that, the discretion s 303 gives ought not to be exercised so restrictively as to handicap this Court on the appeal: ‘To err on the side of economy could in the end be wasteful’: Port Otago Ltd v Dunedin City HC WN AP 199/93 20 October

1993, Barker ACJ.

[8]      When, as is presumably almost invariable, and is so here, the application is made and resolved before the appeal what is relevant cannot always be assessed with complete finality. While, therefore, the appeal will be argued on the materials then before the Court, either by consent or as produced under s 303, the Judge hearing the appeal must retain the residual ability to direct to be produced any document or evidence that does turn out to be relevant. A ruling before the appeal is heard cannot be the absolute last word.

Ground one documents

[9]      CMFA, which has always claimed the right to farm first under the Harbours Act 1950 and more recently under the Fisheries Act 1983, will argue on the appeal that, contrary to AYBA’s first ground of appeal, the amendment to rule 16.5.3 made by the Environment Court is readily reconcilable with Variation 3; also  that the Court acted objectively. To understand fully why that is so, CMFA contends on this

application, this Court will need to understand how Variation 3 and the related rule each evolved. It will need, as well as the ultimate version of both, the variation as notified and as approved by the Waikato Regional Council. It will need as well the revised version of rule16.5.3. as settled by this Court on a distinct appeal.

[10]     Thus far, however, nothing specific in the provenance of either Variation 3 or rule 16.5.3 has been identified as relevant to the first ground of appeal. I cannot see then why, to resolve this question, this Court will need to delve into history; why it will need to go beyond the decision under appeal, which contains rule 16.5.3, or Variation 3,  as it  is  now  definitively,  to  be produced  by the  Waikato  Regional Council.

Ground two documents

[11]     As to the second ground of appeal, CMFA will argue that the Environment

Court possessed jurisdiction on the James’ appeal to make the amendment to rule

16.5.3 as it did. The Court did not, as the James wished, amend Variation 3 so as to render MFP 364 a prohibited activity. But nor did the Court deny relief completely. It accorded to the site discretionary status subject to CMFA applying within six months for a coastal permit.

[12]     That, CMFA will argue, was justified in one of two ways. Either the Court exercised its power under s 293, though it  disclaims having done so. Or it  was justified in acting as it did, under s 290, germane to which is the submission Mr and Mrs James made to the Waikato Regional Council, the Council’s decision as to rule

16.5.3 and CMFA’s application under s 293 to the Court itself. In this respect too, however, I consider that CMFA invests the second ground of appeal with more than appears inherent.

[13]     To resolve this question this Court will need only decide, as I understand it, whether AYBA is right to say that the Environment Court’s jurisdiction could only have derived from the James’ appeal, in particular their application to amend; and that should be able to be resolved on the face of the Court’s decision. Neither the

submissions of Mr and Mrs James to the Council or the Council’s decision are self-evidently relevant.

[14]     Nor is the CMFA’s s 293 application to the Court obviously relevant either. The Court declined that application and was explicit that while the grounds on which it amended rule 16.5.3 were close to those that led CMFA to apply under s 293, what impelled it finally was quite different. That again appears, presently, well able to be assessed on the face of the Court’s decision.

Conclusion

[15]     For these reasons I deny CMFA’s application in its entirety. Once, however, the Judge on appeal is fully appraised of the argument he or she may differ as to one or more categories of document or evidence. That, I consider, despite this decision, must remain within his or her power under s 303. For that reason costs will be

reserved.

P.J. Keane  J