Banora v Auckland Council
[2017] NZHC 3276
•21 December 2017
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2016-404-003203 [2017] NZHC 3276
IN THE MATTER OF an Appeal under Section 299 of the
Resource Management Act 1991
BETWEEN
ALEXANDER BANORA and EMANUELLA BANORA Appellants
AND
AUCKLAND COUNCIL Respondent
Hearing: 3 October 2017 Counsel:
N W Woods and K R Prasad for the Appellants
K E Krumdieck for the RespondentJudgment:
21 December 2017
JUDGMENT OF EDWARDS J
This judgment was delivered by Justice Edwards on 21 December 2017 at 10.30 am, pursuant to
r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Date:
Solicit ors : Rice Craig, Auckland
DLA Piper Ltd, Wellington
Copy To : S F Quinn, Wellington
BANORA v AUCKLAND COUNCIL [2017] NZHC 3276 [21 December 2017]
Introduction
[1] By judgment dated 9 December 2016, the Environment Court made enforcement orders against Mr and Mrs Banora in respect of their property in Auckland.1
[2] Mr and Mrs Banora appeal that decision pursuant to s 299 of the Resource Management Act 1991 (RMA). The three questions of law set out in the notice of appeal are:
(a) Was the hearing conducted fairly and in accordance with principles of natural justice?
(b)Did the Environment Court erroneously confine issues before it and thereon the evidence which it was prepared to hear to the exclusion of relevant and probative evidence?
(c) Did the Environment Court consider irrelevant evidence and place weight upon evidence that was plainly wrong?
[3] The Council denies that the Environment Court erred in law and says that the appellants’ arguments infringe on the Environment Court’s fact-finding role.
Background
[4] Mr and Mrs Banora own a property at 82 Wolverton St, Avondale. At the south-western boundary of their property is Te Whau stream. The site is also partially bounded by a strip of land owned by the Council which is used as an access-way from Wolverton St to the esplanade reserve along Te Whau stream.
[5] The Banoras purchased the property in 2006. A land information memorandum (LIM) obtained for the property identified that the land might not be suitable for particular development or land use because the soil quality was poor, the land was flood prone, and it also had a watercourse passing through it.
[6] In 2007 trees were removed from the adjoining Council land. Mr Banora alleges that the Council also removed trees from within his property. It was around this time that the Council installed the stormwater culvert under the Council access- way.
[7] From 2010 onwards, Mr Banora made a series of complaints about this stormwater culvert, a retaining wall constructed by his neighbours, the subdivision of neighbouring properties, and tree removals. Further complaints in relation to the retaining wall were lodged between 2011 and 2016.
[8] From October 2015, the Council and Mr Banora exchanged correspondence about the waste materials at the rear of the car parking area within the flood plain and flood prone parts of the property. Mr Banora was advised at the time of the need for resource consent for this activity. On 27 November 2015, the Council issued two abatement notices to the Banoras in relation to their use of the car parking area. Infringement notices were then issued on 4 February 2016 for breach of the abatement notices.
[9] In March 2016, Mr Banora undertook works which he considered necessary to combat Council sewage he alleged was flowing on to his property. The works undertaken by Mr Banora included plugging the culvert, covering the outlet area and trenching works to divert flow around the edge of his property. Mr Banora made a formal complaint about leaking sewage on 22 March 2016.
[10] Mr Banora continued with the works from April to July 2016. Further abatement notices were issued to the Banoras requiring them to cease all earthworks. Nevertheless, Mr Banora continued with the works.
[11] On 26 August 2016, the Council was granted without notice interim enforcement orders requiring the Banoras to cease and not recommence any activities on site, including earthworks, construction or vegetation removal.2 Following a
hearing at which the Banoras attended, the Environment Court continued the interim orders and made directions for the hearing of the application for enforcement orders.3
Environment Court decision
[12] The application came on for hearing on 25 October 2016 and concluded on
27 October 2016.
[13] The Council alleged that Mr Banora undertook works without resource consent in contravention of rules in both the operative Auckland District Plan (Isthmus section) and the proposed Unitary Plan. The relevant works were said to be in excess of the maximum area permitted, on land subject to flooding and instability, within an overland flow-path, and undertaken without any or appropriate sediment control measures.
[14] The enforcement orders sought were to have the appellants do what the Court considered necessary to ensure compliance with the rules of the District Plan, Unitary Plan and the RMA, and to require the appellants to remedy the adverse environmental effects of their activities. The application for enforcement orders was made under s 314 of the RMA and, in particular, the following subsections:
314 Scope of enforcement order
(1) An enforcement order is an order made under section 319 by the
Environment Court that may do any 1 or more of the following:
(a) require a person to cease, or prohibit a person from commencing, anything done or to be done by or on behalf of that person, that, in the opinion of the Environment Court,—
(i) contravenes or is likely to contravene this Act, any regulations, a rule in a plan, a rule in a proposed plan, a requirement for a designation or for a heritage order, or a resource consent, section 10 (certain existing uses protected), or section 20A (certain existing lawful activities allowed); or
(ii) is or is likely to be noxious, dangerous, offensive, or objectionable to such an extent that it has or is likely to have an adverse effect on the environment:
(b) require a person to do something that, in the opinion of the court, is necessary in order to—
(i) ensure compliance by or on behalf of that person with this Act, any regulations, a rule in a plan, a rule in a proposed plan, a requirement for a designation or for a heritage order, or a resource consent; or
(ii) avoid, remedy, or mitigate any actual or likely adverse effect on the environment caused by or on behalf of that person:
(c) require a person to remedy or mitigate any adverse effect on the environment caused by or on behalf of that person:
…
[15] The Council relied on the evidence of five witnesses, all of whom provided sworn affidavits.
[16] Mr Banora represented himself and his wife at the hearing. He was assisted by his son. He admitted that he caused the work complained of by the Council but said he was justified in doing so for a number of reasons. In particular, he alleged that the Council had removed trees on his property without his permission; had refused over a
long period of time to investigate his claims about sewage flowing through the stormwater culvert on to his property; and alleged that the Council had collaborated with his neighbours to permit them to undertake works on their properties to the detriment of his property.
[17] Mr Banora presented a statement of defence sworn as an affidavit, 25 albums of documents and photographs, and 19 PowerPoint slide shows.
[18] On the substantive issues for determination, the Environment Court found as follows:
(a) Mr Banora had undertaken extensive earthworks on the rear portion of the site including earthworks, trenching, clearance of low vegetation, placement of material (earth and gravel), construction of a building platform and a retaining wall, and an extension to the concrete parking area. As already noted, Mr Banora did not dispute undertaking this work.
(b)The work was done by or on behalf of Mr Banora without a resource consent and it contravened rules in both the operative and proposed District Plans in relation to earthworks generally, and works in an overland flow path.
(c) There were extensive adverse effects on the environment resulting from the work done by or on behalf of Mr Banora. That conclusion relied on the evidence of Mr Iszard and Ms Wild, who had sworn affidavits on behalf of the Council. Both witnesses were cross-examined by both
Mr Banora and his son and they were questioned by the Court. The Court found Mr Iszard and Ms Wild’s evidence to be consistent with what they observed during their site visit.
(d)The Environment Court applied the four-step test in Watercare Services Ltd v Minhinnick to the application for enforcement orders under s 314(1)(a)(ii) of the RMA.4 It concluded that the Council was acting honestly in seeking enforcement orders, and that Mr Banora’s actions were both dangerous and objectionable. Further, the Council concluded that the actions of Mr Banora had resulted in a significant level of adverse effects on the environment, including to the Council’s land, the walkway, the sewer, the Banoras’ land, and Te Whau stream.
(e) The Court was satisfied that there was a clear connection between what had been done, the effects, and what was necessary to be done to address the effects. Mr Iszard and Ms Wild’s evidence was relied on in considering remediation options. The Court was satisfied that the circumstances justified making orders under s 315 of the Act to allow the Council to undertake the remediation works if the Banoras failed to comply.
(f) Finally, after considering Mr Banora’s evidence and submissions, the
Court found that there was no justification or excuse for Mr Banora
4 Watercare Services Ltd v Minhinnick [1998] 1 NZLR 294 (CA) at 15.
undertaking the work without first obtaining the necessary resource consent.
[19] The enforcement orders sought by the Council were made accordingly. In general terms, they required the Banoras to:
(a) remove all debris within the flood prone area or flood plain area on their property;
(b) stabilise and remediate the land where earthworks had been undertaken;
(c) submit a vegetation plan for Auckland Council approval; and
(d)restore the vegetation by planting in accordance with that vegetation plan.
Approach on appeal
[20] Section 299 of the RMA provides for a right of appeal from a decision of the Environment Court to the High Court. Appeals under s 299 are limited to questions of law.
[21] The principles to be applied to an appeal under s 299 were summarised in
Ayrburn Farm Estates Ltd v Queenstown Lakes District Council as follows:5
[34] Appellate intervention is therefore only justified if the
Environment Court can be shown to have:
i) applied a wrong legal test; or,
ii) come to a conclusion without evidence or one to which on the evidence it could not reasonably have come; or,
iii) taken into account matters which it should not have taken into account; or,
iv) failed to take into account matters which it should have taken into account.
5 Ayrburn Farm Estates Ltd v Queenstown Lakes District Council [2012] NZHC 735, [2013] NZRMA 126 at [34]–[36].
[35] The question of the weight to be given relevant considerations is for the Environment Court alone and is not for reconsideration by the High Court as a point of law.
[36] Further, not only must there have been an error of law, the error must have been a “material” error, in the sense it materially affected the result of the Environment Court's decision.
(footnotes omitted)
[22] In Bryson v Three Foot Six Ltd, the Supreme Court discussed what amounted to a question of law for appeal purposes.6 The Supreme Court confirmed that the application of the law to the facts of an individual case by the fact-finding Court does not give rise to a question of law. It is for the fact-finding Court to weigh the relevant facts in light of the applicable law. If the fact-finding Court has not overlooked any relevant matter or taken into account some matter which is irrelevant to the proper application of the law, the conclusion will be left for the fact-finding Court unless it is clearly insupportable.7 The Supreme Court said that it will be a rare case where the appeal court considers, as a question of law, whether the conclusion of a fact-finding body is based on an insupportable factual finding.8
Was the hearing conducted fairly and in accordance with principles of natural justice?
[23] Normally an allegation of breach of natural justice is addressed by way of judicial review proceedings rather than appeal. There are conflicting authorities on whether a procedural error can constitute a question of law.9 In this case, both parties proceeded on the basis that such a breach could be pursued on appeal under s 299. I do not need to decide the issue because, for the reasons set out below, I do not consider there to have been a breach of natural justice in this case. Accordingly, I have heard the appeal on the basis that a breach of natural justice is a question of law without
conclusively determining the point.
6 Bryson v Three Foot Six Ltd [2005] NZSC 34, [2005] 3 NZLR 721 at [24]–[27].
7 At [25].
8 Bryson v Three Foot Six Ltd, above n 6, at [26]-[27]. See also Vodafone New Zealand Ltd v
Telecom New Zealand Ltd [2011] NZSC 138, [2012] 3 NZLR 153 at [51]–[52].
9 See the discussion and the authorities cited in Kawarau Jet Services Holdings Ltd v Queenstown Lakes District Council [2015] NZHC 2343 at [40]–[46]. For other cases in which a breach of natural justice has been found to constitute a question of law see Plain Sense (Taieri Plains Environmental Protection Society) Inc v Dunedin City Council CIV-2006-412-903, 15 May 2007 at [18]; and Te Whare o Te Kaitiaki Ngahere Inc v West Coast Regional Council [2015] NZHC
2769 at [18].
[24] The Banoras say that the hearing was not conducted fairly or in accordance with the principles of natural justice. Although the written submissions filed on behalf of the Banoras canvass a variety of alleged breaches, Mr Woods confirmed at the appeal hearing that these were included by way of background only. The sole focus of the appeal was on the late service of Mr Iszard’s affidavit.
[25] Mr Iszard, a stormwater engineer, was one of the five witnesses called by the Council. He gave evidence about the flood-prone nature of the property and the adverse effects caused by the earthworks undertaken by Mr Banora.
[26] Mr Banora says that he did not receive a copy of Mr Iszard’s affidavit until the morning of the hearing. He said that this resulted in the hearing being conducted contrary to natural justice in that:
(a) There was no reasonable opportunity to consider the content and substance of the evidence;
(b) There was no reasonable opportunity to seek expert evidence in reply;
(c) There was no reasonable means to fairly cross-examine Mr Iszard, and the Banoras proceeded to do so to their own prejudice and without expert assistance; and
(d)The Banoras were deprived of the opportunity to seek legal advice in relation to the evidence.
[27] The Council says that Mr Iszard’s affidavit was served first by emailing it to him on 7 October 2016, and second by couriering it to 82 Wolverton St. It was signed as received by somebody at that address. The Council says that this is sufficient to constitute service in accordance with s 352 of the RMA, and accordingly the Banoras had adequate notice of the affidavit prior to the hearing. The relevant subsections of s 352 provide:
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:
…
(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:
…
(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.
…
(5) Where a notice or other document is sent by post to a person in accordance with subsection (1)(b)(iii) or (iv), it shall be deemed, in the absence of proof to the contrary, to be received by the person at the time at which the letter would have been delivered in the ordinary course of the post.
[28] The email sent on 7 October 2016 attached the affidavits of Mr Paton and
Ms Wild. However, as noted in the body of the email, Mr Iszard’s evidence was too large to be provided by way of an attachment, so a hyperlink was included in the email from which the affidavit of Mr Iszard could be downloaded.
[29] The Banoras received the email and appear to have had no trouble accessing the affidavits which were attached to the email as PDFs. However, Mr Banora has
sworn an affidavit in the proceeding in which he deposes to difficulties in downloading
Mr Iszard’s affidavit via the hyperlink. He says that he did not raise these difficulties with the Council or with the Court, and instead relied on the Council’s email which indicated that a hard copy of Mr Iszard’s affidavit would be couriered to the Banoras.
[30] Mr Woods submits that service by hyperlink does not constitute service by email. He relies on the decision of Body Corporate 85115 v Middlemiss in support of that submission.10 That case concerned service of a proceeding involving an application settling a scheme under s 74 of the Unit Titles Act 2010. Two of the respondents served advised that they were unable to open the hyperlink in the email due to potential virus risks. Another drop-box link subsequently provided by the applicant also could not be accessed for the same reason. Peters J held that emailing a link to a cloud storage facility is not the same or equivalent to sending the documents by email. As that was the form of service agreed, and directed by the Court, service had not been effected.11
[31] However, in this case, the affidavit of Mr Iszard was also couriered to the Banoras’ property at 82 Wolverton Street, and was signed as received at that address. Mr Woods submits that this is not proper service either because 82 Wolverton Street was not an address for service provided by the Banoras. However, s 352(1)(b)(ii) only requires that the documents be delivered to the “usual or last known place of residence”. Although some correspondence appears to have been sent to a different address, most of the documents in the proceeding were addressed to 82 Wolverton St. That appears to have been the last known place of residence for the Banoras. The Banoras did not advise the Court or the Council of an alternative address for service. The fact that it was signed by someone at that address is sufficient to indicate that it was received.
[32] In the circumstances of this case, I consider that couriering the affidavit to
82 Wolverton St constitutes service in accordance with s 315.
10 Body Corporate 85115 v Middlemiss [2017] NZHC 382.
11 At [9] and [11].
[33] But even if service was not technically effected, I am not persuaded that the failure to do so resulted in a breach of natural justice. Mr Banora was able, and did, cross-examine Mr Iszard. The Environment Court adjourned to allow Mr Banora time to consider his questions overnight given his indication that he had only received the affidavit that morning. There was extensive questioning by Mr Banora, and his son, following that adjournment. The Court also questioned Mr Iszard at length, and, as recorded in the Court’s decision, they satisfied themselves about his evidence during their site visit.
[34] The fact that Mr Banora and his son conducted the cross-examination without the benefit of legal advice or expert assistance does not mean there was a breach of natural justice. Although Mr Banora says he was not aware of the exact hearing date, he was at least aware that it was approaching. The Environment Court had made directions on 31 August 2016 that the hearing be set down for three days some time between 17 October and 28 October 2016 and Mr Banora was present when those directions were made. The Banoras had an opportunity to call expert evidence and engage legal advice to assist with their defence, but they chose not to do so.12
[35] The principles of natural justice are flexible and are dependent on the circumstances of the case.13 This case concerned a long running dispute between
Mr Banora and the Council which had reached a critical point as reflected by the grant of without notice interim orders. There was a need to resolve the issues expeditiously. In all the circumstances, I am satisfied that there was no breach of natural justice and this ground of appeal must be dismissed.
Did the Environment Court erroneously confine the issues before it?
[36] Mr Woods submits that the Environment Court failed to take into account relevant evidence and in doing so erroneously confined the issues before it.
12 Mr Banora indicated to the Environment Court that he had arranged to meet with a solicitor on the morning of 25 October 2016. As the Environment Court noted in its decision, given the likely hearing date, that was simply too late to arrange legal representation and advice (at [50]).
13 Philip A Joseph Constitutional and Administrative Law in New Zealand (4th ed., Brookers, Wellington, 2014) at [25.1].
[37] The relevant evidence said to be ignored by the Environment Court concerns the Banoras’ contention that the Council’s actions on the adjoining land created problems on the Banoras’ land which necessitated the earthworks.
[38] Mr Woods refers to paragraph [3] of the Environment Court decision in support of this submission. That paragraph provides:
[3] Other aspects of the work identified in the evidence include drainage to a public wastewater drain, destruction of a public stormwater culvert and damage to a footpath on adjoining land owned by the Council. We were advised by Mr Quinn on behalf of the Council that these matters would be addressed in separate civil or criminal proceedings, or both, and accordingly were not to be addressed by us in this decision.
[39] I do not consider this paragraph evidences an improper confinement of the issues as Mr Woods submits. The Council application was in relation to works undertaken on the Banoras’ property. Works on the adjoining property were not relevant to the issues to be determined. The identification of the evidence relevant to the application by the Environment Court was entirely proper and was not in error.
[40] Furthermore, it is evident that the Environment Court paid very careful attention to the Banoras’ defence. The material put forward by the Banoras in defence was read and considered by the Environment Court. All of this material was referred to in the chronology of events section of the decision (at [10]–[43]). Indeed, at the hearing the Banoras acknowledged the Court’s close consideration of this material:
THE COURT: JUDGE KIRKPATRICK
… please be reassured both Commissioner Leijnen and I have gone through all this material, we’re looking forward to the chance to see what additional commentary you’ve got in those slides.
MR BANORA (JNR)
I was saying to my father that it seems that you have gone through this very well because yesterday while we were talking you were able to quickly identify the albums, so we are grateful that you have spent time to go through that …
[41] More importantly, the Council expressly considered whether there was any justification or excuse for the works undertaken by the Banoras (at [79]–[86]). This included Mr Banora’s concerns about the appearance of sewage in or around the
stormwater culvert under the Council’s walkway, and the effects on Te Whau stream and its floodplain as a result of works done on neighbouring properties.
[42] The Environment Court noted that it is open to any person to apply for a declaration or enforcement order against any other person including a council. The Court noted that taking this route in response to a problem allegedly caused by a council would have been “more appropriate than adopting a self-help approach which itself involved activities which required resource consent and which had adverse effects on the environment” (at [84]). A further option was to apply for a resource consent, which would highlight the reasons why a consent was necessary, and bring those matters to the attention of the relevant persons (at [85]). The Court concluded:
[86] Mr Banora chose not to follow any of those options. He undertook work on his property and also on the Council’s property which involved extensive earthworks in an area immediately adjacent to a stream. There is no evidence that he took any precautions to safeguard the stream from the discharge of sediment from the works. There is no justification at all for the work he chose to do without first obtaining the necessary resource consent: even if all his allegations against the Council are taken to be true (and to be clear, the Court does not accept that they are all true) those matters do not justify or excuse such actions.
[43] Mr Woods submits that the matters raised by the Banoras were relevant to whether the Council had “clean hands” in seeking the enforcement orders. In support of that proposition he relied on the four-step test for applications made pursuant to s 314(1)(a)(ii) in Watercare Services Ltd v Minhinnick.14 That four-step test is as follows:
1.Whether the assertion of the applicant seeking the enforcement order that the subject matter is noxious, dangerous, offensive or objectionable is an assertion honestly made.
2.If so, whether in the opinion of the Court the subject matter is or is likely to be noxious, dangerous, offensive or objectionable.
3.If so, whether in the opinion of the Court any noxious, dangerous, offensive or objectionable aspect found to exist is of such an extent that it is likely to have an adverse effect on the environment.
4.If so, whether in all the circumstances the Court's discretion should be exercised in favour of making the enforcement order sought or otherwise.
14 Watercare Services Ltd v Minhinnick [1998] 1 NZLR 294 (CA) at 15.
[44] The Environment Court expressly referred to these four steps when considering the Council’s application pursuant to s 314(1)(a)(ii) (at [66]). It then addressed each of the four steps in its reasoning. In relation to the first step, the Environment Court said:
[67] Throughout his presentation, Mr Banora asserted that the Council was not acting honestly, so putting the first step in issue. In support, Mr Banora presented a great deal of material to show, in his submission, that the Council had not responded adequately to his complaints about the activities of his neighbours and the presence of sewage on his property. We have reviewed the material carefully. We consider that there have been instances where the interaction between Mr Banora and the Council might have been handled better, but that observation applies to both parties. In any event, that observation in no way justifies the actions that have been taken by Mr Banora. We are in no doubt that the basis on which the Council is now seeking enforcement orders is an honest one, given the evidence presented by both parties.
[45] Mr Woods submits that the Environment Court erred in this respect because the Environment Court only considered the honesty question in relation to the interaction between Mr Banora and the Auckland Council. It did not consider the honesty question in relation to what Mr Banora describes as the “substantive mischief” between the parties, being the Banoras’ contention that the Council had caused the problems on the Banoras’ land.
[46] I do not consider that the first of the four steps in Minhinnick can be equated with a general requirement that applicants for enforcement orders must come to the Court with “clean hands”. The requirement of honesty is designed to ensure that parties are not using the enforcement process vexatiously, and that they have a genuine belief that the activities the subject of the application are noxious, dangerous, offensive or objectionable.
[47] There is no suggestion that the Council did not honestly believe that the Banoras’ activities were noxious, dangerous, offensive or objectionable. Indeed, the evidence called by the Council supported that belief and the Environment Court found it to be proved.
[48] Mr Woods referred me to cases which concerned the equitable principle of
“clean hands” more generally. I do not consider those cases to be directly applicable
to s 314 of the RMA. However, the applicant’s conduct, and the cause of the noxious, dangerous, offensive or objectionable matter, might be relevant to the exercise of the Court’s discretion in granting an enforcement order, that is, the fourth step of the Minhinnick test. It might also be relevant to the scope of the enforcement orders sought.
[49] In this case, the Environment Court expressly stated that it would address the exercise of its discretion after considering the matters of justification or excuse raised by Mr Banora (at [70]). As noted above, Mr Banora’s substantive arguments were then considered. The Court found that the extensive adverse effects on the environment resulted from the work done by or on behalf of Mr Banora, and that even if Mr Banora’s allegations against the Council were true, they did not justify or excuse such actions.
[50] In summary, I do not consider that the Environment Court failed to take into account relevant matters, or improperly confined the issues before it. The Environment Court applied the test in Minhinnick appropriately and had regard to all the matters raised by Mr Banora. There was no error in that approach and this ground of appeal must be dismissed.
Did the Environment Court consider irrelevant evidence and place weight on evidence that was plainly wrong?
[51] Although stipulated as a separate question of law in the notice of appeal, this question was not pressed as such at the appeal hearing. Nevertheless, the written submissions filed on behalf of the Banoras identify areas which the Banoras say are irrelevant or plainly wrong, and which were relied on by the Environment Court in reaching its decision.
[52] First, it is said that the Environment Court considered the flood risk on the property by relying on the 2006 LIM, but failed to consider that the map attached to that LIM identified between one quarter and one third of the property as affected. That is not correct. The Environment Court referred to the map attached to the 2006 LIM and described it as “covering about a third of the site …” (at [12]).
[53] Second, it is said that the Environment Court irrelevantly considered a natural water course recorded in the 2006 LIM:
… as if it related to the flow of water in 2016 despite the presence of irrefutable evidence of the alteration by Auckland Council of the natural water course by the installation in 2007 of a culvert on a different location (east), and constructed walkway, altering the topography, removing vegetation, and creating an unnatural water course on the subject property.
[54] Plainly, this submission is a recast of the previous claim that the Court failed to take into account relevant evidence. The Environment Court found that Mr Banora had undertaken earthworks in the flood prone area, that these earthworks had caused the adverse effects, and there was no justification or excuse for these works. There was no error in the Court’s approach.
[55] Third, it is said that the above two errors led the Court to irrelevantly consider those rules of the District Plan (Rule 5D.6.1 and H4.12.2) which prohibit the diversion, at the entry and the exit points of the land, of water flow paths as a controlled discretionary activity.
[56] It follows from the above that I do not consider the Environment Court erred in the ways suggested. But in any event, the submission made by the Banoras under this head challenge the Environment Court’s findings of fact. The Environment Court, as a specialist tribunal, is the final adjudicator on questions of fact. A question of law does not arise from the expression by the Environment Court of its views on a matter within its specialist expertise or on the weight to be attached to that matter. There is no suggestion that the Environment Court’s findings were plainly wrong, or so unreasonable as to amount to an error of law.
[57] Finally, Mr Banora repeats his submissions that the Environment Court took into account Mr Banora’s interactions with the Council in assessing whether the application for enforcement orders was honestly made, rather than the appellants’ substantive challenge to the works done by the Council.
[58] For the reasons already set out above, I consider the Environment Court carefully considered Mr Banora’s complaints and rejected any defence based on
justification or excuse. The Environment Court did not commit an error of law in this respect either.
Conclusion
[59] In conclusion, I am not satisfied that the Environment Court made an error of law. It did not conduct the hearing contrary to natural justice. It did not fail to consider relevant evidence or take into account irrelevant evidence or rely on evidence that was plainly wrong. Accordingly, the answer to all three questions is “no” and the appeal must be dismissed.
Result
[60] The appeal is dismissed.
[61] The Council is entitled to an award of costs. It seeks costs on a schedule 2B basis. The parties are invited to confer about quantum. In the event that agreement cannot be reached, the Council may file a memorandum in support within 10 working days of this judgment (taking into account the Court holiday period), with a memorandum in reply five working days thereafter. The question of costs shall be
determined on the papers.
Edwards J
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