Banora v Auckland Council
[2017] NZHC 1705
•21 July 2017
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2016-404-003203 [2017] NZHC 1705
IN THE MATTER of an appeal under section 299 of the
Resource Management Act 1991
BETWEEN
ALEXANDER BANORA EMANUELLA BANORA
Appellants
AND
AUCKLAND COUNCIL
Respondent
Hearing: 24 April 2017 Counsel:
N W Woods for appellants
S F Quinn for respondentJudgment:
21 July 2017
JUDGMENT OF KATZ J
This judgment was delivered by me on 21 July 2017 at 3.30 pm
Pursuant to Rule 11.5 High Court Rules
Registrar/Deputy Registrar
Solicitors: Rice Craig, Auckland
DLA Piper, Auckland
ALEXANDER BANORA EMANUELLA BANORA v AUCKLAND COUNCIL [2017] NZHC 1705 [21 July
2017]
Introduction
[1] In a decision dated 9 December 2016, the Environment Court found that the appellants, Mr and Mrs Banora, had undertaken major earthworks on their property in Avondale without resource consent, in contravention of both the operative Auckland District Plan and the proposed Auckland Unitary Plan.1 Various enforcement orders were made in respect of the breaches, including orders aimed at stabilising and remediating the land.
[2] Mr and Mrs Banora have appealed the Environment Court’s decision. Pursuant to s 299 of the Resource Management Act 1991 (“RMA”) any appeal must be limited to questions of law. The three questions of law set out in Mr and Mrs Banora’s notice of appeal are:
(a) Was the hearing before the Environment Court conducted fairly and in accordance with principles of natural justice?
(b)Did the Environment Court erroneously confine the issues before it and therefore the evidence that 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] An appeal will generally proceed on the evidence that was before the decision-maker at the time of their decision. Mr and Mrs Banora, however, seek leave to adduce the affidavit of a civil engineer, Samuel Warwick Marshall, as fresh evidence on appeal. A number of requirements must be met before new evidence will be allowed in an appeal. The Council says that those requirements are not met
in this case.
1 Auckland Council v Banora [2016] NZEnvC 246 [Environment Court Decision].
Fresh evidence on appeal - legal principles
[4] Section 299(2) of the RMA requires that this appeal proceed in accordance with the High Court Rules 2016 (“HCR”). The parties are not entitled, as a matter of course, to attempt to bolster their case by filing new evidence in support of an appeal. Consistent with this longstanding principle, r 20.16 provides that further evidence may be adduced only with the leave of the court. The court, in its discretion, may grant leave only if there are special reasons for hearing the
evidence.2
[5] In exercising its discretion, the court will generally have regard to the following factors:
(a) Whether the evidence could have been obtained with reasonable
diligence for use at the trial (in other words, whether it is “fresh”).
(b)Whether the evidence is material (in other words, whether it is relevant and would likely have had an important influence on the outcome of the case).
(c) Whether the evidence appears to be cogent and credible.
(d)Whether admitting the evidence would require further evidence from other parties and cross-examination.
These matters are not exhaustive. The over-arching consideration will always be the importance of doing justice in the particular case.
[6] The discretion of the Court to grant leave for fresh evidence to be adduced is exercised sparingly and with particular caution.3 That is particularly so where, as here, the appeal is limited to questions of law and the first instance decision-maker
was the Environment Court. The High Court in Chamberlain v Scott confirmed that
2 Rule 20.16(3).
3 Chamberlain v Scott [2012] NZHC 2596, (2012) 21 PRNZ 176 at [14].
Parliament has made a deliberate decision to make the Environment Court the final adjudicator on questions of fact, stating:4
[15] This must be particularly so in cases where appeals are limited by Parliament to issues of law. Plainly, Parliament is taking the view that there will be one hearing or trial on the facts and thereafter review is confined to issues of law, akin to judicial review. This is particularly the case with the Environment Court. There is a consistent pattern that all decisions of the Environment Court are either only reviewable by judicial review or appealed subject to limitations of questions of law.
[7] The Court further observed that:
[25] Special reason is a general criteria which needs to be always applied in the statutory context of the tribunal under appeal. That statutory context embeds policy/purpose in the scheme and provisions of the subject statute. In enacting the RMA and limiting rights of appeal from the Environment Court, Parliament decided deliberately to run the risk of factual error on the part of the Environment Court. Obviously, Parliament judged that the incidence of occasional factual error was outweighed by the efficiency of constraining appeals from the Environment Court. This Court cannot disturb that policy decision embedded in the RMA statute.
[8] Mr Woods, for the appellants, submitted that the new evidence is admissible if it would be of assistance in better identifying the nature and effect of the Environment Court’s decision,5 or if it relates to important matters of context not previously available to that Court.6 These are not, however, “stand alone” grounds for the admission of fresh evidence. The nature and effect of the Environment
Court’s decision would have to be relevant to one of the three legal questions raised on appeal. The same applies to any “contextual” evidence included in Mr Marshall’s affidavit.
Is the evidence of Mr Marshall relevant to an issue on appeal?
[9] The appropriate starting point in this case is to consider whether the evidence of Mr Marshall is relevant to an issue on appeal. If it is not relevant, it is not admissible. The appeal must be properly focussed on the questions of law identified
in the notice of appeal. It is not an opportunity for a rehearing on the facts.
4 Chamberlain v Scott, above n 3.
5 Counsel relied on Terrace Tower (NZ) Pty Ltd v Queenstown Lakes District Council [2001] 2
NZLR 388 (HC).
6 Counsel relied on Legal Services Agency v McDonald-Wright [2010] 3 NZLR 133 (HC).
[10] Mr Marshall is a civil engineer. His evidence is directed to describing and identifying the “nature and effect” of the enforcement orders made by the Environment Court. He concludes that the orders made by the Court, in relation to reinstatement of the land, will not necessarily provide either of the parties or the environment with an optimal solution.
Will Mr Marshall’s evidence assist the Court to determine whether the Environment Court hearing was conducted fairly and in accordance with principles of natural justice?
[11] The first question of law set out in the notice of appeal is whether the hearing in the Environment Court was conducted fairly and in accordance with principles of natural justice. Specifically, the appellants allege that the Environment Court erred by:
… conducting the hearing despite the key expert brief of [Auckland Council] (Mr Iszard) being served on [Mr and Mrs Banora] on the day of the hearing, such that they had no opportunity to consider its content or substance, reasonable opportunity to seek expert advice, means to fairly cross-examine Mr Iszard and were deprived of the opportunity of seeking legal advice in relation to that evidence.
[12] Mr Iszard, who is a stormwater engineer, was one of five Council expert witnesses who provided evidence before the Environment Court. There is a dispute as to whether or not Mr Iszard’s affidavit was served on the appellants prior to the hearing.
[13] Mr Banora gives evidence regarding this in an affidavit, sworn on 19
December 2016, in support of a stay application he was seeking at that time. He deposes that the hearing ran from 25 to 27 October 2016, but that Mr Iszard’s affidavit was only served on him on 25 October 2016. He acknowledges that the Council sent him an email with a hyperlink to download the affidavit, on 7 October
2016. That email stated that Mr Iszard’s affidavit was too large to send electronically. Mr Banora’s evidence is that the hyperlink did not work and he therefore decided to wait for the hard copy, which was being couriered. The courier never arrived. That appears to be because the courier was sent to Mr Banora’s property in Avondale (the subject property). The courier was signed for by someone
at that address. Mr Banora says, however, that the Avondale address is tenanted and the hard copy of the affidavit was not passed on to him.
[14] Mr Quinn, for the Council, submitted that it is apparent from the hearing transcript that Mr Banora was able to access at least one other affidavit that was also sent by way of hyperlink. (I note that the email itself appears to indicate, however, that the only affidavit that was hyperlinked was Mr Iszard’s; the other two appear to have been attached as PDFs). Mr Quinn further noted that Mr Banora did not advise the Council of any difficulties with the hyperlink, despite the imminence of the hearing date. Further, Mr Banora was given additional time, during the course of the Environment Court hearing, to prepare his cross-examination of Mr Iszard.
[15] All of this information is potentially relevant to the natural justice ground of appeal. None of it, however, is derived from Mr Marshall’s affidavit. All that Mr Marshall has to say on the topic is: “My client’s instructions are that Mr Izzard’s Affidavit was not received by him until the day of the Enforcement Order hearing”. This is a hearsay statement that will not materially assist the Court in determining the issues of natural justice raised by the appellants. Mr Marshall’s affidavit is accordingly not relevant to this particular ground of appeal.
[16] If there has been a breach of natural justice then the appellants may (or may not) have an opportunity to adduce Mr Marshall’s evidence at any re-hearing before the Environment Court. The contents of the affidavit, however, do not materially assist in determining the threshold issue, namely whether there has been a breach of natural justice.
Will Mr Marshall’s evidence assist the Court to determine whether the Environment
Court erroneously confined the issues before it?
[17] The second question of law raised in the appellants’ notice of appeal is: Did the Environment Court erroneously confine the issues before it and therefore the evidence that it was prepared to hear, to the exclusion of relevant and probative evidence?
[18] The appellants’ submissions expand on this question of law as follows:
… the Environment Court was advised by Mr Quinn, on behalf of the Auckland Council, that evidence relating to a public waste water drain that had been damaged, depositing sewerage onto [Mr and Mrs Banora’s] land, a stormwater culvert installed by [Auckland Council] which concentrated and diverted an overland flow path onto [Mr and Mrs Banora’s] land; and a concrete footpath surrounding [Mr and Mrs Banora’s] land partially to the south and east, changing the relative heights of the adjourning lands and the alteration of the Te Whau Creek's flow path; were “matters [that] would be addressed in separate civil or criminal proceedings, and were not be addressed by us in this decision”. The Environment Court in accepting and adopting that submission incorrectly confined issues it was willing to hear before it in such a manner as by definition to exclude the relevant evidence of [Mr and Mrs Banora]. This included evidence which, inter alia, substantively challenged the mischief done by the Auckland Council in damaging their land and caused substantial harm to the property and the safety of its occupants.
(footnotes omitted).
[19] The Environment Court found that Mr Banora undertook certain work on his property without resource consent, in contravention of the requirements of both the operative Auckland District Plan and the proposed Auckland Unitary Plan. The relevant work was earthworks in excess of the maximum area permitted, on land subject to flooding and instability, and within an overland flow path. Further, the Court found that Mr Banora undertook the work without “any or appropriate
sediment control measures”.7
[20] In addition to (and in the course of) undertaking the earthworks to his own land, the Council believes that Mr Banora also caused damage to neighbouring properties, including land owned by the Council. The enforcement orders sought by the Council, however, related solely to remediation of Mr Banora’s own property. The Council sought orders requiring such things as the removal of debris, earth, concrete and structures Mr Banora had placed on his land; stabilising and remediating the land; restoring vegetation and so on. The Council did not (and says it could not) seek enforcement orders under the RMA requiring Mr Banora to remediate land owned by other people. It says that separate legal action is required to address such issues. For example, the Council could remediate the damage to its own land and seek to recover the costs of doing so from Mr Banora. Alternatively, it could prosecute Mr Banora for damage he has done to Council land.
[21] At the outset of its decision the Environment Court described the position as follows:8
[3] Other aspects of the work identified in the evidence include damage to a public wastewater drain, destruction of a public stormwater culvert and damage to a footpath on adjoining land owned by 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 they are not to be addressed by us in this decision.
[22] The appellants’ second ground of appeal is that the Environment Court erred
in adopting this approach, to their prejudice.
[23] I am unable to see how Mr Marshall’s evidence (describing the nature and effect of the enforcement orders) is likely to be materially helpful to the Court in determining whether the Environment Court erred in declining to determine issues related to Mr Banora’s alleged damage to drains, culverts or footpaths on Council- owned land.
[24] The Environment Court’s decision was essentially a jurisdictional one. The relevant issues were either properly before the Court for determination or they were not. On appeal, this Court will likely have to determine that issue with reference to the RMA and any ancillary legislation, the Council’s application for enforcement orders, and (possibly) the affidavit evidence that was before the Environment Court when considering this issue. Mr Marshall’s evidence would not be of any assistance in the process.
Will Mr Marshall’s evidence assist the Court to determine whether the Environment Court considered irrelevant evidence or placed weight upon evidence that was plainly wrong?
[25] The third question of law raised in the appellants’ notice of appeal is: Did the Environment Court consider irrelevant evidence and place weight upon evidence that was plainly wrong? The appellants’ submissions expand on this question, as follows:
Specifically, did the Environment Court confine consideration of the evidence to the subject property and no other, thereon excluding relevant
facts, and namely the nuisances caused by [Auckland Council], being the essential thrust of [Mr and Mrs Banora’s] case?
[26] The thrust of this ground of appeal, as I understand it, is that the Environment Court erred in law by failing to consider historic actions by the Council on its adjoining property. Mr Banora’s evidence before the Environment Court was that such actions have detrimentally affected his own land, in turn justifying his own conduct. Mr Banora filed significant evidence in the Environment Court relating to this issue. The matter was therefore squarely before the Court and presumably considered by it, to the extent seen as relevant to the issues requiring determination.
Ultimately, however, the Court concluded:9
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.
[27] Assuming, for present purposes, that this conclusion can be challenged on a legal (as opposed to factual) basis, I cannot see how Mr Marshall’s evidence will assist the Court to determine the issue. Mr Marshall’s evidence is primarily directed to the nature and effect of the enforcement orders made by the Environment Court, not the historic actions of the Council on its adjoining land.
[28] To the extent that evidence is required in order to consider this issue on appeal, the necessary focus will be on the evidence that Mr Banora himself gave or called on the topic, before the Environment Court. Mr Marshall’s evidence will not assist this Court to determine whether or not the Environment Court erred in concluding that the Council’s own previous conduct was not relevant to the Council’s enforcement application in respect of Mr Banora’s land.
Conclusion
[29] The Council’s enforcement order application was considered by a specialised tribunal, the Environment Court. It was Parliament’s intention that the Environment
Court should be the final adjudicator on matters of fact.10 Mr Banora’s appeal is
9 Environment Court Decision, above n 1, at [86].
10 CH and DL Properties Ltd v Christchurch District Licensing Agency (2010) 20 PRNZ 680 (HC)
at [31]-[32].
accordingly limited to questions of law. It is not a rehearing of factual issues determined by the Environment Court.
[30] Mr Marshall’s affidavit seeks to introduce fresh evidence and also, to some extent, provide his own view of evidence that was before the Environment Court. Mr Marshall’s affidavit is not relevant, however, to any of the three questions of law raised by the notice of appeal. Accordingly, no special reasons exist that would justify granting leave to adduce Mr Marshall’s affidavit as fresh evidence on appeal.
Result
[31] The application to adduce Mr Marshall’s affidavit as fresh evidence on appeal
is dismissed. As the successful party, the Council is entitled to costs on a 2B basis.
Katz J
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