Biodiversity Defence Society Inc v Solid Energy New Zealand Ltd
[2013] NZHC 3283
•10 December 2013
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CIV 2013-409-1498 [2013] NZHC 3283
UNDER the Resource Management Act 1991
IN THE MATTER OF an application for a declaration under section 310 of the Act
BETWEEN BIODIVERSITY DEFENCE SOCIETY INCORPORATED
Appellant
ANDSOLID ENERGY NEW ZEALAND LIMITED
Respondent
Hearing: 27 November 2013
Appearances: I Hikaka and S Jackson for Appellant
J G Hardie and A C Limmer for Respondent
Date: 10 December 2013
RESERVED JUDGMENT OF FOGARTY J
Summary
[1] Solid Energy applied for a suite of resource consents to operate the Cypress
Mine. Seven consents are still current. Fifteen had to be given effect to by 24
August 2012. At that date, no coal had been mined. The applicant sought a declaration that those 15 consents had lapsed under s 125 of the Resource Management Act 1991. The Environment Court held that the consents had not lapsed.
[2] The appellant, Biodiversity Defence Society (BDS), has appealed this decision. The appeal is dismissed, adopting the Environment Court’s alternative reason, being satisfied that the Resource Management Act consents, considered as a
suite of consents, have been given effect to.
BIODIVERSITY DEFENCE SOCIETY INCORPORATED v SOLID ENERGY NEW ZEALAND LIMITED [2013] NZHC 3283 [10 December 2013]
[3] The consents are to be read as an integrated package, requiring adaptive management of the ecosystems affected by the mine. The works carried out to date by Solid Energy had focused on managing the effects of the mine. Those works were enough to find that all the questioned consents had been carried out sufficiently as a whole.
[4] This judgment concludes that by its nature, a coal mining operation requires a suite of consents. Once consent was granted, much planning work was necessary to integrate Cypress Mine into the overall exploitation of coal on the Stockton Plateau. Significant progress has been made on that planning work and large sums have been expended. Numerous physical works have also been undertaken, such as construction of access roads. In light of the mischief underlying the reason for s 125, and the purpose of s 125, there is no material distinction between planning work such as preparation of management plans, and physical works or activities that are at the heart of the suite of consents. Further, in light of ss 5 and 32 of the Interpretation Act 1999 it makes sense to read the phrase "A resource consent lapses..." in the plural rather than the singular. Therefore, the Environment Court did not err in law in finding that effect had been given to the suite of consents for Cypress Mine.
Introduction
[5] In December 2003, Solid Energy New Zealand Limited (Solid Energy) made an application for a suite of resource consents under the Resource Management Act
1991 (RMA).
This application is for all resource consents necessary for the establishment and operation of an opencast coal mine, known as Cypress Mine, within part of the Upper Waimangaroa mining permit area, and associated operations within part of the Stockton Coal Mining Licence area. The proposed Cypress Mine contains around 9 million tonnes of coal. The life of the mine is expected to be approximately 10 years.
[6] The types of consent sought were:
(a) Land use consents (Buller District Council).
(b) Land use consents (West Coast Regional Council). (c) Water permits (West Coast Regional Council).
(d) Discharge permits (West Coast Regional Council).
[7] There were two reasons for the need for these four categories of resource consents. The first is that Part 6 resource consents of the RMA, particularly s 87, distinguishes between land use consents, and water permits to take water, and discharge permits to dispose of water. Second, while the Buller District Council Plan has primary control over activities on land, the West Coast Regional Council has control over some environmental aspects of land use. Here, control of use of land for the purpose of soil conservation, maintenance and enhancement of quality of
water and of ecosystems.1
[8] Eventually, all of these consents were granted, on terms that the consents “not
lapse for a period of seven years after the date of commencement of the consents”.2
[9] The date of commencement of the resource consents is agreed to be 23
August 2005, the date when the Environment Court issued its final decision.
[10] There were 22 consents, all told. Seven of these were subject to a further application, to extend the lapse period to 10 years. These applications were granted. The remaining 15 consents thus needed to be given effect to within seven years, that is by 24 August 2012.3 As at 24 August 2012, no coal had been mined.
[11] On 11 June 2013, the appellant applied for a declaration that these 15 consents had lapsed. This application was heard by the Environment Court, Judge J R Jackson, sitting with Environment Commissioner, Mr A J Sutherland. The
judgment of that Court summarised the argument for lapsing in this way:4
1 Section 30(1)(c) Resource Management Act 1991.
2 In accordance with s 125(1), extending the default period of five years by another two, to seven years.
3 Section 125(1A).
4 Biodiversity Defence Society v Solid Energy New Zealand Ltd [2013] NZEnvC 195.
[3] ... There is a reasonable amount of detail, but in summary Ms Tulett deposed that no coal has been extracted, that the proposed haul road has not been completed, and that various other works authorised by the resource consents have not been completed (and some not even commenced).
[12] The Environment Court, after its customary detailed analysis concluded:
6. Result
6.1 Conclusions as to the individual consents
[110] After considering the continuing nature of almost all of the activities consented to, the surrounding circumstances and the other factors we have identified, we have held that each of the 15 questioned resource consents has been sufficiently carried out. In other words there has been more than substantial effort made towards giving effect to these consents: they have each been given effect to in the way that a continuing resource consent requires. On the approach that Mr Salmon submitted we must take, we have found that each of the consents has been sufficiently given effect to in all the circumstances.
[111] But we are not at all sure that the Society's approach is the correct one. In particular we are concerned that on that approach each of the resource consents has to be considered in isolation. That has meant in this case, that they have only not lapsed because the general conditions of consent make the preparation of the management plans and other plans a condition of each resource consent. It is easy to imagine other suites of resource consents where that might not be so.
[112] With that discomfort in mind, and in case we are wrong in relation to any one or more of the resource consents by themselves, we now turn to consider the package of resource consents as a whole.
6.2 The wording of the lapsing condition
[113] Section 125 applies to "a" resource consent. The general rule under the section is that a resource consent lapses on the date specified in the consent or five years after commencement. So the first question must always be "what does the consent say about lapse?" In this case all 22 questioned consents have a general condition which we have quoted earlier but because of its importance we repeat here:
A5 Lapsing of Consents
A5.1 Pursuant to section 125(1) of the Act all resource consents shall lapse on the expiry of seven years after the date of commencement of the consents unless the consents are given effect to before the end of that period or upon application in terms of section l25(l)(b) of the Act, the Consent Authority grant[s] a longer period of time.
It is notable that this lapsing condition does not refer to individual resource consent but to all of them. It does not say "... each resource consent shall lapse unless the consents are given effect to before the end of that period ...".
[114] When that condition is read with all the other conditions applicable to all the consents it shows an intention that the consents are to be read as a package for the purposes of the lapsing provision and (probably) for enforcement purposes also. In the current context what that means is that the consents stand or fall together. If they are given effect to as a whole within seven years then they all stand; if not they all fall.
[115] But what does "giving effect to" mean in this context? Does each individual resource consent have to be given complete effect to in order for the package to be said to be given effect to? We hold the answer is 'No'. It would make a nonsense of the scheme of the RMA and indeed of the scheme of the particular consents and conditions before us if inaction under one of the consequential water permits (the dewatering consents) led to lapsing of all the consents. Just as lapsing is to be regarded as a total effect, so giving effect to the consents (plural) must be an overall appraisal.
[116] Further, we hold the wording of general condition A5 both fixes the date for lapsing of the questioned consents at 7 years from commencement date (23 August 2005) and has an important message about what is needed to find that each "... consent is given effect to" in the words of section 125(1A). That is, that all the activities undertaken, and work carried out to comply with conditions should be weighed to see whether their combined impact goes beyond making substantial effort, and amounts to sufficient carrying out of the package of consents as a whole. In that case it is reasonable to say that each resource consent has been given effect to sufficiently for the purposes of section 125(1A).
6.3 Have the consents lapsed?
[117] We turn to consider the consents in these proceedings as a whole. First, we need to consider the extensive work listed in this decision, the large sums ($14 million to 23 August 2012) expended by Solid Energy, and the 15 year duration of excavation contemplated by the conditions of consent.
[118] Then we should consider the following factors: first, the other general conditions provide an interconnected web of Management Plans and Annual Plans which mean that the resource consents cannot be read in isolation but as an integrated package requiring adaptive management of the affected ecosystems as problems arise.
[119] We also bear in mind that management of mining (even of coal) is not a primary focus of the RMA in the way that, for example, "mining" (taking) of water is. Specific resource consents are needed to take water whereas taking of coal and minerals are managed under the Crown Minerals Act 1991. Thus the focus of the 22 resource consents is on the management of the effects of the proposal on the encompassing ecosystem(s) of the Ngakawau Ecological District, and the focus of the work to date has been on managing precisely those effects. To that extent the work carried out has been on the more important aspects of the proposal under the RMA. The extraction of coal is rather incidental at this point. It is of course important, ultimately for its contribution to the economic wellbeing of the Buller District's communities and for its contribution to public welfare in the form of producer (and consumer) surpluses. But the timing of these latter contributions is not managed by the conditions of consent and is thus for Solid Energy to determine (subject to C47).
[120] In the light of those matters we conclude that the 15 questioned consents to have all been carried out sufficiently as a whole. It follows that in the circumstances before us they have each been sufficiently given effect to for the purpose section 125 so that they have not lapsed.
[121] Based on our conclusions in parts 5 and 6 of this decision, we hold in the exercise of our discretion under section 313 of the RMA that we should declare that all of the questioned Cypress Mine consents have been given effect to sufficiently that they have not lapsed.
The interpretation problem
[13] Section 125 of the RMA provides:
125 Lapsing of consents
(1) A resource consent lapses on the date specified in the consent or, if no date is specified,—
(a) 5 years after the date of commencement of the consent, if the consent does not authorise aquaculture activities to be undertaken in the coastal marine area; or
(b) 3 years after the date of commencement if the consent does authorise aquaculture activities to be undertaken in the coastal marine area.
(1A) However, a consent does not lapse under subsection (1) if, before the consent lapses,—
(a) the consent is given effect to; or
(b) an application is made to the consent authority to extend the period after which the consent lapses, and the consent authority decides to grant an extension after taking into account—
(i) whether substantial progress or effort has been, and continues to be, made towards giving effect to the consent; and
(ii) whether the applicant has obtained approval from persons who may be adversely affected by the granting of an extension; and
(iii) the effect of the extension on the policies and objectives of any plan or proposed plan.
(1B) Sections 357A and 357C to 358 apply to subsection (1A)(b).
(2) For the purposes of this section, a subdivision consent is given effect to when a survey plan in respect of the subdivision has been submitted to the territorial authority under section 223, but shall thereafter lapse if the survey plan is not deposited in accordance with section 224.
(3) This section is subject to section 150G.
[14] This section has predecessor sections. The Town and Country Planning Act
1977, provided in s 70:
70 Lapsing of consents
Every consent given pursuant to any provision in this part of this Act or the corresponding provision of any former Act or pursuant to any district scheme shall lapse on the expiry of a period of 2 years after the date on which it was given, or, in case of a consent given or upheld on appeal, on the expiry of a period of 2 years after the date on which the appeal was determined, or on the expiry of such longer period as the Council in any particular case may allow, unless—
(a) The person to whom it was granted has within that period given effect to the consent; or
(b) The Council has, on an application made within 3 months after the expiry of that period, determined that that person has made substantial progress towards giving effect to the consent and is continuing to do so.
[15] In turn, the Town and Country Planning Act 1953 provided:
28C. Conditional uses-
...
(4) Any consent given under this section shall lapse after the expiration of a period of 2 years from the date when the consent was given, unless the applicant [[or his successor in title]], within that period, has established the use of the land or buildings to which the consent relates for the purpose for which the consent was given or, in the opinion of the Council, is continuing to make substantial progress towards establishing that use.
...
30B. Works contrary to proposed change prohibited-
...
(8) Every consent granted under this section or any former corresponding section shall lapse on the expiry of a period of 2 years after the date on which it was granted or on the expiry of a period of
2 years after the date of the commencement of this section, whichever is the later, unless-
(a) The person whom it was granted or his successor in title has, within the appropriate2-year period, constructed the structure or made the excavation or carried out the other work or the subdivision or established the use of the building or land concerned for the purpose in respect of which consent was granted; or
(b) In the Council’s opinion he is continuing to make substantial progress towards constructing the structure or making the excavation or carrying out the other work or the subdivision or establishing that use.
...
35. Departure from district scheme-
...
(7) Every consent granted under this section or any former corresponding section shall lapse on the expiry of a period of 2 years after the date on which it was granted or on the expiry of a period of
2 years after the date of the commencement of this section, whichever is the later, unless-
(a) The person to whom it was granted or his successor in title has, within the appropriate 2-year period, give effect to the consent; or
(b) In the Council’s opinion he is continuing to make substantial progress towards giving effect to the consent.
[16] It may be noticed immediately that the 1953 Act continuously deployed two alternatives, establishing the use/constructing the works etc, or continuing to make substantial progress. These alternatives appear in ss 28C, 30B and 35. Section 70 of the 1977 Act maintains the same alternatives, but, instead of drawing distinctions between establishing use, constructing structures, making excavations etc, utilises the more encompassing language “give effect to the consent”, first appearing in s 35 of the 1953 Act. But it maintains the alternative of giving the Council a discretion to extend the expiry to a longer period if the person has made “substantial progress towards giving effect to the consent and is continuing to do so”. The same policy has been carried through into s 125.
[17] It was a simpler world prior to the enactment of the RMA in 1991. There is some irony in that, as the reform of the Town and Country Planning Acts was intended to simplify the law. But the RMA came to be a more ambitious statute, moving beyond regulating the use of land to encompassing water, by replacing the Water and Soil Conservation Act 1967. Typically, under the 1953 and 1977 Acts, one land use consent could encompass the whole project. In this case that was not possible, because of the structure of the RMA in splitting out different categories of consent.
[18] Yet the wording of s 125 talks about consents in the singular. It opens with the three words “A resource consent”. No one in the world of RMA law would conceive of an opencast coal mine operating under “a [single] resource consent”. Opencast coal mining is an activity which commences before any coal is taken, and continues after the last coal has been removed. There are the preliminary works, road access, provisions for temporary disposal of overburden, temporary care of fauna and animal life, taking and disposal of water, and the rehabilitation or remediation process, which itself is governed by consents and, in turn, will take some years. In the Cypress Mine there are 22 consents, the purposes of which are interlinked.
The key issues
[19] Mr Hikaka for the appellant framed the appeal as raising two key issues:
(a) What is the appropriate test to be applied in deciding whether consents have been “given effect to” in a situation where there are multiple consents for a project, including land use consents?
(b)In determining whether the consents have been given effect to, is it permissible to “bundle” a suite of consents, in order to consider whether they have lapsed?
[20] The appellant submitted:
2.With regard to the first issue, the Appellant says that for a consent to be “given effect to” under section 125(1A)(a) of the Resource Management Act 1991 (Act) there must at least be physical work that has gone a substantial way to achieving the end purpose of the consent. In adopting an approach that meant a consent could be given effect to without any physical work being carried out on the site, the Environment Court erred.
3. On the second issue, the Appellant says that it is not permissible to
‘bundle’ a variety of consents together when considering lapse. Even if it is, the Appellant submits that whether a bundle of consents has been given effect to must at a minimum require that physical work must be carried out that has gone a substantial way to achieve the end purpose of the activity authorised by the bundle of consents.
(Emphasis added)
[21] In the course of oral argument, Mr Hikaka also referred to the concept of a resource consent as meaning “a consent to do something”. He particularly relied on s 87 of the Act, which provides:
87 Types of resource consents
In this Act, the term resource consent means any of the following:
(a) a consent to do something that otherwise would contravene section 9 or section 13 (in this Act called a land use consent):
(b) a consent to do something that otherwise would contravene section 11 (in this Act called a subdivision consent):
(c) a consent to do something in a coastal marine area that otherwise would contravene any of sections 12, 14, 15, 15A, and 15B (in this Act called a coastal permit):
(d) a consent to do something (other than in a coastal marine area) that otherwise would contravene section 14 (in this Act called a water permit):
(e) a consent to do something (other than in a coastal marine area) that otherwise would contravene section 15 (in this Act called a discharge permit).
(Emphasis added)
[22] He argued that you cannot be giving effect to a resource consent without doing something. That there must be some activity which can be categorised as “doing something”, which would otherwise be in contravention of the Act but is permitted by a resource consent. That means one looks for “doing” which goes a substantial way to achieving the end purpose of the consent. That must be physically observable. If you have made no change to the environment, how can you have given effect to a resource consent? There has to be some tangible process to doing something otherwise in breach of the Act.
[23] The appellant’s submissions fall short of suggesting that the activity must be
nearly completed. Mr Hikaka submitted:
70. Further, the Appellant does not, and has never, advanced the case that for an on-going land use/activity consent to be given effect to the activity must be nearly completed (i.e. that the extraction of all the coal must be nearly completed). That would be a nonsense. What the Appellant says is that the physical work must be carried out that has gone a substantial way to achieving the land use/activity for which the consent was granted.
71. In the present case, a person must be able to visit the site and say “Yes, I see that the consent is given effect to because I can see a coal mine that is nearly that is operational or very close to operational (though mining may go on for some time).” A person standing at the site of the proposed mine at the date of lapse would not be able to say that, or even close to that.
[24] He then went on to condense the error even further in this proposition:
72.The Environment Court fell into error by considering that giving effect to conditions of a consent, without any physical works, could be sufficient to mean that a consent has been given effect to.
[25] By contrast, the respondent’s argument was summarised as follows:
1.To achieve the purpose of the Act, and the purpose of s 125, all consents must be bundled together to determine whether or not they have been given effect to.
2.The Environment Court came to that conclusion. That was not an error of law.
3.To determine whether or not the consents are “given effect to”, the Environment Court applied a test of “more than substantial progress” (paragraphs 67, 70), and “beyond making substantial effort” (paragraph 116), whilst noting that such tests “needs to be applied
with care where the activity is ongoing”. (Paragraph 67, 70). That test is not in error of law.
4.Applying that test to the facts of this case is a judgment for the Environment Court. It found as a matter of fact that the combined impact of physical activities undertaken and work carried out to comply with conditions amounted to sufficient carrying out of the package of consents as a whole.5 Its determination on that matter is not an error of law amenable to review on appeal.
[26] It may be noticed that, as well as contending that the correct application of s 125 in this case is by bundling all the consents together before forming a judgment, it implicitly is contending that s 125 sets a standard, the application for which requires a judgment, a task given to the Environment Court, which should not be disturbed if there was sufficient evidence to justify the finding.
The authorities
Case law in support of the appellant’s argument
[27] There are a number of cases which support the appellant’s argument that there must at least be physical work that has gone a substantial way to achieving the end purpose of the consent.
[28] G.U.S. Properties v The Chairman, Councillors and Inhabitants of the Borough of Blenheim,6 is a decision of the Supreme Court (Casey J) on an application for judicial review in relation to the Town and Country Planning Act
1953, s 35(7).
[29] G.U.S. Properties owned commercially zoned land in Blenheim. It proposed to replace shop premises on the land with a large supermarket. Planning consent was required, as the supermarket would encroach onto the adjoining residential zone. A specified departure was obtained (this is akin to a non-complying activity under an RMA plan). The consent was obtained in June of 1973. After obtaining consent G.U.S. Properties prepared final plans, obtained a building permit in July 1974, later
extended to June 1975, had a dwelling on the site demolished and hedges removed,
5 At [116] and [120].
6 G.U.S. Properties v The Chairman, Councillors and Inhabitants of the Borough of Blenheim SC Christchurch, M. 394/75, 24 May 1976.
and structural steel and other materials were ordered and obtained by the contractor. On the site there was erected a temporary shed, for housing toilets together with associated sewers and drains. It was disputed whether this in fact would be incorporated into the final complex. The shed went on in July 1974.
[30] In July 1975, the Blenheim Borough Council decided that substantial progress had not been made with the building, and that the specified departure had therefore lapsed in accordance with the provisions of s 35(7) of the Act (see above).
[31] Casey J rejected an argument from Mr Milligan that s 35(7) should be interpreted to avoid an applicant being liable for penalties under s 36 of the Act, in respect of failure to comply with the District Scheme, as that makes it an offence to use any land for building in a manner not in conformity with the scheme.
[32] Rather, Casey J was of the view:7
... The use of the words “give effect to” in s.s. (7)(a) clearly import the idea of full compliance, or completion of the thing envisaged, and it is straining their ordinary meaning to say they contemplate only the first physical step of the operation envisaged by the consent to the specified departure. ...
[33] The Judge went on to find:8
... The Council must form an opinion about whether or not the Applicant was making substantial progress towards the object of the consent to the specified departure, which was the supermarket building encroaching on the residential land. Use of the word “continuing” means what it says – that there must be continuity between past, present and the predictable future although there can be interruptions which would not break the continuity of progress. It is a question of degree in the circumstances of each case. ...
[34] On the facts of this case, Casey J was impressed by:9
...the simple fact that the contractor had done nothing significant, either on or off the site, over the preceding six months. Perforce, G.U.S. were unable to do/anything [sic] either except to try and prod it into activity. ...
7 At 4.
8 At 6.
9 At 6 and 7.
... The dominant feature in this case is the total lack of any significant activity for at least the six months (and probably longer) before the time expired. It is impossible to say that the Council could not have reached the opinion it did on the evidence. ...
[35] The next case, which the appellant’s counsel said was the leading case, is the decision of the High Court of Goldfinch v Auckland City Council.10 Goldfinch was a case about a house. A certificate of compliance (the equivalent of a building permit) was issued on 24 November 1992. Construction on the house began. A neighbour lodged proceedings in April 1994, at which time substantial work had been done, but the house had not been closed in. The proceedings commenced in April 1994, and
were appealed up to the Court of Appeal. While these proceedings were on foot, and before the expiry of the lapse period, the owners closed in the building. This means that on the expiry of the lapse period the house had been closed in but not completed.
[36] In an oral judgment, Morris J said:
This decision [G.U.S. Properties] is clear authority for the proposition when a consent holder takes no steps on the site with the proposal for which consent is being granted, then that consent has not been “given effect to”. It is not authority for the proposition where a substantial amount of work has been done within the two-year period and the consent holder has done all things reasonably possible but the proposal has not been totally completed the consent lapses.
[37] I do not regard this as a leading case. For this is a case which on the facts was wholly without merit. The disaffected neighbour was seeking to prevent the completion of the house, which was largely constructed. It was closed in.
[38] The appellant relied on another case, Sandilands v Manawatu District Council,11 Judge Bollard sitting alone. This was a case where consents for expansion of a piggery had been obtained in April 1993, involving the erection of three sheds, an aerobic and an anaerobic pond. The ponds were constructed, work commenced on the sheds, but a demolition notice was issued in respect of part of the
existing piggery.
10 Goldfinch v Auckland City Council [1997] NZRMA 117, Morris J.
11 Sandilands v Manawatu District Council EnvC Auckland A107/97, 10 September 1997.
[39] The applicants claimed they had given effect to the consent in accordance with s 125 of the Act, notwithstanding that the dry sow shed was only proceeded with to the foundation stage, and the farrowing and weaner sheds had not been commenced at all. The Environment Court found the consents for the two ponds had not lapsed. However, with respect to the sheds, it said:12
...it would in normal circumstances be stretching reality to say that the consent has been given effect to in terms of s 125(1) of the Act...
[40] These cases were critiqued by Mr Hardie for Solid Energy, on the basis that the material facts in these cases simply bear no relationship to the material facts here: to the complexity and timeline scale of putting into effect a suite of resource management consents for the operation of a large project, in this case an opencast coal mine.
[41] Mr Hardie for the respondent drew the Court’s attention to decisions, including one from the Court of Appeal, discussing the application of s 125(1A)(b). Before examining these cases, it is appropriate to reflect again upon the provenance of s 125, and raise the question as to whether or not (a) and (b) are alternatives.
[42] It will be recalled that there is a longstanding policy, dating back to the 1953
Act, whereby consents will not lapse if they have been given effect to or the applicant is making substantial progress to giving effect to the consent. When the distinction first appeared in the 1953 Act,13 the distinction first was between establishing the use or continuing to make substantial progress towards establishing that use, or in constructing the structure or making the excavation etc, or, in the alternative, continuing to make substantial progress etc.14
[43] In respect of those two sections, which do not use the phrase “give effect to”,
Parliament is distinguishing between the consent being fully given effect to or substantial progress being made. In the latter case, it is up to the opinion of the
12 At 8.
13 Section 28C(4), see [11] above.
14 Section 30B(8)(a) and (b), see [11] above.
council as to whether or not the consent shall lapse. The same policy is contained in s 35 of the 1953 Act.15
[44] Statutory policy then changes in a subtle way in the 1977 Act. Now, an application has to be made within three months after the expiry of the period of the consent before the Council can make a judgment as to whether or the person has made substantial progress.16 That is a significant change in policy, because under the
1953 Act there was no requirement of an application, let alone a time limit, and it
was simply a question of the Council’s opinion as to making substantial progress.
[45] This policy is continued under s 125, except the application to extend the period has to be to the consent authority before the consent lapses.
[46] It will recall that Casey J was of the view in G.U.S. that the use of the words “to give effect to” clearly imports the idea of full compliance or completion of the thing envisaged.17 But he made this observation against a set of material facts, where on the site there was only erected a temporary shed for toilets. He was not confronted with anything like the complexity of the facts of this case, where a substantial amount of work had been done, at a cost of some $14 million expended by Solid Energy.18 Indeed, Morris J, in Goldfinch, treated G.U.S. as authority for the proposition where the consent holder takes no steps, then the consent cannot have been given effect to.19 It will recall that Morris J was faced with a house almost completed, and closed in. But it was not completed. Only in that limited sense, the consent had not been fully “given effect to”.
[47] It is significant that Casey J recognised in G.U.S. that the test was a standard, the application of which reasonable people can differ.20 In this case, Mr Hikaka fell
short of arguing that “given effect to” means that an activity must be fully active
15 Section 35(7)(a) and (b), see [11] above.
16 Section 70(b), see [10] above.
17 See [28] above.
18 See [117] of Biodiversity Defence Society v Solid Energy New Zealand Ltd [2013] NZEnvC 195, set out at [8] above.
19 See [32] above.
20 See [29] above.
before it could be said that the consent for the activity has been given effect to. It will be recalled, he submitted:21
The appellant... has never advanced the case that for an ongoing land use/activity consent to be given effect to the activity must be nearly completed... that would be a nonsense.
[48] That brings the analysis to the most recent, and in my view the most relevant authority, the case of Body Corporate 97010 v Auckland City Council & Anor. 22
The Body Corporate 97010 v Auckland City Council & Anor case
[49] The Body Corporate case concerned the construction of a high rise residential development in Parnell. It was a project which generated a great deal of litigation. The Auckland City Council made three decisions in favour of the developer, which were all subject to judicial review. The first was in October 1997, to erect a single
30 metre high apartment block in a particular position. The second was in 1999, granting a variation of the original consent, the effect of the variation being to permit the erection of two 30 metre high apartment blocks. The third decision, four months later in 1999, was by the Council granting the developer a time extension under s 125 of the RMA, until April 2002, for the implementation of its development.
[50] All three decisions were challenged, by judicial review, by the owners of a group of townhouses, known as the Dilworth Terrace Townhouses, being corporately owned by Body Corporate 97010. These townhouses were situated on a nearby cliff top overlooking the site.
[51] Randerson J dismissed the applications for judicial reviews of all three decisions. The matter went on to the Court of Appeal.
[52] The setting of the application of s 125 was in the aftermath of the variation consent. So this was an application based not on consent having been given effect to, but on substantial progress or effort having been made towards giving effect to
the consent. The application argued that the delay in giving effect to the consents
21 See [19] above.
22 Body Corporate 97010 v Auckland City Council & Anor [2000] NZRMA 202 (High Court);
Body Corporate 97010 v Auckland City Council [2000] 3 NZLR 513 (CA).
had resulted from a potential challenge from Ports of Auckland Limited (POAL) and a change in market conditions. It said, more positively, that since the variation had been received, the developer had been actively marketing the development and had begun to mark out the site and buildings. The expiry date was clearly insufficient time within which to make substantial progress towards giving effect to the
consent.23 The Court of Appeal approved the reasoning of Randerson J in the High
Court. Blanchard J for the Court of Appeal said:
[69] Randerson J said that the Council was entitled to take into account the practical and economic realities of constructing and completing a major development of this type, including fluctuations in market demand and the need to raise finance. A minimum level of sales was required before finance could be obtained and construction contracts could be let. In these circumstances the Council was entitled to treat the preparation of plans and the marketing of the apartments as progress or effort towards giving effect to the consent. It was significant that at the date the application for extension was considered STC had spent over $600,000 on the project (other than land cost) and had achieved the level of sales mentioned. The Judge also referred to the new marketing campaign after the variation was approved, which had achieved an average of $1m in sales per month. He considered too that the Council was entitled to treat the variation application as a step towards the implementation of the consent originally granted. Bearing in mind the scale of the project, the funding method adopted, the progress actually made and all the relevant circumstances, Randerson J was satisfied that the Council could reasonably have concluded that substantial progress or effort had been made towards implementing the consent and was continuing to be made.
[70] Again, we agree with Randerson J that, for the reasons he gave, it was open to the Council to conclude that there had been substantial effort, and, more than that, arguably some substantial progress - in achieving sales off the plans - directed towards giving effect to the consent (as varied). We adopt the approach to s 125(1)(b)(i) of Morris J in Goldfinch v Auckland City Council [1997] NZRMA 117, 125. The Council could properly take the view that there was not the kind of break in continuity which was one of the fatal problems for the developer in GUS Properties Ltd v Blenheim Borough Council (Supreme Court, Christchurch Registry, M394/75, 24 May 1976, Casey J). A lack of substantial “progress” is also no longer of the same significance now that substantial “effort” can be enough, provided it is directed to the end of giving effect to the consent.
(Emphasis added)
[53] There was no suggestion that any of the cases cited reached the wrong outcome, yet the facts varied considerably, and it could be argued that Casey J’s dicta conflicted with the dicta of Randerson J and the Court of Appeal per Blanchard J.
The application of standards
[54] As Casey J recognised in G.U.S. Properties: The test of “given effect to” is a standard, the application of which reasonable people can differ upon. When Judges discuss the application of standards, their discussion is always against the material facts of the particular case they are deciding. It is dangerous to use such dicta to define the correct application of the standard in a wholly dissimilar set of facts. This is because the application of a standard depends very much upon the facts to which it is being applied, and to achieving its purpose. Applying a statutory standard is not dissimilar to the legal method employed when applying a common law principle. It is more an inductive process.
[55] All statutory provisions are passed for a purpose. The Interpretation Act
1999 requires all statutory provisions to be read in light of their purpose. Where purpose is difficult to ascertain, it is useful to go back to the golden rule of interpretation, that statutes are passed to remedy a mischief.
[56] It is plain to see the mischief if consents are obtained but not pursued, yet could be pursued anytime in the future. Whether it was under the Town and Country Planning Act 1953 or 1977 or the Resource Management Act 1991, all planning and regulatory consents are granted against consideration of the neighbourhood or region (in the Town and Country Planning Act legislation) or the environment (in the RMA).
[57] The Environment Court captured the mischief, which is the subject of s 125, in [61]:24
[61] The purpose of section 125 was stated by the Environment Court's predecessor in Katz v Auckland City Council. That case was an appeal against a refusal to a council to extend the lapse period. The Planning Tribunal stated:
There are compelling reasons of policy why a planning consent should not subsist for a lengthy period of time without being put into effect. Both physical and social environments change. Knowledge progresses. District schemes are changed, reviewed and varied. People come and go. Planning consents are granted in the light of present and foreseeable circumstances as at a particular time. Once granted a
consent represents an opportunity of which advantage may be taken. When a consent is put into effect it becomes a physical reality as well as a legal right. But if a consent is not put into effect within a reasonable time it cannot properly remain a fixed opportunity in an ever-changing scene. Likewise, changing circumstances may render conditions, restrictions and prohibitions in a consent inappropriate or unnecessary.
The Court of Appeal cited that passage as applying to the RMA in Body
Corporate 97010 v Auckland City Council and Others.
[58] I note, however, that the sentence in that quote “when a consent is put into effect it becomes a physical reality as well as a legal right” naturally fell out of the facts in Katz v Auckland City Council, which was a consent to erect clubrooms, and consistently applied in the Body Corporate 97010 case, which, as we have seen, was the construction of blocks of apartments.
[59] Otherwise the dictum broadly addresses the importance of a consent being either used or lapsing, so that other applications for consents cannot be artificially constrained by uncertainties as to whether previous consents will be put into effect or not. Consents under the Town and Country Planning Acts and under the RMA have always been the result of a balancing of factors for and against, allowing change in place of the status quo, but subject to conditions. Such analysis would be severely compromised by considerable uncertainty, if there was doubt, whether or not consents previously granted would ever be put into effect.
[60] In this context, there is no particular significance in the works allowed by a consent becoming a physical reality, as distinct from preparations for the activity – the physical reality. Rather, as here, where that is a programme of works to take place over a long period of time, it is of critical importance that consent authorities know whether or not that programme of work is being carried out.
[61] Reflecting on both the mischief underlying the reason for s 125 and the purpose of s 125, there is nothing which suggests that there is a material distinction between preparation of management plans, letting of contracts, and undertaking preliminary works, as distinct from commencing the activities which are at the heart of the suite of consents. In very complex projects of large scale there is always a significant lead in to the construction or commencement of the activity. Essentially,
this was the setting of the Body Corporate 97010 case, as the Court of Appeal recognised.
[62] In the Body Corporate 97010 case, the judicial review was of a decision of the Council granting the developer a time extension for the implementation of its development, having been satisfied of substantial progress (see s 125(1A)(b)(i)). Strictly speaking the Body Corporate 97010 precedent is confined to the adequacy of progress being made “towards giving effect to the consent”, rather than any precedent as to the application of the standard “the consent is given effect to”.
[63] However, in context, the substantial progress or effort was understood by both Randerson J and the Court of Appeal to be a process of giving effect to the consent.
[64] It is possible, on a literal reading of s 125(1A)(a), to read the standard “the consent is given effect to” to be confined to a consent activity in its mature phase, such as a completed building. It is very difficult to apply such a literal meaning to a dynamic process, such as a coal mine.
[65] I do not think it is necessary to emphasise the literal distinction between (a) and (b)(i) standards. Furthermore, it is wrong to do so. Both standards have to be read in accordance with the purpose of s 125. It is in the nature of a dynamic process of a coal mine that its activities are always giving effect to the consents. Indeed, at no particular point in time would it be sensible to say “the consent [has been] given effect to”. Further, at any particular point in time some individual consents may not have been given effect to, as they address requirements near the end of the mine’s operation. There are two consents in that category.
[66] It is imperative under s 5 of the Interpretation Act to always give the words of a statute a meaning which accords their purpose. I would also add that the function of the policy to give Councils the right to grant an extension has a natural history where there might be a reasonable doubt as to whether or not a consent has been given effect to, in a context where it is a simple land use consent to erect a building. A consent authority in a case such as Goldfinch might say for practical purposes the
consent has been given effect to but, for the avoidance of doubt, we will extend the duration of the consent to allow the closed-in building to have its final details added, so that it becomes complete.
[67] The corollary of this is that the standard “consent is given effect to”, read against the purpose of the Act, does not allow a consent to be neglected, put in the bank, as it were, to be used at some future time. Therefore, it is relevant when applying the standard to examine what work is being done to give effect to the consent. This is what the Environment Court did.
Work done to give effect to the consents
[68] It will be recalled that the date of commencement of the resource consents is agreed to be 23 August 2005. Between 2006 and February 2011, when the final feasibility design was approved, there was expenditure of approximately $7.2 million incurred on the Cypress Mine project to achieve the design standards required for final design, and to ensure the project would achieve all the conditions of consent. This is in addition to $5 million of expenditure incurred prior to 2006, while the project was proceeding through the consenting process.
[69] The Cypress Mine is part of the exploitation of the coal reserved in the Stockton Mine as a whole. Part of that mine operates under a coal mining licence (CML), which did not require consent under the planning statutes.
[70] A significant increase in coal prices between 2005 and 2008 altered the market strategy for exploitation of the Cypress Mine. It was intended to blend the Cypress coal with high sulphur Stockton coal and low sulphur coal from the Greymouth coal field. The coal was to be marketed to Indian coke and steel manufacturers. The timing of the Cypress project investigation and production had to be revised to integrate with investigations and productions from other blend resources. Further geotechnical drilling and modelling of the Mount William fault zone was required, to influence the mine design and have confidence in the volume and quality of the coal resource. Between 2006 and February 2011, a further $2.8 million was invested in drilling and geological and geotechnical investigations.
[71] Preliminary water quality modelling was used to support the pre-feasibility study, highlighting the risk that water treatment would be required to achieve the proposed compliance thresholds below Saint Patrick’s dam. Integration and dependencies between the project and existing mining operations and resource projects were the subject of analysis. It needs to be appreciated in this context that some areas of land suitable for disposal of Cypress waste were not part of the consent area, but part of the CML.
[72] By 2008 feasibility planning was sufficiently advanced to provide certainty that excess Cypress waste could be used to backfill the Millerton Pit, with a consent variation granted in 2009, and likewise, a consent variation to change the Cypress Haul Road alignment.
[73] There was detailed design, planning and scheduling of waste disposal sites and storage sites for the various types of rehabilitation areas. A separate facility was designed within the Stockton CML area to accommodate these materials. Construction on the Cypress Mine site did not begin until 2011. In the same year, Solid Energy via its solicitors sought lapse consents for seven of the consents to be formally extended. These were a land use consent to disturb the bed of Saint Patrick’s Stream and tributaries for the construction and maintenance of diversion channels, four water permits to divert water and two discharge permits.
[74] The application said that “the remaining consents have not been included in the application as they have either been exercised or will be exercised prior to the date that they would lapse”.
[75] Following upon the management planning and analysis that I have just referred to, the following works were undertaken prior to the lapse date of 24 August
2012:
(a) Construction Access Road - 1.8 Km x 9m wide upgrade of a 4x4 track;
(b) Linking roads - 0.52 Km x 9m wide linking roads linking construction access road to haul road sections;
(c) Haul Road - 2.3Km x 23m wide haul road;
(d) Fly Creek Culvert – double 3m x 3m box culverts, 87m in length and associated construction diversions and earthworks;
(e) Plover Culvert – double 2.5m x 2.5m box culverts, 82m length and associated construction diversions and earthworks;
(f) Dam refurbishment – crest height raised by 2 meters, buttress, decant and cladding refurbishment;
(g) Weir and Diversion Pipeline – 1m high diversion weir directing up to 1 m-3s-1 of clean water via a 380m pipeline under St Pat’s dam;
(h) 700 Engineered Land Form (ELF) development – 1.4ha soil stockpile area;
(i) Northern ELF access track – 0.25Km x 9m wide track into Northern
ELF area;
(j) Recovery of vegetation direct transfer (VDT) and rehabilitation materials from these areas associated with stripping works;
(k) Drainage and sediment control structures associated with these developments.
This kind of work has continued in the year since August 2012.
[76] The first affidavit lodged by the applicant in support of the application says:
9.When the society became aware that the lapse period had expired and mining had not commenced in Happy Valley enquiries were made to determine what work had been undertaken prior to the expiry of lapse period. The purpose of this was to establish whether or not the consents had been given effect to.
...
[77] Analysis of satellite imagery by the Society showed that no mining had been undertaken in Happy Valley, and the work appeared to be limited to preparatory work. Neither the West Coast Regional Council nor the Buller District Council supported the application by the appellant.
[78] Had the consents simply been “banked” and no action taken on them from
2005 through to 2011, there might be some force that they were not being given effect to in the manner anticipated by the RMA. However, the Environment Court
was satisfied that it was appropriate to take into account the work preparing the management plans for the activities. It made the finding:25
[38] In fact extensive work had been carried out in advance over the last decade in relation to the management plans because they were necessary for, and anticipated in part, in the Assessment of Environmental Effects ("AEE") lodged with the application.
[79] It placed the notice of intention to commence work, given in 2011, as performance of a condition:
[39] In accordance with General Condition A4.1, an intention to commence work on the ground was signaled [sic] on 12 May 2011 when Solid Energy wrote to the WCRC, copied to the BDC, stating that activity under the Cypress Mine resource consents would be commencing. The letter also explained that construction of the light vehicle access road from Stockton to Cypress had occurred in February 2011. In accordance with General Condition A4.2 SEL wrote to the consent authorities on 12 May
2011 advising that " ... activity under the Cypress Mine resource consents is scheduled to commence shortly".
That relates to the West Coast Regional Council.
[80] In respect of the Buller District Council, the Environment Court recorded a great deal of detail as to the planning work required and embarked upon subsequent to the grant of consents:
[40] In relation to whether the land use consent issued by the BDC had been given effect to, Ms Montgomery deposed:
21. Condition C1 requires that the conditions in Part A apply to this consent. As discussed above it is the BDC's view that many of the conditions contained in Part A ha[ve] been complied with.
22. Condition C2 requires that management plans for Noise (April 2012 version), Kiwi (January 2013 version), Powelliphanta 'patrickensis' (April 2012 version), and Waste (March 2009 version), and a Predator Control Plan (April
2013 revision 4 version) [are] provided to the BDC in accordance with the relevant condition under Part C ...
23. Condition C3 requires that all activities are undertaken in accordance with the plans noted in condition C2. Monitoring visits, reviews of the annual work plan and reviews by the peer review panel indicate that this is the case.
25 Biodiversity Defence Society v Solid Energy New Zealand Ltd [2013] NZEnvC 195.
24. Conditions C4 and C5 details the review process, period for the plans required under Condition C2 and the influences for change (Peer Review Panel recommendations, monitoring results and the Annual Work Plan) and consultation that needs to be undertaken in relation to the Kiwi and Powelliphanta 'patrickensis' Management Plans and the Pest Control Plan ...
25. Condition C6 also relate[s] to the plans identified in C2 and requires that key personnel are made aware of the content ...
26. Conditions C7 and C10-12 address the operation of the haul roads, while the main haul road from the existing operation at Stockton (operating within the Mining Licence) has been substantially constructed and been subject to some mobile plant movement used for initial strip[p]ing of vegetation, and extraction of sample coal. Full haul road movements are only anticipated when the road is fully commissioned (construction complete and surfacing finished) and bulk overburden removal occurs ...
29. Conditions C13 and C14 address rehabilitation and require a program of rehabilitation and revegetation in accordance with the Rehabilitation Management Plan immediately following the commencement of activities and that tussock is stored for reuse.
...
30. Condition Cl5 allows SENZ to undertake activities related to mining and ancillary activities 24 hours a day, 7 days a week. The BDC includes site preparation in the definition of an ancillary activity and concludes that since the start of physical works on site this work is being conducted in accordance with this condition.
...
32. Conditions C23-C25 address heritage issues requiring that there be a Cultural Heritage Management Plan, outlining its objectives and formation. The conditions also require that prior to works beginning remnants of historic mining are identified and recovered and records sent to the New Zealand Archaeological Association (NZAA). C25 also requires the development of a cultural Liaison Plan with local iwi. The BDC has a copy of the Cultural Heritage Management Plan and cultural Liaison Plan.
...
34. Conditions C32-C34 outline the management of Kiwi and the requirements of the Kiwi Management Plan. The peer review panel and the BDC have examined the Kiwi Management Plan and found that it is consistent with the requirements of conditions C32-34 however note that it is likely to be amended to reflect the change of conditions granted 21
March 2013. It is also noted that the plan has been signed off by the DOC (29 January 2013).
35. Conditions C35-C38 address the management of Powelliphanta "patrickensis." These conditions outline the objectives of the Powelliphanta "patrickensis" management plan and that this plan should be formed in consultation with the DOC, the movement of snails prior to clearance and information on the habitat of snails, hours spent searching and relocation information.
...
36. Conditions C39-C4l outline the requirements in terms of predator control. The conditions include the requirement for a Predator Control Plan, the objectives, minimum content and monitoring of that plan and that consultation with DoC is required.
...
41. Condition C47 notes that extraction of coal must cease by the fifteenth anniversary of the commencement of this consent.
[81] The Court came to a number of conclusions, applying s 125 to these facts:
[70] Secondly, whether a resource consent and its conditions have been given effect to (or lapsed) is largely a question of fact and degree - Goldfinch v Auckland City Council. Further, the concept of carrying out a resource consent must include considerable incompleteness if the consent is open- ended (subject to s 126) as to duration. Indeed almost all consents for continuing land uses are indefinite. Where the activity component of a resource consent (i.e. not the conditions) is a continuing activity then giving effect to the consent means something more than making substantial progress (to use the words in s 125(a)) on giving effect to the consent but (obviously) less than completion of the activity. In cases where the activity is proposed to take place over years or indefinitely, then giving effect to the consent may require little or none of the activity to have actually occurred depending on the circumstances, including all the conditions imposed on the activity.
[71] Third, as a corollary to the above two points, compliance with the conditions is obviously a central issue when considering whether a resource consent has lapsed. In particular, complex sets of conditions requiring management plans and/or adaptive management and/or environmental set- offs are an important part (sometimes the most important part) of a resource consent because they deal with the externalities caused by the consented activity. To ascertain whether a resource consent, or suite of consents, has been given effect to will require assessment of whether the conditions have been complied with or sufficiently carried out (when the conditions are on- going).
[72] A fourth matter needs to be borne in mind: while resource consents are permissive and not normally obligatory, that principle needs to be qualified in the sense that exercise of one resource consent may necessitate exercise of others, e.g. as in this case where various water permits must be exercised if coal is to be extracted from the ground and removed from the Plateau (but conversely, can only be exercised once extraction starts).
[73] Fifth, other matters of relevance in our view include the wider factual matrix, including whether it is part of a suite of resource consents and the existence and nature of other (non-RMA) property rights in respect of the resources to be used.
It went on to be critical of the notion that, although there was a land use consent to authorise clearance of approximately 266 hectares of mining permit, it could not be said to be given effect, because only 17.313 hectares had been disturbed. It considered this argument nonsensical, as one of the specific policies of the consent was to minimise the area being cleared at any one time.26 The Environment Court was simply not impressed that the extraction of coal had not started. I do not think it is necessary to go through the examination of individual consents, for two reasons:
(a) It is not within the compass of this judgment to replicate all the findings of fact of the Environment Court.
(b)The issue is whether or not the Environment Court was in error of law.
[82] The Environment Court proceeded by analysing the giving effect to the consents individually, and then only in the alternative considering them as a suite. The respondent, Solid Energy, in the hearing in this Court, while not abandoning individual analysis of consents, presented an argument favouring treating the application of s 125 as an application as to whether or not a suite of consents had been given effect to. I agree that is the better approach.
Conclusion: s 125 applies to a suite of consents
[83] This judgment opens with the fact that Solid Energy made one application for numerous consents. It is of the character of a coal mining operation, and in the way in which the RMA is drafted, that a suite of consents was inevitable. Coal could not be extracted without there being a suite of consents. Secondly, it is in the nature of a coal mining operation that good deal of sophisticated planning work had to be undertaken, once consent had been granted, by way of development of management
plans, for both regulatory and commercial reasons, to integrate development of
26 At [78].
Cypress Mine into the overall exploitation of coal on the Stockton Plateau. I accept there may have been a degree of deferment of exercise of the licences to integrate with economic activity. But such integration of projects with economic activity is realistic, and was recognised by the Court of Appeal in the Body Corporate 97010 dealing with the alteration of the scale of the apartment project, as a result of market forces.
[84] The evidence does not disclose the consents simply being put to one side, with a thought that they might be given effect to one day. It is to the contrary.
[85] To examine whether each individual consent had been given effect to, with the possibility that some might drop out because they had not been given effect to, risks making the law a nonsense. Some of the consents, of their nature, are dealing with activities which will not take place until the mining starts, such as dewatering of certain areas.
[86] Section 33 of the Interpretation Act 1999 provides:
33 Numbers
Words in the singular include the plural and words in the plural include the singular.
[87] In combination with s 5 of the same Act, to apply s 125 in accordance with its purpose, it makes sense to read it in the plural rather than in the singular. The Court not only has the power to do that, but is obliged to do it. For in this context the plural reading becomes the applicable law.
[88] Read in the plural, the question for the Environment Court and this Court becomes: has Solid Energy given effect to the suite of consents to develop Cypress Mine before the expiry date of 23 August 2012? The answer to that question has to be yes. It is the answer reached by the Environment Court. It is a question of degree, but in this case, in my view, it is not a line call. Were it a line call, there is another question as to whether or not this Court would disturb the Environment Court’s decision. It is necessary to show that the Environment Court was in error of law.
[89] The Environment Court was not in error of law to treat the context as a suite of interlinked consents, and to find as a fact that that suite had been given effect to. The fact that Solid Energy had taken the step of seeking some extensions but not others is neither here nor there. It was not necessary. The fact that there are 2 consents out of the 22 in respect of which nothing has yet been done, because they are so far downstream in the operation is again not material, on this analysis.
[90] This appeal is dismissed on the ground there is no error of law when the Environment Court found that the suite of consents granted to enable the Cypress Mine have been sufficiently given effect to, to meet the purpose of s 125, so that s
125(1A)(a) has been complied with.
Costs
[91] This appeal was brought by the appellant in the public interest. Both the length of the Environment Court decision, and of this decision, demonstrate that there was a point to be argued. This is the first case in which there has been consideration of how to apply s 125, where a particular activity involves a suite of consents generating a variety of activities which take place to a degree consecutively, although interlinked, over a long period of time.
[92] For these reasons, I do not think it can be presumed that costs follow the event. Costs are reserved.
Solicitors:
LeeSalmonLong, Auckland
Lane Neave, Christchurch
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