Canterbury Regional Council v Selwyn Quarries Limited
[2019] NZHC 434
•13 March 2019
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CIV-2018-409-000682
[2019] NZHC 434
BETWEEN CANTERBURY REGIONAL COUNCIL
Appellant
AND
SELWYN QUARRIES LIMITED
Respondent
Hearing: 4 February 2019 Appearances:
PAC Maw and M J Doesburg for Appellant No Appearance for Respondent
J Milne – Counsel Assisting the Court
Judgment:
13 March 2019
JUDGMENT OF GENDALL J
CANTERBURY REGIONAL COUNCIL v SELWYN QUARRIES LIMITED [2019] NZHC 434 [13 March 2019]
Introduction
[1] At the heart of matters before me in this case is a procedural issue. This is the question whether or not the Environment Court should be required to recall a Minute issued in the context of a resource consent appeal, which the Canterbury Regional Council (CRC) considers contains unfounded, incorrect and pejorative comments about the CRC’s performance of its functions.
[2] The genesis of these proceedings was an original application for resource consent brought by Selwyn Quarries Ltd (Selwyn Quarries) to the CRC.1 That application had been declined. Selwyn Quarries then appealed that decision to the Environment Court. In a later Minute, the Environment Court, to whom Selwyn Quarries had appealed, made the comments I refer to above as to CRC’s conduct to which CRC objected. The Environment Court refused to recall that Minute in a decision given on 17 August 2018 which it refers to as the “Procedural Decision”. CRC now appeals that “Procedural Decision” to this Court under s 299 of the Resource Management Act (the RMA).2
Background
[3] Selwyn Quarries applied in 2015 to the CRC for resource consent to deepen and backfill an existing quarry at 48 Selwyn Road, Selwyn. CRC declined that application on 31 August 2016.
[4] Subsequently, Selwyn Quarries lodged an appeal in the Environment Court against the Council’s decision to decline consent. A number of parties joined that appeal under s 274 of the RMA. Several of the parties who joined under s 274 participated in Environment Court assisted mediation. The result of that mediation was that all except one of the parties (Mr Turpin) agreed the resource consent application deserved approval (subject to certain amendments).
[5] On 16 February 2018, several parties, including the CRC and Selwyn Quarries, lodged a ‘Consent Memorandum’ with the Environment Court requesting that the
1 Application CRC155169.
2 Also further referred to as “the Act”.
appeal be allowed, and the amended application approved. One of the s 274 parties, Mr Turpin, did not sign the consent memorandum. The document is more accurately described as a statement of common position as, by definition, it cannot be a statement of “consent” where there was not agreement by all parties.
[6] In the absence of consensus, the signatories to the memorandum sought that the Environment Court set down a judicial conference to progress the appeal. By Minute dated 8 March 2018 the Environment Court directed Mr Turpin by 16 March 2018 to lodge a complete statement of all the evidence of each of the witnesses he intended to call.
[7] Mr Turpin did not lodge any expert evidence but instead on 15 March 2018 filed evidence in his own name.
[8] Following a pre-hearing conference on 21 March 2018, the Environment Court considered Mr Turpin was not in a position to lodge expert evidence, so it exercised its supervisory jurisdiction by requesting CRC to lodge and perhaps serve reports on the substantive issues raised by Mr Turpin by 20 April 2018. It appears the Environment Court thought the provision of reports might assist matters and perhaps convince Mr Turpin to give his consent. The CRC complied with the direction and lodged reports from a groundwater scientist and planner, Dr Scott and Ms Todd on 20 April 2018.
[9] An Environment Commissioner read those reports and wrote a list of comments and questions. Those questions were included in a Minute of the Court dated 22 May 2018. The Environment Court directed the CRC to lodge and serve a further report addressing the concerns outlined in that second Minute (comprising over 30 questions).
[10] Instead, CRC sought by Memoranda of Counsel dated 5 June 2018 and 9 July 2018 alternative directions requesting that the appeal be set down for hearing, with Selwyn Quarries required to lodge its evidence first, in accordance with standard practice.
[11] Then, in what the Environment Court Judge calls “an attempt to move things forward”, by Minute dated 13 July 2018, the Environment Court declined to make the directions sought by the CRC. That minute went on to state that CRC had found itself in an "apparently rather embarrassing position" because it had agreed to the consent memorandum with what were said to be no written reports provided as to the risk to Christchurch's drinking water from contamination of aquifers. It suggested that the CRC had thus far supplied what were said to be "inadequate" reports to the Court that did not address the risk in detail. The Environment Court reiterated that it had doubts as to whether the CRC had fully assessed the potential risk of contamination of Christchurch’s water supply.
[12] By Memorandum of Counsel dated 18 July 2018, the CRC applied to have the Environment Court recall this 13 July 2018 Minute. The Memorandum recorded the CRC’s complaint that the Environment Court had called into question the performance of the CRC’s duties and responsibilities, and the adequacy of its assessment of the risk to Christchurch’s drinking water.
[13] After hearing from the parties, the Environment Court, on 17 August 2018, issued the “Procedural Decision” (the Procedural Decision). By this, the Court accepted there was jurisdiction to issue a recall but ultimately declined to do so. In considering the issue as to whether the CRC had been unfairly criticised, the Environment Court stated:
…I should preface the following discussion of a consent authority’s obligations by emphasising that the court did not, in its 13 July Minute, make a finding that the CRC had breached its duties, rather I raised the possibility that it had and said the court might … need to hear submissions on the issue later…
[14] The Court seemed to accept that it had been “rather blunt” in some of its comments and that it might be said that it could possibly have been more tactful, but it maintained that it had reasonable doubts about the CRC’s actions which remained to be considered.
[15] On 24 August 2018, the Environment Court issued a further Minute. This directed that the CRC lodge and serve evidence on Selwyn Quarries Limited's amended application by 5 October 2018.
[16] On 7 September 2018, the CRC filed this appeal against the Procedural Decision and on 4 October 2018 an application to stay the Environment Court proceeding, pending this appeal, was granted.
The Appeal
[17] The present appeal is bought under s 299 of the RMA. The appellant in this proceeding is CRC and, as I have noted, it appeals against the Environment Court’s “Procedural Decision”.
[18] Section 299 of the RMA provides a party to a proceeding before the Environment Court with a right of appeal to the High Court on a question of law:
299 Appeal to High Court on question of law
(1)A party to a proceeding before the Environment Court under this Act or any other enactment may appeal on a question of law to the High Court against any decision, report, or recommendation of the Environment Court made in the proceeding.
…
[19] Mr Maw for the appellant notes that appeals can only be bought on questions of law. He relies on St Heliers Capital Ltd v Kapiti Coast District Council as summarising the law relating to appeals under s 299:3
[26]In Bryson v Three Foot Six Ltd, the Supreme Court discussed what amounts to a question of law for appeal purposes. The Supreme Court has revisited this topic on other occasions such as in R v Gwaze and Vodafone New Zealand Ltd v Telecom New Zealand Ltd. From these and other authorities, and for present purposes, the Environment Court may have made an error of law if it:
(1)applied the wrong legal test;
3 St Heliers Capital Ltd v Kapiti Coast District Council [2015] NZHC 596, 2015 WL 1517017 citing Bryson v Three Foot Six Ltd [2005] NZSC 34, [2005] 3 NZLR 721, [2005] ERNZ 372 at [24]- [27]
(2)reached a factual finding that was “so insupportable – so clearly untenable – as to amount to an error law”;
(3)came to a conclusion that it could not reasonably have reached on the evidence before it;
(4)taken into account irrelevant matters; and
(5)failed to take into account matters that it should have considered.
[20] 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.4 To that effect, Mr Maw proposes eight discrete errors of law which he contends are relevant here.
Jurisdiction
[21] Before considering those alleged errors of law, however, I first turn to whether the High Court has jurisdiction to review the “Procedural Decision” of the Environment Court. That turns first on an assessment as to whether it is a “decision” as that word is used in s 299.
[22] The Environment Court has itself chosen the title “Procedural Decision.” Mr Milne, as counsel assisting, stated that ostensibly, an appeal under s 299 would appear to be available to the appellant as the Environment Court’s “Procedural Decision” is a “decision” under s 299(1). However, as Nation J recognised in Remarkables Park Ltd v Queenstown Airport Corporation Ltd, the labelling of a decision is not, in itself, determinative as to its nature.5 In Gardez Investments Limited v Queenstown Lakes District Council the Court said, “a decision may be headed simply "Decision" yet leave issues undecided.”6
4 St Heliers Capital Ltd v Kapiti Coast District Council, above n 3 at [51].
5 Remarkables Park Ltd v Queenstown Airport Corporation Ltd [2018] NZHC 269 at [70].
6 Gardez Investments Limited v Queenstown Lakes District Council EnvC Christchurch C95/05, July 2005 at [40], approved in Federated Farmers Inc v Mackenzie District Council [2013] NZHC 518.
[23] I have regard to the nature of the ‘Procedural Decision’. The Environment Court Judge describes the 13 July Minute as “an attempt to move things forward”.7 The operative part of that Minute directed Selwyn Quarries to:
(1)lodge and serve all existing risk assessments of its final amended proposal by Tuesday 17 July 2018; and
(2)if SQL considers its existing reports do not adequately assess the risk(s) of aquifer contamination, then SQL is to advise the Registrar by 20 July 2018 whether it will commission a report complying with the requirements set out above, and when it can be lodged by.
The procedural decision at [18] recorded this and then stated:
The directions are not challenged. As indicated above, it is another part of the text of the Minute which the CRC wants to have recalled.
The Judge in the Environment Court earlier at [18] noted that the Court had accepted that it had “no power to direct CRC” to provide further expert reports to the Court but had expressed concerns over the absence of reports from the CRC. The Court sought to provide an opportunity for the CRC to provide the reports it considered useful. The Court did not make a finding that CRC had breached its duties. Rather, it raised the possibility it might have. It said the Court may need to hear submissions on the issue later.
[24] Overall, the Procedural Decision refused to recall the minute of 13 July and noted that the issues it had raised remained to be determined by the Environment Court in the substantive hearing.
[25] Essentially here, the CRC appeals the decision not to recall relating purely to what is perceived to be unfair criticism of CRC in the Minute. The real issue is not the Environment Court’s decision or directions given in the Minute but passing observations made there. And, in my view, the Procedural Decision really offers very little comment and no conclusion on the merits of those observations. The merits of any perceived criticism will only be determined in a further hearing of the Environment Court. A possible question here might be whether the Environment Court erroneously decided to refuse to recall those perceived criticisms.
7 Selwyn Quarries Ltd v Canterbury Regional Council [2018] NZEnvC 139 at [18].
[26] This brings me to the more difficult question of whether this appeal can be considered to be an appeal against a preliminary or a final decision. As Mr Milne noted, there is a body of case law indicating an appeal is only available under s 299 against a final determination in the proceeding.
[27] On this aspect, Mr Milne cited Peninsular Watchdog Group v Coeur Gold NZ.8 In that case, Salmon J suggested the issue as to the appealability of interim decisions was yet to be finally resolved. However, his Honour noted that it was often sensible to hold off appeals until the final decision had been made.
[28] The approach of Salmon J was followed by Doogue J in Queenstown Lakes District Council v JF Investments where a jurisdictional challenge succeeded in the High Court on the basis that the appeal was premature because there had not been a final determination.9 There Doogue J agreed that the normal time to lodge an appeal is after the final decision is made. However, the Judge stated that some interim decisions might finally determine substantive issues in a way that bring an appeal from them clearly within s 299.
[29] Hugh Williams J in Hahei Developments Limited v Thames Coromandel District Council similarly concluded that the question of appealability was based on whether the Council in that case had made a final decision in the material respect against which the appeal was lodged.10
[30] The comments of Wylie J in Mawhinney v Auckland Council are also of assistance here:11
In my view, no “bright line” rule is possible. Each interim decision must be considered in its own terms. If an interim decision finally decides a substantive issue between the parties, then there is a decision in respect of that issue in terms of s 299, notwithstanding that some other issue may be left for further consideration. If an interim decision does not finally decide a substantive issue and leaves it for the parties to return to Court, then there is no decision in terms of s 299.
8 Peninsular Watchdog Group v Coeur Gold NZ [1997] 3 NZLR 463 at 467.
9 Queenstown Lakes District Council v J F Investments HC Invercargill CIV-2004-485-2278, 18 March 2005 at [10].
10 Hahei Developments Limited v Thames Coromandel District Council [2005] NZRMA 21.
11 Mawhinney v Auckland Council (2011) 16 ELRNZ 608, 2011 WL 5066390.
[31] The position adopted by Mr Maw for the appellant here is a simple one. He contends that the Procedural Decision was a final determination of the Council’s application for recall and an appeal under s 299 is the only avenue by which the determination can be challenged.
Discussion
[32] I turn first to the recent decision of Nation J in Remarkables Park Ltd v Queenstown Airport Corporation Ltd. There, he held:12
The time to appeal commences once a final decision has been made or an issue in the proceeding is finally determined. Determining whether a decision is “final” is a substantive enquiry and the labelling of a decision is not, in itself, determinative. The test is whether, in substance, the decision:
(a)decides the whole proceedings or, at least, one or more particular issue conclusively, (in which case the Court is functus officio on each such issue); or
(b)leaves the matter open for parties to return to the court with further submissions and/or evidence notwithstanding the views expressed at the interim stage.
[33] The issue here, which the Environment Court describes as being simply a part of what is an “unusual application”,13 is the appropriateness of the comments made by the Environment Court with respect to the conduct of the CRC.
[34] Mr Milne notes that CRC’s appeal is premised on a number of alleged errors of law. He goes on to question whether the Environment Court had in fact made an appealable determination in the area CRC complains of or whether it had simply given an indication of matters it wished to see addressed in light of its recommendations. In my view it was the latter. As the transcript of the Environment Court decision shows:
[34]… I should preface the following discussion of a consent authority’s obligations by emphasizing that the court did not, in its 13 July Minute, make finding that the CRC had breached its duties, rather I raised the possibility it had and said the court might (I used the present tense “may”) need to hear submissions on the issue later…
12 Remarkables Park Ltd v Queenstown Airport Corporation Ltd [2018] NZHC 269 at [70].
13 SQL v CRC, above n 7 at [1].
[35] While the Environment Court has decided the issue of recall conclusively, it has not made a final decision as to the substance of whether the CRC may have breached any duties.
[36] The file, as I understand it, has now been transferred to another Environment Court Judge for a substantive hearing. That leaves the matter of the CRC’s conduct open for the parties to return to the court with further submissions and/or evidence notwithstanding the tentative views signalled at the interim stage.
[37] Mr Milne’s submissions also raise the question of whether the Environment Court’s 13 July Minute is still material or whether it may have been overtaken by events such that it is now simply historical. In my view, it has been so overtaken and it is the Environment Court Judge at hearing who will determine whether the alleged duties are of any relevance. Should she/he conclude they are and make findings on them which the CRC considers to be errors of law, CRC would have a right of appeal under s 299 of the RMA.
[38] I have regard here also to the decision in Rodney DC v Eyres Eco-Park Ltd, where Allan J considered the submission that even if relevant errors of law were identified they could have no material effect on the eventual outcome of the proceeding because the decision appealed from is of an interim nature only.14 In that case, however, Allan J rejected that argument, noting that the appeal as to the interim decision was likely to be helpful to the parties and to the Environment Court in determining the substantive issues which remained to be determined by that Court. That is a different situation from the one that prevails here, in my view.
[39] In the case before me I can see no assistance from determining what are said to be errors of law. The Environment Court will determine those issues fully. The Procedural Decision simply refused to recall the previous Minute which in itself expressed no concrete views. I am cognisant of the CRC’s sensitivity to criticism that it may have failed in its role, but the only final determination to be effectively appealed here is that the first minute is not recalled. The substantive issues are to be reviewed
14 Rodney DC v Eyres Eco-Park Ltd [2007] NZRMA 1 (HC) at [10].
by another judge at a further hearing. That substantive hearing will finally determine the appropriateness of CRC’s overall position with an explicit finding as to this.
[40] One final issue needs to be mentioned here. This relates to the question as to whether in any event findings in an earlier decision which might be considered as obiter are appealable in terms of s 299 of the Act.
[41]On this aspect, Brookers Resource Management15 at para A299.01(4) states:
(4) Obiter findings not able to be appealed
In Lyttelton Port Co v Canterbury RC [2002] NZRMA 102 (HC), the Court declined jurisdiction to hear an appeal on obiter findings.
[42] The learned authors of Brookers Resource Management go on to amplify that comment as follows:16
…
In Lyttleton Port Co v Canterbury RC…the appellant sought to appeal obiter findings and dicta. The Court declined jurisdiction, on the basis that if such matters were accepted as valid grounds of appeal, that would open the flood gates to litigation. The Court applied the principle set out in Port Nelson Ltd v Commerce Commission [1996] 3 NZLR 554 (CA) that findings not material to the orders made are not susceptible to appeal. The language of s 299 of the RMA is not materially distinct from that of s 66 of the Judicature Act 1908. The proper process is to use the declaration jurisdiction under the RMA, or in certain circumstances the writ of certiorari might be available under the High Court Rules…
[43] In this case a question arises as to whether the present appeal of the “decision” not to recall the Minute the Judge made in his Procedural Decision is fundamentally based upon a complaint against what is a merely obiter opinion or observation expressed in the Minute. CRC has no issue with the substantive decision. The words in the Minute to which the CRC takes objection and addresses in its appeal, in my view, might well be seen here merely as obiter dicta. Certainly the directions and orders made in that Minute are not, as I see it, in any way affected by the comments to which objection is taken.
15 Brookers Resource Management (looseleaf ed, Thomson Reuters) at [A299.01(4)].
16 At para [A300.02].
[44] To an extent, to use the same words Hansen J noted to describe the situation in the Lyttelton Port Co case, the matter before me is also “a most unusual appeal”. As appears to be the case here, the CRC does not take objection to and is in general agreement with the substantive decision of the Environment Court in the Minute (by which the specific orders are made). Rather, in effect, it seeks to challenge passing comments made in the course of the original Minute.
[45] As I see it, the comments said to be offending might well be seen as merely obiter. As such, the authorities are clear that they are not the proper subject of an appeal under s 299 of the Act in any event.
[46] In my view, this provides a possible additional ground for declining jurisdiction in this matter.
[47] Overall then, I conclude and find here that the appropriate time to appeal any errors of law that may have occurred in this case is once they have been finally determined. That has not yet occurred. In one sense this appeal must be considered a pointless one. The matters at issue will be addressed and answered by the Environment Court at the time of their subsequent consideration. I find that, at this point, this Court does not have jurisdiction to review the “Procedural Decision” of the Environment Court. I need say nothing further regarding the substantive appeal arguments which the parties endeavoured to advance before me.
Conclusion
[48] On the jurisdiction ground I outline above, I find that this appeal must be dismissed and I now do so.
[49] Costs are reserved. In the event counsel cannot agree between themselves, memoranda on this costs issue may be filed (sequentially).
...................................................
Gendall J
Solicitors:
Wynn Williams, Christchurch
James Milne, Barrister, Hamilton Copy to Respondent
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