Carruthers v Otago Regional Council no.2

[2013] NZHC 1171

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI-2012-412-36 [2013] NZHC 1171

BETWEEN  JOHN ANDREW CARRUTHERS Appellant

ANDOTAGO REGIONAL COUNCIL Respondent

Hearing:         17 May 2013

(By way of Telephone Conference)

Appearances: C S Withnall QC for the Appellant

A Logan for the Respondent

Judgment:      22 May 2013

JUDGMENT NO 2 OF FOGARTY J

[1]      The Otago Regional Council has applied for leave to appeal to the Court of Appeal.  This was opposed principally on the ground that the case really turned on findings of fact.  See Carruthers v Otago Regional Council, [42], [44], [52], [53], [55] and [57].[1]

[1] Carruthers v Otago Regional Council [2013] NZHC 632.

[2]      Mr Logan argued that there were key findings on the law collected, and he collected [24], [28], [32], [35], [42], [51] and [52].

[3]      I was not happy with his formulation of questions of law in the notice of motion, particularly as I thought that they essentially over-simplified what was a complex set of facts.  They were, in that sense, “textbook”, rather than reflecting the “problem”  encountered  by  the  Court  applying  the  provisions  of  the  Resource

Management Act to this particular set of facts.

CARRUTHERS V OTAGO REGIONAL COUNCIL HC DUN CRI-2012-412-36 [22 May 2013]

[4]      Mr  Withnall  argued  correctly  that  leave  could  not  be  granted  unless  a question of law could be identified which, by reason of its general or public importance, merited going to the Court of Appeal.

[5]      In the course of oral argument, the following question of law was identified. It is:

Whether to be a modified watercourse it must, prior to modification, be shown to have had a continuous or intermittently flowing body of water in it by natural means?

[6]      This is a formulation similar but different to question 2.2.4.   I am satisfied that it is an adequate question of law.  I am not sure that it really captures the legal complexities of the case.

[7]      I am, however, satisfied that this case raises issues of law of general or public importance, and that, from the point of view of identifying a jurisdiction to grant leave, the above question gets the Court over the threshold.

[8]      I have considered the argument that this case does not have general or public importance  because  it  arises  out  of  a  very  particular  set  of  facts.    Mr  Logan, however, argues that there are similar situations in the Otago area, and this case does have broader ramifications for the administration of the RMA in his region.

[9]      In the end, I am persuaded then that this case does raise a question of law which by reason of its general or public importance should go further.

[10]     Leave to appeal is granted.

Solicitors:

R J Cassidy, Solicitor, 9 Moray Place, Dunedin

C S Withnall QC, Dunedin –  [email protected]

Ross Dowling Marquet Griffin, Dunedin –  [email protected]