Central Plains Water Trust v Ngai Tahu Properties Limited HC Christchurch CIV 2006-409-2116

[2007] NZHC 1587

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV 2006-409-2116

BETWEEN  CENTRAL PLAINS WATER TRUST Intending Appellant

ANDNGAI TAHU PROPERTIES LIMITED First Respondent

ANDCANTERBURY REGIONAL COUNCIL Second Respondent

Hearing:         8 February 2007

Counsel:         E D Wylie QC and R Dunningham for Intending Appellant

J M Crawford for First Respondent
M C Dysart for Second Respondent

Judgment:      8 February 2007

ORAL JUDGMENT OF RANDERSON J

Solicitors:   Buddle Findlay, PO Box 322, Christchurch

Anderson Lloyd Caudwell, P O Box 13831, Christchurch

Environment Canterbury, PO Box 345, Christchurch

Counsel:    E D Wylie QC, PO Box 2642, Christchurch

CENTRAL PLAINS WATER TRUST V NGAI TAHU PROPERTIES LIMITED AND ANOR HC CHCH CIV

2006-409-2116  8 February 2007

[1]      This is an application for leave to appeal against my decision delivered on

1 December 2006 regarding the issue of priority between competing applications for resource consents under the Resource Management Act 1991 to take water from the Waimakariri and Rakaia Rivers.

[2]      In that decision I held at [76] and [77] that the determination of priority between competing applications for resource consents is generally determined by which one is ready for notification first.   In doing so I followed, in particular, a decision by Salmon J in Geotherm Group Ltd v Waikato Regional Council [2004] NZRMA 1, noting that the Court of Appeal in Fleetwing Farms Limited v Marlborough District Council [1997] 3 NZLR 257 had not expressed any final view on the issue arising before me. Rather, the Court of Appeal simply determined in that case that priority was to be determined upon a “first come first served” basis between two appeals on applications for coastal permits for marine farming.

[3]      The Court of Appeal in Fleetwing was not called upon to determine the effect of a request for further information under s 92 of the Act nor a determination not to proceed with notification under s 91 of the Act.  And, in Geotherm, Salmon J dealt with the effect of s 92 rather than the effect of s 91.

[4]      I noted in my decision that the Act does not make any specific provision establishing priorities between competing applications for resource consents to use natural resources and that it has been left to the Courts to devise principles to establish priorities which are consistent with the legislation and promote fairness, so far as that can be achieved ([48]).

[5]      I also determined in my decision that when a consent authority decides under s 91 of the Act not to proceed with notification, the application is not ready for notification until the additional resource consent applications are made.  I recorded at [77] of the decision that there are some qualifications to this general approach, one of which is that priority in individual cases may be affected by unreasonable delay by an applicant.   I recorded at [78] that counsel were agreed that if it had been

necessary to do so, the matter should be remitted to the Environment Court to determine whether there was unreasonable delay on the part of Central Plains in pursuing its application.   It was not necessary to determine that issue in the Environment Court nor in this Court because of the finding that the first respondent Ngai Tahu had priority on the basis that its later application for a resource consent was the first ready for notification.

The Law

[6]      The  application  for  leave  to  appeal  is  brought  under  s  144(2)  Summary

Proceedings Act 1957 as imported by s 308 Resource Management Act.   Section

144(2) provides:

A party desiring to appeal to the Court of Appeal under this section shall, within 21 days after the determination of the [High Court], or within such further time as that Court may allow, give notice of his application for leave to appeal in such manner as may be directed by the rules of that Court, and the [High Court] may grant leave accordingly if in the opinion of that Court the question of law involved in the appeal is one which, by reason of its general or public importance or for any other reason, ought to be submitted to the Court of Appeal for decision.

[7]      The  principles  relating  to  an  application  for  leave  under  s  144(2)  are summarised by the Court of Appeal in R v Slater [1999] 1 NZLR 211 at 214-215. There must be a question of law which, by reason of its general and public importance or for any other reason, ought to be submitted to the Court of Appeal and the Court must be of the opinion that it ought to be so submitted. The Court has a residual discretion to refuse to grant leave even though there is a question of law involved and the question may be of general or public importance.

[8]      As the Court of Appeal observed in Slater, s 144 was not intended to provide a second tier of appeals from decisions of the District Court and proceedings under the Summary Proceedings Act.   That is for reasons of finality in litigation which apply equally in the present context.  The requirements of s 144 are stringent and the question of whether or not a point of law raises a question of any general or public importance is not to be diluted.

[9]      I have heard counsel on the issue of whether leave should be granted and, if so, the form of any questions and the conditions to be attached to the grant of leave.

[10]     Mr Wylie QC for the intending appellant has submitted there are questions of law  which  are  capable  of  bona  fide  and  serious  argument.    He  stresses  the importance to the parties and to others of having a determination in this case and as a precedent for similar applications.

[11]     Mr Wylie has also submitted that the consequences of this Court’s decision on the issue of priority are substantial in monetary terms running to some tens of millions of dollars in his submission.

[12]     Mr Wylie has also submitted that the Court of Appeal has not delivered a decision on the matter specifically at issue in this case and that the issue ought to be ventilated in that Court, notwithstanding any necessary delay which will be consequent upon the grant of leave.

[13]     For the second respondent, Ms Dysart takes a neutral position but for the second respondent Ms Crawford has submitted that leave should not be granted.  She submitted that the decision in question is consistent with other authorities and that it is unnecessary to have the Court of Appeal consider the issue.  She submitted that the effect of the grant of leave would be to leave Ngai Tahu in a state of limbo and that there would be a significant impact on Ngai Tahu proceeding with its scheme for development of land consequent on the grant of the relevant resource consents.

[14]     She also drew to the Court’s attention that there is further litigation pending in the Environment Court in relation to the priorities for the taking of water from the Rakaia River.   A further declaration has been  sought  to  determine priorities  as between Central Plains’ application and that of another applicant.  I was told that this matter is to be heard in the Environment Court next week.

Conclusions

[15]     I have decided to grant leave to appeal subject to certain conditions and to the amendment of the questions of law proposed to be submitted.  The matters at issue have not been determined in any definitive way by the Court of Appeal and I am satisfied that they raise serious issues of general and public importance which ought to be submitted to the Court of Appeal for determination.

[16]     The outcome of this case will not only affect the parties to this appeal but will be highly relevant to other applications for resource consents and to territorial authorities and regional councils dealing with competing applications for finite resources including fresh and salt water as well as geothermal resources.

[17]     The effect of the decision of the Environment Court and the decision of this Court will have very substantial consequences in monetary terms for the appellant. It is a very large scheme which is intended to provide irrigation for large areas of land between the Waimakariri and Rakaia Rivers.  It is important for all those who may be affected by this decision that there be a definitive determination.

[18]     I am mindful of the effect of delays, but as Mr Wylie pointed out there is an outstanding appeal in respect of one aspect of the consent granted to Ngai Tahu and delay in projects of this sort is inherent in the statutory processes permitted under the Act.

[19]     I am satisfied that notwithstanding the delay and extra cost involved, leave should be granted having regard to the matters I have identified.   I will however, place conditions on the grant of leave designed to ensure that the appeal proceeds as quickly as possible.

[20]     I therefore grant to the appellant leave to appeal to the Court of Appeal. After discussion with counsel the questions of law for which leave is granted are as follows:

a)       Whether the determination of priority between competing applications for resource consent should be determined by which one is first ready for notification.

b)       If the answer to question (a) is yes, then does a decision under s 91

Resource  Management  Act  1991  not  to  proceed  with  notification mean that the application is not ready for notification until the additional resource consents are made?

[21]     Leave is granted on the following conditions:

a)        The appellant is to file and serve the notice of appeal by 22 February

2007.

b)       The appellant is to file and serve the case on appeal by 30 March

2007.

c)       The appellant is otherwise to proceed with the appeal with all due expedition.

[22]     I record that there has been an issue between counsel discussed today in argument about the form of relief identified by the appellant in the application for leave to appeal.  As earlier indicated, counsel were agreed that the issue of whether priority may be affected by unreasonable delay on the part of Central Plains in pursuing its application would, if necessary, be referred back to the Environment Court to determine.

[23]     Mr Wylie has informed the Court this morning that Central Plains does not resile from that agreement.  It will be a matter for the appellant to determine the form of relief which it specifies in its appeal.  Whether relief should be granted and, if so, in what form will be a matter for argument in the Court of Appeal.

[24]     Having heard counsel, I will simply reserve costs on the application for leave to appeal pending the outcome of the appeal.

A P Randerson, J Chief High Court Judge