Church v Hawke's Bay Regional Council

[2012] NZHC 2140

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CIV-2012-485-461 [2012] NZHC 2140

IN THE MATTER OF     an appeal from a decision of the Environment Court under s 299 Resource Management Act 1991

BETWEEN  WAYNE CHURCH Appellant

ANDHAWKE'S BAY REGIONAL COUNCIL Respondent

Hearing:         13 August 2012

Appearances: J F McDowell for Appellant

M G Conway for Respondent
M B Lawson for Napier City Council

Judgment:      23 August 2012

JUDGMENT OF PETERS J

This judgment was delivered by Justice Peters on 23 August 2012 at 11 am pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date: ...................................

Solicitors:           Simpson Grierson, Wellington:  [email protected]

Lawson Robinson Ltd, Napier:  [email protected]

Counsel:            J F McDowell, Napier:  [email protected]

CHURCH V HAWKE'S BAY REGIONAL COUNCIL HC NAP CIV-2012-485-461 [23 August 2012]

Introduction

[1]      This is an appeal from a decision of a Judge of the Environment Court dated

7 February 2012.[1]

[1] Church v Hawke’s Bay Regional Council [2012] NZEnvC 20, 7 February 2012.

[2]      In his decision the Judge held that an appeal filed by the Appellant was out of time. The Judge also declined to grant a waiver to the Appellant pursuant to s 281(1) of the Resource Management Act 1991 (“Act”).

[3]      It is the first of those decisions which is the subject of this appeal.  No point arises in relation to the second.

[4]      The Appellant has a right of appeal to this Court on a question of law.[2]   The powers of Court on hearing the appeal are contained in High Court Rules, r 20.19.

Relevant facts

[2] Resource Management Act 1991, s 299(1)

[5]      By a decision dated 7 November 2011 (“consent decision”), the Respondent granted resource consent to Napier City Council (“NCC”).

[6]      The Appellant  had  made  a  submission  regarding  NCC’s  application  for consent and, accordingly, the Respondent as the consent authority was required to serve notice of the consent decision on the Appellant.[3]

[3] Ibid, s 114(2)(a).

[7]      A consent authority may serve a person by sending notice of the relevant decision by pre-paid post addressed to the person at their usual or last known place of residence or business.[4]

[4] Ibid, s 352(1).

[8]      The issue that arose in the present case was whether the Appellant’s appeal to

the Environment Court had been lodged in time.  The Appellant had a right of appeal

to  the  Environment  Court,  subject  to  his  lodging  a  notice  of  appeal  within

15 working days of receipt of notice of the consent decision in accordance with the

Act.[5]

[5] Ibid, ss 120 and 121.

[9]      The Act provides that, in the absence of proof to the contrary, a document served by post is deemed to have been received by the person at the time at which the letter would have been delivered in the ordinary course of post.[6]

[6] Ibid, s 352(5).

[10]     The Appellant lodged his notice of appeal on or about 12 December 2011. The Respondent and NCC objected on the basis that the notice had been lodged out of time, that is lodged more than 15 working days after the Appellant would have received notice of the consent decision in accordance with the Act.

[11]     Thereafter  it  appears  that  the  Respondent,  NCC  and  the Appellant  filed various documents, although not all of them are before me.   The Respondent and NCC filed a joint memorandum dated 24 January 2012 the gist of which was as follows:

(a)      the Respondent had served notice of the consent decision by posting a copy of the consent decision to the Appellant, in the manner to which I have already referred, on 4 November 2011.  A copy of a covering letter from the Respondent to the Appellant dated 4 November 2011 was attached to the memorandum.

(b)the document would have been delivered to the Appellant’s address on or about 7 November 2011 and that would be the deemed date of receipt, in the absence of proof to the contrary;[7] and

[7] Ibid.

(c)       the   Appellant’s    time    for    an    appeal    as   of    right    closed    on

28 November 2011.

[12]     In anticipation of a submission by the Appellant that he had not received notice on or about 7 November 2011, the Respondent and NCC attached an article which had appeared in the Napier Mail on 16 November 2011.  The article stated that the Appellant was appealing the consent decision and purported to quote the Appellant regarding the substance of the consent.   The Respondent and NCC submitted that any statement by the Appellant that he had not been served on or about 7 November 2011 was inconsistent with his public statements and that, accordingly, his appeal was “frivolous and time wasting”.

Appellant’s memoranda

[13]     The Appellant filed memoranda dated 29 and 30 January 2012.

[14]     The memorandum of 29 January 2012 addressed two points raised by NCC in a  document  which  I  do  not  have  but  which  appears  to  have  been  sent  to  the Appellant on 16 January 2012.  These two points were that the appeal was out of time and not in the proper form.[8]     The Appellant’s response to the first of these points is relevant to this appeal.

[8] Appellant’s memorandum dated 29 January 2012 at [4] to [7].

[15]     The Appellant denied that the appeal was out of time and said that he had not received notice of the consent decision until 25 November 2011.   It was common ground that the Appellant had telephoned the Respondent on 24 November 2011, requesting a copy of the consent decision, and that the Respondent has posted a copy that day.

[16]     The Appellant also challenged the assertion that the Respondent had posted notice of the consent decision to him on 4 November 2011 or at any time close to it. The Appellant submitted, correctly, that there was no evidence before the Court of the Respondent having done so.

[17]     The Appellant’s memorandum of 30 January 2012 was a response to the

memorandum referred to in [11], which it appeared the Appellant had only just

received.   The relevant part of that memorandum is that the Appellant denied the allegations made regarding the Napier Mail article.[9]

Judge’s decision

[9] Appellant’s memorandum dated 30 January 2012 at [12] and [13].

[18]     The Judge determined the matter on the papers and held that the appeal had been filed out of time. The Judge did so on the basis that 7 November 2011 could be taken as the date on which the Appellant would be deemed to have received notice of the consent decision.  The Judge also said that the Appellant’s denial of any receipt prior to 24 November 2011 was contradicted by the statements he was recorded as having made to the Napier Mail.   The Judge said that the Appellant had failed to refer to the comments attributed to him in the Napier Mail

Appeal

[19]     At the hearing before me, the principal ground of appeal advanced by the Appellant was that the Judge erred in making a decision regarding the Appellant’s credibility without first giving the Appellant the opportunity to call evidence and to be heard on the point.   In support of that contention, the Appellant relied on the decisions  of  Furnell  v Whangarei  District  High  Schools  Board  and  Trustees  of Rotoaira Forest Trust v Attorney-General.[10]

[10] Furnell v Whangarei District High Schools Board [1973] 2 NZLR 705 (PC) and Trustees of

Rotoaira Forest Trust v Attorney-General [1999] 2 NZLR 452 (HC).

[20]     The Respondent and NCC opposed the appeal.  Counsel for the Respondent submitted that it was open to the Judge to determine the issue on the papers and that the Judge was entitled to draw the inference that he did from the Napier Mail article.

[21]     I am satisfied that this appeal should be allowed, for the following reasons.

[22]     First, I am not satisfied that it was open to the Judge to conclude, as he did, that the Respondent effected service prior to 25 November 2011.

[23]     In  their  memorandum  dated 24  January 2012,  the Respondent  and  NCC relied on a posting date of 4 November 2011 and therefore a deemed date of delivery of 7 November 2011.  With respect to them, that could not be correct because the consent decision itself is dated 7 November 2011.  At the very least notice would have to have been posted on or after 7 November 2012.  That would not have been clear to the Judge from the memorandum of 24 January 2012.

[24]     In addition, as I have said, there was no sworn evidence before the Judge as to  posting  of  notice  prior  to  24  November  2011.    The Appellant  had  put  the Respondent to proof on this matter in his first memorandum.  In my view, the Judge erred in proceeding as he did, in the absence of evidence on behalf of the Respondent as to the circumstances in which it was said notice had been served.

[25]     Thirdly, counsel for the Appellant submitted that the Judge erred in placing any weight on the Napier Mail article. That point would go to the Appellant’s receipt of notice of the consent decision.   Counsel for the Respondent submitted that the Court was entitled to receive the article as evidence on the basis of s 276 of the Act, the relevant parts of which read as follows:

276     Evidence

(1)      The Environment Court may—

(a)       Receive anything in evidence that it considers appropriate to receive; and

(b)       Call  for  anything  to  be  provided  in  evidence  which  it considers  will  assist  it  to  make  a  decision  or recommendation; and

(c)       Call before it a person to give evidence who, in its opinion, will assist it in making a decision or recommendation.

(1A)     ...

(2)      The  Environment  Court  is  not  bound  by the  rules of  law  about evidence that apply to judicial proceedings.

[26]     It is not necessary for me to consider either submission because, regardless, I do not consider that the inference the Judge drew from the article was open to him, even taking the article at face value.   The most that a reader could take from the

article was  that  the Appellant  knew  that  consent  had  been  granted  and  that  he proposed to appeal. The article could not in my view form a basis for an inference as to receipt of notice of the consent decision.  The Judge also erred in saying in his decision that the Appellant had not responded to the allegations that the Respondent and  NCC  had  made  on  the  basis  of  the  article.    The  Appellant  denied  those allegations in his memorandum of 30 January 2012.

Additional matters

[27]     Counsel for the Appellant submitted that evidence the Appellant has filed since the Judge gave his decision illustrates the dangers of relying on hearsay material, such as the Napier Mail article.  The Appellant was given leave to file such evidence  on  the  appeal  to  this  Court.    I  have  determined  this  appeal  without reference to the fresh evidence but agree that it does illustrate the dangers which arise if reliance is placed on such material.  I mention it for that reason only.

[28]     First,   the  Appellant   has   sworn   an   affidavit   annexing   a   letter   from New Zealand Post to him, to the effect that New Zealand Post received reports of mail being tampered with and stolen from Napier addresses between November 2011 and January 2012.

[29]     Secondly, there is an affidavit from Mr Neill Gordon of Napier, journalist, and the author of the Napier Mail article. The gist of Mr Gordon’s affidavit is that he did not speak to the Appellant in the course of writing the 16 November article. Mr Gordon said that the Appellant was unavailable when Mr Gordon sought to speak to him.  Instead Mr Gordon spoke to the Appellant’s wife regarding the Appellant’s intentions as to an appeal and she advised that the Appellant proposed to appeal. Again, that says nothing as to receipt of the notice which sets time running.

Result

[30]     I allow the appeal.   I direct the Environment Court to rehear the matter of whether or not the appeal that the Appellant lodged dated 12 December 2011 was

lodged with the Court within 15 working days of notice of the consent decision being received by the Appellant in accordance with the Act.[11]

[11] High Court Rules, r 20.19(1)(b)(i).

[31]     Counsel may submit brief memoranda if they are unable to agree on costs.

..................................................................

M Peters J