Clova Bay Residents Association Incorporated v Marlborough District Council
[2016] NZHC 2317
•29 September 2016
IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY
CIV 2015-406-029 [2016] NZHC 2317
UNDER the Judicature Amendment Act 1972 and
Part 30 of the High Court Rules
IN THE MATTER
of an application for judicial review
BETWEEN
CLOVA BAY RESIDENTS ASSOCIATION INCORPORATED Applicant
AND
MARLBOROUGH DISTRICT COUNCIL
First Respondent
AND
MARINE FARMING ASSOCIATION INCORPORATED
Second Respondent
Hearing: 7 September 2016 Counsel:
J C Ironside for Applicant
M Radich for First Respondent
Q A M Davies for Second RespondentJudgment:
29 September 2016
JUDGMENT OF SIMON FRANCE J
Introduction
[1] In 1995, Marine Farming Association Incorporated (the Association) obtained a 20 year consent to operate a spat catching farm in an area known as Clova Bay. Recently it obtained on a non-notified basis a further 20 year permit for the same farm. The applicant seeks judicial review of this decision, claiming that the Council erred in treating the second application as being for a controlled activity, and in any
event should have notified the local residents of the application.
CLOVA BAY RESIDENTS ASSOCIATION INCORPORATED v MARLBOROUGH DISTRICT COUNCIL [2016] NZHC 2317
Background facts
[2] The original 1995 application was for two farms in the Bay, one covering
18.1 ha and the other 5 ha. The Council declined the larger farm (Clova Bay South) but approved the smaller Clova Bay North site. However, it was approved on a conditional basis, namely that there be a demonstrated need to use it. Thus, clause 11 of the consent provided:
11. The site is to be used for emergency purposes only, being when:
(a) The consent holder has notified Council that its 10 hectare spat catching site in Clova Bay coastal permit U930693 is being used to its full capacity.
(b) The Council has verified (a) above.
(c) The consent holder has provided documentary evidence to
Council that Kaitaia spat is not available.
(d) Council confirms to the consent holder that (a), (b) and (c)
have been complied with.
[3] The Association appealed against the declining of the larger Clova Bay South application, and during that appeal hearing, agreement was reached for an 8.1 ha site at Clova Bay South. This rendered the consented 5 ha Clova Bay North facility unnecessary. The Association has operated the 8.1 ha farm since then (the Clova Bay farm). A feature of this farm is that it operates only from January 15 to July 31 each year. For the balance of the time the structure is sunk to the seabed.
[4] The consent was reviewed part way through its term as a consequence of changes to the Resource Management Act 1993. The Council decided that all these marine consents needed to be reassessed to ensure the conditions were uniform, and met the requirements of the Act. A new consent was issued in 2007 for the balance of the existing term of 20 years which expired on 17 September 2015.
[5] During the life of the original consent, the Marlborough Sounds Resource Management Plan (the Plan) became operative. It provided that marine farms in areas labelled Coastal Management Zone 1 were prohibited. The Clova Bay farm is in this zone, but there was what is known as a grand-fathering provision which, in broad terms, stated existing permits could be renewed as long as there was no change from the existing consent.
[6] The Association sought to obtain a further permit using this grand-fathering option, and it was granted on a non-notified basis. The challenges in this judicial review are whether what was sought is the same operation as the existing consent, and what notification obligations there were.
The same application?
[7] The structure of the Plan is that current marine farms are controlled activities provided they conform to certain standards:
35.2.5.1 Standards
a) The structures and anchoring systems established on the marine farm shall be those authorised by the current Coastal Permit, Marine Farm Licence or Marine Farm Lease applied for prior to 1 August 1996, except that in the case of marine farms listed in Appendix D, as controlled activities, this standard shall not apply to the replacement of surface structures with sub-surface structures.
b) The marine farm shall occupy only that area and only for the purposes and for the species authorised by the current Coastal Permit, Marine Farm Licence or Marine Farm Lease applied for prior to 1 August 1996.
c) The species to be farmed on any marine farm shall be only those authorised by the current Coastal permit, Marine Farm Licence or Marine Farm Lease applied for prior to 1 August 1996.
d) The lighting system utilised on the marine farm shall at all times comply with the conditions of the current Coastal Permit, Marine Farm Licence or Marine Farm Lease applied for prior to 1 August 1996, or in the absence of any such conditions the beaconage and buoyage standard required by ‘The system of Buoyage and Beaconage for New Zealand, Ministry of Transport: Nov 1991’, and ‘Maritime Safety Authority Marine Farm Lighting Marking and Structures Criteria 2’ and standards or substitutions in replace thereof.
[8] Clova Bay Residents Association (the Applicant) says the application and the consequent consent failed Standards a) and b). It is submitted that the structures are not the same as those approved by the original consent, and that the purposes requirement in para (b) has not shown to be met.
The structures
[9] This is a narrow issue and concerns how prescriptive the original consent was. The structure of these mussel farms is to have a line across the surface of the water (called a backbone or longline) with an orange buoy at each end. There will
also be a number of black buoys along the length of the line to aid buoyancy. The spat catching lines then hang down off this surface line.
[10] The original application was for an 18.1 ha area in which there would be 24 of these surface lines, each being 200m long. However that capacity was obviously reduced when the agreed size of the farm became 8.1 ha. The consent itself was silent on the number of lines or their length but there was a diagram appended:
[11] A scale at the bottom of the page, when applied to the diagram, indicates that the top solid line in the diagram, which depicts the surface line, is 200m long.
[12] It transpires that the Association has never set the farm out with 200m lengths. Rather it has had 22 lengths of 100m, separated by a 50m channel. This degree of separation between the two lines is a standard council condition that allows navigation between the rows. The farm layout is like this:
[13] The criticism of the Applicant is that the consent required 200m lengths, and the scheme as laid out increases the surface coverage of the farm. This is obviously so in that there would not be the 50m gap in the middle so the farm would be shrunk by that amount. It is also the case that the greater the number of individual longlines, the more anchor blocks and orange buoys (visual impact) there will be.
[14] The issue that arises is whether this layout was permitted by the original consent. The Council concluded it was. In the context of judicial review I am satisfied that was an assessment open to them.
[15] Mr Ironside for the Applicant placed most reliance on a proposition that the change from the application scheme of 12 x 200 to this implemented scheme of
22 x 100 was contrary to the terms of condition (i) of the original consent. To assess that it is necessary to set out conditions (g), (h) and (i):
(g) Before exercising this consent, the coastal permit holder shall provide [the] council with:
New Zealand mapping grid co-ordinates for each corner of the farm area; and New Zealand mapping grid co-ordinates for two survey marks on the adjacent shoreline.
(h) The structure shall be made and placed on an axis within the spat catching site parallel to the west and east boundaries of the permit area.
(i) The structures shall be generally as set forth in the attached diagram but any change or alteration to the location or orientation of the structures within the site shall require a further permit application.
[16] Mr Ironside contended that the change from 12 x 200 to 22 x 100 came within the concept of “orientation” as it is used in para (i). The implemented structure therefore required a further permit application. However, that would be a considerably extended interpretation of orientation, and one which becomes untenable when conditions (g) and (h) are considered. The location and orientation aspects of (i) are clearly references back to (g) and (h) respectively. Condition (g) relates to grid co-ordinates, and correspondingly (i) speaks of location. Likewise, condition (h) prescribes a west/east layout and (i) then talks of orientation. Condition (i) can be seen to be picking up on the two features that were subject to specific conditions and emphasises that status by requiring a permit change to alter them. Otherwise the farm must “generally” accord with the diagram.
[17] It follows that the Council’s task was to consider whether the structures were “generally as set forth” in the diagram. Using its considerable knowledge of these farms, the Council was entitled to consider that the length of the backbone was a matter of flexibility, as long as the overall perimeters were consistent with the consent. In this regard it is important to note that the farm is still within the 8.1 ha limit. Further, the consent itself does not prescribe the number or length of longlines. Mr Ironside submits reference can and should be made to the application documents. The difficulty with that, however, is that the application was for a much larger farm. When the parties reached a compromise size, they must be taken to have deliberately omitted reference to the scheme of the altered farm, instead placing most importance on its size, location within the bay, and orientation. The total length of longlines on the water is less than that applied for.
[18] Concerning this diagram that was attached to the consent, Mr Hayes noted it was the diagram submitted for the 18.1 ha. The only change from what was submitted is that under the original diagram there were measurement lines which expressly identified the backbone as 200m. These were deleted on the plan attached to the consent, and Mr Hayes draws some support from that for the proposition that the length of the backbone was therefore at large. There is some merit in the point in that presumably there was some reason why this one change was made. However, it only serves to reinforce the interpretation the Council anyway gave the document.
[19] The key aspects of the consent, as (i) illustrates, were the overall size of the farm and its placement within the bay. The structure that has been in place, and is now reauthorized, has in my view always been compliant.
Purpose
[20] At the time of the original consent, the case for the new farm was in part based on the need for an alternative source of spat. Until then, the bulk of supplies came from Kaitaia and at the time there was doubt as to whether that would be sufficient. This was advanced as one of the justifications for the farm. That is evident from the original consent for the 5 ha farm, which had the “need” condition as set out in [2] above, including a reference to Kaitaia spat. The Applicant submits that the Council had to be satisfied that the same need still exists before the application could be seen as meeting Standard (b) which provides:
The marine farm shall occupy only that area and only for the purposes and
for the species authorised by the current permit … (emphasis added)
[21] Mr Ironside submits “purposes” includes the reasons why the original consent was sought. He further submits this is illustrated by condition (q) of the first consent which provided:
(q) The permit holder shall keep such records as may be reasonably required by and to the satisfaction of the Manager, Resource Management and Regulatory Department of the respondent and shall supply copies of those records to the council upon request. Such records shall include such information as detailed below for base data gathering purposes and shall be furnished in a written report to council as soon as practicable after 31 July but not later than
31 August in each year:
The number of longlines used during the season, a record of the date (or dates) that lines were placed in the water and the dates on which such lines were removed.
[22] At first blush this record keeping provision seems some distance from the proposition that an on-going national shortage is a pre-condition to any further consent. However, Mr Ironside submits it must have been the reason why these records were to be kept, namely to enable an assessment of how much use was being made of the farm.
[23] As it happens there are two matters which rather muddy the waters in relation to condition (q). First, the records have never been supplied or kept. It seems that the clause was read as meaning the mandatory information about the number of longlines needed to be provided only if the Council requested other information,
which it never did.1 Second, in its 2007 review when conditions were standardised
across consents, condition (q) was unilaterally removed altogether by the Council, and so since 2007 the obligation has definitely never existed.
[24] These issues aside, I do not consider ‘purposes’ in Standard (b) is to be read the way the applicant submits. The wording of the standard is:
shall occupy only that area and only for the purposes … authorised by the
current permit.
[25] ‘Purposes’ in that context must be seen as a reference to the activity authorised by the permit (spat catching) and has nothing to do with the motivations that led the applicant to first seek the permit 20 years earlier. Standard (b) is a condition intended to ensure that controlled activity status is only accorded to operations that are truly a mere continuation of the existing operation.
[26] These were the two main features relied upon as meaning the new application was materially different from the existing consent. For the reasons given, I consider the Council was entitled to process the application as being for a controlled activity. There was no failure in approach, no error of law, and the assessments made were
reasonable ones plainly open to the Council.
1 That seems to me a rather surprising reading of the condition but little turns on it.
Notification
[27] The applicant is a society incorporated in August 2014, so after the consent decision was made. It represents most property owners and residents in the Clova Bay area. For two reasons it cannot be contended that the Association itself should have been notified – first it did not actually exist at the time, and second it cannot be
a person affected.2 That said, if there has been a notification failure, then its
members are the ones most likely to have been affected by this error and therefore individually the ones to whom notice should have been given. It is therefore sensible to consider the issue. I have no doubt the Applicant has standing to challenge the decision. If it is correct in its allegations on notice, then although it itself would not be a person to whom notice should be given, it will have established that the consent has been issued in breach of the obligation to allow as yet unidentified affected members of the public to participate. Relief (subject to discretion) would be appropriate.
[28] There are two provisions in play here. First, the farm is a controlled activity so in broad terms the consent must be granted. That obviously affects the exercise of any discretion to notify, and there are Plan rules confirming that the need to notify is diminished. Second, however, notwithstanding that consent must be given, there are mandatory notification provisions in the Act which still potentially apply. It is
convenient to start with these, and in particular ss 95B and 95E.3
[29] Section 95B in its relevant parts provides:
95B Limited notification of consent application
(1) If a consent authority does not publicly notify4 an application for a resource consent for an activity, it must decide (under sections 95E to 95G) whether there is any affected person, affected protected customary rights group, or affected customary marine title group in relation to the activity.
2 Northcote Mainstreet Inc v North Shore CC [2006] NZRMA 137.
3 There was initially a ground of review concerning public notification, but it turned on whether the activity could be shown not to be a controlled one. It is therefore not necessary to consider it further.
4 There was originally a contention that public notification was required but it is not necessary to determine it. It was largely dependent on the proposition that the application was not for a
controlled activity. However, the Council concedes that its processes were not suitable if the activity was not a controlled one.
(2) The consent authority must give limited notification of the application to any affected person unless a rule or national environmental standard precludes limited notification of the application. (emphasis added)
[30] It is common ground that the Plan does not contain a rule precluding limited notification as may occur under s 95B(2). Therefore, if there are affected persons, they must be notified.
[31] Section 95E(1) deals with who is an affected person. In its relevant parts it provides:
95E Consent authority decides if person is affected person
(1) A consent authority must decide that a person is an affected person, in relation to an activity, if the activity's adverse effects on the person are minor or more than minor (but are not less than minor).
(2) The consent authority, in making its decision,—
…
(b) in the case of a controlled or restricted discretionary activity, must disregard an adverse effect of the activity on the person that does not relate to a matter for which a rule or national environmental standard reserves control or restricts discretion; and
…
[32] The key aspects are that to be an affected person the impact must be minor (or greater). However, the relevant impacts are only those that relate to a matter on which the Council has reserved some discretion. What this means can be best illustrated by the present case. In relation to these “renewals” of existing marine consents, the Council has identified areas concerning which it has reserved control. Rule 35.2.5.3 of the Plan provides:
Matters Over Which Control is Reserved
Conditions may be imposed in respect of the following matters over which the Council has reserved control:
a) The duration of the consent (subject to the maximum period specified in
Rule 35.2.5.2 above);
b) Information and monitoring requirements;
c) The provision of warning devices and signs;
d) The layout and positioning of the marine farm structures to ensure public access (including recreational and forestry access) through the area and
the preservation of navigational safety both within the marine farm and within the vicinity of the marine farm;
e) The extent and nature of disturbance to the foreshore and seabed;
f) Administrative charges payable;
g) The adverse effects of any marine farming related structures on navigation or on visual amenities;
h) The adverse ecological effects of the activity;
i) Adverse effects of marine farming activities and structures previously addressed by way of conditions in earlier Coastal Permits, Marine Farm Licences and Leases pertaining to any particular marine farm site;
[33] It follows that if a person will, as the result of a consent, suffer adverse effects that come within this list, and those effects are at least minor, then the person must be notified. That is a statutory requirement not to be confused with any discretion under the Plan.
[34] Turning to the Plan, there is a rule about notification in relation to controlled activities. Before setting it out, it is important to recall that counsel are agreed it is not a rule that comes within s 95B(2) – it does not exclude notification and therefore the separate statutory obligation continues. Why that is so will be obvious from its permissive terms:
All Controlled Activities shall be subject to the general conditions applicable to Permitted Activities. An application for resource consent may be considered without notification or the need to obtain the written approval of affected persons unless otherwise specified. (emphasis added)
[35] The situation then is that there are two notification assessments required. First, the statutory assessment of whether there are persons who will experience at least minor effects of a type coming within the areas reserved to the Council under r 35.2.5.3. If so, those persons must be notified. Second, whether anyway there should be notification under the Plan.
[36] A consideration of the Council documentation indicates that the relevant Council officer has conflated the statutory entitlement to notice in certain circumstances and the general discretion under the Plan. As I read the papers, he has fairly assessed the situation in terms of his discretion under the Plan and reached a non-notification conclusion that was probably open to him. However, there appears
to have been no proper consideration of the separate statutory provision. This is illustrated by the text of the actual decision which says:
Affected Person Assessment [Sections 95B(1) & 95E] Will the adverse effects of the activity on any person be minor or more than minor (but not less than minor)? (sections 95B(1) and 95E RMA)
█ No ↓ State all relevant reasons in the box below.
Reasons why persons are (or are not) considered to be potentially affected by the activity: the plan identifies that activities that comply with the controlled activity standards need not be notified and may be considered without affected parties. I am of the opinion that the proposal has minor effects on navigation (subject to conditions) and its continuation will have only minor effects on locals, residents, recreational users of the area and seafarers.
(emphasis added)
[37] It can be seen that the standard form directs the decision maker to the correct issue in terms of ss 95B and 95E. But the reasons given by the Council officer for a conclusion the statutory test is not triggered are incorrect. The first sentence in the box appears to be a reference to the discretion under the Plan rather than the statutory requirement. The second sentence says there will in fact be minor effects on locals, residents, and recreational users. “Minor” effects is the statutory trigger and so under s 95B, there had to be notification to those people. The answer should have been “yes”, not “no”.
[38] The respondents initially sought to characterise this reference in the box to “minor” effects as a slip of the pen on the basis that all the other documentation showed the effects being classified as “less than minor”. But closer consideration of the documentation did not support this. For example, in what are his working notes that set out in narrative form his analysis, the Council officer observes:
The effects are for a short term (acknowledged for every year of the consent) in a shallow part of the bay at the head of the bay. Visual and environmental effects are therefore transitory5 and (as stated by the Davison report) minor. Navigation effects have been assessed by the Harbour master as minor. I believe it is therefore appropriate to use my discretion to consider that no party is affected by the continuation of the farm at this site. (emphasis added)
5 Transitory is certainly a debateable assessment given the activity happens every year for
20 years for more than half of each year.
[39] One can see again a recognition of minor effects, the statutory tipping point. The last sentence is a little confusing but best seen as elliptical, and as really meaning that no party is sufficiently affected by continuation of the farm to require notification. It is again, however, an analysis that references to the discretion under the Plan rather than the statutory test.
[40] Finally there is a file note recording a conversation with the legal adviser for the Applicant in which the issue of notification was raised. The Council officer concludes his note of the discussion in these terms:
I believe that the effects of the proposal are minor and adequately managed that a term of 20 years is appropriate.
The key statement is again that there are minor effects.
[41] A conclusion that there has not been a proper consideration or application of ss 95B(2) and 95E is inevitable. The question is what should be done about it.6
Relief
[42] The foregoing discussion suggests notification was required, since there are numerous references in the documentation to minor effects. It is not clear, however, that if the Council officer was properly focussing only on the areas concerning which control is reserved, the conclusion of minor effects would in fact be reached. The flaw I have identified at this stage is that the correct statutory assessment has not been undertaken. I am unclear as to how many of the Applicant’s members would in fact require notification.
[43] It is necessary at this point to digress a little to discuss the scope of the matters which the Council has reserved. In my view, the Applicant has an incorrect view of the matters on which its members can have input. In its evidence the Applicant has suggested the matters on which it would wish to make submissions, include duration, and the insertion of a “need” condition such as originally existed –
that is, that there is a shortage of spat from other sources.
6 Given this conclusion it is unnecessary for me to address another basis for challenging the notification decision, namely that that it was inconsistent with decisions made on other marine farm renewal applications.
[44] I consider the scope for input is much narrower. On its face duration is reserved to the Council by r 32.5.2.3 (see [32](a) above), but the discretion is in fact severely limited by s 123A of the Act which, in this case, effectively mandates a minimum term of 20 years.7 Nor do I consider any of the other areas reserved to the Council allow the addition of a condition that requires the permit holder to demonstrate ongoing need before using the consent. Such a provision not only does not fit within any of the enumerated topics, but it is also the case that these reserved areas cannot be used to negate the consent. The mussel farm is a controlled activity
and consent must be given. The reserved areas must be read in light of that context.
[45] This is not to say there is no scope for input. Conditions requiring the provision of information such as the original condition (q) which the Council unilaterally removed in 2007 would, for example, be possible.
Deferred decision
[46] I have concluded that the Council has not properly considered whether members of the applicant organisation were affected persons within the meaning of the statute, and therefore entitled to notification. I also consider that whilst the scope for any input, if there were affected persons, is much narrower than the applicant considers, it is not without content.
[47] I intend to pause at this point and refer the matter back to the parties. The relief the Court can give is a blunt instrument. It is open to me to quash the consent because of this process flaw (in which case the whole exercise must be done again despite the fact consent must be given and input is restricted). Alternatively, I can in my discretion decline to quash the consent on the basis that in the circumstances it would be a wholly disproportionate response (in which case the residents lose all opportunity to exercise a statutory right of participation). There are other matters touching on the exercise of the discretion which have been raised, such as delay and the importance of public participation. I will address these in the course of that
analysis if necessary.
7 The statute does set out circumstances where a term less than 20 years is possible. I agree with
Mr Hayes what there is no evidence to suggest those circumstances are triggered here.
[48] The season ends at the end of July for six months. I think it preferable to proffer the parties an opportunity to themselves agree a process, having regard to the findings I have made.
Final decision
[49] The parties sought further time for discussion, but ultimately could not agree. I therefore proceed to conclude the now delayed judgment.
[50] The starting point is that I have found there was non-compliance with a statutory obligation to give notice of the consent application to affected persons. That error means that a right to participate in the process has been denied those who should have received notice. The normal response would be to undo the decision so as to allow that participation to occur. In opposing that normal response the Council refers to futility, and the Association to both facility and delay.
[51] As Taylor notes,8 futility is a word that by its very terms mandates a high threshold and there are numerous cautions from high authority about assuming that a proper procedure will not cause anything to change. Further, it is important not to ignore the value in itself that comes from enabling those affected by consents to have their say. That is presumably why s 95B applies even to controlled activities where the consent must be granted (albeit a rule can limit its applicability).
[52] I am satisfied the importance of public participation means there should be relief, but it can be structured so as to avoid any real prejudice to the Association. The key feature here is that if this consent process is quashed, the outcome of the new process will be largely the same – the Association will have still a licence which expires 20 years from its initial grant. What may or may not be different are the conditions that might be attached after public input.
[53] The prejudice the Association identifies relates to its lease contracts with third parties. The lines that make up the farm are leased to Association members, and the respondent says it may have done this differently had it known of the challenge. In that regard although the proceedings took 14 months to be filed, it
does seem the Association was well aware from the outset of the applicant’s
8 G Taylor Judicial Review – A New Zealand Perspective LexisNexis, 3rd ed 2014, at 5.30 ff.
agitation. My assessment is that the proceedings should have been filed earlier but it is not a basis on which to deny relief given the consent runs for 20 years, and is not itself in jeopardy.
[54] As for futility, I accept the scope for conditions is narrow. Such submissions as have been filed more recently suggest to me the applicant remains somewhat blinkered to the limits of this, but the judgment which will guide the Council has made it clear what the limits are. Any consultation will be limited to the matters concerning which control was reserved, and conditions under them must reflect that it is a controlled activity, and therefore cannot effectively negate it.
[55] That said, there is scope for input. For example, the 2007 Review removed, seemingly on the basis of consistency with other consents, some conditions from the original consent. One such condition was an obligation annually to clean the seabed under the farm. I note that the condition of the seabed was a specific matter of concern to the Council officer considering the application. So it cannot be said the process would necessarily be futile.
[56] The various matters discussed, however, lead me to the view that the need to repeat the process should not cause the second respondent to lose a spat catching season. That would be wholly disproportionate to the circumstances of the case, especially since it is inevitable there will be a resource consent.
[57] I propose therefore to quash the consent and direct the Council to apply s 95B to the application. If, as seems likely, there are affected persons, then limited notification is required and the statutory processes must be followed.
[58] I am unaware, however, whether the process can be undertaken and completed in time for the next season. That is an assessment the Council is required to make. If it cannot be done in that time, the decision will take effect from the completion of the next season (31 July 2017). There have already been two seasons under the consent. Given there will be a consent, and given the relatively limited scope for conditions, but recognising the consent will still have 17 seasons to run so providing for public input is far from pointless, I am satisfied that if another season occurs before the process is redone, that would not undermine the success of the proceedings.
Conclusion
[59] The application was correctly processed as a controlled activity.
[60] The process was flawed in that separate consideration of s 95B of the Act was not undertaken, with the probable result that affected persons did not receive notification and an opportunity to participate.
[61] The appropriate relief is to quash the consent and require the process to be taken again. However, this should not occur at the cost of a spat catching season. Accordingly, the Council is required to determine whether the process can be done prior to the 2017 season. In making that assessment it should assume there are affected persons, and they will exercise their rights of participation.
[62] If the process can be completed before the next season this judgment will take effect immediately. If it cannot, the consent will be quashed from
1 August 2017.
[63] Memoranda on costs may be filed if necessary. However, to avoid further expense, I observe there appears little reason why scale costs should not follow the
event.
Simon France J
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