Currie v Palmerston North City Council
[2022] NZHC 2909
•8 November 2022
IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY
I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE
CIV-2022-454-022
[2022] NZHC 2909
UNDER the Resource Management Act 1991 IN THE MATTER
of an appeal against a decision of the Environment Court
BETWEEN
ISOBEL ESTER CURRIE AND BEVAN PHILIP CURRIE
Appellants
AND
PALMERSTON NORTH CITY COUNCIL
First Respondent
TOLLY FARM LIMITED
Second Respondent
Hearing: 7 September 2022 Appearances:
J Maassen and M A Black for Appellants
N Jessen and G Bailey for First Respondent A J Davidson for Second Respondent
Judgment:
8 November 2022
JUDGMENT OF McQUEEN J
[1] This is an appeal against the decision of the Environment Court on 17 March 2022 determining that a valid application for resource consent was made by Tolly Farm Ltd (Tolly Farm).1
[2] The essence of the appellants’ complaint is that as the application was made in the trading name “Soul Friend Pet Cremations” it was not made by a “person” as required under the Resource Management Act 1991 (the Act) and that the Environment
1 Currie v Palmerston North City Council [2022] NZEnvC 32 [Environment Court decision].
CURRIE AND CURRIE v PALMERSTON NORTH CITY COUNCIL [2022] NZHC 2909 [8 November 2022]
Court was not entitled to consider the material attached to the application form to determine the applicant was in fact Tolly Farm. The appellants say that this error cannot be remedied, resulting in the invalidity of the resource consent granted.
[3] The respondents accept that it would have been preferable if the application had described the applicant as “Tolly Farm Ltd, trading as Soul Friend Pet Cremations”.2 However, they say that the Environment Court was correct to conclude that the application was made by Tolly Farm and say that if this Court finds that was not the case, this does not mean the application for resource consent or the consent itself is invalid, rather the error is both capable of remedy and should be remedied by this Court.
Background
[4] Tolly Farm was initially a boarding cattery and kennels business, providing boarding, day care, grooming and vet nurse services for pet owners in the Manawatu area from a property at 94 Mulgrave Street, Ashhurst. The property and the business were purchased by Ms Simone Morrison in 2003 through the S C Morrison Family Trust and run as Tolly Farm since 2009. Ms Morrison is the sole director of Tolly Farm.
[5] The business of Pet and Livestock Cremations Ltd was purchased by Tolly Farm in April 2009 and subsequently rebranded as Soul Friend Pet Cremations. Soul Friend Pet Cremations provides pet and livestock cremation services to vet clinics. This business operated from 80 Tennent Drive, Palmerston North, under an existing resource consent.
[6] The lease over 80 Tennent Drive is due to expire in March 2023. Ms Morrison decided that it made economic sense to build a custom-designed building at 94 Mulgrave Street for the Soul Friend Pet Cremations business. Ms Morrison engaged WSP (a Palmerston North planning consultancy) to prepare applications for necessary resource consents.
2 As Tolly Farm is a duly incorporated company, it is a person under the RMA. “Person” includes “a corporation sole”: see Resource Management Act 1991, s 2.
[7] On 5 March 2021, WSP filed an application with the Palmerston North City Council (the Council) for a resource consent in relation to the operation of the pet cremation business at 94 Mulgrave Street.
[8] The resource consent application was made on the Council’s standard form, pursuant to the Act and the Resource Management (Forms, Fees, and Procedure) Regulations 2003 (the Regulations).3 It is not disputed that the completed application refers to “Soul Friend Pet Cremations” in the contact details section, where the form seeks the applicant’s name and address.
[9] The resource consent application was signed by Ms Dowse, of WSP, and the address for service was Ms Dowse’s email address. The application form requires an Assessment of Environmental Effects (AEE) to be provided. The “Notes” section of the application form said “Please see attached for the AEE”. The AEE is a substantial document with several annexures.
[10] The resource consent application was “limited notified” to the owners of eight neighbouring properties on 28 June 2021 with the submission period closing on 27 July 2021. Six submissions were received, all opposing the proposal. One submission was made by the appellants, Mr Currie and his mother Mrs Currie. Mr Currie and Mrs Currie submitted that the proposal by Soul Friend Pet Cremations should be declined because of a range of concerns:
We oppose this consent on the basis that our land 83 Winchester Street is currently being re-zoned residential and will be most undesirable to have a pet crematorium located at a short distance from residential homes. Aspects of visual, air and noise pollution are of serious concern.
[11] The resource consent application was heard by an Independent Hearing Commissioner and a decision approving the application on conditions was issued on 16 November 2021.
[12] Mr Currie and Mrs Currie appealed against the grant of the resource consent on 6 December 2021. One ground of appeal related to the validity of the grant of the
3 The form prescribed for applying for a resource consent is form 9, found in sch 1 to the Regulations.
resource consent. The Environment Court was asked by the parties to determine the issue as to the validity of the application as a preliminary matter.
[13] On 17 March 2022, the Environment Court concluded that the application for resource consent was a valid application made by Tolly Farm.4 Mr Currie and Mrs Currie have appealed that decision.
Environment Court decision
[14] The Environment Court determined that the application for resource consent was a valid application made by Tolly Farm. The Court concluded that given the evidence before it, it was satisfied that:5
[Tolly Farm] is an existing legal person which has carried out a pet cremation business at Palmerston North under the trading name of Soul Friend Pet Cremations since 2009. [Tolly Farm] was the person who/which sought resource consent to establish that business on the Site.
The identification of the Applicant for resource consent was incorrectly stated in the resource consent application to the Council as being Soul Friend Pet Cremations when it should have been correctly stated as being [Tolly Farm]. Importantly, that incorrect identification was ascertainable from the documents filed with the application itself.
[15] The Environment Court articulated the determinative legal question as whether the application for resource consent was made by a “real” person and concluded that the answer to that question was “yes”.6 The Court found that the correct name of the applicant could be ascertained from a close reading of the documents filed in support of the application and that determining the application to be void would be a significant triumph of form over substance.7
Grounds of appeal
[16]The appellants identified four grounds of appeal in the notice of appeal:
(a)The Environment Court erred in finding the application for a resource
4 Environment Court decision, above n 1.
5 At [10].
6 At [12].
7 At [12]–[13].
consent was a valid application. In particular, the Court erred in:
(i)finding the application for a resource consent was made by a “person”;
(ii)finding that Tolly Farm was the person who applied for the resource consent; and
(iii)failing to consider the definition of “person” within the statutory context;
(b)The Environment Court erred in finding the identification of Tolly Farm could, and should, be ascertained from the documents filed with the application for a resource consent;
(c)The Environment Court erred in law by treating the issue of a trading name being granted for a resource consent as an error of form not substance; and
(d)The Environment Court erred in law in finding that the incorrect statement contained in the application as to the identity of the applicant could be remedied by giving notice pursuant to r 4.54 of the District Court Rules 2014 as this rule gives the Court jurisdiction to amend a “party’s name that is incorrectly stated in pleadings” and a resource consent is not a pleading.
[17]In addition to the granting of the appeal, the appellants seek declarations that:
(a)the application for a resource consent by Soul Friend Pet Cremations dated 5 March 2021 was not a valid application; and
(b)the resource consent granted to Soul Friend Pet Cremations on 16 November 2021 is invalid.
Approach to appeal
[18] Section 299 of the Act provides that decisions of the Environment Court may only be appealed on questions of law. The High Court will interfere with decisions only if it considers the Environment Court:8
(a)applied a wrong legal test; or
(b)came to a conclusion without evidence or one to which, on evidence, it could not reasonably have come; or
(c)took into account matters which it should not have taken into account; or
(d)failed to take into account matters which it should have taken into account.
[19] The error of law must materially affect the result of the Environment Court’s decision before the High Court will grant relief.9
[20]The merits of the case, or findings of fact, may not be revisited on appeal. In
Transpower New Zealand Ltd v Auckland Council, the Court held:10
It is also trite law that this Court must resist attempts by litigants to use an appeal limited to a question of law as an occasion for revisiting the factual merits of the case under the guise of a question of law. Where it is alleged that the court or tribunal below came to a conclusion without evidence, or one to which, on the evidence it could not reasonably have come, the appellant faces a “very high hurdle”. It does not matter that this Court would almost certainly not have reached the same conclusion as the court or tribunal below. What matters is whether the decision under appeal was a permissible option. The appellate court will almost always have to be able to identify a finding of fact which was unsupported by evidence or a clear misdirection in law by the inferior court or tribunal.
8 Countdown Properties (Northlands) Ltd v Dunedin City Council [1994] NZRMA 145 (HC) at 153.
9 At 153, citing Royal Forest and Bird Protection Society Inc v W A Habgood Ltd (1987) 12 NZTPA 76 (HC) at 81–82.
10 Transpower New Zealand Ltd v Auckland Council [2017] NZHC 281 at [54].
[21] The Environment Court is also to be given some latitude in reaching findings of fact within its area of expertise.11
What are the questions of law on appeal?
[22] In their Notice of Appeal, the appellants identify the questions of law to be resolved as:
(a)Was the application for resource consent validly made by a person? More specifically, can a resource consent under the Resource Management Act 1991 be validly granted to a trading name?
(b)If the answer to question (a) is no, can the invalidity be remedied?
[23] The respondents submit that as the Environment Court made a finding of fact that Tolly Farm is an existing legal person and that it was the person who sought the resource consent, this finding cannot be challenged on an appeal on a question of law.12 They also submit that the Environment Court found as a matter of fact that the correct identity of the applicant for the resource consent could be ascertained from the documents that formed part of the application.
[24] The respondents therefore characterise the relevant question of law as whether the Environment Court was entitled to look beyond the name of the applicant as written in the application to confirm that Tolly Farm was the applicant.
[25] They say that if the answer to that question is “yes”, then the Environment Court’s factual finding is determinative. If the answer is “no”, the secondary question of law is whether that invalidity makes the resource consent null or void ab initio. The respondents say the answer to that question is “no”.
[26] I agree that the appellants’ first question is problematic. This is for two reasons. First, the question is underpinned by an assumption that the Environment Court decided that a trading name could meet the test of “personhood” under the Act. This
11 Countdown Properties (Northlands) Ltd, above n 8, at 153.
12 The first and second respondent filed separate written submissions but in oral argument the first respondent expressed its agreement with the submissions made by the second respondent. Many of the arguments made by the two respondents were common. Unless necessary to differentiate between the respondents’ positions, I refer to the respondents jointly.
is not the case. Rather, the Environment Court’s decision was that the applicant was in fact Tolly Farm. Because of its approach, the Environment Court did not need to reach any conclusion about whether a resource consent could be granted to a trading name. The second matter is that the respondents do not rely on an argument that a trading name, on its own, can constitute a “person” as required for an application for resource consent.
[27] Although the appellants’ submissions addressed the argument that a trading name cannot constitute a person under the Act, during the hearing counsel for the appellants accepted that the key issue was whether the Environment Court was entitled to determine the applicant for the resource consent through considering the application in its entirety.13 Accordingly, it is not necessary in this case to reach a conclusion about whether a trading name could constitute a “person” for the purposes of the Act.14
[28] I consider that the Environment Court’s decision that Tolly Farm was the applicant for the resource consent was a mixed finding of fact and law, as it is necessarily premised on the Environment Court’s legal approach to the issue. The Environment Court held that the determinative legal question was whether the application was made by a “real” person and concluded that the answer to that question was “yes”, the application was made by Tolly Farm (whose agent incorrectly used the trading name Soul Friend Pet Cremations on the application form) and that this could be ascertained from a close reading of the documents filed in support of the application.15
[29] Accordingly, I do not consider that the appellants’ first question of law will resolve the matter truly at issue. I do, however, agree with the appellants’ second
13 Although I note that many of the appellants’ arguments about the proper interpretation of the statutory framework relied on in relation to the question about a trading name constituting a “person” were also advanced in relation to the questions of law as I go on to frame them. The appellants also offered several “counterfactual” situations that they submitted would be of concern if a trading name could be granted a resource consent. The respondents disagreed with the implications claimed by the appellants. I have not addressed these matters given the parties did not proceed to argue the case based on a trading name being able to be granted a resource consent.
14 The second respondent advanced an alternative argument that the application was made by WSP, the planning consultant, as agent. Given my later conclusions, it is not necessary for me to consider this argument.
15 Environment Court decision, above n 1, at [12].
question of law although I prefer to phrase it slightly differently, without changing its essence.
[30] Therefore, I consider that the questions of law for determination by this Court are:
(a)Was the Environment Court entitled to look beyond the name of the applicant as written in the application form to all the material provided with the application to determine that Tolly Farm was the applicant? (“First question of law”)16
If the answer to that question is “yes”, the Environment Court has not erred in law and its factual finding that Tolly Farm is the applicant is determinative. If the answer is “no”, the next question must be answered:
(b)Is the resource consent therefore invalid and, if so, can the invalidity be remedied? (“Second question of law”)
First Question of Law: was the Environment Court entitled to look beyond the name of the applicant as written in the application form to all the material provided with the application to determine that Tolly Farm was the applicant?
[31]I consider the first question of law to be the critical issue in this case.
[32] The starting point is that the parties agree that a “person” must apply for a resource consent under the Act. It is also accepted that Tolly Farm, a limited liability company, is such a “person”. In addition, as explained above, no party asserts that the trading name “Soul Friend Pet Cremations” is in itself a “person”.
[33] I turn then to consider the structure of the legislative framework within which the application for resource consent was made. This is necessary because the
16 The appellants argue that the material provided with the application does not reveal that Soul Friend Pet Cremations was just a trading name and that the true identity of the applicant was Tolly Farm. I consider this to be a factual finding by the Environment Court and instead focus on the questions of law as set out above.
appellants argue that the legislative framework cannot be interpreted to allow Tolly Farm to be understood as the applicant for the resource consent and that the Environment Court erred in taking this approach.
[34]Section 88 of the Act is the starting point:
88 Making an application
(1)A person may apply to the relevant consent authority for a resource consent.
…
(2)An application must—
(a) be made in the prescribed form and manner; and
(b) include the information relating to the Activity, including an assessment of the Activity’s effects on the environment, that is required by Schedule 4.
…
[35] “Person” is defined in s 2 of the Act inclusively as “includes the Crown, a corporation sole, and also a body of persons, whether corporate or unincorporate”.
[36] Schedule 4 to the Act is titled “Information required in application for resource consent”. Clause 2 of the Schedule lists the information that an application must include. There is no requirement in this clause to name the applicant for the resource consent. The focus is rather on describing the activity, the site at which the activity is to occur, the name and address of each owner or occupier of the site, a description of any other activities that are part of the proposal to which the application relates, a description of any other resource consents required for the proposal to which the application relates, an assessment of the activity against various matters and an assessment of the activity’s effects on the environment.
[37] Regulation 9 of the Regulations prescribes the form for applying for a resource consent (Form 9). Form 9 begins:
1 I, [full name, full address], apply for the following type(s) of resource consent: …
[38] Notably, reg 9 states that “the forms listed … must generally be followed for the matters set out …” (emphasis added). The Regulations emphasise this flexible approach in reg 4 which provides:
Use of a form is not invalid only because it contains minor differences from a form prescribed by these regulations as long as the form that is used has the same effect as the prescribed form and is not misleading.
[39] Regulation 5 requires that a form must be accompanied by any document that is required to be attached to the application and states that such a document is part of the form (emphasis added).
[40] The appellants submit that the purpose of the prescribed form (Form 9) is to disclose the identity of the applicant. They say that relying on an attachment to the form defeats the purpose of the prescribed form and it is not the function of the prescribed form to refer the reader to another document. Counsel for the appellants accepted at the hearing that reg 5 does mean that the form and attachments are to be regarded together as the application, but he argued that this does not justify ignoring the distinct functions of Form 9 and the AEE. The appellants submit it is insufficient to say the applicant’s identity could be ascertained through carefully scrutinising voluminous documentation supporting the application for resource consent (in effect, they say, looking for a “needle in a haystack”). They say that such an approach is inconsistent with s 88, where subs (1) addresses “who” is applying for the resource consent and subs (2) centres on the “how” of the application, that is, the prescribed form and information relating to the activity, including the AEE.
[41] The appellants say that therefore the Environment Court erred in its constructive approach to determining the identity of the applicant and in finding that Tolly Farm was the “person” that made the application. They do not accept that the Court may take an evaluative approach, rather they say it needs to undertake a careful assessment of the statutory test, reflecting the direction in s 10 of the Legislation Act 2019 as to how to ascertain the meaning of legislation.
[42] I do not accept the appellants’ arguments. Upon looking at the legislative framework as a whole, I agree with the respondents that the correct approach is to regard Form 9 and the attached AEE in their entirety as the application for resource
consent. This is clearly contemplated by the wording of reg 5 and the requirement in s 88(2)(b) that the application include the information relating to the activity, including an AEE, as required by sch 4 (which in itself does not require the naming of an applicant). I have no difficulty in accepting as a matter of statutory interpretation that the application is properly understood as being all the material provided.
[43] Accordingly, I consider that the Environment Court was entitled to take into account information in the application as a whole. It was therefore entitled to conclude that it had the information available to it (even though that material was extensive) to then decide as a matter of fact that Tolly Farm was the person applying for the resource consent.
[44]I nonetheless address the other arguments advanced by the appellants.
[45] The appellants rely on Gertrude’s Saddlery Ltd v Arthurs Point Outstanding Natural Landscape Society Inc to support their position that compliance with forms and regulations is important.17 The Court of Appeal in Gertrude concluded that the proper ambit of an appeal was to be ascertained by reference to what was sought in the notice of appeal. That case related to the need for a notice of appeal to state reasons for the appeal and to set out the relief sought. It was an attempt to argue an appeal on grounds not set out in the notice of appeal. I do not find this case helpful in the present circumstances.
[46] The naming of the applicant in this case has no similar substantive effect. The definition of “person” in s 2 is broad and inclusive. The Environment Court has interpreted s 88(1) as appearing to maximise flexibility as to who may apply for a resource consent, given the wide definition of “person” in s 2.18 Significantly, the Environment Court also concluded that:19
. . . it is important in the scheme of the Act that a legal person is named as the applicant for a resource consent. However, it is not necessarily fatal if, through mistake or ignorance, a non-existent ‘person’ is named as applicant, since there are mechanisms for identifying the real legal person behind such a name.
17 Gertrude’s Saddlery Ltd v Arthurs Point Outstanding Natural Landscape Society Inc [2021] NZCA 398.
18 Re Congreve EnvC Christchurch C29/06, 16 March 2006, at [42].
19 At [45].
[47] I consider that my conclusions on these matters determine the appeal given my characterisation of the questions of law. In case I am wrong in either this conclusion or in the framing of the relevant questions of law, I address the other point raised by the appellants that the absence of a “person” as the applicant for the resource consent makes the resource consent invalid and unable to be remedied.
Second question of law: Is the resource consent therefore invalid and, if so, can the invalidity be remedied?
[48] On the appellants’ approach, the absence of a “person” as the applicant means there is no valid resource consent. They also say that there is no power in the Act to correct this defect. The effect of this approach is that Tolly Farm would have to reapply for a resource consent in relation to its proposed use of 94 Mulgrave Street for its pet cremation business.
[49] There are two parts to this question of law: first, whether providing the incorrect name in the application form makes the resource consent invalid and second, whether, if that is the case, the invalidity is able to be remedied. Given my reframing of the questions of law under appeal, some of the arguments that the appellants made in regard to their first question of law are now more applicable to the second.
An invalid resource consent?
[50] The appellants contend that reg 4 is not available to save the error made in naming the applicant as Soul Friend Pet Cremations—given the error’s misleading nature, the application form and the resource consent are invalid.
[51] The appellants point to s 25 of the Companies Act 1993 as providing a broader legal context supporting their position. Section 25 establishes where liability for a company’s obligations fall when a company’s name is incorrectly stated in a document. The appellants assert that the purpose of s 25 is to ensure that directors entering into obligations on behalf of a company do not mislead or mischaracterise who is responsible for those obligations.20 The appellants submit that the Court’s approach should be coherent across statutes so as to avoid a misleading result.
20 See Rebnik Properties Ltd v Dobbs [2020] NZHC 3494.
[52] I do not find the appellants’ reliance on s 25 of the Companies Act to be helpful to them. Whether or not their interpretation of s 25 is correct, s 25(2) explicitly recognises that a person may still be liable for the company’s legal obligations where the name of the company is incorrectly stated. To the extent that s 25 is relevant at all, this seems to support the respondents’ position, in that s 25 reflects a practical view that errors may be made in naming a company and this, in itself, will not be sufficient to excuse liability for obligations incurred.21
[53] I do not accept that the naming of the applicant for the resource consent was misleading such that reg 4 of the Regulations would invalidate the application form and the subsequent resource consent. The site and its ownership were correctly identified, and a detailed assessment of the proposed activity and its environmental effects provided, as required under sch 4 of the Act. As I noted earlier, cl 2 of that Schedule does not include a requirement that the applicant for the resource consent be named.
[54] The appellants say the Environment Court was wrong to determine that finding the application to be void would be “a significant triumph of form over substance”. They submit that compliance with the Act and its regulations, as well as the obligations in s 25 of the Companies Act 1993, is more than a technicality and has the effect of undermining the proper administration of the Act. They further say that this argument does not depend on them showing that they suffered any prejudice.
[55] The respondents submit that general resource management practice is to favour substance over form, and to provide opportunities to correct errors if that can be done without unduly prejudicing others. They accept that some failures cannot be remedied but say that failures that have no implications for the statutory process in terms of notification, submissions, hearing and appeal rights do not fall within that sphere.
21 The appellant also referred me to Rabobank New Zealand Ltd v StockCo Ltd [2010] NZCCLR 25. This case concerns provisions in the Personal Property Securities Act 1999 (PPSA) which provide that a seriously misleading defect in the name of any debtor to be included in a financing statement affects the validity of its registration. I do not consider this a helpful comparator here. The requirement that a resource consent applicant provide their name in the resource management context is significantly different from situations under the PPSA where the name of the debtor is necessary in order for the security interest to be identified and accordingly the consequences may be far more severe: see Gault on Commercial Law (online ed, Thomson Reuters) at [PPS150.01].
[56] I agree with the Environment Court’s concern about form triumphing over substance. I take account of the well-established position that general resource management practice is to favour substance over form in terms of whether there has been compliance with statutory requirements:22
As a matter of common practice the Environment Court generally takes a robust and practical approach to compliance issues and makes wide use of its powers to regulate its own procedures [under s 269(1)] and to grant waivers [s 281].
[57] The Court of Appeal has held that it is undesirable that the law relating to resource consent applications should descend unnecessarily into procedural technicalities:23
[…] The exact form of an application is not determinative although it must suffice to put before the consent authority the matters which it is required to consider and decisions must be made on them. An application can include incidental matters which may technically require separate consents. The consents given will be valid notwithstanding deficiencies in the form of the application, provided that appropriate procedures are followed, including notification where necessary, and the substance of the matter is properly considered. It is undesirable that the law relating to resource consent applications should descend unnecessarily into procedural technicalities. Substance is to be preferred to form.
[58] I also do not accept the appellants’ submission that given the absence of an express power in the Act for a defect to be corrected, the proper outcome is that the resource consent is of no effect. This is contrary to the Court’s well-established approach to dealing with technical defects, as outlined by Cooke J in A J Burr Ltd v Blenheim Borough Council:24
When a decision of an administrative authority is affected by some defect or irregularity and the consequence has to be determined, the tendency now increasingly evident in administrative law is to avoid technical and apparently exact (yet deceptively so) terms such as void, voidable, nullity, ultra vires. Weight is given rather to the seriousness of the error and all the circumstances of the case. Except perhaps in comparatively rare cases of flagrant invalidity, the decision in question is recognised as operative unless set aside. The determination by the Court whether to set the decision aside or not is
22 Rider v Manawatu-Wanganui Regional Council (2009) 16 ELRNZ 13 (EC) at [47] (footnotes omitted).
23 Body Corporate 97010 v Auckland City Council [2000] 3 NZLR 513 (CA) at [50] (citation omitted).
24 AJ Burr Ltd v Blenheim Burrough Council [1980] 2 NZLR 1 (CA) at 4. See also Yang v Minister of Internal Affairs [1998] 1 NZLR 309 (HC) at 318; and Re Congreve, above n 18, at [40], citing Murray v Whakatane District Council [1999] 3 NZLR 276 (HC) at 320.
acknowledged to depend less on clear and absolute rules than on overall evaluation; the discretionary nature of judicial remedies is taken into account.
[59] I endorse this approach to favouring substance over form in the current circumstances. To accept the appellants’ submissions in the context of this case would in my view amount to unnecessarily permitting procedural technicalities to override the bigger picture. Nor do I agree that the proper administration of the Act is undermined by the Environment Court’s approach. I consider that the Environment Court properly interpreted the Act including its implicit reliance on its powers under s 269(1) to regulate its own proceedings as it thinks fit.
[60] If I had concluded that the Environment Court erred in taking into account the resource consent application in its entirety to conclude as a matter of fact that the applicant was Tolly Farm, I would have found that the error did not have the effect of making the application (and therefore the resource consent) invalid.25
[61] The approach I have adopted is similar to that taken by the Environment Court in Re Congreve, where issues arose about the absence of a legal person as applicant for a resource consent. The Environment Court found that the appeal in that case should not fail for want of a proper appellant when there is a proper party behind the non-existent (in that case) appellant.26 In reaching this conclusion the Environment Court relied upon the statement in Marsh v Wanganui District Council that:27
… the Environment Court does not concern itself with technicalities over the identity of parties, including applicants, so long as at the time of hearing there is an identifiable legal person who can be held responsible for that party or person’s case.
[62] Counsel for the appellants at the hearing suggested that there was no entity against which the appellants could enforce any conditions of the resource consent, but I do not accept this is the case in light of Ms Morrison’s evidence explicitly accepting responsibility on behalf of Tolly Farm. Any conditions on the resource consent will be
25 No point was taken by any of the parties as to the particular language to be used to describe the resource consent as invalid, null and void ab initio, and so on. For simplicity’s sake, I prefer to refer to the resource consent being “invalid”.
26 Re Congreve, above n 18, at [53].
27 At [53], citing Marsh v Wanganui District Council EnvC Christchurch C212/2000, 19 December 2000 at 4.
enforceable against Tolly Farm, given Ms Morrison’s commitment. The first respondent confirmed that this was also its understanding of the position. I understand that the appellants have appealed against substantive aspects of the resource consent and that (at least at the date of the hearing before me) these remain to be resolved.
[63] I conclude that finding the resource consent invalid would be disproportionate in the circumstances of this case and that it is unnecessary to set it aside. I note specifically that the first respondent, as the relevant regulatory authority, recorded its interest in good administration of the resource consent process but nonetheless did not accept the appellants’ position. It would be wrong in my view to disregard the particular circumstances of this case and I do not accept the appellants’ submission that I should ignore the background to this matter on the basis that the appeal is made on the grounds that the administration of the Act should not be undermined as a matter of principle.
[64] No benefit has accrued to Tolly Farm through the use of the trading name in the application (in fact, given this proceeding, the opposite has occurred). The use of the trading name did not have the effect of misrepresenting the activity for which the resource consent was sought and there has been no prejudice to those identified as affected persons, in particular as to their ability to make a submission or to pursue an appeal. Indeed, the appellants have suffered no detriment from the naming of Soul Friend Pet Cremations as the applicant; they were notified about the application for resource consent as they are neighbours of 94 Mulgrave Street, they made submissions opposing the application and they have now appealed to both the Environment Court and High Court. There is no evidence that anyone was misled in fact or that prejudice has been suffered.
[65] On the other hand, if Tolly Farm had to make a new application for resource consent at 94 Mulgrave Street, it is possible that the process could not be completed before the expiry of its lease at its current pet cremation premises in March 2023. It seems to me to be a futile exercise to make Tolly Farm recommence this process, with the potential delay and prejudice to it, given that there would be no change to the relevant substantive matters and the same decision in granting the resource consent is therefore almost inevitable. Requiring that the defect be rectified by a new resource
consent application would be a disproportionate and unreasonable response in the circumstances.
Could any invalidity be remedied?
[66] The appellants argue that the Environment Court was wrong to accept that it was sufficient to notify the appellants of the change of name of the applicant in reliance on r 4.54 of the District Court Rules as that rule relates only to changing a party’s name that is incorrectly stated in pleadings. While I agree with the appellants’ interpretation of r 4.54, I do not consider that the Environment Court used this rule to change the name of the applicant, as they assert. On my reading of the judgment, the Environment Court was simply accepting that it was appropriate to change the name of the party involved in the appeal to Tolly Farm, given that it reflected the Environment Court’s decision about the true applicant. The Environment Court held that this change to a party’s name can be made in the proceeding. It was not suggesting a retrospective change to the name of the applicant for the resource consent.
[67] There can be no objection to this in light of the Environment Court’s decision, and now my decision, that the applicant can be properly understood as Tolly Farm. It also ensures that, should the situation arise, Tolly Farm will be bound by any Environment Court order including any order as to costs.
[68] Given my conclusion, I do not need to address whether any ‘invalidity’ in the application and subsequent resource consent can be remedied (that is, the name of the applicant on the resource consent corrected) by s 46 of the Legislation Act 2019, as submitted by the respondents. I doubt such a step is necessary and note that this is also the first respondent’s preferred position. I agree that the practical steps proposed by the first respondent (to record a file note and hold the Environment Court decision and this Court’s decision on its file) will be sufficient to clarify the situation and ensure that it is readily apparent to the Council and third parties accessing the Council’s files that the relevant entity holding the resource consent is Tolly Farm.
Conclusion
[69] Accordingly, I find that the Environment Court did not err in finding that it was permissible for it to consider the whole of the application for the resource consent, that is, including the supporting documentation, in ascertaining the applicant for the resource consent was Tolly Farm.
[70] If I am wrong in that decision, I find that the error in naming the applicant for the resource consent does not invalidate the resource consent.
Result
[71]The appeal is dismissed.
Costs
[72] Costs are reserved but I can see no reason why they would not follow the event. If counsel are unable to agree, submissions should be filed as follows:
(a)Memorandum by the respondents, no longer than five pages, within 10 working days of the date of this judgment.
(b)Memorandum by the appellants, no longer than five pages, within five working days of receipt of the respondents’ memoranda.
(c)Any memoranda in reply by the respondents within five working days of receipt of the appellants’ memorandum.
[73]I will then make a decision on costs on the papers.
McQueen J
Solicitors:
Willis Legal, Napier for Appellants
Cooper Rappley Lawyers, Palmerston North for First Respondent Jacobs Florentine, Palmerston North for Second Respondent
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