Foodstuffs (South Island) Limited v Queenstown Lakes District Council

[2013] NZHC 1552

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CIV-2012-425-000405
CIV-2012-425-000514

CIV-2012-425-000515 [2013] NZHC 1552

UNDER  the Resource Management Act 1991

IN THE MATTER OF       appeals under s 380 of the Act

IN THE MATTER OF       decisions of the Environment Court [2012] NZEnvC 135 and 177 and decisions of the High Court in CIV-2012-425-000405, 514 and 515

BETWEEN  FOODSTUFFS (SOUTH ISLAND) LIMITED

Applicant for leave to appeal

CROSS ROADS PROPERTIES LIMITED

Applicant for leave to appeal

ANDQUEENSTOWN CENTRAL LIMITED Opponent to applications for leave to appeal

ANDQUEESTOWN LAKES DISTRICT COUNCIL

Respondent Council

SHOTOVER PARK LIMITED Interested Party

Hearing:                   24 June 2013 (On the papers)

Counsel:                  N Soper and J Crawford for Foodstuffs (South Island) Limited J Gardner-Hopkins and E Matheson for Queenstown Central Limited

T Ray and J MacDonald for Queenstown Lakes District Council

Judgment:                24 June 2013

FOODSTUFFS (SOUTH ISLAND) LIMITED v QUEENSTOWN CENTRAL LIMITED [2013] NZHC 1552 [24 June 2013]

JUDGMENT OF FOGARTY J

[1]      Foodstuffs  (South  Island)  Limited  (Foodstuffs)  seeks  leave to  appeal  the decision Queenstown Central Limited v Queenstown Lakes District Council.[1]   Cross Roads Properties Limited (Crossroads) seeks leave to appeal Queenstown Central Limited v Queenstown Lakes District Council.[2]

[1] Queenstown  Central  Limited  v  Queenstown  Lakes  District  Council  [2013]  HZHC  815 (Foodstuffs).

[2] Queenstown Central Limited v Queenstown Lakes District Council [2013] NZHC 817 (Cross Roads).

[2]      During the hearing of both appeals, I advised that I would be minded to grant leave to appeal, whatever the outcome, because of the issue raised in both appeals as to the general application of [84] of the decision of the Court of Appeal in Queenstown Lakes District Council v Hawthorn Estate Limited[3]:

[84]     In summary, we have not found, in any of the difficulties Mr Wylie has referred to, any reason to depart from the conclusion which we have reached by considering the meaning of the words used in s 104(1)(a) in their context. In our view, the word “environment” embraces the future state of the environment as it might be modified by the utilisation of rights to carry out permitted activity under a district plan. It also includes the environment as it might be modified by the implementation of resource consents which have been granted at the time a particular application is considered, where it appears likely that those resource consents will be implemented. We think Fogarty J erred when he suggested that the effects of resource consents that might in future be made should be brought to account in considering the likely future state of the environment. We think the legitimate considerations should be limited to those that we have just expressed. In short, we endorse the Environment Court’s approach. Subject to that reservation, we would answer question 1(a) in the negative.

[3] Queenstown Lakes District Council v Hawthorn Estate Limited [2006] NZRMA 424 (CA)

[3] In both decisions of the High Court, I did not apply [84]. Rather, I applied the earlier analysis in the judgment of the Court of Appeal, finding that the word “environment” as it appears in s 104D and elsewhere in the Act, including its definition in s 2, includes future environment. I relied on a number of paragraphs in Hawthorn, but it is sufficient to start with the first paragraph I relied on, [42]:

[42]      Although there is no express reference in the definition to the future, in a sense that is not surprising. Most of the words used would, in their

ordinary usage, connote the future. It would be strange, for example, to construe “ecosystems” in a way which focused on the state of an ecosystem at any one point in time. Apart from any other consideration, it would be difficult to attempt such a definition. In the natural course of events ecosystems and their constituent parts are in a constant state of change. Equally, it is unlikely that the legislature intended that the enquiry should be limited to a fixed point in time when considering “the economic conditions which affect people and communities”, a matter referred to in paragraph (d) of the definition. The  nature of the concepts involved  would  make  that approach artificial.

[4]      Until  recently,  the  successful  party,  Queenstown  Central  Limited,  has opposed grant of leave to appeal.   Following discussions, the parties have now agreed the framing of the questions and potential marrying of the issues subject to the applications for leave to appeal.

[5]      I have received a joint memorandum of counsel dated 24 June 2013.

[6]      Accordingly, leave is granted to appeal both decisions on the questions of law as reframed in that joint memorandum of counsel dated 24 June 2013.

Solicitors:

Anderson Lloyd, Queenstown

Macallister Todd Phillips, Wanaka

Russell McVeagh, Wellington