Gertrude's Saddlery Ltd v Arthurs Point Outstanding Natural Landscape Society Inc
[2021] NZCA 398
•24 August 2021
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA120/2021 [2021] NZCA 398 |
| BETWEEN | GERTRUDE’S SADDLERY LIMITED |
| AND | ARTHURS POINT OUTSTANDING NATURAL LANDSCAPE SOCIETY INCORPORATED |
| AND | QUEENSTOWN LAKES DISTRICT COUNCIL |
| AND | LARCHMONT DEVELOPMENTS LIMITED |
| CA121/2021 | ||
| BETWEEN | ARTHURS POINT OUTSTANDING NATURAL LANDSCAPE SOCIETY INCORPORATED | |
| AND | GERTRUDE’S SADDLERY LIMITED | |
| AND | LARCHMONT DEVELOPMENTS LIMITED | |
| AND | QUEENSTOWN LAKES DISTRICT COUNCIL | |
| Court: | Cooper and Brown JJ |
Counsel: | M E Casey QC and M A Baker-Galloway for Gertrude’s Saddlery Limited and Larchmont Developments Limited |
Judgment: | 24 August 2021 at 2 pm |
JUDGMENT OF THE COURT
AWe extend the time for making the application for leave to appeal by Arthurs Point Outstanding Natural Landscape Society in CA121/2021.
B The application for leave to appeal in CA120/2021 is declined.
C The application for leave to appeal in CA121/2021 is declined.
D We make no order as to costs.
____________________________________________________________________
REASONS OF THE COURT
(Given by Cooper J)
These are two applications for leave to appeal to this Court under s 308 of the Resource Management Act 1991 (the Act). The applications relate to two different decisions of the High Court[1] and give rise to different issues, but they arise out of provisions of the proposed district plan of the Queenstown Lakes District Council (the Council) relating to the same locality. This common context makes it convenient to deal with both applications in one judgment.
[1]Gertrude’s Saddlery Ltd v Queenstown Lakes District Council [2020] NZHC 3387 [Dunningham J judgment]; and Gertrude’s Saddlery Ltd v Arthurs Point Outstanding Natural landscape Society Incorporated [2021] NZHC 147 [Clark J judgment].
In the discussion which follows we refer to the application by Gertrude’s Saddlery Limited (GSL) as the “GSL application” and to the application by Arthurs Point Outstanding Natural Landscape Society Incorporated (APS) as the “APS application”.
The APS application was accompanied by an application for an extension of time to file it. The application for leave to appeal was filed 34 working days late, but the circumstances have been satisfactorily explained and an extension of time is not opposed. We therefore grant the application to extend the time for filing the application for leave to appeal.
Queenstown Lakes proposed district plan proceedings
Both the APS and the GSL applications have to be assessed against a reasonably complicated procedural background which has to be explained to place the issues we need to address in context.
The proposed district plan provisions relevant to the proposed appeals affect land in the Wakatipu Basin at Arthurs Point, and in particular an area known as the Shotover Loop. It contains two properties owned by GSL and Larchmont Developments Limited. Those companies lodged submissions against proposed district plan provisions notified by the Council in August 2015 zoning their land rural. They sought that it be zoned “low density residential” instead. They also sought alteration of the provisions delineating the urban growth boundary (UGB) around the existing settlement at Arthurs Point. Further, GSL sought removal of the classification of the part of its property as Outstanding Natural Landscape (ONL).
In its decisions on submissions, the Council inserted a new boundary line excluding both the existing Arthurs Point settlement and a proposed extension to it from the ONL classification. The new ONL boundary also excluded the Shotover Loop from the ONL classification. In addition, the Council altered the zoning of the land in the Shotover Loop from rural to “low density residential”. The urban growth boundary at Arthurs Point was extended to include the Shotover Loop. There was no appeal to the Environment Court directly challenging those decisions.
However, an appeal was filed against the proposed district plan by Upper Clutha Environmental Society Incorporated (Upper Clutha).[2] Upper Clutha had made a submission on the proposed district plan seeking that “landscape lines” in the proposed district plan be removed because they were not credible. The submission also sought retention of all provisions of the operative district plan that applied or in any way related to the ONL of the Wakatipu Basin in the same form as in the operative district plan.[3] In Dunningham J’s judgment, she explained the Upper Clutha submission was broad enough to be regarded as opposed to incorporation of the new ONL boundary lines in the proposed district plan for the purpose of excluding land from an existing ONL, as had happened in the case of the Shotover Loop.[4]
[2]Upper Clutha Environmental Society Inc v Queenstown Lakes District Council [2019] NZEnvC 176 [Environment Court decision].
[3]At [16].
[4]Dunningham J judgment, above n 1, at [36].
In its appeal to the Environment Court, Upper Clutha maintained the position that the landscape lines shown on the operative district plan maps should be repeated in the proposed district plan. It sought that the proposed district plan should reflect the fact that there was sufficient land already zoned for residential purposes to satisfy population growth until at least 2048, without the need to provide for any additional residential activity in the rural zone. However, the notice of appeal was narrower than the original submission and made no express reference to Arthurs Point or the decisions made in respect of the Shotover Loop.[5]
[5]At [37]–[41]. Dunningham J discussing the scope of the appeal to the Environment Court.
APS, which had been formed after the closing date for submissions on the proposed district plan, lodged a notice under s 274(1)(d) of the Act, thereby becoming a party to Upper Clutha’s appeal despite there being no specific mention of Arthurs Point or the decisions that the Council had made in respect of the Shotover Loop. Further particulars of the relief sought were given in interlocutory processes in the Environment Court. The Environment Court noted that the particulars given apparently eschewed any claim for relief in respect of the Arthurs Point area.[6] However the Court also held that the further particulars of relief were irrelevant to APS’s reliance on the original appeal because they were provided after APS had joined the appeal.[7]
[6]Environment Court decision, above n, 2, at [20].
[7]At [20].
The Environment Court held that Upper Clutha’s notice of appeal had raised the issue of the proper location of the ONL boundary in the vicinity of Arthurs Point and that APS was entitled to seek pursuant to its s 274 notice a different ONL boundary including the Shotover Loop within it. The Court also considered that the Upper Clutha appeal was wide enough to enable the Court to consider whether the Shotover Loop should be excluded from the area identified for urban growth and changed back to rural.[8]
[8]Environment Court decision, at [48].
In summary, the Environment Court construed the Upper Clutha appeal as having raised the issue of the proper location of the ONL boundary in the vicinity of Arthurs Point, and as seeking the reversal of the rezoning of rural land as residential. This meant that APS could seek a different ONL boundary and zoning for the Shotover Loop.
GSL then appealed to the High Court. Dunningham J held that the Environment Court erred in law when concluding that the Society could use its s 274 notice to seek a different ONL and classification on the Shotover Loop. She summarised the errors as being:[9]
(a)it relied on the breadth of the Upper Clutha submission, rather than the notice of appeal to find scope to seek removal of a new ONL boundary line;
(b)it relied on the irrelevant consideration of perceived fairness to the parties to reach this decision; and
(c)it incorrectly applied the test for whether the consequential relief sought by the [APS] was available should the new ONL around the Shotover Loop be deleted.
[9]Dunningham J judgment, above n 1, at [110].
Rather than sending the matter back to the Environment Court for further consideration, the Judge determined that the appropriate course to follow was reversal of the Environment Court’s decision. She set aside that Court’s decision and made the following rulings:[10]
(a)The notice of appeal by the Upper Clutha Environmental Society Incorporated does not raise the issue of the proper location of the Outstanding Natural Landscape boundary in the vicinity of Arthurs Point generally;
(b)The Upper Clutha Environmental Society Incorporated appeal does not seek, either directly or consequentially, that the rezoning by decisions of the hearing committee of the land zoned rural in the Proposed District Plan (Notified) be reversed and the zoning returned to rural; and, accordingly
(c)The Arthurs Point Outstanding Natural Landscape Society Incorporated may not use its s 274 notice on the Upper Clutha Environmental Society Incorporated’s appeal to seek a different outstanding natural landscape boundary and classification on the properties at 111 and 163 Atley Road.
[10]At [114].
In the other High Court judgment before us, Clark J determined appeals against a different decision of the Environment Court, given in Arthurs Point Outstanding Natural Landscape Society Inc v Queenstown Lakes District Council.[11] That Environment Court decision was given on an application by APS for an enforcement order under s 314(1)(f) of the Act, based on a claim that the Council had not complied with its obligations arising under cl 7 of sch 1 of the Act in publishing a summary of decisions requested by persons making submissions on the proposed district plan. The dispute in this case concerns the adequacy of the summary given by the Council of the submissions made by GSL and Larchmont as to the content of the proposed district plan as publicly notified, for the Shotover Loop.
[11]Arthurs Point Outstanding Natural Landscape Society Inc v Queenstown Lakes District Council [2019] NZEnvC 150.
In its application to the Environment Court, APS sought orders requiring the Council to renotify the summary of the changes to the plan on the basis that it was not fair or accurate and was misleading. It was claimed that the summary did not sufficiently alert members of the public to what had been sought by GSL and Larchmont, and had not been organised in a way that enabled interested persons to understand what part of the plan or geographical location to which the submissions were directed.
The Environment Court held that the Council’s summary of the GSL submission, while accurate on its face, was in fact “very misleading”.[12] The summary of the Larchmont submission was “insufficiently accurate”, because it was not clear as to the area in Arthurs Point to which the submission referred.[13] The Environment Court concluded that the Council had not complied with cl 7 and ordered the Council to renotify a summary of decisions requested by GSL and Larchmont.
[12]At [107].
[13]At [103].
There were three appeals from the Environment Court decision, by GSL, Larchmont and the Council. For reasons which she gave, Clark J dismissed the appeals. She gave this summary of the result:[14]
[14]Gertrude’s Saddlery Limited v Arthurs Point Outstanding Natural Landscape Society Incorporated [2021] NZHC 147 at [147].
[147] For the foregoing reasons, each of the parties’ questions of law (set out below), is answered “no”.
Council’s Question 1: Did the Court apply the wrong legal test in its interpretation of and approach to clause 7 of Schedule 1?
Council’s Question 2: Did the Court err in law by misconstruing the role and purpose of the clause 7 requirement to publicly notify a SDR?[15]
Council’s Question 3: Did the Court reach a conclusion that no reasonable decision-maker could have reached when determining that the Council’s SDR was “unfair and misleading”?
Council’s Question 4: Did the Court err by taking into account a range of matters and considerations which were either immaterial, or irrelevant, to [APS’s] application?
GSL/Larchmont’s Question 1: Did the Environment Court apply a wrong test when determining whether the Council complied with the requirements under cl 7 of sch 1 of the RMA?
GSL/Larchmont’s Question 2: In reaching the conclusions identified at paragraphs 8(a) to 8(f) of the notice of appeal, did the Environment Court err in reaching conclusions no reasonable decision-maker could have reached?
GSL/Larchmont’s Question 3: Did the Environment Court err in finding that [the Council] did not comply with the requirements under clause 7 of [s]ch 1 of the RMA? Was the Environment Court’s decision unreasonable in that, on the evidence, it was a decision no reasonable decision maker could have reached?
GSL/Larchmont’s Question 4: Was it an error of law for the Environment Court to take into consideration the matters identified in paragraphs 12(a) to 12(f) of the notice of appeal in determining whether the SDR was “fair, accurate and not misleading” and whether the [the Council] complied with the requirements under clause 7 [s]chedule 1 RMA?
GSL/Larchmont’s Question 5: Was it an error of law for the Environment Court to reach the conclusion that the online rezoning map was not reasonably accessible on [the Council’s] website during the further submission period in December 2015? In particular, did the Environment Court reach a conclusion which on the evidence it could not reasonably come to?
(Footnote added.)
Second appeals
[15]The Judge used the letters SDR as shorthand for the summary of decisions requested by persons making submissions on a proposed plan under cl 7 of sch 1 of the Act.
The Act provides for second appeals to this Court at s 308(1). It does so by adopting subpt 8 of pt 6 of the Criminal Procedure Act 2011. That includes s 303 which provides:
303 Right of appeal against determination of first appeal court
(1) A party to a first appeal under this subpart may, with the leave of the second appeal court, appeal under this subpart to that court against the determination of the first appeal.
(2) The High Court or the Court of Appeal must not give leave for a second appeal under this subpart unless satisfied that—
(a) the appeal involves a matter of general or public importance; or
(b) a miscarriage of justice may have occurred, or may occur unless the appeal is heard.
As can be seen, this Court must not give leave for a second appeal unless satisfied that the appeal involves a matter of general or public importance or a miscarriage of justice may have occurred or may occur unless the appeal is heard. As will generally be the case, the miscarriage ground has no relevance here where the context is not criminal.[16] Because the appeal is a second appeal, and an appeal to the High Court from the Environment Court is limited to questions of law,[17] it is axiomatic that any subsequent appeal to this Court must also be a on question of law.
[16]SKP INC v Kennedy Point Boatharbour Ltd [2020] NZCA 610 at [25] citing Tan v Chief Executive, Ministry of Social Development [2017] NZCA 369 at [8]–[10].
[17]Resource Management Act 1991, s 299(1).
But it is not sufficient simply to state a question of law. The question must be one which is capable of bona fide and serious argument. That was confirmed in the context of resource management appeals by this Court’s judgment in Te Whare O Te Kaitiaka Ngahere Incorporated Society v West Coast Regional Council.[18] So the controlling qualifications for a second appeal are that it involves a question of law capable of bona fide and serious argument, and that it must be of general or public importance.
[18]Te Whare O Te Kaitiaka Ngahere Inc Society v West Coast Regional Council [2015] NZCA 356 at [23].
For reasons which we will address we are not satisfied that leave should be granted for either of the applications.
The APS application
The APS application seeks leave to appeal against Dunningham J’s judgment.[19] APS proffers four questions of law:
a. Did the High Court err in determining that the Notice of Appeal (Appeal) by the Upper Clutha Environmental Society Incorporated (Upper Clutha) had a narrower scope than the Environment Court has previously determined?
b. Did the High Court err in determining the Environment Court came to a conclusion, on scope, no reasonable decision-maker could come to?
c. Did the High Court err in determining the case-management memoranda filed by Upper Clutha on 12 and 31 August 2018 were both relevant and confirmatory of its approach to determining the scope of the Appeal?
d. Did the High Court err in deciding the Appeal did not provide scope for a rezoning of the Shotover Loop land – either directly or consequentially?
[19]Dunningham J judgment, above n 1.
In support of the application for leave to appeal, Ms Limmer submits that the proposed appeal raises important questions of law of significance beyond the circumstances of this case. The questions concern how the scope of an appeal under the Act is properly determined; what contextual guides to interpretation are relevant when ascertaining the scope of such an appeal; “[h]ow the scope of permissible, consequential amendments from (sic) an appeal should be determined” and “[w]hether or to what degree a Court can take account of “fairness” when discerning the scope of an appeal under the [Act]”.
GSL opposes the APS application. It asserts that the APS application is not seriously arguable and raises no question of law of general or public importance. Mr Casey QC submits that the only question of law of potential importance is whether recourse should be had to a party’s originating document when determining the scope of that party’s appeal. He submits that proposition is untenable. The other issues sought to be raised by APS are specific to the circumstances of the case and have no precedent or other importance.
The questions proposed do not in our view raise issues of law of general or public importance nor are they seriously arguable. The proper ambit of a notice of appeal is a matter to be ascertained by reference to what is sought in the notice of appeal. Clause 14(4) of sch 1 requires that appeals against a decision made on a submission to a proposed district plan be in a form that is prescribed by reg 5 of the Resource Management (Forms, Fees, and Procedure) Regulations 2003. The form (form 7) requires the appellant to identify the decision appealed against, and state the reasons for the appeal and the relief sought. The form requires the appellant to “give precise details” of the latter. An examination of these elements of the notice of appeal in combination should be sufficient to establish the proper scope of the appeal and what is sought by it.
The Environment Court’s power in disposing of an appeal is set out in s 290 of the Act. The power given by s 290(2) is to “confirm, amend, or cancel a decision to which an appeal relates”. That requires a focus on the relief sought in the appeal, not some other document. And if an appellant clarifies the extent of the relief it is seeking, as happened here when Upper Clutha confirmed that it was not seeking relief in relation to the Arthur’s Point area, that limits the scope of the appeal. A party whose participation in the proceeding is derived from s 274 cannot seek to widen the ambit of the appeal. The notice required to be given by s 274(2) must state, among other things, “whether the person supports or opposes the proceedings” (s 274(3)(b)), and the right of the s 274 party to appear and call evidence (s 274(4)), provided the evidence is “within the scope of the appeal” (s 274(4B)). In this case, the s 274 notice was given before Upper Clutha made it clear that its appeal did not seek relief in relation to the Arthur’s Point area. Although its original submission was wider in scope it is the appeal that defines the possible outcomes in the Environment Court, not the original submission. We are satisfied Dunningham J made no arguable error in her judgment in this issue.
The various questions proffered by APS all turn on this issue, albeit couched in different terms. To the extent they are couched with reference to the particular circumstances of this case we do not consider that they are questions of general or public importance.
The GSL application
The focus of GSL’s intended appeal against the judgment of Clark J is on the test to be applied in assessing the adequacy of the summary of decisions requested by submitters under cl 7 of sch 1 of the Act. GSL seeks to argue that the High Court wrongly endorsed the approach taken by the Environment Court and in so doing failed to adopt the approach which should have been taken namely to ask whether the summary of decisions requested was “fair, accurate and not misleading”.
Mr Casey argued that the Courts below had wrongly conflated the test to be applied under cl 7 with that which applies under cl 10 of sch 1, when the local authority considers what may be “reasonably and fairly” raised by submissions in deciding whether to accept or reject them.[20] He claimed the High Court had created a new obligation requiring councils under cl 7 to inquire into the “unarticulated intention” of a submitter and the relief “implicitly” sought. He contended that the approach upheld by the High Court would result in a significant and burdensome extension of the established test applicable under cl 7, effectively requiring councils when publicly notifying submissions to anticipate the range of possible outcomes of them before consideration has been given to how the submissions should be resolved under cl 10. This would make it more difficult for councils to comply with their obligations in preparing a summary under cl 7.
[20]Countdown Properties (Northlands) Ltd v Dunedin City Council (1994) 1B ELRNZ 150 at 171; [1994] NZRMA 145 at 166.
In opposing GSL’s application for leave to appeal Ms Limmer for APS submits that the approach of the High Court was correct, and the outcome was the result of the application of an orthodox approach to the facts of the case. Nor did the High Court wrongly conflate the approach required under cl 7 with that required under cl 10.
Section 73(1A) of the Act provides that a district plan may be changed in the manner set out in the relevant part of sch 1. Here, the relevant part is pt 1 of sch 1. Clause 5 of that part of the schedule provides for public notification of a proposed new plan or plan change. Clause 6 confers broad rights on persons to make a submission on the proposed plan.
The prescribed form of a submission, form 5 of the Resource Management (Forms, Fees and Procedures) Regulations 2003 requires that a submission on a proposed plan refer to the specific provision to which the submission relates and must explain what decision is sought from the local authority on the submission, giving “precise details”. It is these decisions sought that must then be summarised by the Council under cl 7 of sch 1.
Clause 7 relevantly provides:
7 Public notice of submissions
(1) A local authority must give public notice of—
(a) the availability of a summary of decisions requested by persons making submissions on a proposed policy statement or plan; and
(b) where the summary of decisions and the submissions can be inspected; and
(c) the fact that no later than 10 working days after the day on which this public notice is given, the persons described in clause 8(1) may make a further submission on the proposed policy statement or plan; and
(d) the date of the last day for making further submissions (as calculated under paragraph (c)); and
(e) the limitations on the content and form of a further submission.
(2) The local authority must serve a copy of the public notice on all persons who made submissions.
…
Clause 8 contemplates further submissions by persons representing a relevant aspect of the public interest, or persons who have an interest in the proposed policy statement or plan greater than the interest of the public generally. Mr Casey submits, that the purpose of publicly notifying the summary of decisions requested under cl 7(1)(a) is to give persons with a right to make a further submission notice of what has been requested so that they may be alerted of a need to read a relevant submission and ascertain whether it would be in their interests to make a further submission.
That submission was based on a passage on which Mr Casey relied in Re An Application by Christchurch City Council the Environment Court said:[21]
15. In relation to the general requirements for notification we agree with the definitions of “summary” given in Wellington City Council v Cowie that it is “a concise statement of the main points…”. We hold that the summary of decisions requested must be “fair and accurate and certainly not misleading”: to adopt the phrase in Hodge v Christchurch City Council. It must be sufficient to alert the reasonable non-expert reader of the summary to the fact that they should go to the submissions in full and examine the proposed differences for themselves.
(Footnotes omitted, emphasis in original.)
[21]Re An Application by Christchurch City Council (1999) 5 ELRNZ 227 at [15].
Mr Casey also referred to cl 10(1) of sch 1 of the Act which provides:
10 Decisions on provisions and matters raised in submissions
(1) A local authority must give a decision on the provisions and matters raised in submissions, whether or not a hearing is held on the proposed policy statement or plan concerned.
Mr Casey seeks to argue that it is only when making a decision under cl 10(1) that a council needs to consider what may be considered as fairly and reasonably raised by a submission. We are not persuaded that this is a reasonably arguable proposition. We consider the question of what is fairly and reasonably raised by a submission is inherent in the concept of the relief that the submission seeks: that is, the “precise details” of the decision the submitter wants the council to make, and it is notice of that relief that needs to be captured in the summary of decisions requested. The idea that something less is required, that it will be sufficient if potential further submitters are merely alerted to the possible need to examine the submissions themselves, is a gloss not set out in the statute. A proper summary will of course have that consequence, but the statutory requirement can only be met if the summary describes accurately the decisions requested by the persons making submissions.
Here, the question addressed by the Environment Court was expressed by it as follows:[22]
[100] I accept that in this case there is no evidence that any member of the Society looked at the SDR in hardcopy. However, that is not the issue. The question is whether the summary of the submission accurately, fairly and not misleadingly, alerts a reasonably informed member of the public that there is a submission seeking that the ONL(B) be drawn around the Shotover Loop (or part of it).
(Footnote omitted.)
[22]Arthurs Point Outstanding Natural Landscape Society Inc v Queenstown Lakes District Council, above n 11.
After considering relevant aspects of the Environment Court’s reasoning Clark J held:[23]
[78] The question for determination was whether a reasonable non-expert reader of the SDR would have been alerted to GSL’s and Larchmont’s intent which was to have an outstanding natural landscape boundary line drawn so as to exclude land from the outstanding natural landscape. The Judge’s ultimate determination was reached as a result of his proper understanding and application of the correct legal test. He found the summaries were unfair and misleading.
(Footnote omitted.)
[23]Clark J judgment, above n 1.
Essentially this was a determination that the Environment Court had applied the correct legal test and decided it had not been met by the summary in this case. Whether the correct test was applied is a question of law, but in our view the proposition that the correct test was not adopted is not seriously arguable. Whether the test was properly applied to the facts of this case is not a question of general or public importance.
For these reasons we decline the GSL application.
Result
We extend the time for making the application for leave to appeal by Arthurs Point Outstanding Natural Landscape Society Incorporated in CA121/2021.
The application for leave to appeal in CA120/2021 is declined.
The application for leave to appeal in CA121/2021 is declined.
Since both applications have been unsuccessful we make no order for costs.
Solicitors:
Anderson Lloyd, Solicitors, Queenstown
Parker Cowan, Barristers & Solicitors, Queenstown
Simpson Grierson, Barristers & Solicitors, Christchurch
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