Highgate Business Park Limited v The Environment Court

[2014] NZHC 1692

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2014-404-000620 [2014] NZHC 1692

IN THE MATTER OF

an application for judicial review under

Part 1 of the Judicature Amendment Act
1972

BETWEEN

HIGHGATE BUSINESS PARK LIMITED Applicant

AND

THE ENVIRONMENT COURT First Respondent

EDWARD ROY WILLIAMS, CAROL JUNE WILLIAMS, LESLEY JEANETTE CHRISTIAN and TIMOTHY JOHN GOULDING (AS TRUSTEES OF THE RUNWILD TRUST), SILVERDALE GOLF RANGE LIMITED and G J PAINTON (AS EXECUTOR OF THE ESTATE OF L M PAINTON)

Second Respondents

Hearing:	15 July 2014
Appearances:	K R M Littlejohn for Applicant M C Casey QC and A Davidson for Second Respondents
Judgment:	18 July 2014

JUDGMENT OF VENNING J

This judgment was delivered by me on 18 July 2014 at 4.45 pm, pursuant to Rule 11.5 of the High

Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors:           Crown Law, Wellington

Shieff Angland, Auckland

Daniel Overton & Goulding, Auckland

Copy to:            M Casey QC, Auckland

K R M Littlejohn, Auckland

HIGHGATE BUSINESS PARK LIMITED v THE ENVIRONMENT COURT [2014] NZHC 1692 [18 July 2014]

Introduction

[1]      Highgate  Business  Park  Limited  (Highgate)  asks  this  Court  to  judicially review a decision of the Environment Court at Auckland refusing Highgate’s application under s 281 of the Resource Management Act 1991 (RMA) for waiver of time to lodge a notice of appearance under s 274 of that Act.

Background

[2]      In June 2010, the Auckland Council publicly notified a proposed change to the Auckland Council District Plan (Rodney section) known as PC123.

[3]      The second respondents, Runwild Trust, Silverdale Golf Range Ltd and the L M Painton Estate (collectively Runwild), lodged submissions opposing PC123 in July 2010.

[4]      Highgate purchased land in Silverdale in June 2011.  The land is to the north of the area affected by PC123.

[5]      On 6 June 2013 the Council publicly notified its decision on PC123. [6]       On 18 July 2013 Runwild filed an appeal with the Environment Court.

[7]      On 4 November 2013 Highgate filed a s 274 notice with the Environment Court giving notice that it wished to be a party to the PC123 appeal.  At the same time it applied to the Court under s 281 of the Act for a waiver of the time limit within which the s 274 notice was required to have been filed and served.  (The time to file the s 274 notice as of right had expired on 8 August 2013).

[8]      Environment Court Judge J A Smith determined the s 281 application on the papers.    In  a  decision  dated  4  February  2014  Judge  Smith  refused  the  s  281

application and reserved the issue of costs.1

1      Trustees of Runwild Trust & Ors v Auckland Council [2014] NZEnvC 18.

The interim relief

[9]      Highgate has also filed an application for interim injunction seeking an order injuncting the Environment Court from conducting any further conferences under s 267 of the RMA or taking any further steps in relation to the appeal proceedings pending the hearing and determination of this proceeding.

[10]     As this is an application for judicial review, rather than apply for an interim injunction in the proceeding the correct course was for Highgate to have applied for interim relief under s 8  of the Judicature Amendment Act 1972  (JAA).   When counsel realised that, an amended application for interim relief was filed.  However nothing turns on the form of the application which, for the reasons that follow has in any event become unnecessary from a practical point of view.

[11]     Counsel for the Environment Court has filed a memorandum to confirm the Environment Court would abide by the decision of this Court.  If this Court were of the view that the Environment Court should defer any steps in the proceedings pending this Court’s decision on the substantive judicial review proceedings counsel advises the Environment Court would act in accordance with that view, whether it was expressed in terms of a formal order or not.

[12]     In any event, as I indicated to counsel, having had the benefit of their very helpful submissions I am satisfied that a decision in this matter can be delivered promptly.  The next step in the appeals proceeding is a conference scheduled for 29

July 2014 to discuss progress on the appeals and to make directions for the efficient disposal of the appeals.  This decision will be delivered before then.  The need for interim relief does not arise.  I dismiss the application for interim relief.

Jurisdiction

[13]     The first issue that arises is whether there is jurisdiction for this Court to judicially review the decision of the Environment Court to refuse the s 281 waiver application.

[14]     Mr Casey QC submitted that the Environment Court is not susceptible to judicial review.  He noted that s 4(1) of the JAA provides that this Court may review the exercise “… by any person of a statutory power …” and drew the Court’s attention to the fact that, although the definition of a “person” in s 3 of the JAA includes  reference  to  a  number  of  lower  courts,  namely the  District  Court,  the Compensation Court, the Maori Land Court and the Maori Appellate Court, it does not include reference to the Environment Court.  He submitted that the Environment Court therefore does not meet the definition of a “person” for the purposes of the JAA.

[15]     Mr Casey also noted that although there was express reference to judicial review of a local authority or consent authority’s decisions in s 296 RMA there was no equivalent reference to judicial review in s 299, the section which provides for appeals to this Court from decisions of the Environment Court.

[16]     While conceding that there were a number of cases where this Court has entertained applications for review of Environment Court decisions Mr Casey said that none of them had addressed this fundamental point.

[17]    As a matter of principle there is no reason to exclude decisions of the Environment Court from judicial review.  The Environment Court, like the District Court is an inferior Court of record.  I do not consider the list of the lower courts referred to in s 3 of the JAA to be an exclusive list.  The list is preceded by the word “includes”.  The Environment Court readily fits within the category of lower courts referred to in s 3.  Each Environment Court Judge is, if not a District Court Judge at the time of appointment as an Environment Judge, appointed as a District Court

Judge at that time.2    The Environment Court has the powers of a District Court in

certain respects.3

[18]     Next, it may well be that the omission of reference to the Environment Court is an oversight.  The Town and Country Planning Act 1953, which was in force when

the JAA was enacted, provided for Town and Country Planning Boards, not courts of

2      Resource Management Act 1991, s 249(1).

3      Section 278.

record.  The Board members were not Judges of the then Magistrates Court.4   They would have met the definition of “person” as a body of persons whether incorporated or not, exercising a statutory power.  I note that the historical text applicable at the time, Planning Law in New Zealand accepts the existence of a right to judicial review under the Town and Country Planning Act 1953.5

[19]     When the Town and Country Planning Act 1977 was passed, constituting the Planning Tribunal as a court of record, the draftsmen may simply have overlooked the then existing definition of person in the JAA and failed to include reference to the Planning Tribunal (now Environment Court).

[20]     Further, it would be inconsistent with the common law which still provides jurisdiction  for  this  Court  to  review  the  exercise  of  public  powers  to  exclude decisions of the Environment Court from review.6

[21]     The decision to decline the application for waiver under s 281 of the RMA is clearly an exercise of a statutory power of decision within s 4(1) of the JAA.  Section

281(1)(a)(iia) empowers the Court to grant or refuse the application for waiver.  It has the ability to affect Highgate’s rights.7

[22]     For the above reasons I conclude that the decision of the Environment Court to decline the application for waiver is susceptible to judicial review by this Court.

[23]     The next preliminary issue raised by Mr Casey is the effect of Highgate’s failure to exercise its right of appeal under the Act in preference to bringing this application for review.  While s 4(1) of the JAA provides that a right of appeal does not preclude an application for review, Mr Casey submitted that the fact Highgate had a right of appeal but failed to exercise it was relevant to whether the High Court should  exercise  its  discretion  in  the  appellant’s  favour  on  this  judicial  review

application.

4      Town and Country Planning Act 1953, s 39.

5      Kenneth A Palmer Planning Law in New Zealand (Sweet & Maxwell, 1977) at 48.

6      Andrew Beck and others McGechan on Procedure (online ed, Brookers) at HRPt30.01(4) and

JA3.05.01.

7      Judicature Amendment Act 1972, s 3, and Genesis Power Ltd v The Environment Court of New

Zealand & Ors [2003] NZAR 371.

[24]     Mr Casey’s submission is predicated on the basis that Highgate has a right of appeal.   However, Mr Littlejohn submitted that Highgate did not have a right of appeal.  Section 299(1) of the RMA provides that:

A party to a proceeding before the Environment Court … may appeal on a question of law to the High Court against any decision, … made in the proceeding.

[25]     Mr Littlejohn submitted that Highgate was not a party to the proceeding (the appeals)  before  the  Environment  Court.    It  was  neither  the  initiator  nor  the respondent to the proceeding nor, because the Judge declined its application for waiver and so did not consider its application under s 274, could it be said to be a party  to  the  proceedings  in  that  way.    Mr  Littlejohn  also  submitted  that  the application for waiver under s 281 was not “a proceeding” in terms of s 299 of the RMA.

[26]     I consider a liberal and purposive interpretation should be taken of “party” and “proceeding” in s 299 so that a party in the position of Highgate in this case has the right to appeal to this Court (on a question of law).  The drafters of the RMA have used the word “proceeding” in a number of ways throughout the RMA.  The heading to ss 289 to 294 is “Appeals, inquiries and other proceedings before Environment Court”, which suggests that the term proceeding(s) is not limited to appeals to the Environment Court and inquiries.

[27]     Within that part of the RMA, s 291 provides for “other proceedings” before the Environment Court to be brought by way of notice of motion.  The application for waiver was brought in that form as an “other proceeding”.  Highgate was a party to that proceeding as the applicant.  The Environment Court made a decision on that application.  Section 295 provides that a decision of the Environment Court, which must include a decision on an application under s 291, is final unless reheard under s 294 or appealed under s 299.

[28]     Against that background I consider the reference in s 299 to a party and proceeding is properly interpreted as including a party to an application under s 291 and that the application is to be regarded as a proceeding for the purpose of appeal

rights.  Judge Smith apparently proceeded on that basis.  He reserved the issue of costs.  Costs can only be awarded against a party to a proceeding.8

[29]     Also, as Mr Casey noted there are other decisions where this Court has accepted the right of a party in similar situations to appeal.9

[30]     For those reasons I accept that there was jurisdiction for Highgate to have appealed on a question of law from the decision of the Environment Court declining its application for waiver.  I consider the significance of that in more detail later in this decision.

The decision

[31]     It is necessary to consider the decision itself in more detail.  Before doing so I

set out the relevant provisions of s 281:

281     Waivers and directions

(1)      A person may apply to the Environment Court to—

(a)      Waive  a  requirement  of  this  Act  or  another  Act  or  a regulation about—

...

(iia)      the  time  within  which  a person  must  give  notice under section 274 that the person wishes to be a party to the proceedings; or ...

…

(2)       The Environment Court shall not grant an application under this section  unless  it  is  satisfied  that  none  of  the  parties  to  the proceedings will be unduly prejudiced.

...

(4)       Without limiting subsections  (2) and (3), the Environment Court may waive a requirement as to time under this section whether or not an application is made under this section before the requirement has been breached. ...

8      Resource Management Act 1991, s 285.

9      Island Bay Residents’ Association (Inc) v Wellington City Council [2000] 2 NZLR 737, [2000] NZRMA 399 (HC), and Church v Hawke’s Bay Regional Council [2012] NZHC 2140.

[32]     Judge Smith found that granting a waiver of the time Highgate was required to give notice under s 274 would not cause undue prejudice to any existing party to the Runwild appeal.  On that basis s 281(2) was satisfied.

[33]     The Judge then went on to state, consistent with case law, that the Court had “a residual discretion” to grant the application or not with such discretion to be “exercised on a principled basis”.10    He noted that the Court was required to weigh the Act’s emphasis on public participation against the parties’ needs to progress the matter in a timely and predictable way.

[34]     Under a heading “Experience of Parties” the Judge referred to Runwild’s submission that Highgate was a large entity, and concluded that there was no clear reason why the notice could not have been filed earlier.   Highgate ought to have known of the existence of the Runwild appeal when it acquired its land interest at Silverdale.  Further, once Highgate learnt of the Runwild appeal in late September

2013 it waited too long to file its s 274 notice and the s 281 application (on 4

November 2013).

[35]     Under the heading of “Progress thus far” the Judge took into account the delay in filing the waiver and s 274 notice noting it was not determinative.  He also reviewed the progress that had been made with the appeal to that stage, noting that directions had not yet been made for the exchange of evidence nor had a hearing been allocated.

[36]     Next,   under  a  heading  of  “Precedent”  the  Judge  took   into   account Parliament’s intention to limit the period for a party to give notice of participation. He also noted that Highgate’s interest in the appeal would be adequately represented by an existing party to the appeal, Johns Creek.

[37]     The Judge concluded there was no compelling reason to grant the waiver sought.  He declined the application.

10     Trustees of Runwild Trust & Ors v Auckland Council, above n 1, at [5](b).

Highgate’s submissions

[38]     Mr Littlejohn submitted that the Judge had made a reviewable error by failing to take into account relevant factors and taking into account irrelevant factors. While accepting the Judge had correctly approached the matter on a two-step basis, by first satisfying himself as to the threshold, and then going on to consider whether to exercise his discretion, Mr Littlejohn submitted the Judge had erred in the exercise of his discretion.  He cited the following dictum of Lord Reid in Padfield and Others

v Minister of Agriculture Fisheries and Food and Others:11

Parliament  must  have  conferred  the  discretion  with  the  intention  that  it should be used to promote the policy and objects of the Act; the policy and objects of the Act must be determined by construing the Act as a whole, and construction is always a matter of law for the court. In a matter of this kind it is not possible to draw a hard and fast line, but if the Minister, by reason of his  having  misconstrued  the  Act  or  for  any  other  reason,  so  uses  his discretion as to thwart or run counter to the policy and objects of the Act, then our law would be very defective if persons aggrieved were not entitled to the protection of the court.

[39]    Mr Littlejohn submitted the Judge had not exercised his discretion in a principled way.   He argued that as the Judge had noted that the delay was not excessive and that limited progress had been made in terms of the case management of the Runwild appeal he was incorrect to then conclude that Highgate’s explanation for the delay was not satisfactory, that it waited too long once it knew the existence of the appeal and that its interest in the proceeding could be represented by another party.

[40]     Mr Littlejohn criticised the Judge’s acceptance of Runwild’s submission that Highgate ought to have been aware of the proposed change to the District Plan.  Mr Littlejohn submitted there was no evidence before the Court as to the size or experience of Highgate as a land developer.  Next, when Highgate acquired its land at Silverdale it did so in reliance of the then District Plan provisions.  While it was correct the summary of decisions on PC123 was publicly notified in June 2013

Highgate was not a submitter.   It did not receive a copy of Runwild’s appeal as

appeals were only required to be served on submitters.

11     Padfield and Others v Minister of Agriculture Fisheries and Food and Others [1968] AC 997, [1968] 1 All ER 694 (HL) at 699.

[41]     I accept the force of Mr Casey’s submissions in reply on this issue.   The Judge did not directly adopt Runwild’s submission on the point.   Next, the Judge was, in any event, entitled to find that Highgate ought to have known about the plan change as part of its due diligence in purchasing the land.  Highgate had bought 56 hectares of land in the area.   It had, on its own evidence, invested heavily in the development of the land based on the District Plan.  Mr Reid said it had invested $13 million to date and had budgeted to spend a further $18 million over the next few years.  There was no evidence by Highgate of any steps it had taken or inquiries it had made of the Council regarding proposed plan changes.  It is not so much a case of placing an unreasonable standard of conduct on an applicant under s 281 but rather, recognising that, in the circumstances of this case, given that Highgate was seeking waiver, it was relevant to consider and test its explanation for the delay in failing to lodge the s 274 application in time.  The fact it was a major developer and had  bought  significant  landholdings  without  giving  any evidence of  inquiries  it might have made about the District Plan was a relevant factor.

[42]     In this regard it is also relevant that s 274(1)(d) contemplates the situation where an applicant will not have received notice, but nevertheless the applicant is still required to comply with the time limit in s 274(2).

[43]     Related to this issue is Mr Littlejohn’s criticism of the Judge’s failure to take into account Highgate’s lack of knowledge despite referring to non-notification as supporting a waiver.  However in context, the Judge’s reference to non-notification is clearly in the case where a party has the right, under the RMA, to be served but does not receive notice. That is not the case here.

[44]     Mr Littlejohn also criticised the way the Judge dealt with the issue of delay from the date Highgate learnt of the existence of the Runwild appeal in late September to  the date  it filed its  s  274  notice  and  the s  281  application.    Mr Littlejohn noted the decision made no reference to the explanation Mr Reid had given for that.

[45]     There are two relevant periods of delay.  The first, relating to the time that had elapsed after the s 174 notice should have been filed and the second, the time

elapsed after Highgate became aware of the appeal.   The first period was from 8

August to 4 November (61 working days) and the second period was from late September to 4 November (at least 24 working days).  Mr Reid’s explanation only addresses the later delay.  It is inadequate in its terms.  He simply says:

Highgate only learned of the [Runwild] appeal in late September 2013 from commonly engaged consultants involved in the PC123 appeals.

It took some weeks to obtain copies of relevant documentation and to then seek legal advice in advance of preparing its notice and waiver application.

It is a very general explanation.  Where, as here, Highgate was already well outside time for filing its s 274 notice, it should have acted more expeditiously.   Mr Reid should have provided a more detailed explanation of Highgate’s four to five week delay.

[46]     Next, Mr Littlejohn criticised the Judge’s conclusion that the interests of Highgate could be represented through Johns Creek who have similar interests.  As Mr Littlejohn noted, Johns Creek might settle its appeal.  However, against that, if the John’s Creek appeal is settled, given its commonality of interest with Highgate, presumably it would be settled on terms advantageous to Highgate’s interests as well.  I do not consider it can be said the Judge was in error to take this factor into account.  It is a matter of weight.

[47]     Mr Littlejohn then submitted the Judge failed to take into account relevant factors,  in  particular  the  scheme  of  the Act  relating  to  participation.    He  also submitted that no regard had been given to the nature of Highgate’s interest in the proceeding and the significance of it to Highgate.

[48]     However,  the  Judge  expressly  referred  to  the  principle  of  participation. Further, in Island Bay Residents Association (Inc) Doogue J had this to say about the “participation principle” in relation to the 15 working days given to a submitter to give notice:12

The appellant sought to rely upon arguments of fairness and the policy of the

RMA to permit participation. There is no element of unfairness in relation to

12     Island Bay Residents’ Association (Inc) v Wellington City Council, above n 9, at [37].

this  appellant.  It  had  had  very  substantial  opportunities  to  join  the proceeding but, because of its own misapprehensions, not contributed to by the respondent or Mr Tse, it had not done so. While it is true, as already mentioned, that the policy of the RMA is to enable interested persons to participate in the decision-making process, yet nevertheless there has to be a limit upon the opportunity given to interested persons to participate. When s

271A(2) is of its very nature remedial to enlarge the rights that parties would ordinarily have to join a proceeding, there is no need for the Environment

Court or this Court to strain the meaning of s 271A(2) to further enlarge the

extended rights already given in a manner which would create confusion and an additional source of litigation.

[49]     Finally on this point, the Judge was aware of Highgate’s argument for an interest in the appeals and the importance of them to it.   He noted that Highgate sought  to  be  joined  under  s  274(1)(d)  but  noted  that  it  was  not  necessary  to determine that application.

[50]     Mr Littlejohn also submitted that it was inconsistent for the Judge to have concluded that the delay and progress of the appeals were not such that Runwild would be unduly prejudiced if waiver was granted but to then go on to consider the delay and the reasons for it as factors telling against the exercise of discretion.

[51]     However the test of “unduly prejudicial” under s 281(2) is quite different to the general consideration of delay in the context of the exercise of the residual discretion.  The effect of the delay and the reasons for it are separate matters.  Both may  be  relevant.    The  matter  is  rather  more  nuanced  than  simply  being  the proposition that either Highgate waited too long or not.  Even if the practical impact of the delay may not have been unduly prejudicial, the length and reasons for the delay are still relevant to the exercise of the discretion.  They are both matters it is proper to consider.

[52]     In this regard I note that it appears to be Parliament’s intention to reduce delay in processes under the RMA.  Under s 274(2) of the RMA the parties could initially join proceedings up to 10 working days before the commencement of the hearing.      The   Resource   Management   Amendment   Act   2003   amended   the requirement to the period of 30 working days following lodgement of appeals.  That period was shortened to 15 working days in the Resource Management (Simplifying and Streamlining) Amendment Act 2009.

Summary

[53]     In summary, I consider the Judge’s factual findings were open to him.  The Judge identified the relevant considerations.  Mr Littlejohn was not able to point to any relevant factors the Judge failed to consider.   Essentially this application for judicial review seeks to  revisit the outcome of the application on its  merits by addressing the considerations discussed by the Judge.  The weight the Judge gave to the various factors is not a matter for consideration on an application for judicial review of the exercise of a discretion such as this was.

[54]     In considering the exercise of the discretion, two further factors are relevant. Any appeal under s 299 against the Judge’s decision had to be brought within 20 working days of the decision, or by 5 March 2014.   This application for judicial review was not lodged until 13 March 2014.  Resort ought not to be had to judicial review to avoid the statutory time periods for appeal.  As Tipping J said in Murray Darnill Ltd & Anor v The Taxation Review Authority & Anor:13

Had I been of the view that this proceeding was not strictly barred by s.27 I would nevertheless have declined relief in the exercise of the Court’s discretion.  If an available appeal right is not pursued in time this Court is generally most reluctant to allow the time limit to be circumvented by an application for judicial review.

[55]     In response, Mr Littlejohn referred to RL & Anor v The Chief Executive of the Ministry of Social Development & Ors in which the Court of Appeal confirmed the availability of an appeal on the merits does not necessarily exclude judicial review in an appropriate case.14   That is, of course, consistent with s 4(1) of the JAA.  It does not, however, directly address Tipping J’s point noted above.   While not determinative, the fact there was an appeal available and that the application for review was lodged outside the time for appealing is a further factor that counts against the exercise of the discretion.

[56]     There is a last factor.   Further progress has been made in the appeal since

February this year.   Mr Williams has given evidence of the details of that in his

13     Murray Darnill Ltd & Anor v The Taxation Review Authority & Anor HC Invercargill CP77/91,

17 March 1994 at 6.

14     RL & Anor v The Chief Executive of the Ministry of Social Development & Ors [2009] NZCA

596, at [20]–[21].

affidavit in opposition to the interim relief.  If this Court was to send the matter back to the Environment Court to consider again, it might well be that the stage has now been reached where the applicant could not satisfy the threshold requirement in s 281(2) in any event.

Result

[57]     The application for judicial review is dismissed.

Costs

[58]     The respondent is to have costs on a 2B basis together with disbursements as fixed by the Registrar.  I do not certify for second counsel.

Venning J