Ikinepule v The Queen - [2017] NZCA 125

IN THE COURT OF APPEAL OF NEW ZEALAND

CA422/2015
[2017] NZCA24

BETWEEN		MAN OʼWAR STATION LIMITED Appellant
AND		AUCKLAND COUNCIL Respondent
Hearing:	29 June 2016
Court:	Harrison, Miller and Cooper JJ
Counsel:	M E Casey QC and MJE Williams for Appellant B OʼCallahan and J A Burns for Respondent R B Enright and M C Wright for Environmental Defence Society Incorporated P R Gardner for Federated Farmers of New Zealand Incorporated
Judgment:	24 February 2017 at 12 pm

JUDGMENT OF THE COURT

AWe answer the questions of law as follows:
(1)Is the identification (including mapping) of an outstanding natural landscape in a planning instrument prepared under the Resource Management Act 1991 for the purpose of s 6(b) of that Act informed by (or dependent upon) the protection afforded to that landscape under the Act and/or the planning instrument?
No.
(2)Has the test or threshold to be applied in deciding whether a landscape is outstanding for the purpose of s 6(b) of the Resource Management Act 1991 changed (being elevated) as a result of the degree of protection required for an outstanding natural landscape (particularly in the coastal environment) by reason of the Supreme Court’s decision in Environmental Defence Society Inc v The New Zealand King Salmon Co Ltd?
No.
(3)Where a landscape has been identified as an outstanding natural landscape under a policy framework and approach to outstanding natural landscape identification that were permissive of adverse effects and are not now correct in law or need to be changed by reason of Environmental Defence Society Inc v The New Zealand King Salmon Co Ltd, should that landscape be re‑assessed in light of the required changes to the policy framework and approach?
No.
(4)Is it relevant to the identification of an outstanding natural landscape (particularly in the coastal environment) that is a working farm, that the applicable policy framework would prohibit or severely constrain its future use for farming, such that the determination of whether a landscape is an outstanding natural landscape should take account of the fourth dimension — that is, future changes over time by reason of that landscape’s character as a working farm?
No.
(5)Was the High Court correct to find that in assessing whether or not a landscape is an outstanding natural landscape there is no need to incorporate a comparator — that is, a basis for comparison with other landscapes, nationally or in the relevant region or district?
In assessing whether or not a landscape is an outstanding natural landscape a regional council should consider whether the landscape in question is outstanding in regional terms.

BThe appeal is dismissed.
CThe appellant must pay the respondent costs for a standard appeal on a band A basis and usual disbursements. We certify for second counsel.

____________________________________________________________________

REASONS OF THE COURT

(Given by Cooper J)

Table of Contents

Para No
Introduction  [1]
The Environment Court decision   [7]
The High Court judgment  [27]
The questions of law  [31]
MOWS’s principal argument  [32]
King Salmon  [38]
First question

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ikinepule v The Queen

Details

AGLC: Ikinepule v The Queen [2017] NZCA 125
Case: [2017] NZCA 125
Decision Date: 24 February 2017 at 12 pm

CaseChat Overview and Summary

In Man O'War Station Limited v Auckland Council, Man O'War Station Limited appealed against the Environment Court's decision to confirm the identification of two outstanding natural landscapes (ONLs) on its property on Waiheke Island. The appeal raised five questions of law concerning the identification of ONLs and the impact of the Supreme Court's decision in Environmental Defence Society Inc v The New Zealand King Salmon Co Ltd on the identification and protection of ONLs. The Court of Appeal held that the identification of ONLs was not informed by the protection afforded to them, the threshold for identifying ONLs had not changed, landscapes identified as ONLs need not be reassessed, the future use of a landscape as a working farm was not relevant to its identification as an ONL, and a regional comparison was sufficient when identifying ONLs. The appeal was dismissed and the appellant was ordered to pay the respondent's costs.

Orders