Independent Fisheries Limited v Minister for Canterbury Earthquake Recovery
[2014] NZHC 959
•9 May 2014
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CIV2014-409-000105 [2014] NZHC 959
UNDER the Judicature Amendment Act 1972 and
Part 30 of the High Court Rules
IN THE MATTER
of an application for judicial review
BETWEEN
INDEPENDENT FISHERIES LIMITED Applicant
AND
THE MINISTER FOR CANTERBURY EARTHQUAKE RECOVERY Respondent
Contd…/…
Hearing: 7 May 2014 Appearances:
FMR Cooke QC and P A Steven for the Applicant
K Stephen and A Jacobs for the RespondentJ Ormsby and M Mehlhopt for the "Responsible Agencies" (Intended Second Respondents)
B Williams for Christchurch International Airport Limited
(Intended Third Respondent)Judgment:
9 May 2014
[RESERVED] JUDGMENT OF WYLIE J (Orders under s 10, Judicature Amendment Act 1972)
This judgment was delivered by Justice Wylie on 9 May 2014 at 3.00 pm
Pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Date:
INDEPENDENT FISHERIES LIMITED v THE MINISTER FOR CANTERBURY EARTHQUAKE RECOVERY & ORS [2014] NZHC 959 [9 May 2014]
ANDCANTERBURY REGIONAL COUNCIL CHRISTCHURCH CITY COUNCIL WAIMAKARIRI DISTRICT COUNCIL SELWYN DISTRICT COUNCIL
NEW ZEALAND TRANSPORT AGENCY TE RUNANGA O NGAI TAHU
Intended Second Respondents
ANDCHRISTCHURCH INTERNATIONAL AIRPORT LIMITED
Intended Third Respondent
Introduction
[1] The applicant, Independent Fisheries Ltd has sought judicial review under the Judicature Amendment Act 1972. The challenged decision is a decision made by the Minister for Canterbury Earthquake Recovery (“the Minister”) on 6 December 2013. The Minister then approved a land use recovery plan for greater Christchurch under s
21 of the Canterbury Earthquake Recovery Act 2011 (“the Act”).
[2] Various orders were sought pursuant to s 10 of the Judicature Amendment
Act:
(a) Independent Fisheries was seeking an order requiring particularisation by the Minister of his reasons for the challenged decision.
(b)The Canterbury Regional Council, Christchurch City Council, Waimakariri District Council, Selwyn District Council, New Zealand Transport Agency and Te Runanga O Nga Tahu (jointly referred to as the “responsible agencies”), were seeking an order that they be joined as second respondents in the proceeding. This application was opposed in part by Independent Fisheries.
(c) Christchurch International Airport Ltd was also seeking an order that it be joined as a respondent to the proceeding. This application was also opposed by Independent Fisheries.
[3] After hearing argument from counsel, and taking a brief adjournment to consider the authorities which had been referred to me, I ordered as follows:
a) that the Minister should attend to tailored discovery, disclosing the documents which contain the reasons for his decision of 6 December
2013, and further, that the Minister should swear a brief affidavit advising whether his reasons are to be found solely in the discovered documents, or whether there are additional reasons not disclosed by those documents, and if so, what those reasons were;
b)that the “responsible agencies” should be joined as second respondents, and that they are entitled to file affidavits, and make submissions on the substantive dispute, as well as on the relief sought by Independent Fisheries; and
c) that Christchurch International Airport should not be joined as an additional respondent, but should be joined as an intervenor, in relation to the issue of relief only, and subject to various conditions.
[4] I now set out my reasons for these decisions and formalise my orders.
Background
[5] In 2007, Independent Fisheries purchased a large block of land in Styx. It was purchased for the purposes of residential development, and at the time, it was proposed that the land would be zoned residential.
[6] Subsequent to the purchase, the various local and territorial authorities in greater Canterbury entered into arrangements with Christchurch International Airport Ltd to strengthen what are known as airport noise corridors, which, in broad terms, preclude or limit residential, and other noise-sensitive development, in the vicinity of Christchurch International Airport. It was proposed that the protection corridors would be introduced through the regional policy statement by way of plan change, to be known as “plan change 1”. This would have the consequence that Independent Fisheries’ land would be zoned rural, and no longer available for residential development.
[7] Plan change 1 was prepared and notified. Independent Fisheries challenged the plan change before hearings commissioners appointed by the Regional Council. The Commissioners partially accepted Independent Fisheries’ submissions, and recommended that its land should be categorised as a special treatment area, potentially allowing urban development in some form at a later stage. The recommendation was adopted by the Canterbury Regional Council.
[8] Both Independent Fisheries and a number of the responsible agencies appealed the resulting decision to the Environment Court.
[9] The various earthquakes which occurred in 2010 and 2011 then struck, and after the earthquakes, the responsible agencies and Christchurch International Airport Ltd asked the Minister to use his extraordinary powers under the Canterbury Earthquake Recovery Act 2011. They asked the Minister to introduce plan change 1 in the form that a number of the responsible agencies had sought in their appeals to the Environment Court.
[10] The Minister did so. He used his powers under s 27 of the Act by introducing two new chapters into the Regional Policy Statement. One of the new chapters dealt with the airport noise corridors, and the other dealt with the balance of the matters covered by plan change 1.
[11] The Minister’s decision was challenged by Independent Fisheries, and the challenge was upheld by Chisholm J in this Court.1 Inter alia, Chisholm J held that the Minister had failed to properly consider whether it was reasonably necessary for him to exercise his powers for the purpose of earthquake recovery as required by s 10 of the Act.
[12] Both the Minister, and the responsible agencies, appealed to the Court of
Appeal.
[13] Shortly before the hearing in the Court of Appeal, the responsible agencies requested the Minister to develop a land use recovery plan pursuant to s 16(3) of the Act. The Minister in turn issued a gazette notice under s 16 of the Act requiring the responsible agencies to develop the recovery plan.
[14] The Court of Appeal subsequently heard the appeal and then released its decision.2 Ultimately, the appeals by the Minister and the responsible agencies were
dismissed, but the grounds upon which Independent Fisheries and others had
1 Independent Fisheries Ltd v Minister for Canterbury Earthquake Recovery [2012] NZHC 1810.
2 Canterbury Regional Council v Independent Fisheries Ltd [2012] NZCA 601, [2013] 2 NZLR
57.
succeeded in establishing that the Minister’s decisions were unlawful, were narrowed. The Court held that the new chapters which had been introduced into the Regional Policy Statement were not beyond the proper purposes of the Act, and that the exercise of powers under the Act could deprive persons of their access to the Environment Court. It agreed, however, with Chisholm J that the Minister had failed to properly apply s 10 of the Act.
[15] Independent Fisheries and one other party sought leave to appeal to the Supreme Court. The Supreme Court declined leave on the basis that Independent Fisheries and the other party had succeeded in the proceedings, and that a party could not get leave to challenge the reasoning of the Court of Appeal.3
[16] Subsequent to these decisions, and pursuant to the gazette notice issued by the Minister, the responsible agencies developed a draft land use recovery plan. The draft was largely the same as the chapters which had earlier been introduced into the Regional Policy Statement by the Minister. It proposed to require and directed a number of amendments to a range of resource management plans applying in greater Christchurch to introduce noise corridors to protect the operation of Christchurch International Airport Ltd. The draft land use recovery plan was considered by the Minister, and he formally approved it on 6 December 2013.
[17] As noted above, Independent Fisheries alleges that this decision was unlawful.
The Pleadings
[18] Independent Fisheries’ statement of claim is lengthy, and it sets out in some detail the background to this matter. It challenges the Minister’s decision insofar as the land use recovery plan puts in place airport noise corridors. In particular, Independent Fisheries alleges as follows:
(a) The airport noise corridors were beyond the scope of the recovery plan prescribed by the gazette notice given under s 16 of the Act;
3 Independent Fisheries Ltd v Minister for Canterbury Earthquake Recovery [2013] NZSC 35.
(b)Even if the introduction of the airport noise corridors was within the scope of the gazette notice, the Minister failed to apply s 10 of the Act, and failed to conclude that it was reasonably necessary to introduce the airport noise corridors through the emergency powers conferred by the Act.
(c) The exercise by the Minister of his power under the Act is disproportionate, and excessive, because the way in which he has introduced the airport noise corridors into the various resource management instruments through the recovery plan process gives it a kind of “super protection”.
d)The Minister’s decision deprives Independent Fisheries of its right to have the issue of the airport noise corridors resolved before the Environment Court, and the Minister failed to consider whether it was reasonably necessary for the power to be exercised with this consequence.
e) There was procedural unfairness in the introduction of the airport noise corridors via the Minister’s decision, in that there was no public engagement or consultation on whether the extraordinary powers available to the Minister under the Act should be used to introduce the airport noise corridors.
[19] Independent Fisheries does not seek to set aside the entire recovery plan approved by the Minister. Rather, it seeks to set aside the provisions of the plan insofar as they introduce airport noise corridors.
[20] It is noteworthy that Independent Fisheries also seeks a declaration that the introduction of the airport noise corridors was beyond the proper purpose of the Act. Mr Cooke QC, appearing on its behalf, conceded before me that this issue has already been decided against it by the Court of Appeal, but he advised that Independent Fisheries seeks the declaration in order to ensure that it can argue the point before the Supreme Court should that become necessary.
Request for Particulars
[21] Independent Fisheries seeks to clarify the reasons relied on by the Minister when he made the challenged decision. It notes that its statement of claim particularises its allegations, and details the considerations which it alleges were not taken into account, and why it says the challenged decision is unlawful in terms of s
10 of the Act. It observes that the Minister in his statement of defence has simply made a bare denial of the allegations, with no particularisation.
[22] Independent Fisheries, through its advisers, has written to Crown Law, appearing for the Minister. Crown Law has declined to provide any greater clarity at this stage.
[23] However, Mr Stephen, appearing for the Minister, was sympathetic to the request made by Independent Fisheries, but took the view that the Minister should not be required to give in advance a précis of his evidence.
[24] In my view, it is not inappropriate for Independent Fisheries to seek that the Minister should either say where the reasons for his decision can be found, or detail what those reasons were, in the event that they are not contained in discovered documents. I note as follows:
(a) Under s 23 of the Official Information Act a decision maker can be required to provide a written statement of his/her reasons. Although no such request has been made given the filing of those proceedings, it was and still is open to Independent Fisheries to take that step.
(b)Independent Fisheries sought from the Minister a written statement confirming his reasons for the original gazette notice issued under s
16. That request was met. The Minister confirmed that the reasons for his decision were contained in a particular decision paper.
(c) It is desirable in the interests of justice to require the Minister to detail his reasons for the decision. If this is done, the pleadings can be finalised, and the arguments before the Court should be able to be
truncated. There will be no argument about what the Minister’s
reasons were.
(d)The obligation should not be onerous. I am advised by Mr Cooke that there is a decision paper which has been provided by the Minister, pursuant to initial disclosure. It may well be that the Minister’s reasons are to be found in that paper. Independent Fisheries is doing no more than seeking confirmation as to where the reasons for the Minister’s decision can be found. If there are additional reasons over and above those contained in the papers which have been, and are to be, discovered, then the Minister should briefly detail what those reasons were.
[25] After discussions with counsel, it was agreed that the appropriate course is to direct tailored discovery, requiring the Minister to discover the key documents relied on by him in making his decision, and which contain the reason(s) for his decision. Further, it is appropriate to require the Minister to file a brief affidavit stating whether there are any additional reasons for his decision which are not recorded in the documents to be discovered, and if so, what those reasons were.
Joinder of the Responsible Agencies and Christchurch International Airport
Ltd
[26] The relevant principles are well established.4 Although there has been some divergence in the application of the principles in this court,5 that divergence is not relevant for present purposes. The principles were summarised by Miller J in the context of the earlier judicial review proceedings involving the same parties.6 I
agree with that summary.
4 Westhaven Shellfish Ltd v Chief Executive of Ministry for Fisheries (2002) 16 PRNZ 501 (HC) at
[14]; Motor Industry Association v Minister of Transport HC Wellington CIV-2008-485-585, 23
May 2008; Wellington International Airport Ltd v Commerce Commission HC Wellington CP151/02, 19 July 2002 at [28]; Diagnostic Medlab Ltd v Auckland District Health Board HC Auckland CIV-2006-404-4724, 18 October 2006 at [23]–[25]; Wilson v Attorney-General (No 2) [2010] NZAR 509 (HC).
5 Compare Westhaven Shellfish Ltd v Chief Executive of Ministry for Fisheries, above n 4 and
Diagnostic Medlab Ltd v Auckland District Health Board, above n 4.
6 Independent Fisheries Ltd v Minister for Canterbury Earthquake Recovery [2012] NZHC 1177 at [15].
[27] In the present case, the Minister is properly named as the first respondent. That is clearly appropriate. The Minister exercised the statutory power which has been challenged.
[28] Further, in my view, the responsible agencies should be joined as second respondents. I note as follows:
(a) On 20 September 2012, one of the responsible agencies – the Canterbury Regional Council, with the support of the other responsible agencies, made a formal request to the Minister that he should develop a land use recovery plan pursuant to s 16(3) of the Act.
(b)The Minister in turn issued a direction to the Canterbury Regional Council, as a responsible entity under the Act, requiring it to develop a land use recovery plan for greater Christchurch.
(c) The Minister’s direction required the Canterbury Regional Council to develop the recovery plan through a collaborative multiagency approach, involving the Christchurch City Council, the Selwyn District Council, the Waimakariri District Council, New Zealand Transport Agency and Te Runanga O Ngai Tahu.
(d)It is clear from the affidavits filed that the responsible agencies considered that the development of a land use recovery plan was vital to facilitate earthquake recovery and integral to fulfilling the purposes of s 7(a) to (g) of the Act. They considered that there was a need for greater certainty regarding land use and infrastructure, and that that need was urgent. They noted that significant investment decisions and capital programmes required the development of a land use recovery plan, and that clear guidance was required in relation to the development of residential and business land uses in greater Christchurch.
(e) The responsible agencies participated in the decision making and statutory processes directed by the Minister. The Canterbury Regional Council, with the assistance of the other responsible agencies, developed a preliminary draft recovery plan, undertook workshops in consultation with the public and submitted a draft for public notification to the Minister.
(f) The responsible agencies are currently carrying out recovery works, which, inter alia, are affected by the land use recovery plan.
(g)The responsible agencies are collectively represented. Their presence and involvement will not significantly add to the time required for the hearing. It is clear from submissions made on their behalf by Mr Ormsby that they contemplate a role and participation secondary to that of the Minister, and that there will be little or no duplication either in the evidence, or in the arguments.
(h)The responsible agencies were involved in the appeal to the Court of Appeal in the earlier proceedings. It appears from the Court of Appeal’s judgment that they presented full argument, and were heard in relation to matters of substance, as well as in relation to relief. As I have noted,7 Independent Fisheries seeks a declaration that the Court of Appeal was wrong. It would be unfair to try and shut the responsible agencies out of that argument, given the role that they took in the Court of Appeal.
(i)Finally, I note that the Supreme Court took the view that the responsible agencies should clearly have been parties. Although this observation was made in a different context, where the responsible agencies had exercised the right of appeal which was open to them, in my view, the comment reinforces the part the responsible agencies
have played in these proceedings to date. The application affects their
7 At [20] above.
interests, and it would be unjust for the Court to adjudicate on the matter in their absence.
[29] Accordingly, I directed that the responsible agencies are to be named as second respondents in these proceedings. I do not consider that it is necessary to place any restriction on the role that can be taken by the responsible agencies. I direct that they are entitled to file evidence on the substantive matters raised by Independent Fisheries, as well as on the issue of the appropriate relief, in the event that Independent Fisheries succeeds, either in whole or in part. I do, however, record that I expect counsel for both the first and second respondents to liaise with a view to avoiding duplication, both in terms of the affidavits to be filed, and in relation to submissions. Clearly, the respondents will be at risk of costs if they do not undertake that liaison. At the end of the day, however, that is a matter for the Judge who hears the application.
[30] I do not consider, however, that it is necessary for Christchurch International Airport Ltd to be joined as a third respondent. The airport is a landowner. It has an interest in protecting the noise corridors, but the application for review does not directly deal with that issue. What is in issue is the lawfulness of the Minister’s decision. Although I questioned Mr Williams, appearing on behalf of Christchurch International Airport Ltd in relation to the issue, I was not persuaded that Christchurch International Airport Ltd could add anything to the substantive argument. As Miller J noted in the earlier decision involving the same parties, clearly, a great many people are affected by the Minister’s decision, including all landowners in the affected areas, and those home buyers suffering from a shortage of residential land in Christchurch. Not all can be heard. The Minister can be expected to depose to the nature and scale of the problem.
[31] I cannot see that the application for review directly or sufficiently affects Christchurch International Airport Ltd’s interests, such that it would be unjust to deal with the matter in its absence. It may, however, be able to assist the Court in relation to the relief sought by Independent Fisheries, in the event that Independent Fisheries succeeds in these proceedings, either in whole or in part.
[32] I direct that Christchurch International Airport Ltd be joined as an intervener, but only in relation to relief, and that its evidence and submissions are to be confined to that issue. Christchurch International Airport Ltd will not have the opportunity to make oral submissions, unless it is granted leave in that regard by the Judge hearing the matter.
Timetable
[33] Having reached this point, counsel were agreed as to the appropriate timetable directions. The following orders are made by consent:
(a) The responsible agencies are to file and serve their statement of defence to the proceedings on or before 5.00 pm on 9 May 2014.
(b)Christchurch International Airport Ltd is to file and serve its notice of opposition to the claimed relief on or before 16 May 2014.
(c) On or before 28 May 2014, the Crown is to discover any and all documents which relate to the decision made by the Minister, and which disclose his reasons for making that decision. Discovery is to extend to all documents exchanged between the Canterbury Earthquake Recovery Agency and the Minister.
(d)Counsel for Independent Fisheries, the Minister and the responsible agencies are to discuss whether any further discovery should be provided by the Minister. Leave is reserved to the parties to come back before the Court if there are any issues arising in that regard.
(e) By 28 May 2014, Independent Fisheries and the responsible agencies are to discover any and all documents held by them relevant to the matters in issue in these proceedings.
(f) On or before 13 June 2014, the Minister is to file and serve an affidavit advising whether his reasons for the challenged decision are to be found in the discovered documents, or if the reasons are not all
contained in those documents, what additional reasons he had in making the decision.
(g)Independent Fisheries is to file and serve its affidavits in support of the application, and any amended statement of claim arising out of the Minister’s particularisation, on or before 22 July 2014.
(h)The respondents and Christchurch International Airport Ltd are to file and serve their affidavits on or before 2 July 2014.
(i) The close of pleadings date is to be 30 July 2014.
(j)Independent Fisheries is to file and serve any affidavits in reply on or before 6 August 2014.
(k) Independent Fisheries’ submissions are to be filed and served on or
before 1 September 2014.
(l)The respondents and Christchurch International Airport Ltd are to file and serve their submissions on or before 8 September 2014.
(m) The matter is allocated a fixture, commencing at 9.00 am on
15 September 2014, and continuing for three days.
(n)Leave is reserved to the parties to apply for any further directions which may be necessary.
[34] I record that counsel have advised that they anticipate that there will be no difficulty in agreeing a chronology, insofar as the same is required, and in settling a bundle of key documents and a bundle of authorities. I direct that the bundle of key documents, and the bundle of authorities, be filed and served not less than three
working days prior to the commencement of the hearing.
Wylie J
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