Independent Fisheries Ltd v Minister for Canterbury Earthquake Recovery

[2012] NZHC 1177

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2012-409-500 [2012] NZHC 1177

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 LTD Applicant

ANDTHE MINISTER FOR CANTERBURY EARTHQUAKE RECOVERY Respondent

Hearing:         28 May 2012

Counsel:         F Cooke QC and P Steven for Applicant and Richard Peebles and

Castle Rock Estate
K Stephen for the Minister
M Perpick and J Ormsby for UDS Partners
J M Appleyard and B G Williams for Christchurch International
Airport Limited
C S Fowler for Highfield Park Limited
B Carruthers for Progressive Enterprises Limited
G A Cooper and L J Semple for Prestons Road Limited
A Hughes-Johnson QC for Case Family

Judgment:      28 May 2012

ORAL JUDGMENT OF MILLER J

Introduction

[1]     Numerous non-parties wish to be heard on this important and pressing application for judicial review, some as interested parties and some as respondents or applicants.  This judgment determines their status and prescribes how they will be

heard.

INDEPENDENT FISHERIES LTD V THE MINISTER FOR CANTERBURY EARTHQUAKE RECOVERY HC CHCH CIV-2012-409-500 [28 May 2012]

The application and the protagonists

[2]      The application challenges the Minister’s decision, in the exercise of powers under the Canterbury Earthquake Recovery Act 2011 (CERA), to implement a proposed change, formerly known as PC1, to the regional policy statement.   PC1 was developed pre-earthquake by the Canterbury Regional Council, whose regional policy statement it is, by agreement with the three territorial local authorities and the New Zealand Transport Authority.  These bodies are collectively known as the UDS partners.   They envisaged that PC1 would be implemented through the separate District Plans of the territorial local authorities.

[3]      PC1 would control the availability of land for residential development on the Christchurch city outskirts.  As originally formulated after public consultation, PC1 proposed that land to the north of the city and near the airport would be rezoned for residential use.  The applicant claims that, relying upon PC1, it bought land in that area for redevelopment.

[4]      PC1 was then changed to exclude the applicant’s land.  The applicant says this   was   done   by  agreement   between   the   UDS   partners   and   Christchurch International Aiport Ltd, which wanted a “50Ldn dBA contour standard” or noise control standard for land surrounding the airport.   That precluded residential development  on  land  subject  to  that  contour.    To  give  effect  to  this  alleged agreement the Regional Council notified a variation to PC1.

[5]      That variation was in turn modified by the Regional Council’s independent hearing commissioners, who decided, according to the applicant, that the applicant’s land should be available for low density residential development.  (I record that the UDS parties dispute this.)

[6]      The  UDS  partners  other  than  the  Regional  Council  then  appealed  that decision, seeking to reinstate their preferred version of PC1.  Although the decision was strictly the Regional Council’s, it decided that it would offer no opposition.  The appeal was before the Environment Court when the earthquakes struck.

[7]      The earthquakes destroyed many houses, and some residential land within the city is now unavailable for housing, so the Minister has exercised his powers under s 27 of CERA to make further land around the city available for residential use.  His decision would result in the Christchurch City Council’s District Plan being changed to rezone land at Prestons Road, to the north-east, and at Halswell, to the south-west. The Minister also implemented the original version of PC1, that preferred by the UDS partners, effectively revoking the amended version that the commissioners had adopted.

[8]      The applicant complains that the Minister is guilty of procedural impropriety and non-compliance with CERA’s consultation requirements.   It also says that the Minister has erred in law, acted for improper purposes, ignored relevant considerations, and acted disproportionately and unreasonably.  In particular, it says that:

a)        PC1   was   not   designed   for   earthquake   recovery  and   was   not

implemented for that purpose, so fails to promote CERA’s purpose;

b)Any long term strategies should be implemented under subpart 3 of CERA, not using s 27, and the Minister failed to first determine that it was necessary to deploy s 27;

c)       The implementation of the UDS partners’ preferred version of PC1 was wholly disproportionate to need;  it will deliver more than 47,000 residential properties over 35 years when only 6,213 households have been displaced;

d)The Minister failed to consider whether prohibiting development of the applicant’s land would further CERA’s purpose, and whether the version of PC1 that the hearing commissioners had adopted would better do so;

e)       The  Minister  also  failed  to  consider  whether  CERA’s  purpose required that he revoke PC1 and terminate the Environment Court proceedings, so truncating the rights of affected persons;

f)        Finally, the Minister relied on a Decision Paper which was prepared by CERA staff together with the UDS partners, but that paper did not fully inform the Minister of the circumstances or the history of PC1.

[9]      The relief sought is a) an order setting aside the Minister’s decision not only to implement PC1 but also to rezone other land for residential purposes, and b) directions to the Minister in respect of the applicant’s land.

The interested parties

[10]     Given the stakes, the relief sought, and the controversial history of PC1, it was inevitable that others would take a close interest in this proceeding.   Some landowners support the applicant.  They own land which they want rezoned.  Not all of it in the same area as the applicant;  some, indeed, is on the south side of the city. Others support the Minister.   They include all the UDS partners, Christchurch International  Airport,  and  landowners  whose  land  is  to  be  zoned  residential following the Minister’s decision.

[11]     The application for review was filed on 9 March 2012.  On 15 May I held a first conference, scheduling this hearing to determine who would be joined or heard. Now before me are:

a)       A parallel and just-filed application for review by the members of the Case family, who own land at St Albans;   they want to have their application consolidated.  Their land would also have been zoned for low density residential use under the former version of PC1;

b)I am told that other persons also want to be heard as applicants for review;  they  are  Progressive  Enterprises,  Richard  Peebles,  Castle Rock  Estate  and  Clearwater  Land  Holdings  Ltd.    They share  the

applicant’s interest.  The first three of these, and possibly Clearwater, wish to be jointly represented by Mr Cooke QC;

c)       An application by the Christchurch City Council, and another by the other UDS partners, to be joined as respondents.   They say that the relief  sought  would  seriously  affect  their  ability  to  implement recovery,  and  that  they  have  already  acted  in  reliance  on  the Minister’s decision;

d)An application by Christchurch International Airport to be joined qua respondent, alternatively as intervenor.   It says that the Minister’s decisions implemented provisions which were intended to benefit it, so it is immediately interested in relief;

e)       An application by Prestons Road Ltd, a joint venture between Ngai Tahu Property Ltd, CDL Land New Zealand Ltd, and Foodstuffs (South Island) Ltd to be added as an intervenor.  It opposes the claim. It owns land which the Minister has separately rezoned for residential use and claims to have invested heavily in developing that land, which will be made available for housing in short order.  It is concerned that any relief granted the applicant may affect its development;

f)        Finally,  an  application  by  Highfield  Park  Ltd  to  be  added  as  an intervenor.  It too opposes the claim.  It owns land north of the city which is to be zoned residential under a plan change proposed by the Christchurch City Council in consequence of the Minister’s decision. Like Prestons Road, it claims to have invested significantly in development  and  could  quickly  make  sections  available.     It  is interested in the Court’s exercise of its discretion to grant relief.

[12]     The applicant’s position is that all those who share its interest should be joined as applicants for review and jointly represented.  Counsel proposes that the parties whom he represents should have their claims incorporated in one amended statement of claim.    So far as the other intending respondents or intervenors are

concerned, the applicant submits that their interests are properly accommodated by being heard on relief.   Counsel acknowledges  that joinder as respondent would confer a right of appeal, but submits that it would be improper, even chaotic, for another respondent to exercise the Minister’s right of appeal should the Minister himself not do so.

[13]     The  Minister  disagrees.    He  says  that  the  statement  of  claim  includes allegations of which he knows nothing, including events before his portfolio was created, so those who do know should be permitted to respond.  In a memorandum filed before the hearing counsel submitted that the respondents have a sufficiently direct interest to warrant joinder.   Counsel submits that the respondents can co- ordinate their representation too, the Minister’s submissions being formulated with their assistance so that duplication can be avoided.

[14]     No one disagrees that the application must be heard as soon and as efficiently as possible.  I have today scheduled a hearing for 25 June.

Respondent or intervenor status in judicial review

[15]     The present hearing has been held under s 10 of the Judicature Amendment Act 1972, which allows the Court to direct what persons shall be cited, or need not be cited, as respondents and to direct what parties shall be served.  Rule 4.56 of the High Court Rules also applies.  The Court has a broad discretion which is governed by the interests of justice in the particular case.  I will not cite the authorities, but I have reviewed them and by reference to them I identify the following principles of relevance to this case:

a)       The proper respondent to an application for review is ordinarily the person or body whose exercise of a statutory power is challenged:  in this case, the Minister;

b)Others may be added as respondent where their presence is necessary to allow the Court to decide the application, or where the application

sufficiently affects their interests to risk injustice should the Court adjudicate in their absence;

c)       By its very nature judicial review sometimes affects the rights of non- parties.  It does not follow that the Court would act unjustly were it to decide the matter in their absence;   that depends on whether their presence may make a difference, and that consideration must be balanced against the risk that their intervention will deflect the case from its centre;

d)The pleadings should be the starting point for the Court’s assessment whether anyone other than the decisionmaker should be heard or added.   Judicial review normally interrogates the decisionmaker’s process, with relief limited to setting aside and reconsideration.  The Court seldom grants relief directed to the merits.   Further, the decisionmaker should be able to identify any class of people with a vested interest in the decision, and the general nature of their interests, to the extent that these things are relevant;

e)       The  interests  of  the  applicant  must  not  be  overlooked.    Time  is frequently paramount in judicial review, particularly since the remedy is  discretionary  and  others  may  be  acting  in  reliance  upon  the decision;

f)        It may not be unjust to deny party status to an affected person, for joinder is not a prerequisite to being heard as an intervenor in judicial review;

g)        The Court may decide that joinder qua respondent should be limited

to what is necessary to protect the added party’s interests;

h)A  respondent  will  always  be  heard,  while  those  who  are  merely interested may not.  So joinder may complicate or delay the hearing

notwithstanding  that  the  Court  can  limit  the  participation  of  a respondent who is not the decisionmaker;

i)Lastly, joinder confers a right of appeal while intervenor status does not, but in judicial review such right is valuable only to the extent that the party can mount a viable appeal where the decisionmaker does not appeal.  That may be most likely where the decisionmaker is likely to abide or the party has a particular interest in the form of relief.

This case

[16]     Turning to  this  case,  and  beginning with  the pleadings,  the heart  of  the applicant’s case lies in the Minister’s alleged errors of law under CERA and his process failings.   Those are matters on which no other party, including the UDS partners, need be heard.  I accept that the claim dwells, perhaps more than it should, on the background to PC1 and the UDS partners know more about that than does the Minister, but it does not follow that the UDS partners need be heard.  Their actions are a matter of evidence.  However, the relief sought goes beyond reconsideration.  It extends to giving the Minister directions about the status of the applicant’s land, and the UDS partners are plainly interested in that.

[17]     A great many people are affected by the Minister’s decision, including all landowners in the affected areas and those homebuyers suffering from the present shortage of residential land.  Not all can be heard, nor is it apparent that they can add anything:  the Minister can depose to the nature and scale of the problem.  That is true of the landowners on both sides.  Preston Road and Highfield Park differ from others only in scale and to the extent that they claim to have invested in reliance upon the Minister’s decision.   However, the UDS partners are directly and substantially affected.

[18]     The airport is a landowner with an interest in protecting the sound contour, but the application for review does not directly reach that.  It would merely permit a decision that the applicant’s land be rezoned.  As PC1 itself shows, that can be done without changing the sound contour.  (I record that this is in dispute.)  I accept that

the Minister’s decision includes provisions directly intended to benefit the airport, but its interests would be taken into account in any reconsideration.  The applicant will not be permitted to relitigate the substantive merits of PC1 in this proceeding. Ms Appleyard accepted that the airport cannot be permitted to do so either.

[19]     The application for review must be decided swiftly, for the decision is being acted upon daily and the longer the delay the heavier the impact of a judgment setting the Minister’s decision aside.  It cannot be assumed, of course, that the Court will exercise its remedial discretion against the applicant.  Court time is not easy to find at short notice, and the longer the hearing required the longer the delay before it can be scheduled.

[20]     At the initial conference I told counsel that they must focus on the judicial review  issues,  but  despite  that  warning  there  are  indications  that  the  Regional Council, at least, sees the hearing as an opportunity to resume battle over the history and merits of PC1.   A 41-page affidavit from Mr McCallum, one of its officers, records the history of PC1, and it records his expectation that if and when the UDS partners become parties there will be an oppportunity to file more detailed evidence, and further states that the Court must have full and accurate information about the UDS and PC1 change processes.  I recognise that the Council takes issue with the applicant’s claims about those matters.  It may be correct in what it says, but even so the affidavit confirms that the Court must control the extent to which it hears people other than the applicant and respondent on what is strictly factual context for the impugned decision.   Further support for that view is supplied by Ms Appleyard’s candid characterisation of the litigation as just another chapter in a long-running battle between property developers.

[21]     In fairness to the UDS Partners and the Airport, it must be said that the applicant’s own pleading arguably puts some of this material in issue and, of course, they have yet to see the applicant’s evidence.  I repeat that the applicant will not be permitted  to  relitigate  the  merits  of  PC1  in  this  proceeding.    As  Mr  Cooke recognises,  the  judicial  review  questions  raised  by  the  factual  background  are whether the disputed facts are relevant to the Minister’s decision and, if so, whether they were taken into account.

[22]     It is true that the UDS partners and the Airport know much more about the background than does the Minister, but their staff can give evidence to the extent that those matters are relevant.   They can also give evidence about the Minister’s consultation process and what has been done since the decision was made.  But it lies within the Minister’s power to call the evidence, and it is likely to be better disciplined if the Minister takes responsibility for it.

[23]     Against that, I recognise that the UDS partners are directly affected and have their own statutory responsibilities and public accountability as local authorities.  In that respect they are in a different position from landowners or the airport.  Although it is difficult to see that they might appeal even if the Minister does not, I accept the possibility that their interests may differ from his.

[24]     Those who would join in on the applicant’s side are in a different position, in that they can seek review themselves, as the Case family have done, and have their claims heard together provided they do not delay this proceeding.  I note that all of them except the Case family are represented by the same counsel, and the Case family have the same interest.

Orders

[25]     That brings me to the orders.  The competing interests must be balanced in a way which serves the interests of justice by allowing all interests that might affect the decision to be heard, and where sufficiently important protected by a right of appeal, while confining the hearing to the issues that matter and ensuring that the hearing is held as soon as possible.

[26]     I make the following orders:

a)       I  allow  Progressive  Enterprises,  Mr  Peebles,  Castle  Rock  and Clearwater to join as applicants, on the basis that (i) by 1 June an amended statement of claim is to be filed incorporating their circumstances and (ii) they will be represented by the same counsel;

b)I am prepared to order consolidation or joinder of the Case family, on the basis that counsel will not be heard on the merits without leave, and absent such leave will confined to relief.  If the Case family are not prepared to accept these directions, they will not be consolidated or  joined.     (Following  this  indication  Mr  Hughes-Johnson  has indicated  that  he  will  tomorrow  file  a  memorandum  indicating whether his clients prefer to be consolidated into the applicant’s claim.);

c)       I order that the UDS partners be joined as respondents.   However, they will be heard only on relief, and their evidence must be strictly confined to that issue.  I repeat that it is open to the Minister to call evidence from their representatives on the merits;

d)I decline to join Christchurch International Airport as a respondent.  It may be heard as an intervenor, as may Prestons Road and Highfield Park.  Like the UDS partners, these intervenors will be heard only on relief, and their evidence and submissions must be strictly confined to that issue;

e)       As I have said, the hearing will be held on 25 June.  Two days have been assigned;

f)        Counsel  should  assume  that  no  repetition  will  be  permitted  in submissions and oral argument, so counsel on each side (including the intervenors)   must   liaise   with   the   applicant   and   the   Minister respectively before filing.   Counsel for the intervenors will not be heard orally unless leave is given at the hearing;

g)        Pleadings are to be filed and served as follows:

i)        An amended statement of claim by 1 June;

ii)An amended statement of defence by 11 June, and statements of defence by the respondents by the same date;

h)        Evidence is to be exchanged and filed in affidavit form, as follows:

i)        The applicants’ by 11 June;

ii)       The Minister’s and the respondents’ by 18 June;

iii)      The intervenors’ by 18 June;

i)         Submissions are to be exchanged and filed as follows:

i)        The applicants’ by 20 June;

ii)       The Minister’s and others by 22 June;

j)The Court is to be provided by 22 June with a paginated and tabbed bundle of exhibits in chronological or other logical order, and a single casebook is to be provided at the hearing, confined to cases to which counsel propose to take the Judge.

[27]     Costs are reserved.

Miller J

Solicitors:
Cowper Campbell, Auckland for Applicant
Crown Law, Wellington for Respondent
Wynn Williams & Co, Christchurch for UDC Partners
Chapman Tripp, Christchurch for Christchurch International Airport Ltd
Adderley Head, Christchurch for Highfield Park Limited

Anderson Lloyd, Christchurch for Prestons Road Ltd

Russell McVeagh, Wellington for Progressive Enterprises Ltd
Mackintosh Bradley & Price, Christchurch for Case Family