Jefferies v Wellington Regional Council
[2013] NZHC 2341
•9 September 2013
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CIV 2012-485-627 [2013] NZHC 2341
BETWEEN ALAN DENNIS JEFFERIES Appellant
ANDWELLINGTON REGIONAL COUNCIL Respondent
Hearing: 6 September 2013
Counsel: Appellant in Person
T J Gilbert for Respondent
Judgment: 9 September 2013
JUDGMENT OF WILLIAMS J
[1] Mr Jefferies applies for leave to appeal to the Court of Appeal against my dismissal of his appeal from the Environment Court. The proceeding related to two abatement notices issued by the Wellington Regional Council. The first related to Mr Jefferies’ deposition of material onto the bed of an unnamed tributary of the Mangaroa River, the placement of a bund on the bed and associated diversion of water as a result of the bund. The second notice related to the tipping of clean fill down a cliff at the rear of the appellant’s land onto a portion of the riverbed. I upheld the decision of the Environment Court which in turn upheld the abatement notices.
The threshold
[2] The law is clear that the threshold to be met in allowing a second appeal is high. Section 144 of the Summary Proceedings Act 1957 provides that the Court “may grant leave if in the opinion of that Court the question of law involved in the appeal is one which, by reason of its general or public importance, or for any other
reason, ought to be submitted to the Court of Appeal for decision”.
JEFFERIES v WELLINGTON REGIONAL COUNCIL [2013] NZHC 2341 [9 September 2013]
[3] The general principle is that a first appeal will produce a final result unless there is a very good reason related to the general or public importance of the question of law raised or for some other reason a second appeal is warranted. The decision of Wild J in Genesis Power Limited v Manawatu-Wanganui Regional Council & Ors[1] is often cited as a useful synthesis in the RMA context of the relevant considerations. They are as follows:
[1] Genesis Power Limited v Manawatu-Wanganui Regional Council & Ors [1997] 1 NZLR 211 at 215.
(a) The applicant must show good cause why leave should be granted. (b) The application must raise a seriously arguable question of law.
(c) If the Court has difficulty in identifying a clear and relevant question of law, leave to appeal should be declined.
(d)It is necessary to consider dispassionately whether the disputed matter contains the requisite element of sufficient importance. The scarce time and resources of both the High Court and Court of appeal are not to be wasted. The Court of Appeal is not engaged in the general correction of error. Its primary function is to clarify the law and determine whether it has been properly construed and applied by the Court below. Not every alleged error of law is of such importance as to justify further pursuit of litigation which has already been considered and ruled upon by a Court.
(e) It is not sufficient that issues as a whole are of general public importance or interest. It is the question identified as the matter for appeal which must be a matter of general or public interest.
(f) Questions or issues of law which are fact specific or limited the particular facts and findings of the case at hand are not generally matters of general and public importance.
[4] As Priestley J said in Dome Valley District Residence Society v Rodney
District Council:[2]
Of particular relevance is the policy of the legislation which does not provide an automatic second appeal right. Finality of litigation is a desirable outcome except in those few cases where a legal issue can be identified which transcends mere partisan interests of the parties.
[2] Dome Valley District Residence Society v Rodney District Council HC Auckland CIV 2008-404-0587, 8 December 2008.
[5] Mr Jefferies presented nine questions of law at the hearing of his application, providing, he submitted, a platform for leave to be granted. The questions were as follows:
(1)Has the definition of “bed” as that term is defined in the Resource Management Act (RMA) and the Regional Freshwater Plan (RFP) been correctly interpreted and applied in this appeal by both the Environment Court and the High Court?
(2)When (as in the case in this instance) a river “bed” has been both determined and subsequently confirmed according to law as a result of subdivision of land, if the river subsequently breaches its permanent bank, does the land beyond the breached bank become riverbed?
(3) Are there two “riverbed” on any one particular reach of a river?
I.e. the definition of “bed” in relation to any river in the Act has two parts (i) and (ii). Are both parts applicable at the same location?
(4)Is the bed of a river a matter of fact (opinion based on observations) or is it a matter of law?
(5)Has the definition of a “river” as that term is defined in the RMA and the RFP been correctly interpreted and applied in this appeal by both the Environment Court and the High Court?
(6)Is a river a matter of fact (opinion based on observations) or is it a matter of law?
(7)With respect of Condition 2 of Rule 37 of the RFP, which states that material should not be mounted up so that it forms a barrier to water movement, what does that actually mean?
(8)When a resource consent application is allocated a unique file reference number should all subsequent documents bearing the same reference number become part of the same application?
(9)If there are pre-existing concrete blocks in the riverbed at the location of a pre-existing but breached permanent riverbank, can those blocks become an integral part of the rebuilt bank?
[6] I am well satisfied that neither the questions nor the grounds advanced by Mr Jefferies in support of them get him over the threshold in s 144. For the most part this is, as I shall show, because the facts so firmly favour the respondent’s case that answers supportive of Mr Jefferies’ case will not avail him in the end. Where that does not apply, it is clear that none of his grounds raises a seriously arguable question of law. It must follow then that the application raises no question of law of general or public importance as required by s 144. Nor is there any other good reason to allow a second appeal. I turn now to address the various grounds raised.
[7] The first ground of appeal is as follows:
Justice Williams, as with the court below, failed to give effect to the final part of the definition of a riverbed in s 2(a)(ii) of the Resource Management Act 1993, namely the terms “without overtopping its banks”. Contrary to the suggestion of Williams J, were the same reasoning applied in this case as was applied to the definition in s 2(a)(i) in Whitby Coastal Estate v Porirua City,[3] the reverse decision would result since – even without the construction of a bund – once the river started to flow in the western channel the eastern channel
undoubtedly constituted a “secondary flow path” in the terms of that judgment. The evidence in this case cannot support a conclusion of a river “constrained between high banks on either side”.
[3] Whitby Coastal Estate v Porirua City [2009] NZRMA 269 (EC).
[8] As the respondent points out, the factual findings in the Environment Court make it clear that with or without the bund, the river in question regularly flows down the arm of the river from which the bund attempted to divert it. It is simply not arguable on the facts that the eastern arm is not riverbed.
[9] In his written submissions, Mr Jefferies shifted his argument somewhat to submit that a river bed must be defined by the legal titles around it. This is reflected in his questions (2), (4) and (6). That proposition is not seriously arguable. The definition in the Act makes no reference to legal titles. The definition of bed in s 2 of the Act is as follows:
(a) In relation to any river –
(i) for the purposes of esplanade reserves, esplanade strips, and subdivision, the space of land which the waters of the river cover at its annual forced flow without overtopping its banks:
(ii) in all other cases, the space of land which the waters of the river cover at its fullest flow without overtopping its banks.
[10] There is simply no basis upon which it could possibly be argued that legal boundaries define riverbed in light of this definition.
[11] Ground 2 was as follows:
Justice Williams’ conclusions in relation to rule 37 of the Wellington Regional Freshwater Plan are logically inconsistent with other parts of his judgment. His Honour’s conclusion at para 47 relies on a determination that the bund was the cause of the diversion whereas His Honour at paras [37] and [38] refuses to resolve this issue. The Environment Court accepted that it was possible that the excavation, not the bund, which caused the diversion. His Honour’s analysis at paras [44] and [45] concerning the present of non-natural materials fails to address, as did the Environment Court, the fact that these non- natural materials in question were present in the river before the bund was constructed.
[12] Once again this must fail on the facts. The concrete blocks forming the primary content of the bund are not natural materials. The appellant agrees they form part of the bund. Rule 37 therefore cannot apply because it only applies where natural materials are used. The applicant argues in the alternative that the concrete
blocks were already in place where the bund was built. There are a number of difficulties with this contention. First there is no evidence to support such a contention being made at this late stage. Second, the finding of fact by the Environment Court was that the blocks had been placed there by the appellant.
[13] The further arguments the applicant made in respect of rule 37 are therefore in the end irrelevant.
[14] The third ground is as follows:
Justice Williams’ analysis at paras [48] to [58] fails to address the
fact that the 2007 application was expressly incorporated into the
2009 consent by the opening words “The location, design, implementation and operation of the works shall be in accordance with the consent and its associated plans and documents lodged with the Wellington Regional Council on 8 October 2007 and further information on 24 September 2009.” The statement that the 2009 information superseded the 2007 application has to be read, and made sense of, in this context. The conclusions of His Honour give no weight to these words whatsoever.
[15] Once again this ground fails on the facts. As I found in the judgment the subject of this application, even if the background papers to the consent document could be taken into account in assessing the content of the consent, those documents, take as a whole, make it perfectly clear that the bund had been removed from the final consent application. The fact that the plan filed in 2007 showed a bund, and it was the only plan associated with the application, cannot change that. The documentation must be taken as a whole. The ground is therefore not seriously arguable.
[16] The applicant also argued in his written submissions in Court, that as a result of the wording of s 338 of the RMA (the offences section) and its reference to “certain rivers” in relation to breaches of s 13, any bed subject to the terms of s 13 had to be a named river and this, he contended, was an unnamed tributary. Mr Jefferies referred me to a topographical map covering the area that demonstrated his point, he said.
[17] I do not see anything in this argument. The definition of river in the RMA is the controlling provision. It provides that river means:
A continually or intermittently flowing body of fresh water; and includes a stream and modified watercourse; but does not include any artificial watercourse ...
[18] Whether the river in question here is named or not, it is clearly caught by the definition in the Act. The contention is therefore not seriously arguable.
[19] It follows that this application for leave to appeal does not raise any seriously arguable question of law having general or public importance and there is no other reason that this matter should be allowed to proceed to a second appeal. The
application is dismissed accordingly.
Williams J
Solicitor:
Luke Cunningham & Clere, Wellington for Respondent
And to: Appellant
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