Jefferies v Wellington Regional Council - [2013] NZHC 2341

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…

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.

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Details

Case: [2013] NZHC 2341
Decision Date: 9 September 2013

CaseChat Overview and Summary

In Jefferies v Wellington Regional Council, the High Court considered Mr Jefferies' application for leave to appeal the dismissal of his appeal from the Environment Court. The Environment Court had upheld two abatement notices issued by the Wellington Regional Council, relating to the appellant's activities affecting an unnamed tributary of the Mangaroa River. The court was required to decide whether the applicant had shown good cause for a second appeal and whether the questions of law he raised were of general or public importance. Mr Jefferies presented nine questions, but the court found that none of them raised a seriously arguable question of law, and that the facts favoured the respondent's case. The court concluded that the application did not meet the threshold for a second appeal, and dismissed the application accordingly.

The court noted that the threshold for a second appeal was high, and that the applicant needed to show good cause and raise a seriously arguable question of law of general or public importance. The court found that the applicant's questions were not seriously arguable, and that the facts did not support his arguments. The court emphasised that the Court of Appeal's primary function was to clarify the law and determine whether it had been properly construed and applied by the Court below. The court found that the applicant's questions did not transcend mere partisan interests of the parties, and that the issues were fact-specific or limited to the particular facts and findings of the case at hand. The court concluded that the application did not raise any seriously arguable question of law of general or public importance, and that there was no other good reason to allow a second appeal.

Orders