Jenssen v Hawkes Bay Regional Council HC Wellington AP 115/01

[2001] NZHC 662

IN THE HIGH COURT OF NEW ZEALAND
WELLINGTON REGISTRY AP 115/01

IN THE MATTER of the Resource Management Act 1991

AND IN THE MATTER of an appeal under section 299 of the Act

BETWEEN JOHN WILLIAM JENSSEN as the Trustee or Legal Representative of the J L A SEAVIEW TRUST
Appellant

AND HAWKES BAY REGIONAL COUNCIL
Respondent

Hearing: 19 July 2001

Appearances: Appellant in person
G L Lang for respondent
J A L Oliver for the Environment Court

Judgment: 20 July 2001

JUDGMENT OF DOOGUE J

Solicitors:
Elvidge & Partners, Napier, for respondent
Crown Law Office, Wellington, for the Environment Court

Introduction

[1] This is an appeal against a decision of the Environment Court of 12 April 2001 making interim enforcement orders in respect of the vessel “Jenco III” directed to the appellant. The appeal is brought under s 299 Resource Management Act 1991 (“RMA”) and must therefore be brought on a point of law.

The Application to the Environment Court

[2] The Hawkes Bay Regional Council (“HBRC”) applied to the Environment Court for interim enforcement orders under s 320 of the RMA on 6 April 2001.

[3] Section 320 RMA provides:

“320. Interim enforcement order

(1) Except as provided in this section, the provisions of sections 314 to 319 apply to the application for, and determination of, an interim enforcement order.

(2) If an Environment Judge or a District Court Judge considers it necessary to do so, the Judge may make an interim enforcement order-

(a) Without requiring service of notice in accordance with section 317; and

(b) Without holding a hearing.

(3) Before making an interim enforcement order, the Environment Judge or the District Court Judge shall consider-

(a) What the effect of not making the order would be on the environment; and

(b) Whether the applicant has given an appropriate undertaking as to damages; and

(c) Whether the Judge should hear the applicant or any person against whom the interim order is sought; and

(d) Such other matters as the Judge thinks fit.

(4) The Judge shall direct the applicant or another person to serve a copy of the interim enforcement order on the person against whom the order is made; and the order shall take effect from when it is served or such later date as the order directs.

(5) A person against whom an interim enforcement order has been made and who was not heard by a Judge before the order was made, may apply, as soon as practicable after the service of the order, to an Environment Judge or a District Court Judge to change or cancel the order; and, after hearing from the person against whom the interim enforcement order was made, the applicant, and any other person the Judge thinks fit, the Environment Judge or the District Court Judge may confirm, change, or cancel the interim enforcement order.

(6) An interim enforcement order stays in force until an application for an enforcement order under section 316 is determined, or until cancelled by an Environment Judge or a District Court Judge under subsection (5), or cancelled by the Environment Court under section 321.”

[4] In support of its application the HBRC filed affidavits from two of its officers as to its role in respect of the part of the sea bed upon which the vessel “Jenco III” rested in the Napier inner harbour and as to its concerns if the vessel remained in its position. Part of the history of the attempts by the appellant to refloat the vessel was traversed. The appellant had been given some months to remove the vessel. When the vessel was not removed, the HBRC in December 2000 served an abatement notice upon the appellant under s 322 of the RMA. That notice required the appellant to remove the vessel from the coastal marine area on or before 26 January 2001.

[5] Section 325 RMA enables any person on whom an abatement notice has been served to appeal to the Environment Court against the whole or any part of the notice. No step was taken by the appellant to appeal against the notice.

[6] The reasons for the HBRC applying for the interim enforcement order were spelt out both in the affidavits in support of the application and a memorandum from counsel for the HBRC.

[7] The memorandum noted that the HBRC relied upon two grounds as providing the Environment Court with the necessary jurisdiction to make the orders sought, namely breaches of ss 17 and 12(2)(a) RMA.

[8] Section 17(3) RMA provides:

“17. Duty to avoid, remedy, or mitigate adverse effects

. . .

(3) Notwithstanding subsection (2), an enforcement order or abatement notice may be made or served under Part 12 to-

(a) Require a person to cease, or prohibit a person from commencing, anything that, in the opinion of the [Environment Court] or an enforcement officer, is or is likely to be noxious, dangerous, offensive, or objectionable to such an extent that it has or is likely to have an adverse effect on the environment; or

(b) Require a person to do something that, in the opinion of the Environment Court or an enforcement officer, is necessary in order to avoid, remedy, or mitigate any actual or likely adverse effect on the environment caused by, or on behalf of, that person.”

[9] The HBRC submitted that the on-going occupation by the “Jenco III” of its position within the Napier inner harbour at West Quay wharf gave rise to the likelihood that as the vessel deteriorated debris from it would free itself from the wreck and enter the harbour, including oil and timber. It was further submitted that the harbour is used regularly by swimmers and divers and that the vessel gave rise to the risk of injury or death and was a dangerous object located in such a position as to present a real risk for those who were using the harbour in a normal and lawful manner. The submission also noted that the part of the wharf occupied by the vessel could not be used by other vessels and it had an adverse effect on the environment of the wharf.

[10] Section 12(2)(a) and 4(a) RMA provide:

“12. Restrictions on use of coastal marine area

(2) No person may, in relation to land of the Crown in the coastal marine area, or land in the coastal marine area vested in the regional council,-

(a) Occupy any part of the coastal marine area; or

(b) . . . -

unless expressly allowed by a rule in a regional coastal plan and in any relevant proposed regional coastal plan or by a resource consent.

(4) In this Act,-

(a) Occupy means the activity of occupying any part of the coastal marine area-

(i) Where that occupation is reasonably necessary for another activity; and

(ii) Where it is to the exclusion of all or any class of persons who are not expressly allowed to occupy that part of the coastal marine area by a rule in a regional coastal plan and in any relevant proposed regional coastal plan or by a resource consent; and

(iii) For a period of time and in a way that, but for a rule in the regional coastal plan and in any relevant proposed regional coastal plan or the holding of a resource consent under this Act, a lease or licence to occupy that part of the coastal marine area would be necessary to give effect to the exclusion of other persons, whether in a physical or legal sense;-

and occupation has a corresponding meaning

[11] It was submitted for the HBRC that the vessel unlawfully occupied its berth in breach of these provisions. The submissions referred to a number of decisions of the Environment Court in support of such a proposition.

[12] The memorandum referred to the HBRC’s view that there was a need for interim relief to ensure that the vessel was removed from the water as quickly as possible.

[13] The memorandum went on to address the orders sought. The HBRC sought to have the appellant remove his vessel within 28 days from the date upon which any order was served upon him but, if that was not done, then it sought power to remove the vessel itself and referred to relevant authority and reasons in support of that.

[14] Finally the memorandum addressed the issue of an undertaking as to damages and submitted that it was inappropriate in the particular circumstances should the appellant fail to remove his vessel from the sea bed. If it became necessary for the HBRC to remove the vessel, it would be likely that the vessel would have to be broken up and destroyed in the process of being removed from the water.

The decision under appeal

[15] An Environment Court Judge dealt with the application upon the papers in chambers. The decision of 12 April 2001 noted the nature of the application and the orders sought and the nature of the evidence in support of the application. The decision went on to record the failure of the applicant to respond to the abatement notice served upon him or to appeal from it or to make any application for an extension of time to comply with the notice. The decision noted that the HBRC had not filed an undertaking as to damages and by implication accepted the reason for that.

[16] Judge Kenderdine went on to accept the evidence presented as to the danger the vessel presented to public safety and found that the applicant’s actions in leaving the vessel in its current state contravened the Regional Coastal Plan and the RMA, in particular s 12, and was a safety risk in terms of s 5(2). The Judge was satisfied on the evidence that the appellant had no lease, licence or consent to allow him to leave the vessel in its sunken state in the Coastal Marine Area.

[17] The Judge then made the orders sought, namely

(1) that the respondent [the appellant in these proceedings] shall, in accordance with section 17(3)(a) of the Act, cease using the seabed of the West Quay Wharf Area in the Napier Inner Harbour for occupation by the vessel “Jenco III”.

(2) that the respondent shall cease using the seabed of any part of the coastal marine area in the Hawkes Bay region for occupation by the vessel “Jenco III” in contravention of section 12(2)(a).

(3) that the respondent shall, within 28 days of the date upon which the above orders are served upon him, carry out the following in order to avoid, remedy or mitigate the actual or likely adverse effects on the environment caused by the continued occupation by the vessel “Jenco III” of the seabed at West Quay Wharf in Napier Inner Harbour:

(i) The removal of the vessel from the seabed of the Napier Inner Harbour and the coastal marine area in the Hawkes Bay region.

(ii) The removal from the water and/or seabed of any debris from the vessel which remains in the Napier Inner Harbour following the removal of the vessel.

(iii) The transportation of the vessel (or its parts) to a location which it may lawfully occupy.

(4) If the Respondent fails within 28 days of the date upon which the above Orders are served upon him to carry out the work described in (3) above, the Applicant, its servants, contractors or agents, may carry out that work by dismantling the said vessel and transporting it to the Hawkes Bay Landfill for disposal.

(5) That the Respondent shall reimburse the Applicant for the actual and reasonable costs and expenses which it incurs in carrying out the work described in (4) above.

(6) There is no order as to costs.

Subsequent Events

[18] It appears to be accepted that on 12 April 2001 the Environment Court faxed the appellant with a copy of the interim enforcement order and a notice to the appellant as to the appellant’s rights and, in particular, to apply to have the order changed or cancelled.

[19] It also appears to be common ground that on 20 April 2001 the respondent served copies of all the papers relating to the application for the interim enforcement order and also papers relating to notification of an application for an enforcement order under s 316 of the RMA upon the appellant. The papers so served included the interim enforcement order and advice that if the appellant wished to be heard in respect of the substantive application he had to notify the Registrar of the Environment Court at Wellington that he wished to be heard as soon as possible after he received the notice.

[20] The appellant took no steps to have the interim enforcement order cancelled or changed under s 325 RMA. Instead he lodged this appeal on 15 May 2001.

The Nature of the Appeal

[21] The notice of appeal is relatively wide-ranging, but the appellant has given eight points on appeal which have been developed in the appellant’s written submissions. It is simplest to deal with the argument under the points of appeal put before the Court.

First Point of Appeal - Conflict of Interest

[22] The appellant alleges that counsel for the HBRC had a conflict of interest in that he was also counsel for the Crown in certain other proceedings connected with the vessel the “Jenco III”. The appellant’s father brought proceedings against the Ministry of Commerce in this registry under CP 213/99. The proceedings were heard and determined at the end of last year. Counsel for the HBRC was counsel for the Ministry of Commerce, which was being sued in respect of the Official Assignee at Napier. The proceedings involved an alleged failure by the Official Assignee to appeal in respect of certain fishing quota. The fishing quota appears to have related to three vessels, of which it seems the “Jenco III” may have been one. The judgment of this Court has been taken on appeal to the Court of Appeal but has not yet been heard. There is nothing in the judgment of this Court or in the papers before me to indicate that the case turns at all upon the continued existence of the “Jenco III” or where it is to be found.

[23] The appellant has alleged that counsel for the HBRC is somehow biased against him because of counsel’s involvement in the other proceedings. It is submitted that in some way or another counsel and the HBRC misled the Environment Court in the application for the interim enforcement order by stating that the appellant appeared to believe that the vessel “Jenco III” needed to remain in the water in order to preserve his rights in relation to some other litigation to which he is a party. Counsel’s memorandum went on to record that whether that belief is valid is not known. Counsel’s memorandum referred to the affidavit in support by the Harbourmaster, which stated that the appellant had told the news media that the boat’s future would be determined by court action which was already under way. The Harbourmaster said that the HBRC was not aware of the existence of any court proceedings which directly involved the “Jenco III”, nor of any other reason why the vessel should need to be kept berthed in its present state and location. The affidavit had annexed to it a decision of a District Court involving proceedings between the Napier City Council and the appellant and another relating to berthage fees. Another exhibit attached to the Harbourmaster’s affidavit was a letter from the appellant to the HBRC dated 31 May 2000 where the appellant said that he reiterated the position in relation to the “Jenco III”, that it was presently used as evidence before the High Court in relation to damages solely created by the Crown by unlawful acts of negligence. The letter went on to say that the Harbourmaster could refer to earlier correspondence and public statements to that effect. It has to be noted, however, that the litigation with the Crown is not litigation by the appellant but litigation by his father, for whom he holds a power of attorney. As already noted, that litigation relates to fishing quota and not directly to the vessel.

[24] The appellant alleges that the HBRC should also have drawn to the attention of the Environment Court the earlier correspondence between the appellant and the Harbourmaster as well as the litigation between his father and the Ministry of Commerce. The appellant further goes on to allege that because of counsel’s conflict of interest no undertaking of damages was provided by the HBRC.

[25] However, so far as the Environment Court Judge’s decision is concerned, none of these matters can give rise to a point of law. The Environment Court Judge was well aware that no undertaking as to damages had been given and the reasons for that, and addressed that issue in its decision. There is nothing put before the Court to indicate any failure by the HBRC to draw all relevant material to the attention of the Judge or to somehow mislead her. To the contrary. Even on the submissions for the appellant it seems clear that the HBRC and its counsel went out of their way to draw all relevant material to the attention of the Judge. There is no direct reference, it is true, to the proceedings between the appellant’s father and the Ministry of Commerce sued on behalf of the Official Assignee, but there is nothing before this Court to indicate that that proceeding was in any way relevant to the determination that the Environment Court Judge had to make.

[26] The appellant has been quite unable to clarify how any alleged conflict of interest on the part of counsel for the HBRC has somehow materially misled the Environment Court Judge in her decision to grant the interim enforcement order. He appears to have taken it for granted that if counsel were counsel in separate proceedings for different clients that somehow automatically affected the issue. That does not, of course, follow.

[27] In any event, upon the materials before the Court counsel had no conflict of interest whatever. One proceeding by the appellant’s father and not the appellant relates to a claim for damages in negligence upon the basis that the Official Assignee failed to prosecute certain appeals which had been filed with the Quota Appeal Authority prior to the appellant’s father being adjudicated bankrupt. There is nothing whatever before the Court to indicate that that claim is in any way dependent upon the present state of the “Jenco III”. The present proceeding relates solely to the “Jenco III” and it does not relate in any way to the claim against the Ministry of Commerce.

[28] Even if the appellant’s father’s proceedings were in some way connected with the “Jenco III”, there is nothing to substantiate the suggestion that counsel for the HBRC is in a position of conflict of interest. In the proceedings relating to the Ministry of Commerce counsel is defending a claim relating to an allegation that the Official Assignee was liable in negligence. In the present proceedings counsel was advancing an application by the HBRC for orders that the “Jenco III” be removed from its present position in the Napier inner harbour. Counsel for the HBRC could not possibly have a conflict of interest in respect of those separate proceedings.

[29] Thus, however the first point of appeal taken by the appellant is viewed, it cannot give rise to any issue of law which would entitle the Court to consider it as an appeal under s 299 RMA.

[30] A secondary point is made under the same point of appeal, namely that Judge Kenderdine had not referred to what subsection of s 279 RMA she was relying upon for determining the matter when sitting alone. Section 279 specifies the powers of Environment Court Judges to sit alone. However, it was unnecessary for the Judge to refer directly to that section, and no question of law can possibly arise. Section 320, upon which the Judge was relying, specifically empowers an Environment Court Judge to make an interim enforcement order. In any event, such an order is one made in the course of proceedings and comes within the provisions of s 279(1)(a) RMA. No point of law requiring consideration has been raised.

Second Point of Appeal - Failure to Serve Application for Interim Enforcement Notice

[31] The second point of appeal is that the application should have been served upon the appellant prior to it being heard by the Environment Court Judge. It is said that as the application was not specifically made ex parte it should have been served prior to the decision being made. The point is ill-conceived as s 320(2) RMA specifically enables an order to be made without service. The order was made before the time for service expired. Under s 320(5) the appellant was entitled to apply upon service of the order for a change or cancellation of the order but has chosen not to do so.

[32] The appellant alleges that counsel for the HBRC was intentionally preventing the appellant from attending and/or defending the application to the Environment Court and that counsel failed to refer to the relevant subsections of s 320 upon which he relied. The point is again ill-conceived as the application referred to s 320 RMA and complied with its requirements. Nor was it necessary for the application to be marked “Ex Parte” as the appellant alleges. That is not required by s 320 RMA. It is also clear that Judge Kenderdine was in no doubt whatever as to what was involved.

[33] The Environment Court did not expressly refer to s 320(2) and (3). However, the Planning Judge’s decision addressed all aspects of them, expressly or by implication. The Judge was obviously much influenced by the fact that the appellant had failed to respond to the abatement notice, and of course the appellant continued to have his rights under s 320(5) RMA.

[34] No point of law has been raised which could give rise to an appeal under s 299 RMA.

Third Point of Appeal - Failure to Serve Notice of Application and Memorandum of Rights

[35] The third point of appeal is that the HBRC contravened s 317(2) RMA in failing to serve within five working days the notice of application and memorandum of rights on the appellant after 30 March 2001, being the date of the application under s 314 RMA.

[36] Section 317 provides:

“317. Notification of application

(1) Except as provided in section 320 (which relates to interim enforcement orders), where an application for an enforcement order is made, the applicant shall serve notice of the application in the prescribed form on every person directly affected by the application.

(2) Every notice required to be served under this section shall be served within 5 working days after the application is made to the Environment Court.”

[37] Section 317 does not apply to orders. It only applied if the Environment Court required the application for interim enforcement orders to be on notice, and it did not do so. No point of law arises for consideration under s 299 RMA.

Fourth Point of Appeal - Breach of Natural Justice

[38] The fourth point of appeal is an allegation of breach of natural justice and of the audi alteram partem rule and s 27 New Zealand Bill of Rights Act 1990. It is alleged that as counsel for the HBRC did not draw to the attention of the Environment Court that he was also counsel for the Crown in the appellant’s father’s proceedings against the Ministry of Commerce the decision of the Planning Judge is somehow tainted. This point has been dealt with under the first point of appeal. No point of law arises for consideration under s 299 RMA.

Fifth Point of Appeal - No Issue of Urgency in Respect of Present Appeal

[39] The fifth point of appeal does not require to be addressed as it relates to the manner in which this appeal has been heard and does not relate in any respect to the decision of the Environment Court.

Sixth Point of Appeal - Breach of Natural Justice

[40] The sixth point of appeal is a repetition of an earlier point of appeal, that counsel for the HBRC somehow breached natural justice by acting also for the Crown in the other proceedings already discussed. It is alleged that the appellant had a right to contradict the counsel’s memorandum to the Environment Court because of that. It is unnecessary to refer further to the misconceived nature of this approach. It has already been dealt with.

Seventh Point of Appeal - Appellant’s Damages Claim

[41] The seventh point of appeal relates to an allegation by the appellant that he will be entitled to damages against the Crown or the HBRC. It is not clear which. This point has nothing whatever to do with the decision of the Environment Court and does not need to be further referred to.

Eighth Point of Appeal - Environment Court’s Standing on this Appeal

[42] The eighth and final point of appeal has to do with the standing of the Environment Court upon this appeal. No issue arises in respect of the decision of the Environment Court Judge under appeal, and it is unnecessary to refer further to this point.

General

[43] As will be seen from the above, none of the points of appeal raised by the appellant give rise to any point of law to bring the appeal within s 299 RMA. Even if one had, it is difficult to see how any relief could have been granted to the appellant as even now no possible injustice to the appellant in respect of the “Jenco III” has been identified in respect of the Environment Court’s decision. At no time has the appellant clearly explained why he has a right, or even need, to retain the “Jenco III” on the seabed in the Napier inner harbour or why the vessel should not be ordered to be moved.

Decision

[44] The appeal is struck out as not giving rise to any point of law under s 299 RMA. It will be apparent from what has already been said that if it were conceivable that any of the matters raised were points of law requiring consideration in respect of the decision of the Environment Court then the appeal would have been dismissed.

Costs

[45] The HBRC is entitled to its reasonable costs and disbursements, the costs to be calculated in accordance with Category 2 of the Second Schedule and Column B of the Third Schedule to the High Court Rules. Disbursements are to include the reasonable costs of counsel’s travel and accommodation, if any. In the event of disagreement, costs and disbursements are to be fixed by the Registrar.