Lau v Auckland Council
[2017] NZHC 1010
•15 May 2017
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2016-404-2752 [2017] NZHC 1010
BETWEEN EE KUOH LAU (AKA AUGUSTINE
LAU) Appellant
AND
AUCKLAND COUNCIL Respondent
Hearing: On the papers Appearances:
Appellant in person
B Watts for the RespondentJudgment:
15 May 2017
JUDGMENT OF WOODHOUSE J
This judgment was delivered by me on 25 May 2017 at 11:30 a.m. pursuant to r 11.5 of the High Court Rules 1985.
Registrar/Deputy Registrar
……………………………………
Parties/ Solicitors: Mr A Law, Auckland
Mr B Watts, Meredith Connell, Office of the Crown Solicitor, Auckland
LAU v AUCKLAND COUNCIL [2017] NZHC 1010 [15 May 2017]
[1] The appellant, Mr Lau, has filed a document described as “Notice To Civil Appeal With New Evidence” intended as a notice of appeal against a final decision of the Environment Court.1
[2] The Environment Court decision was made on an application by the respondent Council for enforcement orders in relation to land at Waiwera (the property). The decision requires Mr Lau and the landowner to remediate environmental damage caused by unlawful earthworks and vegetation removal.
[3] Section 299 of the Resource Management Act 1991 (the Act) provides that appeals may be made to the High Court only on a question of law. The respondent Council contends that none of the matters raised by Mr Lau are appealable questions of law. Whether that is so is the matter for determination.
Appeals: the law and principles
[4] Section 299 of the Act provides:
299 Appeal to High Court on question of law
(1) A party to a proceeding before the Environment Court under this Act or any other enactment may appeal on a question of law to the High Court against any decision, report, or recommendation of the Environment Court made in the proceeding.
(2) The appeal must be made in accordance with the High Court Rules
2016, except to any extent that those rules are inconsistent with sections 300 to 307.
[5] Section 300(5) of the Act provides:
300 Notice of appeal
…
(5) The notice of appeal shall specify—
(a) The decision or report and recommendation, or part of the decision or report and recommendation, appealed against; and
(b) The error of law alleged by the appellant; and
1 Auckland Council v Lau [2016] NZEnvC 212.
(c) The question of law to be resolved; and
(d) The grounds of appeal with sufficient particularity for the
Court and other parties to understand them; and
(e) The relief sought.
[6] The approach to appeals under s 299 was discussed by this Court in Guardians of Paku Bay Association Inc v Waikato Regional Council.2 The points of principle relevant in this proceeding may be summarised as follows:
(a) The onus is on the appellant to identify a question of law arising out of the Environment Court’s decision.3
(b) There are four circumstances in which a question of law will arise.4
These are where the Environment Court: (1) applied a wrong legal test; (2) took into account matters which should not have been taken into account; (3) failed to take into account matters which should have been taken into account; or (4) made a decision for which there was no evidence, or where the evidence is inconsistent with and contradictory of the decision, or where “the true and only reasonable
conclusion contradicts” the decision.5
(c) The High Court must be vigilant in resisting attempts by litigants disappointed by Environment Court decisions to use appeals to the High Court in an endeavour to re-litigate factual findings made by the
Environment Court.6
2 Guardians of Paku Bay Association Inc v Waikato Regional Council [2012] 1 NZLR 271 (HC), (2011) 16 ELRNZ 544, [2012] NZRMA 61 at [28]-[33].
3 Smith v Takapuna City Council (1988) 13 NZTPA 156 (HC). Now contained in s 300(5)(b) and
(c).
4 Countdown Properties (Northland) Ltd v Dunedin City Council [1994] NZRMA 145 (HC) at
153 (HC); see also Nicholls v District Council of Papakura [1998] NZRMA 233 (HC) at 235.
5 Edwards (Inspector of Taxes) v Bairstow [1956] AC 14 (HL) at [36], [1955] 3 WLR 410, [1955]
3 All ER 48.
6 New Zealand Suncern Construction Ltd v Auckland City Council [1997] NZRMA 419 (HC) at
426; Guardians of Paku Bay Association Inc v Waikato Regional Council, above n 2, at [32].
(d)Findings of fact can amount to an error of law. Aspects of this are noted above in point (4) of sub-paragraph (b). Where, as in this proceeding, the appeal is founded almost entirely on criticisms of factual findings, the appellant faces two hurdles. Adapting what was said in Taafi v Minister of Immigration7 to the circumstances of this case, those hurdles are:
(i)First, the appellant will need to show a seriously arguable case that factual findings by the Environment Court are actually incorrect. An appeal court will not interfere where there is an available evidential basis for the Court’s finding.8
(ii)Second, the applicant will need to show that the factual errors are, in combination and in the context of the whole decision, so grave as to constitute an error of law. That is, it is seriously arguable that: (1) the Court has made a finding of fact which is based on no evidence, based on evidence inconsistent with or contradictory of another finding of fact, or contradictory of the
only reasonable conclusion of fact available on the evidence;9
and (2) the errors of fact are so significant and extensive that the Environment Court, had it properly directed itself, may well have reached a different decision overall on the matter before it.10
(e) The sufficiency of evidence, rather than want of evidence, cannot amount to a question of law.11
7 Taafi v Minister of Immigration [2013] NZAR 1037 (HC) at [19].
8 Faave v Minister of Immigration [1996] 2 NZLR 243 (HC) at 247.
9 Edwards (Inspector of Taxes) v Bairstow, above n 5, at [36].
10 Faave v Minister of Immigration, above n 8, at 247.
11 Marris v Ministry of Works and Development [1987] 1 NZLR 125 (HC); Raceway Motors Ltd v Canterbury Regional Planning Authority [1976] 2 NZLR 605 (SC); Centrepoint Community Growth Trust v Takapuna City Council [1985] 1 NZLR 702 (CA).
(f) The weight to be given to the assessment of relevant considerations is for the Environment Court and is not for reconsideration by this Court as a point of law.12
The procedural background on this appeal
[7] In response to Mr Lau’s notice of appeal the Council filed a notice of intention to appear. The Council gave notice that it opposed the appeal on the grounds that Mr Lau was proceeding on the basis that he had general right of appeal , which he does not have, and on the grounds that the appeal did not raise any question of law that could be the subject of an appeal under s 299 of the Act.
[8] At a case management conference Mr Lau and Mr Watts, for the Council, agreed to a procedure to enable determination on the papers of the issue whether Mr Lau’s appeal raises a question, or questions, of law. In accordance with agreed directions, Mr Lau filed a memorandum containing his submissions as to why his appeal should not be struck out and identifying what Mr Lau contends are the appealable questions. The Council filed submissions in reply. Mr Lau also filed an affidavit. No leave had been granted to file an affidavit, but the respondent took no issue with this. On the relevant matters the affidavit essentially repeats the matters contained in the submission. I am satisfied that a decision can be made on the documents filed.
The Environment Court decisions
[9] The decision against which Mr Lau has brought this appeal followed an interim decision of the Environment Court.13 The fact that the decision now subject to appeal was preceded by the interim decision is of some consequence for the matters I have to determine. This is because the interim decision contains substantive conclusions which were taken into account in the final decision but
which substantive conclusions cannot be challenged.
12 Moriarty v North Shore City Council [1994] NZRMA 433 (HC) at 437; Hunt v Auckland City Council [1996] NZRMA 49 (HC) at 54; Skinner v Tauranga District Council HC Auckland AP98/02, 5 March 2003 at [13]; Guardians of Paku Bay Association Inc v Waikato Regional Council, above n 2, at [31].
13 Auckland Council v Lau [2016] NZEnvC 103.
[10] Mr Lau did seek leave to appeal out of time against the interim decision, but that application was dismissed.14 The background facts, leading to the interim decision, are summarised by Venning J in that decision, and it is unnecessary to provide a further summary here.15 The conclusion of this Court on Mr Lau’s application for leave to appeal, which in the usual way included an assessment of the merit of the appeal, was as follows:
[38] The proposed appeal is hopeless and entirely without merit. Mr Lau has not identified a serious argument in relation to the validity of the Court's decision. The application for special leave to appeal is dismissed.
[11] The Environment Court’s conclusion in its interim decision was as follows:
[102] For current purposes the Court is satisfied that there are serious adverse effects on the environment by virtue of the unlawful earthworks and vegetation clearance, which constitute potential risk to persons on site. The Court requires urgent geotechnical, site stability, and erosion reports together with potential remediation methodology to be considered before final orders for rehabilitation of the site can be considered. Access orders are also made to enable testing, investigation including measurements, documentation and photography/video.
[12] In its final decision the Court said that the position of the Council was supported by extensive evidence, which was itemised. The Court then summarised Mr Lau’s response as follows:
[21] Quite simply, Mr Lau produced no expert evidence in contradiction. His main response was to suggest that the Council had slips on other coastal land nearby and that there was some form of impropriety by Council officers. Can we say that we reject any assertions by Mr Lau in this regard. None were supported by any evidence. We are satisfied that the evidence produced by the Council witnesses, particularly their expert witnesses has been thoroughly researched and properly presented.
[13] The Court reviewed a number of matters advanced by Mr Lau and some of the evidence he sought to rely on. It then concluded this part of its reasons as follows:
[29] The evidence is clear. As identified in the previous decision Mr Lau and/or the landowner are responsible for the works undertaken on the upper slopes of the property by creating tracking. This has interfered not only with the landform but with a number of significant native species. It has created
14 Lau v Auckland Council [2016] NZHC 2556.
15 Lau v Auckland Council, above n 14, at [13]-[23].
instability both within the sandstone and other soils on the site (some of which have been subject to rock fall). There is potential for landslip, given the geology of this area.
[30] Having heard the evidence at this hearing we are more convinced than we were earlier that if the site remains in its current condition it constitutes not only an ongoing risk to the property and persons on the site, but will lead to ongoing ecological damage. We are satisfied that the orders should be made to remediate the land in accordance with the reports A, B, and C.
Evaluation
[14] Seven grounds of appeal can be identified in the documents Mr Lau has filed. I will deal with each of those grounds under sub-headings intended to encapsulate the essence of Mr Lau’s contention.
Ground 1: The Environment Court wrongly identified shell deposits at the property as midden sites
[15] One matter the Environment Court had to determine was whether there were middens and other archaeological features on the property. A senior archaeologist gave evidence for the Council that there were several shell midden sites associated with historic Maori occupation of the area. Mr Lau disputed this. He contended that the shells were of geological origin; that they had originally been deposited in the seabed and uplifted over time to be located on a hillside. The evidence Mr Lau relied on was confirmation from a geotechnical engineer, during cross-examination by Mr Lau, that geological processes formed the country. Mr Lau advised the Environment Court that he was not prepared to accept that the middens were of an archaeological nature without carbon dating.
[16] The Court had concluded in its interim decision that the shell deposits were archaeological sites.16 In its final decision, now under appeal, the Court was not dissuaded from its view.
[17] The Court’s conclusion is demonstrably a conclusion of fact which does not give rise to any question of law. It may also be observed that the evidence from the
geotechnical engineer which Mr Lau sought to rely on, and which essentially
16 Auckland Council v Lau, above n 13, at [91].
confirmed a matter in respect of which the Environment Court could have taken judicial notice, did not remotely bring into question the detailed and direct evidence from the witnesses for the Council.
Ground 2: The Court had no right to require Mr Lau to have the middens carbon dated
[18] This ground of appeal was recorded by Mr Lau by saying that the Judge “had no right to rule that I had to uplift my right to carbon decay test results”. It seems apparent that what Mr Lau means is that the Court required him to have the middens dated by carbon testing and that the Court was wrong to do so. The context is noted above at [15].
[19] No appealable question of law arises in this regard. The Court did not direct Mr Lau to get the shells carbon dated. The Court simply recorded the position taken by Mr Lau. It was entirely a matter for him as to whether he wanted to have the shells carbon dated. The other side of this particular point is that Mr Lau was not entitled to require the Council to have the middens carbon dated.
[20] The Environment Court was required to determine the factual issue based on the evidence it had. This did not include carbon dating evidence from either party. This simply takes the matter back to ground 1 and the conclusion I have already recorded in that regard. Ground 2 does not raise a question of law.
Ground 3: A replanting plan approved by the Court is defective and “should be reversed”
[21] The Court directed Mr Lau (and the landowner) to undertake replanting in accordance with a plan approved by the Court. Mr Lau referred to several matters, some of them overlapping, which in his submission supported his argument.
[22] In essence, there appear to be three matters of concern to Mr Lau which I will summarise with a short description, followed by the submission made by Mr Lau.
[23] The first matter relates to the sandstone quality of the land and fire risk. The submission is as follows:
The subjected property 32 weranui rd situated at the sandstone zone with water absorption between 1 to 1.2% and during the hearing appellant enquired respondent’s another witness Brenda Osbourne whether any fire risks during dry years for the 1.1 ha had been considered, she replied no.
[24] The second matter concerned whether plants on the site were “original” or replanted. The submission was:
Another question appellant enquired her whether the kanuka/manuka on site original from earth or replanting species that for honey production, her answer “don’t know”.
[25] The third matter related to possible landslides if trees are required to be replanted in a high wind zone. The submission was:
When appellant shown her the pictures the current landslide/slips at Winderholm reserved – 200 m from subjected property and appellant explained to her planting trees on high wind zone may caused slip/landslide, she silent and make no comment.
[26] As recorded in the quotation of Mr Lau’s submissions, all of these matters were raised by him in cross-examination. They were repeated by him in his submissions to the Court. They raised questions of fact, or matters combining questions of fact with evaluative judgment, and with the latter dependent, in considerable measure, on the expertise of the Court (an Environment Court Judge and an Environment Commissioner). They do not raise questions of law. A finding of fact may amount to an error of law in the limited circumstances outlined at [6](d) above. Mr Lau has not identified any error of that nature in respect of the Court’s conclusions.
Ground 4: The Environment Court cannot impose, or enforce, a land covenant
[27] Mr Lau, in his challenge to the remedial replanting plan, submitted that the Court “had no right to the ruling of land covenant as proposed by Ms Osbourne”. Ms Osbourne was a Council witness. Mr Lau’s submission is, in effect, that the Environment Court does not have power to impose a covenant on a land owner in favour of a Council. Mr Lau further submitted that the “land covenant allegation can only be enforced under High Court and above Courts”; that is to say, a submission that the Environment Court has no power to enforce a land covenant.
[28] The order of the Environment Court challenged by those submissions is order
F, as follows:
The respondents are not entitled to undertake any works within the area marked as proposed covenant in attachment D or over 10 degrees in slope without written consent from the Council or further order from this Court.
[29] Mr Lau has misconstrued the nature and effect of the Court order. The powers of the Environment Court in relation to land covenants are irrelevant. The terms of the order make clear that the Court was neither creating nor enforcing a covenant over land. This was also fully explained by the Court in the following paragraph:
[18] Initially the Council also sought an order against the first and second respondents17 that they provide a protective covenant in perpetuity in favour of Auckland Council. The Court does not consider it has the power to make such an order and that is a matter of covenant or contract between the parties. On the other hand, it appears that the Court does have the power to make an order that no works are to be undertaken within this same area without further order of this Court. Mr Watts acknowledged that would be an acceptable alternative to the orders sought. This area is shown at page 17, attached hereto as D, in green cross hatching and covers the stepper portion of the site and around the waterway.
[30] As is apparent, the Court simply used the Council’s plan, which had been prepared in support of the Council’s original application for a “proposed covenant”, to identify the area of land which is subject to the enforcement order made by the Environment Court. The points raised by Mr Lau are not arguable questions of law.
Ground 5: Evidence of a geotechnical engineer engaged by the Council was false and this was evidence improperly induced by the respondent’s counsel
[31] The essence of Mr Lau’s contentions under this heading are that a geotechnical engineer engaged by the respondent, Mr Marchant, while he was giving evidence, was improperly induced by counsel for the respondent to say that sandstone on the property was “soft”, and this evidence was both wrong and falsely given. It is apparent Mr Lau further contends that, but for the alleged prompting by the respondent’s counsel, Mr Marchant would have given evidence that the
sandstone on the property is hard. I draw that inference because of the following statement in Mr Lau’s submissions:
Sandstone extracts had been used for house foundations and brick walls in the housing industries for hundreds/thousands of years.
[32] The relevant evidence of Mr Marchant is readily identified, because Mr Lau said in his submission that the word “soft” had been recorded twice in the transcript. The evidence was in answer to a question from Mr Lau about sandstone:
And so that’s been raised up from the sea and it’s been compressed and it’s a relatively soft stone, it’s not hard like volcanic materials that we get in the mountains around Auckland, so it’s not nearly as hard as that but it’s, yes, it’s a sandstone, a mud stone, some people call it a papa, not that that’s really a proper name for it but it’s, because it’s kind of a generic name, but a relatively soft material.
(emphasis added)
[33] Mr Lau also asked Mr Marchant a question about sandstone being damaged
by tree roots, and Mr Marchant’s answer was:
Yes I think you’ll find that for the bigger trees, they can get into the sandstone over time, simply because it weathers and softens and they can penetrate into it.
(emphasis added)
[34] The only theoretical basis upon which Mr Lau’s submissions in this context, and the evidence in question, could give rise to a question of law, would be if the evidence I have recorded might arguably be false. If so, that might in turn give rise to an enquiry whether counsel for the respondent improperly induced the witness, while under cross-examination, to give a particular answer.18 However, a cursory reading of the evidence makes clear that Mr Lau’s contentions are untenable. If the words “soft” and “softens” are replaced with the words “hard” and “hardens”, these answers from Mr Marchant would have been nonsensical.
[35] I also agree with a further submission for the respondent. If it were assumed that Mr Marchant’s answer was incorrect, Mr Lau has not explained how the evidence is material to the Environment Court’s decision such that an appealable
question of law arises. Furthermore, the qualities of sandstone were factual matters for the Environment Court to determine. There was no credible evidence raising an issue of fact as to whether Mr Marchant’s evidence was wrong. And, contrary to Mr Lau’s submission, Mr Marchant did not say that the sandstone was soft, but simply that it was “relatively soft” compared to some other materials. In addition, the Environment Court itself possessed a reasonable degree of expertise in geotechnical matters due to its experience as a specialist court, as is indicated by questions from
the Court to Mr Marchant.19
[36] This ground raises no arguable question of law.
Ground 6: The quality of the evidence given by the geotechnical engineer should have been determined in the District Court under the Consumer Guarantees Act
1993
[37] Mr Lau’s contention proceeds on the premise that Mr Marchant’s evidence, just discussed, was false. The propositions said to follow from this are that it was therefore a “service” provided without “reasonable care and skill”, this was in breach of the Consumer Guarantees Act 1993, the Environment Court has no jurisdiction to determine matters under the Consumer Guarantees Act, and the matter should have been referred to the District Court for adjudication under the Consumer Guarantees Act.
[38] These propositions are patently untenable. The assessment of the evidence, including the credibility of the witnesses, was a matter for the Environment Court and for no other Court.
Ground 7: There were no grounds for an order that Mr Lau reimburse the
Council for costs of emergency remedial works
[39] In its interim decision the Environment Court recorded its concern about instability risks of the property as a result of the unlawful earthworks and vegetation removal. The Court directed the Council to evaluate the instability risk. In the course of that evaluation the Council determined, under s 330 of the Act, that emergency works were required to address an immediate hazard presented by loose
or “imminently” loose boulders on a hillside. The works were undertaken at a cost of $4,140. The costs order of the Court in its final decision included an order that Mr Lau and the landowner pay that sum “for emergency works required on the site”.
[40] Mr Lau challenges the order that he pay those costs. He says that the work completed was “not up to the standard and not accepted by Mr Peter Merchant [sic – Mr Marchant] during the hearing”. Mr Lau also poses the following questions, which arise from a discussion between Judge Smith and Commissioner Prime:
On what legal basis or power the commissioner had the right on the ruling of the price of service that in breach of consumer satisfaction act as above? Is that a Joke?
[41] There is no arguable point of law as to the Court’s power to make the order that was made. The power is contained in s 314(1)(d) of the Act. That provision identifies various circumstances which apply in this case.
[42] What the Court had to determine was whether the expense sought to be recovered was “actual and reasonable”. The questions whether an expense claimed is both actual and reasonable are questions of fact, not questions of law. There was clear evidence produced through a witness, Mr Flynn, that the costs were the actual costs incurred. There has not been any challenge to this.
[43] The reasonableness of the costs was the subject of cross-examination of Mr Flynn by Mr Lau. In respect of Mr Flynn’s evidence, and subsequent submissions to the Court from Mr Lau, Judge Smith conferred with Commissioner Prime in the course of Mr Lau’s submissions. Judge Smith then said:
Well, I have asked the Commissioner again who has long experience with Northland and the costs of these things, who tells me he would have considered that [expense] fairly reasonable. Now I don’t know, you may be able to get it cheaper than everyone else but I would have thought to get a digger onto site to undertake the works that have been undertaken and removed again is not going to be a cheap process. I’m surprised it could be done for 4,000. Are you – how much would it cost you to get it done?
[44] Mr Lau said that he could have got it done for $1,500. Judge Smith asked whether that was using the same contractors who had undertaken the unlawful work
at the site which had led to this proceeding. Mr Lau said it was the same contractor. Judge Smith replied: “Okay, well maybe that speaks for itself then.”
[45] There was no error of law in the discussion between Judge Smith and Commissioner Prime, nor in some reliance being placed on Commissioner Prime’s observations.20 The primary evidence on reasonableness came from a witness, Mr Flynn. The evidence of Mr Marchant that Mr Lau refers to was considered by the Environment Court. It was for that Court to determine what weight, if any, to put on Mr Marchant’s evidence. Mr Lau again has not identified any question of law entitling him to bring an appeal.
Result
[46] None of the grounds of appeal advanced by Mr Lau, or matters otherwise referred to by him, are appealable questions of law. Because Mr Lau may only appeal on a question of law his appeal is dismissed.
[47] The respondent, having succeeded, is entitled to costs. The respondent seeks costs on a 2B basis in a sum of $6,021, with costs totalling that sum itemised in an appendix. I am satisfied that the respondent is entitled to costs on a 2B basis in that sum. There is an order that Mr Lau pay the respondent’s costs in a sum of $6,021.
[48] Mr Lau also applied for an order for stay of the Environment Court’s orders.
The stay application is dismissed.
Woodhouse J
20 Guardians of Paku Bay Association Inc v Waikato Regional Council, above n 2, at [33].
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