Lau v Auckland Council - [2017] NZHC 1010

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 Respondent

Judgment:

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…

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: [2017] NZHC 1010
Decision Date: 15 May 2017

CaseChat Overview and Summary

In Lau v Auckland Council, the appellant, Mr Lau, sought to appeal a decision of the Environment Court, which required him and the landowner to remediate environmental damage caused by unlawful earthworks and vegetation removal. The High Court was asked to determine whether the appeal raised any questions of law, as required by s 299 of the Resource Management Act 1991. The Court identified seven grounds of appeal, none of which, it was found, raised any question of law. The first ground related to the Environment Court's identification of shell deposits at the property as midden sites. The Court concluded this was a factual matter and did not give rise to any question of law. The second ground was that the Court had no right to require Mr Lau to have the middens carbon dated. The Court found no appealable question of law arose as the Court did not direct Mr Lau to get the shells carbon dated. The third ground concerned a replanting plan approved by the Court. The Court found that the concerns raised by Mr Lau were questions of fact and did not raise questions of law. The fourth ground was that the Environment Court could not impose or enforce a land covenant. The Court found that Mr Lau had misconstrued the nature and effect of the Court order. The fifth ground was that evidence of a geotechnical engineer engaged by the Council was false and improperly induced by the respondent’s counsel. The Court found Mr Lau’s contentions untenable. The sixth ground was that the quality of the evidence given by the geotechnical engineer should have been determined in the District Court under the Consumer Guarantees Act 1993. The Court found this contention patently untenable. The final ground was that there were no grounds for an order that Mr Lau reimburse the Council for costs of emergency remedial works. The Court found no arguable point of law as to the Court’s power to make the order that was made. Because Mr Lau may only appeal on a question of law, his appeal was dismissed. The respondent was awarded costs on a 2B basis in a sum of $6,021.

Orders