Lau v Auckland Council
[2016] NZHC 2556
•26 October 2016
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2016-404-001538 [2016] NZHC 2556
IN THE MATTER of an appeal under s 299 of the Resource
Management Act 1991 against a decision of the Environment Court
BETWEEN
EE KUOH LAU (AKA AUGUSTINE LAU)
Appellant
AND
AUCKLAND COUNCIL Respondent
Hearing: 25 October 2016 Appearances:
Appellant in Person
B Watts for RespondentJudgment:
26 October 2016
JUDGMENT OF VENNING J APPLICATION FOR LEAVE TO APPEAL
This judgment was delivered by me on 26 October 2016 at 1.00 pm, pursuant to Rule 11.5 of the High
Court Rules.
Registrar/Deputy Registrar
Date……………
Solicitors: Meredith Connell, Auckland
Copy to: Appellant
LAU v AUCKLAND COUNCIL [2016] NZHC 2556 [26 October 2016]
Introduction
[1] Mr Lau seeks special leave to extend the time to appeal from a decision of the Environment Court delivered on 23 May 2016.1
[2] The Environment Court granted the Auckland Council’s (the Council) application for enforcement orders in relation to a property at Waiwera. The Court made a number of interim orders as follows:
a. Pursuant to s 278 of the Act and District Court Rule 9.25:
i. the Council is to obtain expert reports addressing geotechnical, site stability, slippage, and erosion, and remediation methodology for earthworks and re-vegetation, by 20 June
2016;
ii. the Council is to advise Mr Lau of its selection of experts as soon as practicable;
iii. the Court orders that all relevant experts and assistants are entitled to attend the site (but not enter any home) Monday to Saturday between the hours of 8am – 5pm without prior notice to the owner or occupier/s. They should be accompanied by a warranted Council officer pursuant to s 314(1)(d) of the Act, who is to give a copy of this order to any occupier of the site.
b.Pursuant to s 314(1)(d) of the Act, the entire costs of these reports are to be borne by Lucky Wu Limited and Mr EK Lau jointly and severally, and if paid by the Council can be recovered in the District Court, North Shore.
c. That the reports are to be provided to the Court and the parties by 24
June 2016, and by 8 July 2016 the Council is to file applications for further orders.
d.That the Court will set the matter down on or after 27 July 2016 to consider what further orders should be made, if necessary conducting a disputed facts hearing relating to matters arising from those reports. Evidence in support of further orders is to be filed by
8 July 2016; evidence in reply by 22 July 2016.
e.That where an application for interim orders is made (relating to emergency or other works) the Court may convene an urgent hearing with three days notice (or more) to the parties.
f. A copy of this decision and orders, and any further applications and reports, are to be provided to Alice Nic, Barrister & Solicitor, as substituted service for Qiufen Lu, the landowner.
[3] I note that although Mr Lau is not the registered owner of the property under ss 314 and 319 of the Resource Management Act 1991 (the Act) the Environment Court has jurisdiction to make orders against any person. The decision makes it clear that Mr Lau has had control of the site and was responsible for the work which contravenes the Act and relevant plans.
[4] The time limit for Mr Lau to bring an appeal against the decision was 15 working days after the date on which he was notified of the decision. Mr Lau was notified of the decision by at least 24 May 2016 because on that date he emailed the Environment Court commenting on the decision.
[5] Mr Lau sought to appeal by filing a notice of appeal with this Court on 21
June. The appeal is four working days late. R 20.4(3) applies. By special leave the
Court may extend the time prescribed for appealing.
[6] The relevant considerations for the Court in determining an application for special leave to appeal are:
(a) the length of the delay and reasons for it; (b) the parties’ conduct;
(c) the extent of the prejudice caused by delay; (d) the prospective merits of the appeal; and
(e) whether the appeal raises any issue of public importance.2
[7] Although the delay in the present case is very short the Council opposes the grant of leave on the grounds the appeal is entirely without merit.
The length of the delay and the reasons for it
[8] Mr Lau told the Court that he thought he had 20 working days to appeal. He also says the Council has failed to comply with the timetable fixed by the Environment Court in its decision. The latter point is not relevant. (I understand an extension was, in any event, sought and granted). I accept the delay in filing the appeal is short. However an extension of time is an indulgence and it remains a
matter for the discretion of the Court whether to grant it or not.3
The parties’ conduct
[9] There is nothing about the parties’ conduct during the course of the
proceeding that is of relevance.
Public importance
[10] The proposed appeal does not raise any issues of public importance.
Prejudice and merits
[11] The particularly relevant considerations are the potential prejudice that will be caused by delay and, importantly, the merits of the appeal (or, on the Council’s submission, the lack of merit).
[12] Mr Lau represented himself before the Environment Court and represented himself on this application for leave to appeal and proposed appeal. He has also filed an affidavit to support his application and appeal (if leave is granted).
Background facts
[13] I take the description of the property and the effect of the work in issue from the Environment Court decision. The Judge and Commissioner visited the site. The subject property at 32 Weranui Road, Waiwera is approximately 6.9 hectares in area. It faces north to the river and consists of some flat land adjacent to Weranui Road, with the majority of the site rising. There is very steep land to the south adjoining
the hills near the Waiwera Scenic Reserve. Much of the land, particularly to the south of the site, is heavily wooded and on steep slopes. Between the northern and southern boundary there is a rise of some 80 metres. The ridge itself rises behind the site further to the south, cresting at over 100 metres. It is unclear whether the lower lying land on 32 Weranui Road is made up of slip material from the hillsides above, or if the land has accreted by some other method. There is a slope on the lower land to the foot of the much steeper land indicating that there may have been slippage there in the past.
[14] The gully and stream area on the site projects several hundred metres to the rear boundary. The gully/stream appears to carry on well up that ridge. Significant Puriri, Kowhai, Nikau (and other) trees are in this area, together with native birds including tui, fantail and similar.
[15] The coastal forest merges around the gully with the surrounding canopy, which consists of a mix of species, predominantly including Kanuka, Manuka and several other species. Much of this is on very steep land. Some of the drops from the tracks that have been formed appear to be near sheer. Approximately half of the aerial land mass is covered by bush.
[16] Mr Lau has carried out a substantial amount of earthworks on the site without consent. A surveyor has calculated up to 5,000m3 is affected. A significant amount of the earthworks were carried out from March 2013 to June 2014. Given the amount of informal filling that has occurred by pushing the excavated dirt over the edge, the actual effect of the earthworks is significantly greater than the volumes of 5,000m3 might indicate.
[17] The earthworks are unstable and there are signs of rocks still falling onto the track and below in places. There are also signs that the instability of the excavation has created a precarious situation in respect of some large rocks and also some large trees, which had lost their support or been pushed by soil or other trees.
[18] In relation to the vegetation clearance, calculations show something in excess of 0.5ha (5,000m2) of earthworks on 32 Weranui Road. In addition to the trees
cleared, there is the consequence of the earthworks, the earth-filling into the bush below, and the undermining of trees above. The current state of the earthworks represents a danger to any person on the land. The damage to vegetation has had a significant negative effect not only on the stability of the site, but on the intactness and connectedness of the indigenous vegetation and the flora and fauna supported by it.
[19] The works carried out by or under the direction of Mr Lau in 2013 caused substantial damage to the property. The works included:
(a) several thousand cubic metres of unconsented earthworks without proper geotechnical consideration as to the effect on erosion or sediment controls, resulting in instability, erosion, rock falls and sedimentation of waterways;
(b)the unconsented destruction of a substantial area of native coastal forest; and
(c) the unconsented deposits of soil and tree debris in streams to form vehicle crossings.
[20] In 2013 partway through the works on the property Mr Lau applied for a resource consent to remove almost all of the vegetation on the property. However, he failed to supply the additional information requested by the Council so the resource consent application was not able to be progressed. Mr Lau nevertheless continued with the works.
[21] In July 2015 the Council applied for enforcement orders requiring remediation of the damage. The orders were sought against:
(a) Mr Lau on the basis he personally managed the works;
(b)Lucky Wu Limited, a company claiming the right to possession of the property of which the appellant was director; and
(c) Qiufen Lu, registered landowner.
[22] The parties went to mediation before an Environment Court Commissioner. An agreement was reached in November 2015 but the appellant later resiled from that resolution.
[23] The matter then proceeded to the hearing before the Environment Court. Following the delivery of the Environment Court decision the Council advised Mr Lau it had appointed the geotechnical engineering consulting firm Coffey to report addressing site stability matters and that it proposed to use an in-house expert ecologist to prepare the ecological remediation plan. The Council also requested and was later granted by the Environment Court an extension of time to provide the reports to the Court and other parties. The matter has not been progressed further because Mr Lau filed the appeal and this application for leave to appeal.
[24] Mr Lau’s proposed appeal is under s 299 of the Resource Management Act.
As such:
(a) the appeal must be confined to questions of law;
(b)the materiality of any error by the Environment Court is relevant to whether relief will be granted;
(c) relitigation of factual findings is to be guarded against; and
(d) this Court should recognise the specialist nature of the Environment
Court.4
Grounds for appeal
[25] Mr Lau addressed the Court. He had not filed written submissions as directed by Katz J on 26 July. Rather he chose to file an affidavit. However, from that affidavit, the grounds set out in his appeal documents and from his oral
submissions to the Court, it appears Mr Lau wishes to raise the following points.
4 Guardians of Paku Bay Association Inc v Waikato Regional Council [2012] 1 NZLR 271.
The experts appointed must have a background check and three quotes are required before one of them is appointed. The right of appointment must vest in the appellant rather than the Council.
[26] Mr Lau seeks to vary the orders made by the Environment Court but does not identify any recognised error of law on the part of the Court in relation to the orders made. The directions as to the nature of the expert reports required and how they were to be obtained were based on the evidence before the Environment Court. The witnesses at that hearing were two enforcement officers, a surveyor, an ecologist and a heritage archaeologist. In addition, as noted, the Judge and Commissioner visited the site. Mr Lau says he has an engineering background and knowledge about sandstone substrate. However, the Court was entitled to act on the evidence before it, and on the basis of its own inspection. The reports it has directed to be carried out will address the geotechnical and other issues raised. There can be no suggestion that the Court applied any incorrect legal test or that the directions reflected irrelevant considerations. The directions were entirely consistent with the application for the enforcement order, the evidence of the enforcement officers and the Court’s own inspection.
The Council should not be allowed to appoint any in-house experts as they are conflicted.
[27] This ground of appeal raises a conflict of interest in the appointment of a Council expert. Again the appointment of a Council expert follows and was based on the evidence that was before the Environment Court. It was a decision that was open to the Court.
The Council’s “tree consent” officer breached a duty of care and was negligent by not attending a site visit in May 2013 and following the PAUP plan in September
2013
[28] This ground of appeal relates to the alleged actions of a Council officer in
2013, well before the decision. It does not relate to any error of law by the Court arising from the decision.
The Council’s approach to the reserve area required was inconsistent. As the
Rodney branch of the Council has come under the Supercity the Rodney Local
Council Act should be abolished to accommodate the need for further housing in
Auckland.
[29] This proposed ground raises issues concerning both the outcome of the mediation and the contention that the operative Auckland Council District Plan, Rodney Section should have been abolished when the Supercity was created, neither of which raise issues of law arising from the Environment Court decision. The mediation is a separate issue. Mr Lau’s point regarding the challenge to the width of the riparian planting that had been agreed is not relevant to the Environment Court’s decision which at present has made no conclusion or decision on that issue.
[30] The second aspect of this proposed ground relates to legislative decisions under the Act, Local Government (Auckland Council) Act 2009 and the Local Government (Auckland Transitional Provisions) Act 2010, the effect of which is that the existing district plans of the amalgamated territorial authorities continue to be operative until superseded by the Auckland Unitary Plan. It is not a matter which raises an error of law in relation to the proceeding.
Since half of the mountain at Orewa had been cut and vegetation removed why was that area allowed to be subdivided and replanted as opposed to the present property?
[31] This proposed ground of appeal relates to an allegation the Council has allowed vegetation removal at other sites. It does not raise any error of law in the Court’s decision nor raise any arguable question of law.
The Council has double standards compared to other sites. The Council has a problem regarding sewage capacity rather than the issues addressed in the decision.
[32] This ground of appeal alleges improper purpose by the Council. There is no evidence from the Environment Court decision to support such an allegation. Mr Lau suggested there was access to a sewage system and the Court was wrong to conclude otherwise. But the Court only referred to the issue of wastewater in passing at [64] to [65]. Mr Lau conceded that the proposed development would be a restricted discretionary activity which was the focus of the Court’s discussion. There is no error of law by the Court on this issue.
In June 2016 the Prime Minister had announced the National Policy Statement. The appeal was lodged after the Policy Statement so it should be granted and the decision stay.
[33] The last proposed ground of appeal seeks to raise an allegation that the Environment Court was wrong not to have applied the proposed National Policy Statement on Urban Development Capacity. However that statement was not released until 2 June 2016, 10 days after the decision. The effect of it on the subject property is entirely speculative at present. It raises no issue of law.
The Court relied on old photographs
[34] During submissions, Mr Lau criticised the Environment Court for attaching historical (2013) photographs to its decision. He said the physical state of the property was different in 2016. But that overlooks that the Court inspected the property before issuing the orders.
[35] In summary, none of the matters that Mr Lau seeks to raise have any merit. The proposed grounds of appeal do not raise questions of law, and have no prospect of success.
[36] The further delay in progressing the remedial work contemplated by the enforcement order is a relevant consideration. To grant an extension of time for the appeal to be brought in the circumstances of this case would delay the necessary investigation and consequent remedial work required at the site. The Environment Court identified a number of respects in which the work Mr Lau was responsible for
have breached the Act and Rules.5 Of particular concern is the safety issue identified
by the Council. The remedial work that may be required to address the issues identified by the Court should not be further delayed by a meritless appeal.
[37] The comments of the Court of Appeal in Ngati Tahinga & Ngati Karewa
Trust v Attorney-General in dismissing an application for special leave to appeal are directly applicable in the present case:6
5 Above n 1, at [60].
6 Ngati Tahinga & Ngati Karewa Trust v Attorney-General CA73/02, 27 June 2002, at [3].
The overall consideration is the justice of the case. It is within the scope of that discretion to determine that the appeal would be hopeless (see eg Prudential Building and Investment Society Canterbury (In liquidation) v Hankins (1991) 5 PRNZ 160 , 162, and the authorities referred to there). For the reasons we now give we consider that this appeal would be hopeless and against the interests of justice.
Result
[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.
Costs
[39] Mr Lau is to pay the Council costs on a 2B basis together with disbursements as fixed by the Registrar.
Venning J
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