Makara Guardians Incorporated v Wellington City Council HC Wellington CIV 2007-485-1742

[2007] NZHC 2061

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV 2007-485-1742

BETWEEN  MAKARA GUARDIANS INCORPORATED Appellant

ANDWELLINGTON CITY COUNCIL First Respondent

ANDWELLINGTON REGIONAL COUNCIL Second Respondent

ANDMERIDIAN ENERGY LIMITED Third Respondent

Appearances: G.D.S Taylor for the appellant

J. Woolley for the first respondent
A.J.L. Beatson for third respondent

Hearing Date: 28 August 2007

ORAL DECISION OF ASSOCIATE JUDGE D.I. GENDALL

[1]      This matter was called in the chambers list today 28 August 2007.

[2]      Mr Taylor counsel for the appellant has filed a memorandum for this call.  In this memorandum he seeks a direction that the present appeal should be adjourned until “the second Tuesday after the Court is advised by the appellant that the appeal is to proceed”.  This is on the basis that the appellant has sought a decision from the

Environment Court that the present matter is to be the subject of a rehearing.

MAKARA GUARDIANS INCORPORATED V WELLINGTON CITY COUNCIL AND ORS HC WN CIV

2007-485-1742  28 August 2007

[3]      Counsel advise that the decision of the Environment Court on that rehearing question has been delayed.  Counsel was unable however to give me any indication as to when the decision of the Environment Court might be available.

[4]      So far as the appellants’ request is concerned, that this appeal might simply be adjourned at this stage and held in abeyance until the Environment Court decision on a rehearing is given, this was opposed by Mr Beatson counsel for Meridian Energy Limited.

[5]      Mr Woolley counsel for the Wellington City Council before me indicated that the council would simply abide the decision of the court on this adjournment question.  He did go on to state, however, that if agreement was not reached between the contesting parties to this appeal on the adjournment question then the view of the Council is that normal time-tabling towards the hearing of the appeal should occur now.

[6]      For the appellant Mr Taylor in support of his submission that an adjournment should be granted at this point, at the outset gave a commitment to the Court that if a rehearing of this matter was ordered by the Environment Court then the present appeal would be immediately abandoned.

[7]      He went on to indicate that as the appellant is a community group it is important that they not be required to proceed with full preparation for the appeal (including provision of submissions, completion of bundles etc) and incur the attendant cost until the Environment Court decision on a rehearing is given.  To do otherwise he said would be a complete waste of resources not to mention a waste of valuable Court time, which would occur both in this Court and in the Environment Court.

[8]      Further, Mr Taylor submitted that if a rehearing is to be granted by the Environment Court then this would result ultimately in a new decision of that Court which of course would mean the Court’s previous decision would lapse and the need for any appeal would have fallen away.

[9]      Finally, as I understand his submissions, Mr Taylor contended that the broad interests of justice and the resource requirements of both the appellant community organisation, all respondents and the various Courts involved, all support the view that the present appeal should be held in abeyance until a decision is made by the Environment Court on whether a rehearing is to take place.

[10]     In response Mr Beatson for Meridian Energy noted that these proceedings relate to a major national energy project and that Meridian was committed to approximately  $450,000,000.00  to  complete  this  project.  He  suggested  quite properly that a decision with respect to the project needed to be made with some urgency as the commercial ramifications of continuing delay would be significant.

[11]     Mr Beatson contended that the course proposed by the  appellant and its counsel to simply adjourn the present appeal could result in prolonged or significant delay in this matter.

[12]     Again  quite  properly  Mr  Beatson  noted  that  this  appeal  lodged  by  the appellant on 10 August 2007, must be seen as signifying that the appellant intended to embark on and pursue the appeal process in a timely way and therefore in the normal course of events it would need to proceed with the appeal.

[13]     Mr  Taylor  in  support  of  his  submissions  referred  me  to  the  decision  in Meadow Mushrooms Limited v  Paparua County Council (1987) NZTPA  1.    In response, Mr Woolley for the Wellington City Council submitted that this case must be seen as of limited relevance to the matter before me.

[14]     What does appear clear from the  Meadow Mushrooms case which was a decision of the Planning Tribunal at the time, the lodging of a notice of appeal pursuant to the then legislation did not preclude the Planning Tribunal from ordering a rehearing pursuant to the applicable Act at the time.  The Tribunal there noted that an application for a rehearing might be made even after an appeal has been heard and determined.

[15]     In considering all the submissions advanced to me by counsel today, at the outset I need to comment upon what I see as the unsatisfactory nature of the material presently before this court relating to the application for a rehearing before the Environment Courts.  Today, no counsel was able to provide an indication of any substance as to the time delay that might be likely in having a decision made by the Environment Court on whether or not a rehearing is to be ordered.

[16]     As I understand the position from submissions advanced by Mr Taylor, delay has resulted because  an affidavit  from  a  Queensland  expert  which  was  awaited presumably to support the application for a rehearing has not yet been received.  No indication was able to be given to this Court however as to the likely time-tabling required  by the  Environment  Court  before its  decision  on  the  application  for  a rehearing is to be made.

[17]     That said the decision before me today is whether this Court should now set down the appeal for hearing (a hearing which would be likely to occur in about February 2008 or later) or alternatively whether I should accede to the appellant’s request that matters simply be adjourned until the Environment Court’s rehearing decision is available.

[18]     Weighing up all the circumstances presently before this court I am of the view, but only by a fine margin, that this matter should be adjourned for a short period to enable the rehearing decision of the Environment Court to be known.

[19]     I caution however that this adjournment which I am shortly to grant is to be placed under review in 2 months time, to ascertain the position with the Environment Court. I accept that an open-ended adjournment of this matter from the point of view of all respondents is simply unacceptable.

[20]     That said a direction is now made that this appeal is adjourned to a further call at 10.00 on 2 October 2007.

[21]     At that time the position is to be reviewed.

[22]     In the meantime a direction is made that all parties and the Environment Court are urged to promptly undertake and if possible complete all necessary preliminary matters and deliberations with regard to the application to the Environment Court by the appellant for a rehearing of this matter.

[23]     I direct that at the call of matter on 2nd October 2007, the parties are to file a memorandum (a joint memorandum if possible) giving details of the then current position with respect to the rehearing application before the Environment Court.

[24]     In the meantime leave is reserved for any party to approach this Court further on two days notice if additional directions are required.

[25]     Before me Mr Beatson for Meridian Energy asked the Court to note that Meridian is considering the possibility of an application to strike out the present appeal. That is noted and as far as may be necessary leave is reserved to Meridian to bring such an application if this is thought appropriate.

“Associate Judge D. I. Gendall”

Solictors.

G.D.S. Taylor, PO Box 5294, Wellington, for the appellant

A Beatson, for the third respondent

J Woolley, PO Box 2791, for the first responden