Marlborough District Council v Woolley
[2016] NZHC 1172
•1 June 2016
IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY
CRI 2015-406-000009 [2016] NZHC 1172
BETWEEN MARLBOROUGH DISTRICT
COUNCIL Applicant
AND
PHILIP JOHN WOOLLEY SUZANNE MAY WOOLLEY Respondents
Hearing: 24 November 2015
Applicant's memoranda of 18 March and 12 April 2016
Respondents' memoranda of 22 March and 13 April 2016Appearances:
J H M Eaton QC for Applicant
H B Rennie QC and D J Clark for RepondentsJudgment:
1 June 2016
JUDGMENT OF BROWN J
Background
[1] In January 2014 the Environment Court heard an application by the applicant for an enforcement order (the Enforcement Order) to require the respondents to cease milking at their Glenmae dairy farm. The Enforcement Order which was issued on
4 April 20141 did not require the respondents to cease milking immediately.
[2] Instead, taking into account various factors including the duration of the milking season and the need for time to obtain engineering certification, the order set a date of 6 June 2014 by which certain specified steps were to be taken. Those steps included the rebuilding and lining of the effluent ponds and the provision of
engineering certification to the Environment Court.
1 [2014] NZEnvC 79.
MARLBOROUGH DISTRICT COUNCIL v PHILIP JOHN WOOLLEY SUZANNE MAY WOOLLEY [2016] NZHC 1172 [1 June 2016]
[3] Various works were undertaken and a certificate from Opus International Consultants Ltd dated 5 September 2014 (the Opus Certificate) was filed with the Environment Court.
[4] The applicant brought charges against the respondents alleging a breach of ss 338(1)(b) and 339(1) of the Resource Management Act 1991 by permitting the operation of the milking shed and the milking of cows at Glenmae between
10 July 2014 and 7 November 2014 in contravention of the Enforcement Order.
[5] On 10 July 2015 in the course of hearing the prosecution Judge J A Smith delivered Ruling 3 amending the charges relating to CRNs 4006500345 (P J Woolley) and 4006500335 (S M Woolley) to reduce the endpoint of the alleged offending from 7 November 2014 to 5 September 2014, being the date of the Opus Certificate.
The application for leave to appeal Ruling 3
[6] On 7 August 2015 the applicant filed an application for leave to appeal on questions of law under s 296 of the Criminal Procedure Act 2011 in respect of Ruling 3. The notice of application described the nature of the challenge to the exercise of discretion in this way:
The learned judge made errors of law when exercising his discretion to amend the date range of the charge on the basis that there was insufficient evidence to sustain the charge beyond the date of 5 September 2014.
The notice stated that the contended errors of law were set out in an attached memorandum of counsel.
[7] The accompanying memorandum of 7 August 2015 explained that leave to appeal was sought only in respect of paras [16]–[21] of the Ruling. Two questions of law were proposed:
(i) Was the Judge wrong to find in, para. [16], that the certification provided by Opus on 5 September 2014 satisfied the terms of the enforcement order?
(ii) Was the Judge wrong to find that the prohibition on milking at
Glenmae ceased, without further order of the Court, upon the
provision of a certificate which satisfied the terms of Order A if that certificate was provided after 6 June 2014?
[8] At a hearing on 24 November 2015 there was extensive discussion concerning the leave application and the identification of questions of law. As the applicant’s memorandum of 12 April 2016 stated:
3.… Ultimately it was agreed that the hearing would be adjourned and the applicant would further particularise the questions of law on which leave to appeal was sought.
4.At the hearing it was acknowledged that the manner in which Ruling 3 of Judge J A Smith was articulated created difficulties for the applicant in framing the questions of law.
5.The issues that arise from the two questions of law framed in the applicant’s memorandum of [7 August 2015] were discussed at length during the hearing on 24 November.
[9] On 18 March 2016 counsel for the applicant filed a memorandum which proposed the following two questions of law:
(a) Did the Judge take into account an irrelevant matter in determining the application for amendment and in particular the capacity for the respondent to begin milking cows on the property?
(b) Did the Judge err by acting on a wrong principle in finding that the Certificate satisfied the terms of the Enforcement Order, and in particular in failing to have proper or sufficient regard to the substance rather than the form of the Certificate?
[10] Counsel for the respondent then filed a response memorandum dated
22 March 2016, the content of which I discuss further below. I agree with the comparative analysis in that memorandum of the two sets of proposed questions:
– issue (a) was not raised originally;
– issue (b) is a version of original question (i);
– original question (ii) has been abandoned.
[11] In the light of those two memoranda, on 23 March 2016 I issued a Minute directing the applicant to file a memorandum by 8 April 2016 which:
(a) responded to the submissions in the respondents’ memorandum of
22 March 2016; and
(b)identified the place in Ruling 3 where Judge Smith was said to have taken into account the suggested irrelevant matter referred to at para [9](a) above.
[12] The applicant filed a memorandum dated 12 April 2016 which was met with a further memorandum of counsel for the respondents dated 13 April 2016.
[13] The issues which now arise for determination are:
(a) are the questions proposed by the applicant questions of law? (b) if they are questions of law, should leave to appeal be granted?
Questions of law
[14] The ambit of questions of law was recently considered by the Court of
Appeal in Brown v R in the context of s 296:2
[16] “Questions of law” in the context of s 296(2) must raise one or more of the three standard errors classified by modern authorities as creating a question of law:
(a) A misdirection of law apparent in the decision (what Fisher J called “a conventional legal question on unchallenged facts”);
(b) Oversight of a relevant matter, or consideration of an irrelevant matter; or
(c) A factual finding unsupported by any evidence, or an omission to draw an inference of fact which is the only one reasonably possible on the evidence.
Does proposed issue (a) raise a question of law?
[15] From the phrasing of the proposed question of law at [9](a) it appears that the
applicant’s contention is that, in determining the application to amend the charges,
2 Brown v R [2015] NZCA 325, [2015] 30 FRNZ 471.
the Judge took into account an irrelevant matter, namely the capacity for the respondents to begin milking cows on the Glenmae property.
[16] In response to my request for identification of the place where the Judge did so, in its memorandum of 12 April 2016 the applicant first referred to paras [3] and [4] of Ruling 3 which stated:
[3] I intend to issue an oral decision in respect of one particular date,
5 September, because I consider it has some importance not only for the purposes of this case but in relation to the enforcement order [2014] NZEnvC 79.
[4] The reason I have decided to do this rather than reserve reasons is because it appears that that order is considered by the council and Fonterra to still be in force and prevent milking at the dairy shed at Glenmae. Given a new resource consent is being pursued, it appears important to me for the parties to understand whether or not the enforcement order is still in place, whether it would require a variation or removal, or whether it has been satisfied.
[17] The applicant proceeded to explain the significance of the Judge’s comments
in this way:
12.Those two paragraphs briefly record the concerns expressed by the Judge Smith (sic) regarding the imminent commencement of the milking season and the possibility that the receivers might not be able to commence milking due to the enforcement order.
13.During the hearing of 24 November 2015 counsel for the respondent made reference to the transcript of legal argument of 10 July 2015 immediately preceding Ruling 3. The applicant has since reviewed that transcript. The transcript records the concern of Judge Smith regarding the capacity for the respondent to begin milking cows at Glenmae. Mr Webber who appeared on behalf of the council in the District Court has confirmed that on 9 July His Honour called counsel into chambers to express concern regarding the status of the enforcement order and expressed his view that the issue needed to be dealt with urgently. At that stage the issue had not been raised by the respondent.
14.On the morning of 10 July 2015 His Honour again expressed a similar concern and said:
“… I have a clear preference to deal with it today. Can I say why? Because I think there’s some important issues about the ongoing operation of the farm and Mr Perrott made it out in his evidence yesterday that apparently the situation continues as at today’s date and as everyone will now know, we’re getting into the time perilously close to the time at which the cows come into milk again”.
15. His Honour then went on to indicate his view that:
“If Mr Rennie’s contention is correct, that it is certified, that’s a matter of significant importance not only to the Woolleys but no doubt to the receiver. Am I correct in that Mr Rennie, or is the matter of no real moment at the moment?” Mr Rennie is recorded as replying “No, no, no it’s a matter of great moment, Sir. It’s a matter of daily moment”.
16.There can be little doubt that His Honour remained under the erroneous apprehension that absent a ruling that the disputed certificate satisfied the terms of the enforcement order the receivers were prohibited from imminently milking cows at the commencement of the milking season. It would appear that counsel for the respondents was acting under the same misapprehension.
17.The transcript records that after lunch on 10 July Mr Webber advised the Judge that his inquiries confirmed that the effluent system was soon to be commissioned with a new consent to be issued by the applicant by 25 July. Mr Webber expressly indicated that he did not want Judge Smith to “feel under pressure” as a consequence of any impression he may have taken by Mr Perrott’s evidence that “nothing had changed at Glenmae”. Mr Webber told His Honour “the correct position is that an entirely new system is a couple of weeks away from completion and commissioning”. Mr Webber told His Honour that the council anticipated granting the consent before
25 July.
18.Counsel for the respondent indicated that he did not know whether that position was correct or not and that “my instructions of course are simply focused on the need to have something which is current, nothing about future possibilities in this case has ever turned out the way it was expected Sir”. His Honour then indicated that it was probably not quite as urgent as it sounded from what Mr Perrott was saying but that it was still important to know whether or not the enforcement order is still in force. Counsel for the respondents reiterated on behalf of the defendants and the receivers it was “absolutely critical”.
19.These references provide context to paragraphs [3] and [4] of Ruling 3 and support the application’s argument that the trial judge took into account an irrelevant consideration.
[18] In order to qualify as an irrelevant consideration, the particular matter must be taken into account by the decision-maker in the course of the reasoning process relating to the decision which is sought to be impugned. Whether relevant or not, if it was not a factor to which the decision-maker had regard in the course of reaching the challenged decision, then it is not in point.
[19] The Judge proceeded to identify the relevant issues at para 6, stating with reference to the Opus Certificates:
[6] On its face it purports to be an engineer’s certificate and it purports to address the orders of the Court, identified as A(1) to (5) and B(1) and (2). The issues are:
(a) did it constitute a certificate?;
(b) did it satisfy the enforcement order?; and
(c) if so, is the enforcement [order] still in force?
[20] I accept that the proximity of the 2015 milking season and the prospect that the Enforcement Order might be current were certainly reasons why the Judge chose to deliver an oral decision on the application for amendment of the charge. However from my reading of Ruling 3 there is no indication that the Judge had regard to those factors in the course of actually reaching the decision comprised in Ruling 3.
[21] I note that in its memorandum of 12 April 2016 in response to my specific inquiry, the applicant did not point to any part of Ruling other than paras [3] and [4] as suggesting that the Judge took into account as a factor relevant to his decision the capacity for the respondents to begin milking cows on the property.
[22] Hence I conclude that the proposed issue at para [9](a) above is not a reasonably arguable question of law.
Does proposed issue (b) raise a question of law?
[23] As noted above, like counsel for the respondents, I view the proposed question at [9](b) as a restatement of the original question at [7](i).
[24] The applicant’s memorandum of 7 August 2015 which proposed the initial question of law3 explained the rationale for the question at para [7](i) as follows:
7.The reasons for the appeal against the finding that the Opus Certificate of 5 September 2014 satisfied the terms of the enforcement (sic) are that:
3 At [7] above.
(i) The enforcement order required certification that the effluent disposal system on the dairy farm “Glenmae” on SH63 in the Upper Wairau Valley has generally been installed and is functioning according to the design in MDC Permit 100478 and the accompanying documents.
(ii) MDC Permit 100478 required, as a Condition of Resource Consent, that Pond 1 was to be lined with compacted clay. The Opus certificate recorded that Pond 1 was not lined with compacted clay but was lined with bulk fill soil.
(iii) In circumstances where an essential element of the farm dairy effluent disposal system had been constructed and, at the date of the certificate, was operating in breach of a condition of resource consent, the certificate could not as a matter of law satisfy the terms of the enforcement order that required the system to have been installed and to be functioning according to the design in MDC Permit 100478.
[25] The Enforcement Order stated in para A(1):
A: The Environment Court orders under section 314(1)(b)(i) of the Resource Management Act 1991 that, to ensure compliance with Condition 4 of Marlborough District Council Consent U100478, P J and S M Woolley obtain, lodge and serve by Friday 6 June 2014 a certificate from a registered engineer (being a practitioner approved by the Marlborough District Council) stating that:
(1) the effluent disposal system on the dairy farm “Glenmae” on State Highway 63 in the Upper Wairau Valley has generally been installed and is functioning according to the design in MDC Permit U100478 and the accompanying documents; and
…
[26] In an introductory paragraph, the Opus Certificate stated:
Note that the word “generally” used within this certification means broad or overall conformance with the approved installation as stated in the permit, not necessarily meeting all specified engineering design requirements.
[27] With reference to para A(1) of the Enforcement Order, the Opus Certificate stated:
Based on the available information, we have reasonable grounds to believe that:
(i) the effluent disposal system has generally been installed and functioning according to MDC permit U100478 (but with some limitations as explained below).
Comments:
…
4) The 2006 (3rd Revision) of the DEC manual contains section 3.6.4
Sealing and Lining. It states that “If the soil has less than 10% clay, special measures may be required such as importing soil that is high
in clay content or artificially lining the pond with a plastic liner or
concrete interior.” In our reasonable opinion the bulk fill soil used
by Mr Woolley in the construction of Pond 1 (anaerobic) would have contained less than 10% clay. We have not determined the percentage of clay in the lining of Pond 1 but as explained in response A(3) we have reasonable grounds to believe Pond 1 is functioning as a holding pond and has no discernible leakage.
5)We have not assessed the structural stability of the Pond 1 structure in its present form, nor can we make any comment on construction methodology. The primary reason for this is that Pond 1 is not sufficiently empty to undertake a reasonable geotechnical investigation or structural assessment. An Abatement Notice has now been issued to Mr Woolley preventing any further pumping of material from Pond 1.
[28] It is well established that the construction of a document is a question of law.4
Hence I accept that the construction of each of the following documents would raise a question of law:
(a) Resource Consent Decision U100478; (b) the Opus Certificate.
[29] However in my view the issue which the applicant seeks to ventilate by means of the proposed question does not involve the construction of either of those documents. Their terms are quite explicit. Rather the issue appears to be whether the Glenmae farm effluent disposal system was “generally” installed according to the design in the permit and in particular whether the pond as described in Opus Certificate Comment 4 fulfilled the requirement of a lining of compacted clay.
[30] I agree with the submission of the respondents that the proposed issue is one of fact and not of law. As such, however phrased it does not amount to a question of
law in respect of which leave to appeal may be granted under s 296.
4 Bryson v Three Foot Six Ltd [2005] NZSC 34, [2005] 3 NZLR 721 at [20].
Would leave have been appropriate?
[31] In the event that my view, that the proposed issues do not constitute reasonably arguable questions of law, is erroneous, I proceed to consider the issue of leave.
[32] Both questions are closely tied to the circumstances of this particular prosecution and neither appears to me to raise an issue of broad application. I recognise that the reformulation of the question at [9](b), which was submitted in March 2016 consequent upon the debate in November 2015,5 may appear to have potentially broad application. However the more limited scope of the actual issue was revealed in the memorandum which proposed the question in its original form.6
[33] I turn to consider the circumstances of the case and the effect on the parties of granting leave.
[34] The respondents’ memorandum of 22 March 2016 stated:
[6] In that trial, Counsel (then) for the Marlborough District Council advised Judge Smith that no adjournment of sentencing was required; that the sentencing should proceed; and that in the event that leave were granted and the subsequent appeal were successful, it was improbable that the Council would seek recall and new sentencing.
…
[9] Sentencing proceeded and the Environment Court/District Court matter has been complete and at an end since 14 August 2015. The sentencing penalties have been imposed and paid or otherwise complied with.
[35] The respondents further contended that they are materially prejudiced by the delay in this matter in that their representation (which was funded by the receivers) has ended.
[36] It further appears that the issue concerning the pond is of historical significance only because the system permitted under the earlier consent and
5 At [8] above.
6 At [24] above.
required by the Enforcement Order was decommissioned and replaced by a new single-pool system for which consent was granted on 15 July 2015.
[37] Having regard to all those factors, I consider that, on the assumption that one or both of the proposed issues are questions of law, they are not of such moment as to justify the grant of leave and prolonging this matter further.
Disposition
[38] The application for leave to appeal is dismissed.
[39] The respondents seek what they describe as “scale costs (2B is proposed)”. This being a criminal and not a civil matter, it is not apparent to me on what provision reliance is placed in support of the request for such an order. However I grant leave to the parties to file memoranda on costs within 10 working days in the
event that the issue of costs is pursued.
Brown J
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