Maungaharuru-Tangitu Trust v Hastings District Council
[2018] NZHC 3261
•11 December 2018
IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY
I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE
CIV-2018-441-57
[2018] NZHC 3261
BETWEEN MAUNGAHARURU-TANGITŪ TRUST
Appellant
AND
HASTINGS DISTRICT COUNCIL
Respondent
Hearing: 27 September 2018 Counsel:
K M Anderson and E Crayton-Brown for the Appellant M E Casey QC and A J Davidson for the Respondent M B Lawson for the Non-Party (Sunset Partnership)
Judgment:
11 December 2018
JUDGMENT OF CHURCHMAN J
Introduction
[1] Five years ago, in November 2013, the Proposed Hastings District Plan (the PDP) was publicly notified. Maungaharuru-Tangitū Trust (MTT) made a submission the following February, seeking that 128 sites be included as “sites of significance” and protected by rules in s 16.1 of the PDP.
[2] In September 2015, Hastings District Council (the Council) issued its decisions on the PDP, accepting, either in full or in part, some aspects of MTT’s submission, while rejecting others.
[3] On 21 October 2015, MTT filed an appeal with the Environment Court, seeking inclusion of 29 sites that had been rejected, in whole or in part, and amendments to mapping of 21 other sites, along with amendments to s 16.1.
MAUNGAHARURU-TANGITŪ TRUST v HASTINGS DISTRICT COUNCIL [2018] NZHC 3261
[11 December 2018]
[4] On 7 July 2017, parties to MTT’s appeal filed consent documentation with the Environment Court. The consent order provides protection for a number of waahi taonga sites, except for eight unresolved sites, by including them in the PDP.1 It was requested that these consent documents lie with the Environment Court until the remaining sites were determined.
[5] The eight unresolved sites were then the subject of a hearing in March and April 2018 before a bench comprising Judge Thompson, Environment Court, Judge Fox, Deputy Chief Maori Land Court (sitting as Alternate Environment Court Judge), and Environment Commissioner Howie. An interim decision was issued on 28 May 2018 (the Decision), addressing the unresolved sites and rules to apply to them, concluding with a direction that the parties mediate “to attempt to agree on boundaries and areas for each site in the light of what we have indicated in this decision”.2
The appeal
[6] MTT filed a notice of appeal against the Decision on 18 June 2018, raising the following questions of law:
(a)Did the Environment Court fail to consider and properly apply the mandatory considerations of the Resource Management Act 1991 (the RMA) for a plan change appeal, by:
(i)Failing to consider whether the provisions would “give effect to” the New Zealand Coastal Policy Statement as required by s 75(3)(b) of the RMA?
(ii)Failing to consider whether the provisions would “give effect to” the Regional Policy Statement as required by s 75(3)(c) of the RMA?
1 Waahi taonga is defined in the glossary to s 16 of the PDP as “a treasured, prized and protected site”.
2 Maungaharuru-Tangitū Trust v Hastings District Council [2018] NZEnvC 79 at [126].
(iii)Failing to assess why the rules it decided on were the most appropriate, having regard to their effectiveness and efficiency, as required by ss 32 and 32AA of the RMA?
(iv)Failing, when considering the proposed rules, to have regard to the actual and potential effects on the environment?
(v)Misdirecting itself by placing reliance on “settled” objectives and policies of the PDP, rather than also assessing the relevant higher order statutory planning documents?
(b)Was the reasoning provided by the Environment Court insufficient and did the Decision provide inadequate explanation of the basis for its conclusions?
(c)Did the Environment Court come to a conclusion without evidence or one to which, on the evidence, it could not reasonably have come, particularly in relation to the extent of the waahi taonga sites?
[7] An appeal has also been filed by Peter and Caroline Raikes, landowners affected by one of the waahi taonga sites at issue in the Decision, raising questions of law relating to the Environment Court’s discussion of that site. Those questions are as follows:
(a)Did the Court fail to take into account and apply the caselaw about the scrutiny which a court should apply to evidence given by a party asserting a relationship with a site which that party contends the court should recognise and provide for under s 6(e) of the RMA?
(b)Was the reasoning provided by the Environment Court sufficient to explain how it came to its conclusion regarding the significance of the site known as MTT 88?
(c)Did the Environment Court take into account matters it should not have when it accepted oral evidence which had not previously been raised
by the appellant and to which the other parties had no opportunity to respond?
[8]The Raikes and MTT appeals have been directed to be heard together.
[9] Section 299 of the RMA provides for appeals from the Environment Court to the High Court on questions of law only. There is no right of appeal on the facts3 and it is not for the High Court to enter into a re-examination of the merits of the case.4 Although the appropriate time to lodge an appeal will normally be after the final decision is made, the High Court has accepted that some interim decisions might finally determine substantive issues in a way that brings an appeal from them within the scope of s 299.5
Section 303 of the RMA
[10] Under s 303 of the RMA, the High Court may order the Environment Court to prepare a report recording findings of fact, reasons or considerations which are not otherwise recorded in the Environment Court’s decision. Section 303 relevantly provides:
303 Orders of the High Court
(1)The High Court may, on application to it or on its own motion, make an order directing the Environment Court to lodge with the Registrar of the High Court any or all of the following things:
(a)anything in the possession of the court:
(b)a report recording, in respect of any matter or issue the High Court may specify, any of the findings of fact of the court which are not set out in its decision or report and recommendation:
(c)a report setting out, so far as is reasonably practicable and in respect of any issue or matter the order may specify, any reasons or considerations to which the court had regard but which are not set out in its decision or report and recommendation.
…
3 Marris v MWD [1987] 1 NZLR 125 (HC).
4 Murphy v Takapuna City Council HC Auckland M456/88, 7 August 1989.
5 Queenstown Lakes District Council v JF Investments Ltd HC Invercargill CIV-2004-485-2278, 18 March 2005 at [10].
(3) The High Court may make an order under subsection (1) only if it is satisfied that a proper determination of a question of law so requires; and the order may be made subject to such conditions as the High Court thinks fit.
[11] This particular section of the RMA is not frequently at issue before the Courts. As was noted by Asher J in Bayswater Marina Holdings Ltd v North Shore City Council:6
It can be expected today that it will only be necessary to apply s 303 in the rare case where there are documents in the possession of the Environment Court, that are not in the possession of the parties, and that are relevant to the appeal.
[12] However, when an application under s 303 does arise, the principles that apply were summarised in Phillips v Hopper Nominees Ltd as follows:7
1.The onus of satisfying the Court that the record should be produced rests on the appellant.8
2.The Court will only order production if it is satisfied that the evidence is required to enable the Court to determine the point of law in issue.
3.The appellant who seeks an order, should set out in the application precisely what evidence and exhibits it seeks to produce and in what respect that evidence or documents have a bearing on the question of law in issue.
4.The court must be satisfied that the making of the order will materially assist in disposal of the hearing of the appeal.
[13] Section 303 was recently employed by the High Court in Albany North Landowners v Auckland Council where Whata J ordered the Auckland Unitary Plan Independent Hearings Panel to produce a report identifying submissions on the Proposed Auckland Unitary Plan which provided scope for the Panel’s findings:9
[144] I acknowledge that the IHP reference to having resolved the issue of residential intensification on an “area by area” basis invites speculation as to which submissions or groups of submissions provided the foundation for a planning outcome. As matters have unfolded, this aspect has assumed some significance and with the agreement of Counsel I requested a report pursuant to s 303(5) [sic] from the IHP identifying the submissions said to support the outcomes for specific test cases. But it does not follow that the IHP erred by
6 Bayswater Marina Holdings Ltd v North Shore City Council [2009] NZRMA 44 (HC) at [27].
7 Phillips v Hopper Nominees Ltd [1997] NZRMA 102 at 107.
8 In this case, it is the Council as respondent making the application so the onus rests on the Council.
9 Albany North Landowners v Auckland Council [2017] NZHC 138 at [144].
not undertaking this exercise in its reports. The Act plainly envisages resolution of issues by topic not by individual submission or area. The requirement for elaboration at this stage simply provides assistance for the purpose of the appellate and review exercise.
This application
[14] The Council has filed an application for orders under s 303 of the RMA that the Environment Court be directed to provide:
(a)A report recording any findings of fact of the Environment Court which are not set out in the Decision, specifically in relation to findings of fact:
(i)on the application of ss 31, 32, 32AA, 74, 75 and 76 of the RMA;
(ii)as to actual and potential effects on the environment of activities, in respect of rules to apply to waahi taonga areas; and
(iii)any other key findings the Environment Court considers ought to be expressly recorded.
(b)A report setting out, as far as is reasonably practicable, any reasons or considerations to which the Environment Court had regard but which are not set out in the Decision, specifically in relation to:
(i)the Court’s reasons for preferring the evidence of Mr McKay as to the rules to be applied to the waahi taonga sites at issue;
(ii)the Court’s reasons for its finding of fact that the waahi taonga sites at issue were too extensive and were to be reduced in size;
(iii)any case law which was considered by the Court in reaching the Decision; and
(iv)any other reasons or considerations the Environment Court considers ought to be brought to the attention of the High Court and parties.
[15]MTT opposes the application on the grounds, amongst others, that:
(a)the orders go beyond what is required to reach a proper determination on the questions of law raised in MTT’s appeal;
(b)there is no precedent or basis for such a wide-ranging order, s 303 having previously been largely used to deal with the production of documents already in existence; and
(c)the application essentially asks the Environment Court to “backfill” its decision by asking it to now retrospectively consider the mandatory relevant legal considerations it should have considered at the time and by asking it to reach conclusions on the actual and potential effects of activities which it did not properly consider in the Decision.
[16] Sunset Investment Partnership (the Partnership) owns land which is one of the subjects of the appeal and has filed a notice of intention to appear. The Partnership takes no position on whether the High Court should make the order sought, except to contend that the order should not require the Environment Court to report on matters not raised by the appellant in its submission on the PDP.
Are the reports required to enable the Court to determine the points of law in issue?
[17] The Council submits that orders under s 303 of the RMA are required as the preliminary nature of the Decision has meant that the level of detailed reasoning that would ordinarily be recorded in a final decision has not been included, its purpose being merely to provide an indication of the Environment Court’s evaluation of the evidence and submissions presented, and to direct the parties to discuss the appropriate boundaries of the sites in that light. As such, while the Council says the Decision does not suffer from errors of law, it admits it is brief in some respects, and the information
requested would materially assist not only the Council, which would be prejudiced in its ability to defend the Decision without the further detail sought, but also the other parties in establishing whether errors of law were actually made.
[18] The Council submits that, while it is aware that s 303 has not previously been used in exactly the way it seeks, the orders sought are squarely within what is contemplated by s 303(1)(b) and (c), and it is important that the legislative intent in providing the High Court powers under s 303 not be read down such that s 303(1)(b) and (c) are deprived of meaning.
[19] MTT submits that s 303 is not a mechanism which allows for an order that effectively requires the Environment Court to rewrite its decision (by way of post decision “reports”) to address the relevant plan change tests, reasons for the decision and evidence relied on, which the Decision currently does not address. One of the claimed errors of law in its appeal is that insufficient reasoning had been provided by the Environment Court in the Decision which, it is argued, is a valid ground and a matter of law.10 MTT submits that, as such, it is inconsistent with the ability to appeal on that basis that the Environment Court be allowed the opportunity to “fix” this insufficient reasoning with a post decision “report” that addresses its reasoning.
[20] In response, the Council states that it is important to note that the Environment Court is not being asked to “backfill” its decision by retrospectively considering the mandatory relevant legal considerations, or to “make up” findings or reasons that it did not consider at the time it wrote the Decision, and to suggest that it might do so is disrespectful to the integrity of that Court.
[21] As to the Council’s suggestion that the Decision is preliminary in nature, MTT states that the Decision is, in fact, final in relation to all aspects of the appeal (other than where the boundary of the waahi taonga sites are) which means that the Environment Court is not able to reconsider those parts of the Decision.11 As the Environment Court is, therefore, unable to revisit those aspects of its Decision,
10 Housing New Zealand Corporation v Auckland Council [2018] NZHC 288.
11 See Gardez Investments Ltd v Queenstown Lakes District Council EnvC C095/05, 1 July 2005 at [39]; Mawhinney v Auckland Council (2011) 16 ELRNZ 608 (HC) at [95].
sufficient reasons should have been provided. MTT is appealing on the grounds that the Environment Court failed to do so. Requiring the Environment Court to now write a report explaining its reasons is not what is intended by s 303 of the RMA.
[22] In the case of Contact Energy Ltd v Waikato Regional Council, the High Court found that there was no error of law by failing to articulate all of the reasoning provided it was clear that the Environment Court had turned its mind to the relevant statutory provisions and had evidence to justify a conclusion.12 This indicates that where it is unclear that the Environment Court has turned its mind to the relevant statutory provisions and there is a lack of evidence to justify a conclusion, there has been an error of law. This is, as MTT contends, a legitimate ground for an appeal. The Environment Court needed to provide sufficient evidence in the Decision to justify the conclusions it reached. In seeking orders under s 303, the Council, despite saying that it could defend the Decision on its face, clearly concedes this is something the Environment Court failed to do. Section 303 does not provide an opportunity to remedy that failure.
Conclusion
[23] It is my view that the Council has not satisfied the Court that a report should be produced. While the Council has set out in its application what aspects of the Decision it seeks further findings and reasoning on, and how the reports sought would have a bearing on the question of law in issue, many of the points on appeal concern the fact that a lack of reasoning was provided in the Decision. The simple fact of the matter is that the appeal will either succeed or fail on the basis of the reasons articulated in the Decision.13 It is not appropriate to try and extend the operation of s 303 so as to direct the Environment Court to produce a report of the type sought.
[24] I accept that s 303(1) is not restricted to reports which are physically in existence and which were relied on by the Environment Court.14 However, the orders
12 Contact Energy Ltd v Waikato Regional Council (2007) 14 ELRNZ 130 (HC) at [92], citing
Takamore Trustees v Kapiti Coast District Council [2003] 3 NZLR 496 (HC) at 513-514.
13 See Williams J in Hanna v Whanganui District Council [2013] NZHC 1360 at [14]-[15].
14 See Otehei Bay Co Ltd v Russell Protection Society Inc (1990) 14 NZTPA 173 (HC).
sought go beyond what is required to reach a proper determination of the questions of law on appeal.
[25] There is also a practical difficulty with an order of the type sought here and that is to the legal status of the contents of such a report. The Council would no doubt wish to refer to the document in defence of the allegation that the Environment Court failed to give adequate reasons for aspects of its decision but, as Williams J held in Hanna v Whanganui District Council, where the appeal is based on a failure to give reasons, that defect cannot be cured by effectively providing reasons via a s 303 report.
[26]Accordingly, the Court declines to make the orders sought.
Churchman J
Solicitors:
DLA Piper, Wellington for the Appellant
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