Mawhinney v Auckland Council HC Auckland CIV 2010-404-000063
[2011] NZHC 1300
•26 October 2011
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV 2010-404-000063
IN THE MATTER OF an appeal under s 299 of the Resource
Management Act
BETWEEN PETER WILLIAM MAWHINNEY AS TRUSTEE OF THE WAITAKERE FOREST LAND TRUST AND SUCCESSORS
Appellant
ANDAUCKLAND COUNCIL Respondent
Hearing: 11 - 13 October 2011
Counsel: Appellant in Person
HJ Ash and CL Faesenkloet for the Respondent
Judgment: 26 October 2011 at 2:30 PM
[RESERVED] JUDGMENT OF WYLIE J
This judgment was delivered by Justice Wylie
On 26 October 2011 at 2.30 pm
Pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Date:
Distribution:
P Mawhinney: [email protected]
HJ Ash: [email protected]
MAWHINNEY AS TRUSTEE OF THE WAITAKERE FOREST LAND TRUST AND SUCCESSORS V AUCKLAND COUNCIL HC AK CIV 2010-404-000063 26 October 2011
Introduction
[1] Mr Mawhinney appeals a decision given by the Environment Court dated
25 November 2010.1 He also seeks to challenge an interim decision given by the Environment Court on 27 June 2003.2 The decision delivered in December 2010 records that it should be read in conjunction with the interim decision.3
The Notice of Appeal
[2] The initial notice of appeal was filed on 10 January 2011. It alleged 10 errors of law, a number of which were further particularised.
[3] The respondent, the Auckland Council, gave notice of intention to appear pursuant to s 301 of the Resource Management Act 1991 (“the Act”) and the appeal was allocated a fixture on 21 and 22 June 2011. A timetable was put in place to ensure that the matter would be ready for hearing on that date, but Mr Mawhinney did not comply with the directions made. The matter came before me on 16 May
2011. I put in place a substitute timetable, but confirmed that the fixture would proceed on the allocated dates.
[4] A few days prior to the hearing, Mr Mawhinney applied for an adjournment. That application came before Allan J on 17 June 2011. The Council consented and an adjournment was granted. Inter alia, Allan J recorded that Mr Mawhinney had advised that he wished to apply for leave to amend his notice of appeal. Allan J therefore put a timetable in place requiring that any application for leave to amend the notice of appeal be filed on or before 15 July 2011.
[5] No application for leave to amend the notice of appeal was filed. Rather, a
document headed “First Amended Notice of Appeal” was filed on 10 August 2011.
It alleged 11 errors of law. Again, particulars were given.
1 Mawhinney v Auckland Council [2010] NZEnvC 405.
2 Kitewaho Bush Reserve Co Ltd v Waitakere City Council EnvC, Decision no A 109/2003,
27 June 2003.
3 Mawhinney [2010] NZEnvC 405 at [2].
[6] The Council took issue with the amended notice of appeal. It pointed out that no application for leave had been filed. In the event, Mr Mawhinney made an oral application for leave when the hearing commenced on 11 October 2011. The Council did not oppose the grant of leave, but sought that it be granted on a without prejudice basis to its arguments that:
(a) new matters were raised in the amended notice of appeal which could not properly be put before the Court, and
(b)the amended notice of appeal addressed issues which had been finally determined in the interim decision.
[7] I granted Mr Mawhinney‟s oral application subject to the Council‟s
reservations noted immediately above. The hearing proceeded on that basis.
Mr Mawhinney’s Standing to Maintain the Appeal
[8] The notices of appeal to this Court are both in Mr Mawhinney‟s name,
purportedly as a “trustee of the Waitakere Forest Land Trust and successors”.
[9] If Mr Mawhinney is pursuing this appeal personally, there are difficulties in his path. Mr Mawhinney was adjudicated bankrupt in July 2010. He is currently an undischarged bankrupt. His right to continue the appeal vests in the Official Assignee and, insofar as I am aware, the Official Assignee has not consented
to its continuance.4
[10] If Mr Mawhinney is pursuing this appeal as a trustee of the Waitakere Forest Land Trust, the position is simpler. When an individual is adjudicated bankrupt, property held by him or her on trust for another does not pass to the Official Assignee.5 Rather, it remains vested in the bankrupt upon the trusts to which it is
subject. A bankrupt trustee may be considered unfit to act and the Court may
4 Insolvency Act 2006, sch 1 para (c).
5 Insolvency Act 2006, s 104.
appoint a new trustee of the trust.6 A settlor may however appoint a bankrupt to be a trustee if he or she wishes, and it is not necessarily the case that a bankrupt trustee is unfit to act.7 A bankrupt trustee cannot however be employed by a trust.8
[11] Mr Mawhinney told the Environment Court that he “had control” of the largest portion of the land within the Dilworth catchment area as a trustee.9 He told me that he remains a trustee of the Waitakere Forest Land Trust, and there is nothing to suggest that he has been removed as a trustee.
[12] This however begs the question whether the trust has any legitimate interest in this appeal.
[13] The Environment Court considered the ownership of part of the land known as the Dilworth catchment area in some detail in its decision10 and Mr Mawhinney does not challenge its findings in this regard. It does not appear from the Court‟s decision that either Mr Mawhinney or the Waitakere Forest Land Trust has any ongoing interest at all in any of the land in the Dilworth catchment area. That is surprising because this land is the primary focus of this appeal.
[14] Mr Mawhinney, Waitakere Forest Land Trust, Why Yes! Limited and Waitakere Forestry Park Limited made the initial submission that has led to the present appeal. It is unclear whether Mr Mawhinney, the trust, or one or both of the companies owned or had an interest in the subject land at the time. This however is not particularly significant. Under cl 6 of the First Schedule to the Act, any of the persons identified in cl 6(2) – (4) may make a submission on a proposed plan. Mr Mawhinney, the trust and the companies all fall under cl 6(3).
[15] The parties advised me in an agreed chronology that an entity known as
Kitewaho Bush Reserve Company Limited was also a trustee of the Waitakere Forest
6 Trustee Act 1956, s 51(2)(d).
7 John Mowbray, Lynton Tucker, Nicholas Le Poidevin, James Brightwell, Edwin Simpson Lewin on Trusts (18th ed, Sweet & Maxwell Ltd, London 2007) at [2]–[24]; Underhill and Hayton, Law of Trusts and Trustees (18th ed, LexisNexis Butterworths, UK, 2010) at [39.14].
8 Insolvency Act 2006, s 149.
9 Mawhinney [2010] NZEnvC 405 at [99].
10 Ibid at [97]–[116].
Land Trust. Kitewaho and another company, Waitakere Forestry Park Limited “and their successors” appealed the Council‟s decision to the Environment Court. Pursuant to cl 14 in the First Schedule, standing to bring an appeal is limited to persons who made a submission on the proposed plan, proposed provisions or matters excluded from the proposed plan. Clearly, Waitakere Forestry Park Limited had standing to appeal.
[16] Kitewaho may also have had standing, if it was a trustee of the Waitakere Forest Land Trust at the relevant time, (although the notice of appeal to the Environment Court does not record this), or if it was a successor to one of the original submitters. Under s 2A of the Act, any reference to a person includes the successor of that person. This Court has held that the section is wide enough to
include successors to a submitter.11 In this regard, I have been advised that much of
the subject land was at one stage transferred to Kitewaho.
[17] The chronology records that in April 2002, Mr Mawhinney replaced Kitewaho as a trustee of the Waitakere Forest Land Trust . It seems that the Environment Court was not advised of this because its interim decision issued in June 2003 recorded that the referers were Kitewaho, Waitakere Forest Park Limited and their successors. It was only in February 2005 that the Court ordered that Mr Mawhinney should be substituted as the referer in the proceedings. According to a minute issued at that time, both Kitewaho and Waitakere Forestry Park Limited were then in liquidation. There is no reference in the Court‟s minute to the Waitakere Forest Land Trust or to Mr Mawhinney being a trustee. The minute simply substitutes Mr Mawhinney as the referer. This suggests that Mr Mawhinney was being substituted in his personal capacity.
[18] The Environment Court detailed the registered proprietors of various titles comprising the Dilworth catchment area land as at the date of its decision. They were a company called Forest Trustee Limited, a Mr and Mrs Matthews, a Mr Nicholas Mawhinney and a Mr Vesey. They are successors to the original
submitters and appellants. They can pursue the appeal in their own right. However,
11 Kaitiaki Tarawera Inc v Rotorua District Council (1997) 10 PRNZ 698.
s 2A does not permit Mr Mawhinney, as a layman, to appear on behalf of those owners in this Court.12 That is the case whether he purports to appear personally or as a trustee of the Waitakere Forest Land Trust. There is nothing to suggest that Mr Mawhinney is authorised by the present owners to appear on their behalf. Insofar as I am aware, there is nothing in any Act or regulation permitting Mr Mawhinney to appear as an advocate for the present owners. Moreover, there
has been no application to this Court for an order permitting him to so appear.
[19] It may be that Waitakere Forest Land Trust has an interest in other parts of the land detailed in the original submission. There is simply no material before me one way or the other in this regard. Unless the Waitakere Forest Land Trust that Mr Mawhinney claims to represent has an interest in at least part of the land or in the plan provisions in terms of cl 14 of the First Schedule to the Act, it seems to me that I am being asked to give a proleptic answer to a large number of questions simply to satisfy Mr Mawhinney‟s seemingly insatiable appetite for resource management
litigation.13
[20] The position is unsatisfactory. It is not obvious that Mr Mawhinney has any right of audience before this Court. However, it is not clear that he does not have that right. The Council did not apply to strike out the appeal. Rather, Ms Ash, appearing for the Council, expressly advised me that the Council does not take issue with Mr Mawhinney‟s status to maintain the present proceedings. She requested that I should deal with the appeal on its merits. I proceed, albeit reluctantly, on that basis and on the assumptions, first, that the Waitakere Forest Land Trust has a legitimate interest in at least part of the land that is the subject of the original submission or in the plan provisions, secondly, that Mr Mawhinney is a trustee of that trust, and
thirdly, that he is authorised to represent the trust.
12 If Mr Mawhinney is providing legal services, he may be committing an offence: Lawyers and
Conveyancers Act 2006, s 21.
13 Mr Mawhinney has directly or indirectly been involved in a number of proceedings in relation to the development potential of this land. See, for example, Waitakere Resource Consents Ltd v Waitakere City Council ENC Auckland A 39/08, 4 April 2008; Perceptus Ltd v Waitakere City Council ENC Auckland A 40/08, 4 April 2008; Waitakere City Council v Kitewaho Bush Reserve Co Ltd [2005] 1 NZLR 208 (HC); Mawhinney v Waitakere City Council [2009] NZRMA 230 (HC); Mawhinney v Waitakere City Council [2009] NZCA 335 (CA).
The Matters in Issue
[21] The amended notice of appeal is a very wide-ranging document. As noted, it seeks to challenge the 2010 final decision and the 2003 interim decision. The following brief summary is taken from Mr Mawhinney‟s submissions.
[22] Mr Mawhinney alleges that the Environment Court erred by applying wrong legal tests, taking into account matters which it should not have taken into account, failing to take into account matters which it should have taken into account, making a decision which was manifestly unreasonable, misinterpreting the statute, acting ultra vires, making determinations when it was functus officio, and breaching its statutory duties. In particular, he asserts that the Environment Court erred by:
(a) failing to follow the procedures set down in the First Schedule of the Act, including taking into account proposals put forward by the Council which had not previously been raised in the proposed plan or submissions;
(b)failing to discount the effects of development that is allowed as of right under the operative land use rules;
(c) failing to take into account the beneficial effects on amenity values of bush to be used for stormwater attenuation;
(d)applying an incorrect legal test by considering the number of allotments as the primary determinant of effects rather than the amount of development;
(e) dismissing the appeal on the basis of matters that were outside its scope, including the protection of land (by active weed management, native forest planting and legal protection) where the relief sought was only related to subdivision and development;
(f) omitting to treat as final previous decisions made by it;
(g) acting outside of its jurisdiction when it “dismissed” the appeal;
(h)relying on grounds that are contrary to the purpose of the Act, including the locking up of good productive land;
(i) omitting to carry out any or an appropriate analysis under s 32 of the
Act, which is mandatory; and
(j) misinterpreting the Act.
The various questions posed for the Court are based on these assertions.14
[23] For the reasons which follow, I do not consider that most of the questions posed require an answer. I will touch on questions 3.1(a) and (b), 3.5, 3.6 and 3.7(a) set out in annexure A in the course of my analysis. The remaining questions are, in my judgment, either irrelevant or immaterial. They do not arise out of the determinations which have actually been made by the Environment Court and which are properly before the Court. In my view, the matters in issue are as follows:
(a) What has the Environment Court decided and when did it make its various findings?
(b) Have its determinations been appealed as required by the Act? (c) What matters are properly before this Court?
(d) Did the Environment Court err when it dismissed Mr Mawhinney‟s
appeal?
[24] To understand why I have approached the appeal in this way, it is necessary to outline the factual background in some detail.
14 The various questions raised in the amended notice of appeal are set out in annexure A to this judgment.
Backgrounds Facts
[25] Mr Mawhinney, through various entities, for many years controlled approximately 93.9 hectares of land at the northern end of Waitakere City, known as the Waitakere forest land. The land has long been used for forestry.
[26] The land fell under the jurisdiction of the former Waitemata District Council. Following local body reorganisation and amalgamation in 1989/1990, it came under the jurisdiction of the Waitakere City Council. The Auckland Council, is the successor to the Waitakere City Council.15
[27] In mid-1994, the Waitakere Forest Land Trust was settled. As I have already noted, the trust was at one stage administered by Kitewaho Bush Reserve Company Limited as trustee. I am also told in the agreed chronology that most of the land was transferred to Kitewaho.
[28] In October 1995, the Waitakere City Council notified its proposed district plan. The proposed plan zoned the land as “Waitakere Ranges Environment”. It also proposed new subdivision rules which sought to limit subdivision in this zone.
[29] The Council called for submissions, and in March 1996, Mr Mawhinney, Waitakere Forest Land Trust, Why Yes! Limited and Waitakere Forest Park Limited lodged a submission under cl 6 of the First Schedule to the Resource Management Act 1991.The submission was a very lengthy document. In essence, it proposed that the land should be re-zoned as a special area called the Waitakere Forest Special Area, and that the land should be exempt from the objectives and policies and many of the rules in the plan. Alternative rules for the proposed special area were detailed in the submission. In particular, the submission sought that subdivision in the proposed special area should be limited only by the amount of building coverage,
and that this should be “4.4 per cent of the total area”.
15 Local Government (Tamaki Makaurau Reorganisation) Act 2009, s 35; Local Government
(Auckland Transitional Provisions) Act 2010, s 78.
[30] The submission was summarised and the Council gave public notice of all submissions lodged. Two further submissions were lodged.
[31] The Council heard the submission and further submissions. Mr Mawhinney, on behalf of Kitewaho, appeared in support of the submission.
[32] The Council issued its decisions on the submissions to its proposed plan in June 1998. Relevantly, the Council rejected the proposal that the land should be identified as a Waitakere Forest Special Area. However, it went on to find that the land was not appropriate for inclusion in the Waitakere Ranges Environment Zone, given that it was largely an area of production pine forest, containing very little significant native vegetation. It held that the land should be re-zoned as “Foothills Environment”. It rejected the submission that the land should be exempt from the objectives and policies in the plan, and from most of the City-wide rules. It accepted in part submissions dealing with riparian margins and ecological linkages.
[33] The proposed rules for the Foothills Environment Zone classified subdivision as a controlled activity where, inter alia, the minimum site area was 4 hectares.
[34] In a separate decision, the Council dealt with what are referred to in the plan as “structure plans”.16 The Council recognised that structure plans were identified in the proposed plan as accommodating a merit-based approach to subdivision, allowing subdivision patterns to be determined according to the characteristics of a site within the broader context of a catchment-wide assessment of effects.
[35] The proposed district plan rules provided for structure plans in, inter alia, the
Foothills Environment Zone. As a result of the Council‟s decisions, a structure plan
or plans became a possibility for the subject land.
16 Broadly, the plan provides that in certain zones, structure plans can be prepared for a specific
area comprising a water catchment. They can outline the subdivision and development standards for the land subject to them, and they may include reference to protection or enhancement areas. They enable the effects of development to be considered having regard to a range of environmental constraints and community aspirations. – see Decision no A 109/2003, 27 June
2003 at [15]–[26].
[36] Kitewaho and Waitakere Forest Park Limited appealed the Council‟s decision on the submission to the Environment Court under cl 14 of the First Schedule to the Act. The appeal was allocated number RMA 886/98. The appeal “sought wide ranging and varied forms of relief aspiring to increase the subdivision potential of [the] land”.17 In broad terms, it sought that the land should be re-zoned either as Waitakere Forest Special Area or as Waitakere Forest Large Property Management Area, or by reference to various stream catchments on the land, each with its own structure plan. These proposals were detailed in cl 6.1 of the notice of appeal.
[37] The Environment Court directed the parties to discuss the relief sought in cl
6.1. They did so and as a result, a joint memorandum dated 28 September 2001 was prepared and signed. Inter alia, the Council and Mr Mawhinney requested that the Court should make an order under s 279(1) of the Act, deleting cl 6.1 in the notice of appeal, and substituting that clause with the following:
That, in respect of the land known as Waitakere Forest, the proposed district plan be amended to allow any form of subdivision and development which is in accordance with the Purpose and Principles of the Resource Management Act, by the inclusion or exclusion of provisions as the Court sees fit.
[38] I pause in my recital of the background facts to observe that this seems to me to be an extraordinarily broad request. It seemingly ignored the constraints imposed by the original submission and the notice of appeal. It said very little other than to offer the Environment Court a carte blanche to deal with the appeal as it saw fit.
[39] Nevertheless, the Environment Court acceded to the parties‟ request and the
strike out application was withdrawn.
[40] On 2 April 2002, Mr Mawhinney replaced Kitewaho as a trustee of the Waitakere Forest Land Trust. No application for substitution was made to the Environment Court however and the Court proceeded on the understanding that Mr Mawhinney was still representing Kitewaho.
[41] The hearing before the Environment Court commenced on 8 April 2002. On the eighth day of the hearing, Mr Mawhinney changed tack and agreed to proceed by
17 Ibid at [1].
way of a structure plan for that part of the land known as the Dilworth catchment area or the Dilworth Stream catchment – an area of approximately 62.4 hectares. The hearing was then adjourned to allow the parties to develop the appropriate structure plan.
[42] The Court issued a minute on 30 April 2002 recording this agreement, and the then current position. In [3] of that minute, the Court indicated how the structure plan was to be progressed. It noted that, inter alia, the controls for any development of the land would be the underlying Foothills Environment rules and the Natural Area rules. It recorded that various aspects of the appeal had been withdrawn by Mr Mawhinney. It noted that the proceedings had been adjourned, on the understanding that matters were to proceed by way of a structure plan process, while acknowledging that some issues were still to be determined. Those issues were recorded as including:
a) Consultation/district plan process. b) Stormwater matters.
c) Any other matter which the parties were unable to agree on.
[43] In May 2002, the Waitakere City Council circulated a draft structure plan for the land in the Dilworth catchment.
[44] There was still disagreement and the matter came back before the Environment Court. On 16 July 2002, it issued a further minute. It noted that Mr Mawhinney had asserted that the appeal applied not only to the land in the Dilworth catchment, but also to land in an adjoining catchment known as the Anzac catchment. It recorded that Mr Mawhinney had indicated, when the hearing resumed, that the land owned by Kitewaho and Waitakere Forest Park Limited in the Anzac catchment would also be in issue. The Court recorded that there were also areas of disagreement in the proposed structure plan for the Dilworth catchment land. It set these matters down for a week‟s hearing commencing on 9 December
2002 and directed as follows:
So far as the extent of the land to be considered at the hearing in December, I
direct that the hearing is to be confined to a structure plan process within the
Dilworth catchment. Evidence will be allowed as to the impact of development of the land in the Anzac catchment on the Dilworth process. But evidence relating to the Anzac catchment is to be limited to that.
The Court also directed that the Council should circulate its draft structure plan to landowners immediately adjacent to the Dilworth structure plan area, so that those landowners likely to be affected had the opportunity to become involved in the appeal. The Court directed that if any party wished to participate, it should file a notice on or before 30 August 2002.
[45] As events transpired, the hearing in December 2002 did not proceed. However, in February 2003, the Environment Court granted consent for large parts of the proposed district plan to become operative. As a result, various parts of the proposed district plan became operative as from 27 March 2003. Rule 7 dealing with subdivision in the Foothills Environment Zone did not however then become operative.
[46] The appeal came back before the Environment Court on 9 April 2003.
[47] By this stage, the Council had developed a draft structure plan which sought to achieve a satisfactory outcome in respect of the land, while at the same time having regard to the environmental constraints that the Council considered were required by the plan. It was the Council‟s case that the structure plan it proposed represented an appropriate level of development, given the environmental constraints identified by its experts, and the level of investigation which had then been undertaken. Mr Mawhinney rejected the Council‟s proposed structure plan. He presented an alternative proposal which provided for much more intensive development and markedly less control.
[48] The Environment Court considered that the issues for its consideration were as follows:
(a) Was a structure plan process the appropriate methodology in the context of the proposed plan?
(b) Which of the two proposals, the Council‟s, or Kitewaho‟s, was the
most appropriate in the context of the proposed plan? (c) Any criticisms of the preferred proposal.
(d)Should a proposal be allowed for part only of the Dilworth catchment?
[49] The Court released an interim decision in relation to these various issues on
27 June 2003. 18 I analyse the decision in more detail below. In brief, the Court considered that a structure plan process was appropriate. It preferred the structure plan proposed by the Council, but considered that it was not sufficiently developed to be incorporated into the plan. It identified a number of matters that it considered were relevant to any further development, and adjourned matters again so that the Council could continue to develop a structure plan for the land in the Dilworth catchment area in accordance with the Court‟s directions and interim decision, and in discussion with Mr Mawhinney and other parties to the appeal.
[50] Mr Mawhinney did not appeal this interim decision.
[51] Development of the structure plan proceeded over 2004 and 2005. Various
Court-assisted mediations took place. Little progress was made.
[52] At some stage, Kitewaho and Waitakere Forest Park Limited were placed into liquidation, and in February 2005, Mr Mawhinney applied to the Court to be substituted as the appellant. His request was granted, and on 22 February 2005, he was substituted for Kitewaho and Waitakere Forest Park Limited in, inter alia, appeal RMA 886/98.
[53] The appeal came before the Court again by way of a judicial conference, and on 28 July 2005, the Court issued a minute in that regard. The minute recorded that the Court had made a number of findings of fact in its decision of 27 June 2003. It
gave various directions to ensure that outstanding issues were addressed, and directed that the matter should be given a further fixture as soon after 31 March 2006 as could be arranged.
[54] Following a further judicial conference in March 2006, the Court issued a further minute recording that one of the issues outstanding was how many lots could be “sustained” within the Dilworth catchment “from a stormwater point of view”. It noted that Mr Mawhinney was arguing that more than 40 lots could be accommodated whereas the Council considered that approximately 40 lots were appropriate. The Court proposed to proceed to a further hearing in May 2006, and it directed that the hearing was to be confined to the outstanding issues which were left following its interim decision. It also directed that the hearing was to be confined from an evidentiary point of view to the land in the Dilworth catchment area.
[55] The hearing reconvened on 8 May 2006. The Council was proposing a zone called the Dilworth Special Area Zone, with its own structure plan. It assessed that, in total, 41 lots could be accommodated in the new zone, allowing for existing house sites and permitted building rights where land was held in separate titles. However, it considered that increased levels of development that the proposed structure plan would permit should not occur on the land unless the effects of that development, particularly on the existing character of the environment, were mitigated. To this end, it was proposed to cluster development sites. They were to be balanced by larger, undeveloped, protected and re-vegetated areas within the special area. These various mechanisms were put forward as a quid pro quo for the development
opportunities provided for in the proposal.19 Mr Mawhinney was seeking that
provision should be made for 58 new lots, and a further four lots on adjoining land. He also proposed 82 two-storey dwellings and sheds on the land, using what he called a “permitted baseline approach”. Other submitters, including the Regional Council, took a different view. The Regional Council favoured less development
than was proposed by either Mr Mawhinney or the Council.20
[56] At the conclusion of the hearing in 2006, a number of matters were still unclear. The Court recorded those matters as follows:21
(a) whether all neighbouring property owners who might be affected by the proposal had been properly notified;
(b) what was the ownership of the land in the Dilworth Special Area, and
(c) exactly what was Mr Mawhinney seeking by way of relief?
The Court noted that the matter of land ownership was uncertain, and that it had been “consistently ever changing in a chameleonic manner”.22 The hearing was adjourned yet again.
[57] In a memorandum dated 17 July 2006, Mr Mawhinney set out the relief he was seeking. He advised that he wished to provide for the subdivision of the land, so that development could be carried out as of right under the proposed district plan. He argued that permitted development should allow 82 two-storey dwellings and sheds together with vehicle access to serve them.
[58] The hearing resumed in August 2007.
[59] In the interim, some ownership changes had taken place in the Dilworth catchment area. An entity known as Anzac Developments Limited had entered into an agreement to purchase part of the land. It had its own planning requirements. As a result, the Council presented two versions of the proposed plan provisions, one reflecting its position as at the 2006 hearing, and the other with changes to reflect the requirements of Anzac Developments Limited.
[60] Mr Mawhinney was seeking that all of the land detailed in the original submission should be zoned as Dilworth Special Area, and not just the land in the Dilworth catchment area. He was seeking that the structure plan provisions should be amended in accordance with changes he proposed, that additional subdivision
provisions based on his “permitted baseline” argument should be provided for, that the standard Foothills subdivisions rules should be provided for and that various other policies and technical provisions should be amended.
[61] The Environment Court again identified various issues for determination.23
One of those issues was the appropriate number of lots for the subject land. The Court was concerned that the only landscape evidence that had been tested before it was evidence called by the Council. It noted that the Regional Council did not call any landscape witnesses, and that Mr Mawhinney had produced a landscape report, but that its author had not been called to give evidence, or to be cross-examined. It therefore decided to exercise its powers under s 276(1)(c) of the Act to appoint an expert to provide an independent view of the density that could be sustained on the land from a landscape perspective. A minute in this regard was issued in December
2007, and a Ms Skidmore was appointed to provide the necessary evidence.
[62] Ms Skidmore‟s evidence was received in April 2009. In summary, she concluded that density was closely related to the re-establishment of native vegetation, and that this was a key element in the proposed Dilworth Special Area Zone.
[63] The hearing resumed on 8 March 2010 so that Ms Skidmore could be cross- examined. Again, there had been developments. The land previously owned by Anzac Developments Limited had been transferred to Mr Vesey. The Environment Court identified the key issues that it considered required
determination.24 It considered that the proposed vegetation and protection rules, and
their effective implementation, underlay those issues, and that they were fundamental to putting in place the Dilworth Special Area Zone proposed by the Council. It therefore addressed those rules and their implementation first. It considered that the proposed rules were appropriate. However it took the view that there was no certainty that the Dilworth Special Area provisions proposed by the Council could ever be given effect to, primarily because the land in the proposed special area was not under single ownership or control. As a result, it had little
confidence that, even if the Court approved the Dilworth Special Area provisions and put into the proposed plan, the quid pro quo provisions would be workable. Accordingly, it concluded that the proposed vegetation and protection rules were unworkable. It also considered that to have underlying zoning as well as allowing for the Dilworth Special Area, would undermine the integrity of the district plan, and that it would not comply with the purpose of the Act. It therefore concluded that the existing Foothills Environment zoning should be retained, and that the appeal should be dismissed.
[64] Mr Mawhinney has appealed this decision. I consider it in more detail below. [65] I now turn to the issues identified by me in [23] above.
What has the Environment Court Decided and When Did It Make its Various
Determinations?
[66] There are two relevant Environment Court decisions – the interim decision issued in June 2003, and the final decision issued in November 2010.
The Environment Court’s 2003 interim decision
[67] The Court started by recording the parties, and noting that Mr Mawhinney, on behalf of Kitewaho, had “sensibly and responsibly” abandoned the many forms of relief previously sought, other than that detailed in cl 6.1 of the memorandum noted above at [35]. The Court referred to the draft structure plan prepared by the Council, and to the fact that Mr Mawhinney, on behalf of Kitewaho, had rejected that structure plan. It noted that Mr Mawhinney had presented a different proposal which provided for a much greater intensity of development and less control.
[68] The Court then discussed the Waitakere District Plan and the place which structure plans have within it. It referred to the Foothills Environment Zone, and to the explanation given in the plan for the relevant zone policies and objectives. It noted that the plan allowed for some flexibility if a structure plan approach were to be adopted, and it went on to discuss the nature of structure plans. It discussed the
policy in the plan which deals with the use of structure plans to protect the essential qualities of the Foothills Environment Zone. It also noted that the proposed plan does not envisage an urban-style development being located outside the urban area. The Court expressly observed that either the Council or private landowners can initiate structure plans. Where structure plans are initiated by private landowners, there is an expectation that this will be done in close partnership with the Council and in consultation with surrounding residents, iwi, the Regional Council and other key interested groups. It recorded that structure plans should be included in the plan through a variation or the plan change process.
[69] The Court then moved to discuss the Council‟s proposed structure plan for that part of Kitewaho‟s land that lay within the Dilworth catchment area. It discussed how that plan had evolved; it noted the evidence from witnesses and from Mr Mawhinney. It recorded that the parties reached agreement partway through the April 2002 hearing, and the adjournment then taken to enable the parties to confer. It discussed the development of the draft Dilworth catchment structure plan, and discussed the Council‟s proposals. It then discussed Kitewaho‟s proposals. It noted that Mr Mawhinney had requested that the Court should implement the rules proposed by the referers in the original submission, whether in a structure plan, or for a large property, or under ad hoc zoning. The Court expressed the view that this submission resiled from the agreement that it outlined in its minute of 30 April 2002. It recorded, somewhat sceptically, Mr Mawhinney‟s belated submission that the minute did not accurately represent the agreement reached between the parties. It also noted that Kitewaho‟s proposals differed markedly from the Council‟s proposals in many respects, including density requirements, and the absence of any bush protection or enhancement areas. The Court then went on to consider
Mr Mawhinney‟s proposal and stated as follows:25
It is clear to us… that the proposal put forward by Mr Mawhinney is not consistent with the objectives, policies and methods of the proposed plan as they relate both to the foothills environment and structure plans…
[70] Notwithstanding its observation that Mr Mawhinney was resiling from the earlier agreement, it expressly addressed his submission that the Court should
implement the rules proposed by the referers for the subject land in the original submission either in a structure plan, or for a large property, or under ad hoc zoning.26 The Court recorded its view that ad hoc zoning was inappropriate, and that it was not premised in the policies and objectives of the proposed plan.27 It then referred to special area zoning. It acknowledged that special areas exist throughout
the City, but noted the opinions of a Council witness that special area identification for the Waitakere Forest Land was unnecessary, inappropriate, and inconsistent with the general philosophy and approach of the plan.28 The Court expressly agreed with those opinions. It then considered whether or not the land should be zoned as a large property management area. Again it noted the evidence of a Council witness that Waitakere Forest land did not fit within the framework that the proposed plan
adopted for the identification of such sites. With one exception, the Court accepted
the witness‟ reasons, and her opinion.29 The Court concluded as follows:30
In our view, the Waitakere Forest Land is appropriately identified in the plan as Foothills Environment. The plan provides for rural structure plans in the Foothills Environment as a mechanism to enable subdivision below
4 hectares where appropriate. We find a structure plan is the most appropriate method to address possible subdivision potential within the Waitakere Forest Land.
[71] The Court then went on to discuss whether or not the Council‟s or Kitewaho‟s plan was the most appropriate in the context of the proposed district plan. The Court concluded as follows:31
Kitewaho‟s proposal does not represent a structure plan reflecting the structure plan methodology set out in the objectives, policies and rules of the district plan. DIL 114 and the list of rules proposed by Kitewaho are unique to its land. The proposed rules being significantly different from the rules in the Foothills Environment or from anything that is contemplated anywhere in the Waitakere City Council District Plan.
We are satisfied that the development capacity of the Waitakere Forest Land within the Dilworth Catchment is limited. The land is located within the rural environment that has the potential to significantly impact on land downstream of the Dilworth Catchment. We are conscious that careful consideration must be given to the potential environmental effects and the
26 Ibid at [63].
27 Ibid at [64].
28 Ibid at [71].
29 Ibid at [76].
extent to which adverse effects on the environment can be avoided, remedied or mitigated.
We consider the density of development proposed by Kitewaho to exceed what we consider to be appropriate for the Dilworth Catchment. We reject the proposition to build countryside apartments. The proposed plan does not envisage an urban style of development being provided for outside the urban area. Policy 1.1 states that urban development shall be avoided in, among other places, the Foothills of the Waitakere Ranges. Similarly Policy 11.29 goes on to state the subdivision within structure plan areas should provide for a density of development that does not compromise Council‟s urban consolidation policies or undermine the urban containment policies of the Auckland Regional Policy Statement.
In our view, the Council‟s methodology achieves an outcome in accordance with Part II of the Act and reflects the objectives and policies of the proposed plan. Kitewaho‟s proposal does not sufficiently address the environmental constraints identified in the district plan. Accordingly, we prefer the methodology adopted by the Council in its proposal to that of Kitewaho‟s.
[72] The Court then dealt with criticisms of the Council‟s proposal. It considered objections raised by both the Regional Council and Mr Mawhinney. Specifically, it dealt with Mr Mawhinney‟s argument that the proposed structure plan should extend to include the 31.5 hectares of land that fell within the Anzac Valley catchment. It noted that no “circumstances” had been put forward in respect of Anzac Valley catchment, and that the land the subject of the request made up only five per cent of that catchment. The Court considered that it was not large enough, or sufficiently separated from other land in the catchment, to contain the necessary individual elements and discreetness to enable a comprehensive assessment of the relevant
environmental constraints. It held:32
... that any structure plan arising from these proceedings should not apply to the land in the Anzac Catchment. Any such structure plan should be done by means of a plan change for the whole, or at least, if circumstances warrant, a majority of that catchment.
[73] It then dealt with developments above the 130-metre contour line, the existing landscape and rural character qualities of the Dilworth catchment, with the need for a comprehensive geotechnical analysis, with stormwater and wastewater, and with provisions relating to re-vegetation and enhancement. In relation to the latter matter, it noted Mr Mawhinney‟s criticism of what he called “the severe
re-vegetation regime” in the proposed structure plan. It considered the evidence in that regard, and reached the following conclusion:33
We find that the “revegetation enhancement areas” and “streamside enhancement areas” are an essential part of the structure plan process and a necessary tool for addressing the identified environmental constraints. We consider, however, that a proper balance needs to be made between certainty of performance and putting Kitewaho in an untenable position, thus making the structure plan nugatory. Until the potential for the development of the whole site is determined, it is not appropriate to make a final determination on the merits of the enhancement provisions…
[74] The Court summarised its findings as follows:34
In part summary we find that:
i. A „structure plan‟ development remains the best means of progressing the reference;
ii. A structure plan based only on the Waitakere Forest Land, within the Dilworth Catchment, is appropriate;
iii. Some limited and appropriately controlled development above the 130m contour may be suitable;
iv. There needs to be a further landscape and rural character assessment, to identify indicative building sites, in marginally stable land;
v. There remains a need for further geo-technical assessment.
We believe this could be done at the time of applying for subdivisional consent, and not necessarily as an integral
component of the structure plan;
vi. Up to 40 sites could be provided for, subject to appropriate conditions relating to stormwater and wastewater;
vii. Revegetation enhancement areas and streamside enhancement areas are an essential part of the structure plan process – though they may be part of a staged development; and
viii. Apartment buildings within the structure plan are not appropriate.
Determination
Having determined the issues that are as yet capable of resolution, we do not consider that we are in a position to make a final decision. We consider the draft structure plan of the Council is not yet sufficiently developed to be
implemented into the proposed plan. It may also require some amending as a consequence of the issues determined in this interim decision. Hopefully, our determination of these issues will enable the parties to progress further forward, either by way of negotiation or mediation. Failing that, any party may refer the matter back to us.
[75] Finally, the Court discussed the focus for the future, and made the following observation:35
We feel obliged to comment, that the vacillating intransigence of Mr Mawhinney, has had the effect of thwarting the efforts by the Council to provide, through the statutory process, a means whereby Kitewaho may develop its land in a considered and prudent manner – but in accordance with the proposed plan‟s philosophy. The Council‟s willingness to adapt the reference proceedings to enable the progressing of a structure plan for the Waitakere Forest Land is to be commended. It obviates the need for Kitewaho to initiate its own plan change at a later date. That Mr Mawhinney did not take advantage of the opportunity leaves us somewhat surprised.
Now that we have determined a number of issues raised in the proceedings we expect Mr Mawhinney to bring about a simple focus to furthering what has been to date an unnecessarily complicated issue.
[76] In my judgment, the Court made a number of final determinations in its 2003 interim decision. Relevantly, it:
(a) rejected Mr Mawhinney‟s proposal that the Court should implement the rules proposed by the referers for the subject land in the original submission either in a structure plan, or by way of a large property zoning, or under ad hoc zoning;
(b) held that the land was appropriately identified in the plan as Foothills
Environment;
(c) held that a structure plan was the most appropriate method to address possible subdivision potential within the Waitakere forest land;
(d)held that Kitewaho‟s proposals for a structure plan did not reflect the structure plan methodology set out in the objectives, policies and rules of the plan;
(e) held that the Council‟s methodology achieved an outcome in accordance with Part II of the Act, and reflected the objectives and policies in the plan;
(f) held that the proposed structure plan should not apply to land in the
Anzac Valley catchment, and
(g)held that re-vegetation enhancement areas and streamside enhancement areas were an essential part of the structure plan process and a necessary tool for addressing identified environmental constraints.
The Environment Court’s 2010 decision
[77] The Court started by noting that the case related to the development potential of the land within the Dilworth catchment. It referred to the interim decision and recorded that its 2010 decision should be read in conjunction with that decision. It summarised the history of the proceedings. It noted that the substantive hearing in relation to the appeal had commenced on 8 April 2002, and that it had occupied in total some 28 days of hearing time. The Court recorded that in its interim decision, it had determined a number of matters that it considered to be relevant to the further development of the Dilworth structure plan, and it summarised those determinations. The Court then identified various key issues that it considered required determination. It noted that the vegetation and protection rules, and their effective implementation, underlay all of these issues, and were fundamental to making provision for the Dilworth Special Area. It recorded its view that if the protection measures as proposed by the Council were found to be necessary, there was no point in proceeding further, unless a mechanism could be put in place that was effective and workable. It noted that an adverse finding on this issue was so fundamental that it would be decisive.
[78] The Court then addressed the vegetation and protection rules in detail. It recorded that re-vegetation of the land was fundamental to the Council‟s proposal. It observed that Mr Mawhinney was adamantly opposed to the proposed rules, that he
considered them to be too onerous. It summarised Mr Mawhinney‟s submissions. It considered that the rules were not contrary to the interim decision, and that its findings in the interim decision did not preclude it from invoking the Council‟s proposed protection and vegetation rules. It further held that the Council‟s proposed rules were designed to control the level of intensification of development in the proposed Dilworth Special Area, and that in that context, the rules were within the scope of the reference appeal. It also found that the proposals were both necessary and reasonable.
[79] The Court went on to consider whether or not the proposed rules were workable. In this context, it discussed the land ownership in some detail. It observed that ownership of the land was a relevant matter because the Dilworth Special Area provisions proposed by the Council required the various landowners to agree to the mechanism proposed. The Court summarised the submissions advanced by Mr Mawhinney, by Ms Ash on behalf of the Council, and by the Regional Council. It agreed with the Councils‟ concerns, and observed that the ever-changing pattern of land ownership, and its fragmentation, gave it little confidence that the proposed rules would be workable if it approved the Dilworth Special Area provisions. It considered that this was important, because if the Dilworth Special Area provisions were to be incorporated into the proposed plan, that would have the effect of replacing the present zoning, which provided for subdivision as a controlled activity with a minimum site area for each proposed site of 4 hectares. It noted that the proposed Dilworth Special Area Zone had been developed to provide additional development opportunities for the subject land, in exchange for environmental enhancement. It considered that it was a “package deal”, which would be undermined if there were to be underlying zoning for the land. The Court then stated
as follows:36
We are accordingly led to the inevitable conclusion that the Foothills Environment zoning should be retained for the [appellant referer‟s] land and that the appeal be dismissed for the following reasons:
a)Mr P Mawhinney has consistently opposed the provisions drafted by the Council to ensure that the quid pro quo can be implemented.
The proposed provisions cannot be imposed upon an unwilling land owner; and
b)The uncertainty regarding land ownership and the issue as to whether the landowners control the land within the proposed Dilworth Special Area. This gives us little or no confidence that any quid pro quo provisions would be workable.
[80] The Court then went on to expressly deal with the land in the Anzac Valley catchment. It noted that Mr Mawhinney had sought that the land in that catchment should be included in the plan provisions for the Dilworth Special Area. It recorded that as a backup, he had sought that the reference appeal should be left extant following the decision for the purposes of the Anzac Valley catchment.
[81] The Court noted that the proposed Dilworth Special Area rules related only to land in the Dilworth catchment, and that the Anzac Valley land was not included in the Dilworth Special Area. It recorded that the Council had consistently opposed any development potential beyond the 4 hectare rule for the Anzac Valley land, and that approach was not considered appropriate by the Court in 2003. It referred back to its findings made in the 2003 interim decision, and noted that its view was supported by evidence given in the course of the hearing before it. It then recorded its conclusion that as a consequence, the reference appeal should be dismissed in its entirety. Its final determination was to that effect.
[82] In my view, the Court in 2010 held that:
(a) the proposed re-vegetation and protection rules were not contrary to its interim decision;
(b)its interim decision did not preclude it from invoking the proposed rules;
(c) the proposed rules were within the scope of the appeal; (d) the proposed rules were both necessary and reasonable; (e) the proposed rules were unworkable;
(f) the Foothills Environment Zone should be retained, and
(g) the appeal should be dismissed in its entirety.
Have the Environment Court’s Decisions Been Appealed Against as Required by the Act?
[83] The right of appeal is conferred by s 299 of the Act. Relevantly, s 299(1)
provides as follows:
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.
[84] Section 300(1) provides as follows:
300 Notice of appeal
(1) An appellant shall file a notice of appeal within 15 working days after the date on which the appellant is notified of the Environment Court's decision or report and recommendation.
The 2003 interim decision
[85] The Environment Court‟s interim decision issued on 27 June 2003. Mr Mawhinney did not appeal the Court‟s decision. Nor has he sought leave to appeal out of time.
[86] The decision was however an interim decision and it was expressly referred to in the 2010 decision.37 Mr Mawhinney argued that this affected the position. He argued that the Court did not make a decision in respect of the proposed district plan provisions in 2003. He submitted that no part of the interim decision rejected his proposals, and that consequently, there could be no issue as to whether there was an appeal within the requisite time limit, because there was nothing to appeal against.
[87] Ms Ash acknowledged that the Act does not expressly say that a decision may be interim, but pointed out that the Court has, on a number of occasions, issued interim decisions, and that there are various High Court cases which acknowledge or implicitly support the Court in so doing. She argued that the issue of an interim decision can occur under s 269 of the Act, which permits the Court to regulate its own procedure, and conduct its proceedings without procedural formalities, where that is consistent with fairness and efficiency. She submitted that the Court did make a number of final determinations in 2003. She then dealt with the decided cases and submitted that here, final decisions made by the Court were not appealed by Mr Mawhinney and that they are now beyond challenge.
[88] I accept that the Environment Court can, in appropriate cases, issue an interim decision notwithstanding the absence of any express provision in this regard in the Act. It can do so pursuant to s 269. An interim decision may well be appropriate where the Court is able to reach conclusions on a number of issues, but cannot finalise its decision, because it has insufficient material to enable it to determine some matter which requires adjudication or because it wants to give the parties the opportunity to comment on or advance a particular issue. Resource management planning frequently calls for a large number of judgments, on a host of disparate issues. It can therefore be unrealistic to expect the parties to have finalised their position on all matters ultimately requiring a determination from the Court. Indeed, they may be unable to do so until the Court has made a decision on other matters. In such circumstances, and they are not meant to be exhaustive, it may well be appropriate for the Court to issue an interim decision.
[89] The question then becomes whether or not an interim decision can be appealed. This depends on whether an interim decision is a “decision” as that word is used in s 299 of the Act. The position is not entirely clear from the authorities.
[90] This Court has on occasion held that interim decisions can be appealed. I
refer, for example, to Wellington City Council v Australian Mutual Provident
Society.38 Jeffries J there observed as follows:39
38 Wellington City Council v Australian Mutual Provident Society HC Wellington AP 47/91,
15 May 1991.
Sometimes a Tribunal or Court publishes an interim decision which beyond any question makes a determination but leaves certain machinery provisions, for instance, to be later resolved but if that is not possible for a return to the decision maker for a final resolution. In such circumstances there is a "determination" which is capable of appeal.
[91] Similarly, in Hahei Development Limited v Thames Coromandel District
Council,Williams J held as follows:40
Plainly the Court's decision in this case is not final. But, equally plainly, it made a determination against Hahei Developments. The relief sought was to re-zone as CVPA that part of the appellant's camping ground currently zoned OSPA. It is clear, whatever Council or the Court does in the future, that will not be the direct result of Hahei Developments' reference appeal. What it may get, though not directly, is the extension of the OSPA sub-zoning to more of its land than is currently so zoned plus the addition of a further purpose to para 337.5 to make it more difficult to re-zone as CVPA that part of its land currently OSPA. Therefore, Hahei Developments' application was effectively decided against it and its right to the relief it sought has been determined adversely to its interests.
Accordingly the appropriate view is that the Court's judgment of
23 December 2003 is appealable in that it finally determines that the relief sought by Hahei Developments will not be granted.
[92] Conversely, Salmon J in Peninsula Watchdog Group (Inc) v Coeur Gold New
Zealand Limited observed: 41
The question as to whether an interim decision is a decision in terms of s 299 is one which has not been finally resolved by the Courts. It seems, however, that as a matter of practice the parties accept that the appropriate time to lodge an appeal is after a final decision has been made. That seems to be a sensible practice.
(I note that Salmon J‟s observations were obiter, because he had determined that the
Court was not being asked to deal with an interim decision.)
[93] In Queenstown Lakes District Council v J F Investments, Doogue J
observed:42
39 Ibid at 7.
40 Hahei Development Limited v Thames- Coromandel District Council [2005] NZRMA 21 (HC) at
[35]–[36].
41 Peninsula Watchdog Group (Inc) v Coeur Gold New Zealand Limited [1997] 3 NZLR 463 (HC)
at 467.
42 Queenstown Lakes District Council v J F Investments HC Invercargill CIV 2004-485-2278,
18 March 2005 at [10].
I do not intend to traverse the relevant case law in respect of appeals against interim decisions under s299 RMA and its predecessors in any detail. I accept that the issue has not been finally resolved: see Peninsula Watchdog Group Inc v Couer Gold New Zealand Ltd [I997] NZRMA 501, 504. I agree with the observation of Salmon J in that case that normally the appropriate time to lodge an appeal is after the final decision is made. I accept, however, that some interim decisions might finally determine substantive issues in a way that brings an appeal from them clearly within s 299.
[94] More recently in Pacific Investment Trust v Christchurch City Council, Fogarty J, in the context of an application for leave to appeal out of time, did not consider it necessary to decide whether leave to appeal outside the statutory timeframe was required.43 He considered that the language used by the Environment Court in its interim decision did not resonate finality, and that the Court had left various issues to the parties. At much the same time, French J in Fox v Christchurch City Council,44 referred to Salmon J‟s dicta in Peninsula Watchdog Group (Inc),45 and suggested that, where there was an interim decision, the accepted practice was to lodge an appeal after a final decision had been made.46 However, her Honour went on to find that the decision in question was a final decision. It had
addressed a jurisdictional issue, and its purpose had been to provide the parties with certainty so that the case could be progressed to the next stage.
[95] There is a helpful discussion in an Environment Court decision – Gardez Investments Ltd v Queenstown Lakes District Council.47 The Court, presided over by Judge Jackson, referred to inter alia, the Peninsula Watchdog decision. It noted Salmon J‟s observations, and ventured the comment (with respect) that they rather beg the question as to whether a decision is a final decision in the proceeding, or a decision on a particular issue. The Court went on to note as follows:48
In the light of the AMP and Hahei decisions, the questions arising out of an
"interim decision" are:
43 Pacific Investment Trust v Christchurch City Council HC Christchurch CIV 2008-409-2743,
19 February 2009.
44 Fox v Christchurch City Council HC Christchurch CIV 2008-409-000898, 5 December 2008.
45 Peninsula Watchdog Group (Inc) v Coeur Gold New Zealand Limited [1997] 3 NZLR 463
46 Fox at [49].
47 Gardez Investments Ltd v Queenstown Lakes District Council EnvC Christchurch C95/05, 1 July
2005.
48 At [39] and [40].
• what has the Court decided?
• and what has it left undecided?
On the issues it has decided the Court has completed its functions and is functus officio. Further, an appeal lies to the High Court. On the issues it has not decided it is not functus officio and there is no right of appeal: Queenstown Lakes District Council v J F Investments Limited.
…The test is whether, in substance, the "interim" decision:
(a) decides the whole proceedings or, at least, one or more particular issues conclusively (in which case the Court is functus officio on each such issue); or
(b) leaves the matter open for parties to return to the Court with further submissions and/or evidence notwithstanding the views expressed at the interim stage…
[96] In broad terms, I agree with the analysis undertaken by the Environment
Court in Gardez.
[97] In my view, no “bright line” rule is possible. Each interim decision must be considered in its terms. If an interim decision finally decides a substantive issue between the parties, then there is a decision in respect of that issue in terms of s 299, notwithstanding that some other issue may be left for further consideration. If an interim decision does not finally decide a substantive issue, and leaves it for the parties to return to the Court, then there is no decision in terms of s 299. If the parties are in any doubt, then, ex abundante cautela, they should file an appeal and seek to adjourn any hearing of the appeal until the final decision is delivered.
[98] In my judgment, the Environment Court in the present case made a number of conclusive determinations on substantive issues against Mr Mawhinney in its
2003 interim decision. I have set out those various determinations above at [74]. In respect of these issues, the Court has completed its functions. The parties cannot return to the Court for further resolution of these issues. It is functus officio. There was a decision and an appeal lay to this Court. Mr Mawhinney did not appeal within the requisite 15 working day period. He has not sought leave to appeal out of time. It is now too late for him to challenge the Court‟s determinations on those issues.
The Court‟s decision on those issues is final.49
49 Section 295 of the Act.
[99] This answers the question posed by Mr Mawhinney in [3.6] of the notice of appeal – see annexure “A”. He asked whether the Environment Court has the jurisdiction or authority to revisit and alter its previous decisions on a proposed district plan that have not been appealed or re-heard. The answer is “no”, unless, following a successful challenge, the matter is sent back to the Environment Court by this Court for reconsideration.
The Environment Court’s 2010 decision
[100] As noted, the 2010 decision is dated 25 November 2010. The notice of appeal was filed on 10 January 2011. The notice of appeal does not state when Mr Mawhinney and the appellants received the decision. As already noted, s 300(1) requires that any notice of appeal be filed within 15 working days after the appellant is notified of the Environment Court‟s decision. Assuming that the appellants received the decision on the first working day after it was released by the Court, say Monday 27 November 2010, allowing for the operation of r 1.17(2) of the High Court Rules which requires that when a time of one day or longer is to be reckoned by reference to a given day or event, the given day or the day of the given event must not be counted, and allowing for the High Court vacation when the Registry was closed as required by r 1.18, it follows that the initial notice of appeal dated 10 January 2011 was filed within the time limit specified in s 300(1) of the Act. I note that the Council does not assert to the contrary.
[101] It does not however follow that any additional matters raised in the amended notice of appeal filed on 10 August 2010 were raised within the required time. As noted above at [6], the Council submitted that the first amended notice of appeal went beyond the original notice of appeal, and that it was not open to Mr Mawhinney to raise additional issues outside of the 15 working day period. Ms Ash referred specifically to the alleged errors of law raised in [2.1] and [2.5] in the amended notice of appeal. Further, she argued that matters relating to water catchment boundaries, which were raised by Mr Mawhinney in his submissions, had not been included in either notice of appeal.
[102] Paragraph 2.1 in the amended notice of appeal reads as follows:
The Environment Court erred by misdirecting itself and when it took into account matters and proposals that were ultra vires s 290 RMA (same power, duty and discretion as respondent) and the limitations in clause 10 Schedule
1 RMA (decisions limited by matters raised in submissions), in particular, when it took into account new matters and provisions proposed by the respondent at the Environment Court that had not been publicly notified or raised in submissions under the procedures set down in First Schedule RMA, and as a direct consequence, the Environment Court erred by dismissing the reference appeal on the grounds that the quid pro quo of weed management, native forest planting and legal protection in return for subdivision of land in those new proposals might be unworkable as a result of purportedly disparate land ownership.
[103] In my judgment, [2.1] broadly mirrors [2.7] in the original notice of appeal. I am not persuaded that I should refuse to consider the matters raised in [2.1] simply on the basis suggested by Ms Ash and recorded in [96] above.
[104] Paragraph 2.5 in the amended notice of appeal reads as follows:
The Environment Court erred when it dismissed the reference appeal on the basis of matters and proposals that were outside the scope of it, including but without limitation the protection of land (e.g. by weed management, native forest planting and legal protection) where the relief sought was only as regards subdivision and development of land.
[105] Again, this clause broadly mirrors matters raised in [2.6] and [2.7] of the original notice of appeal, and once again I am not prepared to exclude consideration of these matters simply on the basis suggested by Ms Ash and noted in [96] above.
[106] Ms Ash is however correct that neither notice of appeal raised water catchment issues. It is not open to Mr Mawhinney to belatedly raise them in his submissions. I decline to consider this aspect of the matter.
[107] Further, it does not follow that points are relevant or material simply because they are raised in the notice of appeal. I now turn to this issue.
What Matters are Properly Before This Court?
[108] For the reasons I have set out above, only matters determined in the 2010 decision are properly before the Court.
[109] It is important to appreciate what the Environment Court actually decided in
2010. I have already set that out in [82] above. Essentially, the Court dismissed the appeal after it found that the only live proposal, which was that advanced by the Council, was unworkable. By default, this left intact the provisions which had been put in place by the Council when it dealt with the original submission. As a result, the land remained in the Foothills Environment Zone.
[110] Much of Mr Mawhinney‟s notice of appeal, and large parts of his submissions, were directed to a detailed criticism of the consideration given by the Environment Court to the Council‟s proposed Dilworth Special Area Zone. I refer in particular to questions [3.2](a) and (b), [3.3], [3.4](a) and (b), [3.7](b), [3.8](a) and (b), [3.9](a) and (b), [3.10] and [3.11] in the notice of appeal. (See annexure “A”.) Mr Mawhinney‟s notice of appeal and his submissions in regard to these various matters, ignore the fact that the Environment Court did not, at the end of the day, adopt the Council‟s proposed zoning. The hearing before the Environment Court in
2010 was the end stage of a long process, which involved the progressive refinement of a very broad appeal, and the associated relief sought, into a possible solution. The Environment Court considered that the best solution had been advanced, but it was still not prepared to accept it. Criticism directed to the way in which the Environment Court considered the Council‟s proposal is irrelevant for the simple reason that the Council‟s proposal was not adopted. I decline to deal with these issues and with the questions posed in relation to them.
[111] I must however express reservations about the process followed by the Environment Court. The Court‟s jurisdiction on an appeal under cl 14 of the Act is not unlimited. As is noted in Environmental and Resource Management Law, the Court is primarily a judicial body with appellate jurisdiction. It is not a planning authority with executive functions. When it is dealing with an appeal in relation to a plan change, it must consider whether any proposed amendment goes beyond what is
reasonably and fairly raised in the original submission and the notice of appeal. After hearing the appeal, the Court may, instead of allowing or disallowing the appeal, exercise its discretion under s 293 to direct the local authority to prepare changes to the plan to address matters identified by the Court.50 It cannot go beyond that.
[112] Insofar as I can see, and with the limited exception of the proposed vegetation and protection rules, the Environment Court did not pause to consider whether it had jurisdiction. No doubt it was emboldened by the memorandum signed by the parties and dated 28 September 2001, limiting the relief sought – see [37] above. It was generously affording Mr Mawhinney every opportunity to resolve matters. I am however, left with the overall impression that the draft structure plan prepared by the Council, went well beyond what was fairly and reasonably raised in the original submission, and in the notice of appeal. I have considered the original proposals set out in the submission. I have read the notice of appeal. I have compared the proposals advanced in those documents with the Council‟s draft Dilworth Special Area Plan. In my view, the Council‟s draft plan was not fairly and reasonably raised by the submission or the appeal. The Environment Court should have undertaken the same exercise. I am confident it would have reached the same conclusion.
[113] The Environment Court could have utilised the powers available to it under s 293 of the Act. If it had done so, pursuant to s 293 as it then stood, it would have been required to adjourn the hearing, and direct the Council to give public notice of the changes proposed and of the opportunities being given to make submissions and
to be heard.51 The Court did not resort to s 293. Insofar as I am aware, it was not
asked to do so. Rather than invoke s 293, the Court adopted a halfway house procedure, and directed that only certain persons in the immediate vicinity should be served.52 It had no jurisdiction to proceed in this way. In my view, it erred in so
doing.
50 D Nolan (ed) Environmental and Resource Management Law (4th ed, LexisNexis, Wellington,
2011) at [3.108], and cases cited at note 6.
51 This was required by s 293(3)(c) of the Act as it stood at the relevant time. Section 293 has since been amended, and public notification is no longer mandatory.
52 See [43] above.
[114] The Court, in its interim decision, had made all the findings necessary to enable it to deal with the appeal. It rejected Mr Mawhinney‟s proposal that it should implement the rules proposed by the referers for the subject land in the original submission either in a structure plan, or by way of large property zoning, or under ad hoc zoning. It set out its reasons for that conclusion.53 If it was not going to invoke s 293, the Court should have simply disallowed the appeal at that point in time and left it to Mr Mawhinney to initiate a private plan change or the Council to introduce a variation to its plan.
[115] This discussion deals with the questions posed in [3.1](a) and [3.5] of the notice of appeal – see annexure A. Both questions raise essentially the same issue – what limits are there on the Environment Court‟s powers when it is determining an appeal under cl 14 of the First Schedule? The answer is that the Environment Court, when determining an appeal under cl 14 of the First Schedule, is limited to matters that are reasonably and fairly raised in the proposed plan notified under cl 5 in the First Schedule, in the original submission under cl 6, and in the notice of appeal under cl 10. In addition, it has the powers conferred on it by s 293.
[116] In his notice of appeal, [3.1](b), Mr Mawhinney queried whether the Environment Court acted lawfully, or reasonably, in dismissing his appeal, on the basis of proposed provisions that were neither included in the proposed plan that was public notified, nor raised in submissions lodged under cl 6 of the First Schedule. He referred specifically to the Council‟s vegetation and protection rules.54
[117] The difficulty with this question is that it assumes that the appeal was dismissed because the Court found that the proposed vegetation and protection rules were unworkable. I do not consider that to be the case. In my judgment, all decisions relevant to the dismissal of the appeal were in fact made in the interim decision. The catalyst – but not the reasons – for the dismissal was the Court‟s finding in the 2010 decision regarding the workability of the proposed vegetation
and protection rules.
53 See [67] and [68] above.
54 See annexure “A”.
[118] Even if I am wrong in this regard, in my judgment, the Court‟s determination that the proposed rules were unworkable is based on findings of fact, and it is not for this Court to interfere with the same. The appeal is limited to questions of law. Nor is it open for this Court on appeal to consider the reasonableness of the Environment Court‟s decision, unless it can be said that the Court came to a conclusion without evidence, or to one which, on the evidence, it could not
reasonably have come.55 Here, that cannot responsibly be asserted. The
Environment Court considered the proposed vegetation and protection rules, and it concluded that they were unworkable. In reaching that assessment, it weighed the evidence which was before it. That is for the Environment Court alone, and it does not fall for reconsideration by this Court as a point of law.56 Accordingly, my answer to question 3.1(b) is “no” – the Environment Court did not act either unlawfully, or unreasonably, when it dismissed the appeal consequent on its finding that the proposed vegetation and protection rules were unworkable.
[119] For the sake of completeness, I should note that the Environment Court did find that the proposed vegetation and protection rules were within the scope of the appeal. With respect, I disagree. The Council‟s proposed plan did not include rules in this regard that were applicable to the subject land. The submission did refer to native vegetation. However, it sought that any native vegetation should be able to be harvested. There were various other references to vegetation and fauna, but there was nothing resembling the proposed rules ultimately proposed by the Council. Nor was there anything relevant to this matter in the notice of appeal. However, in any event, this error is immaterial. The Environment Court did not adopt the proposed vegetation and protection rules. If it had concluded that they were outside its jurisdiction, as in my view it should have done, then the result would have been the same. The additional development proposed to be permitted by the rules for the Dilworth Special Area Zone would not have proceeded, because there would have
been no quid pro quo for that additional development.
55 Countdown Properties (Northlands) Ltd v Dunedin City Council [1994] NZRMA 145 (HC) at
153.
56 Nicholls v Papakura District Council [1998] NZRMA 233 (HC) at 235; Orewa Land Ltd v
AucklandCouncil HC Auckland CIV 2010-404-6912, 21 April 2011.
Did the Environment Court Err When it Dismissed Mr Mawhinney’s Appeal?
[120] I have already touched on this matter above.
[121] There were some additional arguments raised by Mr Mawhinney, and he posed the following question in [3.7](a) of his appeal:
Does the Environment Court have the jurisdiction, function, or power to dismiss a reference (now called an appeal) made under clause 14 of the First Schedule to [the Act]?
Mr Mawhinney argued that it was not open to the Environment Court to dismiss his appeal, that it erred in so doing, and that the Court should not have taken into account the Council‟s proposals because they were ultra vires the scheme set out in the First Schedule to the Act. He says that the Court‟s powers were limited to those in cl 15 of the First Schedule to the Act.
[122] Ms Ash in response, argued that cl 15(2) provides that a reference, or appeal as it is now called, is a type of appeal, and that as such, the Environment Court has its normal appeal powers under s 290 of the Act, including the power to dismiss an appeal.
[123] For the reasons I have set out above, I do not consider that the Environment Court dismissed Mr Mawhinney‟s appeal because the Council‟s proposed vegetation and protection rules were unworkable. It dismissed Mr Mawhinney‟s appeal for the reasons set out in the interim decision – in particular, it considered that Mr Mawhinney‟s proposals were inconsistent with the plan.
[124] The Environment Court was dealing with the appeal under cl 15 of the First Schedule. The hearing was a de novo hearing. Clause 15(2), as it stood at the relevant time, provided as follows:
15.2 Where the Environment Court holds a hearing into any provision of a proposed policy statement or plan (other than a regional coastal plan) that reference is an appeal and the Environment Court may confirm, or direct the local authority to modify, delete, or insert any provision which is referred to it.
[125] Clause 15(2) was worded in permissive terms. It provided that the Environment Court “may” take certain steps. The companion provision, s 293, as it stood at the time, was to similar effect.
[126] Pursuant to cl 15(2), however, a reference under cl 10, was an appeal. It follows that the Environment Court had its normal appeal powers detailed in s
290(1) of the Act. Inter alia, s 290(1) provided as follows:
290 Powers of court in regard to appeals and inquiries
(1) The Environment Court has the same power, duty, and discretion in respect of a decision appealed against, or to which an inquiry relates, as the person against whose decision the appeal or inquiry is brought.
[127] It follows that the Environment Court had the same powers as were available to the Council under cl 10 of the First Schedule. Clause 10 of the First Schedule empowered the Council to accept or reject any submission. Here, the Environment Court has rejected Mr Mawhinney‟s submission and the associated appeal. Consequent on that rejection, it has dismissed the appeal.
Result
[128] It follows that Mr Mawhinney‟s appeal to this Court fails.
[129] I have not dealt with all of the matters raised by Mr Mawhinney in his notice of appeal, or in his submissions, because in my judgment, most of them are irrelevant. Some of the questions were not well framed. Some of the questions raised the same issue, and some made incorrect assumptions or were posed in a different context. I have touched on some of the questions posed in the notice of appeal in the course of this judgment and I have endeavoured to answer relevant questions posed insofar as I am able to do so.
Costs
[130] At the end of the hearing, the Council sought costs.
[131] I pointed out to Ms Ash that Mr Mawhinney is an undischarged bankrupt. She advised that the Council seeks a costs order, so that it can enforce the same after Mr Mawhinney is discharged from his bankruptcy. She did indicate that the Council might not wish to take that step, but that it wishes to preserve its rights to do so.
[132] Mr Mawhinney is an undischarged bankrupt. He personally has no present ability to pay a costs award. I do not consider that it is appropriate to award costs against him personally, so that the Council can in effect, hold that award as a Sword of Damocles over him, when he is discharged from bankruptcy. In my view, it would be an abuse of process to make a costs order for that purpose, and I do not intend to do so.
[133] However, Mr Mawhinney was claiming to appear as trustee on behalf of the Waitakere Forest Land Trust. One would expect that any costs award would be paid out of the trust fund. I do not know whether the Waitakere Forest Land Trust is solvent or not.
[134] If the Council wishes to seek costs against the Waitakere Forest Land Trust, it is to file a memorandum in that regard detailing the costs sought within 10 working days of the date of this judgment. Mr Mawhinney is to respond within a further 10 working days. Submissions in relation to costs are not to exceed 10 pages. I will then deal with the issue of costs on the papers unless I require the assistance of
Ms Ash and Mr Mawhinney.
Wylie J
Annexure A
3.1(a) In determining the subject reference appeal under cl 14 First Schedule RMA, are the proposed provisions and matters to be taken into account by the Environment Court limited by s 290 RMA and cl 10 First Schedule RMA to the proposed provisions and matters raised in either the proposed plan when it was publicly notified under cl 5 or in submissions under cls 6 and 8
First Schedule RMA?
(b) When it dismissed the subject reference appeal on the basis of proposed provisions and matters in respect of the subject land that were neither included in the proposed plan when it was publicly notified under cl 5 nor raised in submissions under cl 6 and 8 First Schedule RMA (including the respondent‟s proposal for a quid pro quo of weed management, native forest planting and legal protection in return for subdivision of land), did the Environment Court act either:
(i) unlawfully? or
(ii) reasonably?
3.2(a) Should the Environment Court have discounted effects on the environment of development that is a permitted activity in the subject land in its unsubdivided estate?
(b) In particular, when it considered the appellant‟s proposal for rules that made provision for subdivision only to the extent of partitioning such permitted development?
3.3Should the Environment Court have taken into account the avoidance, remedy or mitigation of adverse effects of development on the environment provided by the requirement for permanent forest/bush protected for the purposes of stormwater mitigation beyond that primary purpose, including as regards amenity values?
3.4(a) Does subdivision of land as defined in s 218(1)(b) RMA have direct effects (as opposed to indirect effects) on natural and physical resources or the environment?
(b) Whether, in considering district rules in respect of subdivision of the subject land, the primary determinant for the purposes of s 31, s 72 and s 76
RMA is, of the following two:
(i) the number of allotments? or
(ii)the effects of development likely to follow subdivision of land?
3.5Does the Environment Court have the jurisdiction or authority to make determinations outside the scope of:
(a) the reference appeal?
(b) the relief sought in the reference appeal?
3.6Does the Environment Court have the jurisdiction or authority to revisit and alter previous decisions made by it on the proposed district plan that have not been appealed or reheard?
3.7(a) Does the Environment Court have the jurisdiction, function, or power to dismiss a reference (now called an appeal) made under cl 14 First Schedule RMA?
(b) Did the Environment Court breach its statutory duties:
(i)under s 32 RMA by omitting to carrying out an analysis of the existing proposed provisions (as amended by cl 10(3) First Schedule RMA)?
(ii)under cl 10 First Schedule RMA by omitting to give reasons for its decision to reject the referrer appellant‟s submissions that proposed subdivision of land by way of partitioning development that is already a permitted activity?
3.8 Whether:
(a) the locking up of good productive land in perpetuity to grow but not harvest native bush is contrary to the purpose of the RMA?
(b) a “quid pro quo” of bush protected in perpetuity in return for
subdivision of land is contrary to the purpose of the RMA?
3.9(a) When considering provisions that may be included in the district plan: (i) does the Environment Court have a duty to carry out an
analysis under s 32 RMA in respect of those provisions?
(ii)if so, is the version of s 32 RMA to be applied the one in force on the date of the subject reference appeal in Environment Court matter number RMA 886/98?
(iii)if so, did the Environment Court carry out any or an appropriate analysis under s 32 of:
(A) the appellant‟s proposals for the subdivision of development that is allowed as a permitted activity under the operatives rules? or
(B) the “4 hectare rule”? or
(C)the rules that render driveways of less than 4 hectares in area a non-complying activity?
(b)Whether the 4 hectare (purported) minimum subdivision area is in accordance with or contrary to
(i) the purpose of the RMA (s 5 RMA); or
(ii) the functions of the respondent under s 31 RMA?
3.10 Are there any statutory directions in Part 2 RMA that require rules that
control subdivision of land to have the effect of protecting “rural character”?
3.11 Do the existing proposed subdivision rules 2.1(b)(ii), 2.2(a), 7.1 (including by the cross lease method of subdivision of land) and 7.2(c) provide for the amount of subdivision of land proposed by the referrer appellant, without invoking a quid pro quo weed management, native forest planting and legal protection?
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