Michael Anthony Talley, Graeme Peter Malone, v Minister for the Environment

IN THE COURT OF APPEAL OF NEW ZEALAND

CA64/02

BETWEEN	MICHAEL ANTHONY TALLEY, GRAEME PETER MALONE, JAMES RORY RYDER AND GUY ALEXANDER MANNERING (AS TRUSTEES OF THE MAJAC TRUST)
Appellants

AND	MINISTER FOR THE ENVIRONMENT
First Respondent

AND	NELSON MARLBOROUGH FISH & GAME COUNCIL, NEW ZEALAND FISH AND GAME COUNCIL, ECOLOGIC FOUNDATION, NEW ZEALAND RECREATIONAL CANOEING ASSOCIATION AND TASMAN DISTRICT COUNCIL
Other Respondents

Coram:	Blanchard J Anderson J Glazebrook J
Counsel:	R D Crosby for Appellants B H Arthur for First Respondent C C M Owen for Tasman District Council S W Christensen and M A Baker for the remaining Respondents
Judgment (on the papers):	22 October 2002

JUDGMENT OF THE COURT DELIVERED BY BLANCHARD J

In this proceeding the appellants are challenging a Water Conservation Order made in respect of the Gowan River. The Order prevents the Tasman District Council from granting a resource consent for the appellants’ intended hydro-electric project for two years, expiring in June next year. The High Court rejected an argument that the Order should be set aside because of unreasonable delay (five years between the Planning Tribunal’s recommendation and the making of the Order) causing a breach of natural justice. The second argument for the appellants was that conditions intended to protect recreational rafting, as recommended by the Tribunal, were not required or were actually imposed to protect the Council’s water needs rather than rafting interests, and thus were ultra vires or unreasonable. The High Court also rejected this argument, saying that the fact that the conditions protected the Council’s desire for access to a water supply did not mean that the condition was not properly required to protect rafting. Ronald Young J said that there was a “clear rationale” for the conditions, giving his reasons for that view. He said that there was nothing inherently objectionable in the Tribunal, which had recommended the conditions, taking into account the needs of the local authority in setting an upper abstraction limit. Even if he had concluded that such limit was ultra vires or unreasonable he would not in the exercise of his discretion have granted relief. At best, he would have referred the matter back to the Minister to reconsider what limit was appropriate.
The Judge then suggested that there was an available procedure by which the appellants could still try to convince the Minister to change the upper abstraction limit. They could apply under s216 of the Resource Management Act 1991 for a technical amendment or correction to the original Order which would allow rafting values to be protected consistently with the development of the appellants’ power scheme. Another possibility was to await the expiry of the two year limitation period under s216 which presently prevents any revocation of the Order or any more extensive variation.
The present appeal was filed (in time) on 28 March 2002. The appellants say they were not ready to file an application for a fixture and a Case on Appeal within six months and have, within that time, sought an extension under r10 of the Court of Appeal (Civil) Rules 1997. They are seeking a two months extension until 28 November 2002. The Minister and the Council do not oppose and abide the Court’s decision respectively. The Nelson Marlborough Fish & Game Council, the New Zealand Fish & Game Council, the Ecologic Foundation, and the New Zealand Recreational Canoeing Association do oppose. All parties have asked for the matter to be dealt with by the Court on the papers.
The application requires us to consider whether there is good reason for allowing further time and, if so, whether the appeal is devoid of merit (Airwork (NZ) v Vertical Flight Management Ltd [1999] 1 NZLR 29).
The appellants say that, as the Judge suggested, they are pursuing a s216 application to the Minister. They say there has been no significant delay in making that application. A report has been commissioned from engineers and submitted on 27 May 2002, but the Minister has taken time to consider it in light of the High Court judgment. A meeting with the Minister is scheduled for 29 October when the Minister’s initial position should be plain as to whether the application is rejected or not. The appellants will then decide immediately whether the appeal will need to be pursued. In the interim, they say, it would not be reasonable to require preparation of a case on appeal or a fixture application. They also say that, even when the two year period expires, they will be able to apply for a variation but will have no right to have the matter proceed to a final hearing; and that there would be significant cumulative delays if they had to wait for the remaining period to elapse.
The organisations opposing the present application say that the appellants’ s216 application is unrelated to their ability to prepare for the appeal; that there is no factor by reason of which they were unable to meet the six month limit; and that an extension should not be granted to applicants who are able to proceed but choose not to do so because of some other legal process they have embarked upon. In relation to the s216 application, the submission is made that it has not been diligently progressed, pointing to the fact that steps have not been taken to have settlement discussions with the parties or to keep the interested organisations aware of what has been occurring. It is suggested that it is improbable that a ministerial decision will be made and necessary consents obtained within the two month period.
The opposing organisations also submit that the appeal is devoid of merit but they support that view only by brief reference to the rejection of the claim by the High Court and the observation that after the two year period the appellants will have the ability to apply for an amendment of the order which, they say, makes the appeal “pointless”.
We propose to grant the extension until 28 November 2002. Whilst an appellant must ordinarily choose between pursuing the appeal expeditiously and pursuing some other legal avenue, this is a case in which the appellants, while wishing to keep their appeal alive, are taking an alternative course which was actually recommended by the Judge. It does not appear that there has been undue delay in putting the matter before the Minister. The delay has mostly resulted from the time which the Minister and her advisers have needed to assess the position. A meeting is shortly to be held with the Minister which should lead to a prompt decision whether the appeal is to proceed. In the circumstances it was understandable that the appellants wished to avoid the not inconsiderable expense of preparation of a Case on Appeal which might not be needed.
Nothing has been put before us which assists the Court in making a preliminary assessment concerning the merits of the appeal. The appellants have pointed to what they say may be a difficulty, and obvious further delays, if they have to await the expiry of the time limit and then seek a new or amended Order. In the particular circumstances of this case we are simply not in a position to say, based on a reading of the judgment, that the appeal is necessarily devoid of merit, nor can we say that it is “pointless”.
We should, however, make it clear to the appellants that they are receiving an indulgence because of the particular circumstances. A further extension is unlikely to be granted so that if, after the meeting with the Minister, their wish is to proceed with the appeal, they will need to put themselves in a position to comply with r10 by 28 November 2002, time being of the essence.
The extension sought is granted accordingly. There will be no order as to costs.

Solicitors:

Gascoigne Wicks, Blenheim, for Appellants
Crown Law Office, Wellington for First Respondent
Hunter Ralfe, Nelson, for Tasman District Council
Anderson Lloyd Caudwell, Dunedin, for Other Respondents

[2002] NZCA 286

22 October 2002