Ngai Te Hapu Incorporated v Bay of Plenty Regional Council

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE

CIV 2018-470-17

[2018] NZHC 1493

BETWEEN
NGAI TE HAPU INCORPORATED

Appellant

AND

BAY OF PLENTY REGIONAL COUNCIL

First Respondent

AND

ASTROLABE COMMUNITY TRUST

Second Respondent

Hearing: 20 June 2018

Appearances:

T L Hovell & N Buxeda for the Appellant M E Casey QC for the Respondents

Judgment:

21 June 2018

RESULTS JUDGMENT OF VAN BOHEMEN J

This judgment was delivered by me on 21 June 2018 at 2pm Pursuant to Rule 11.5 of the High Court Rules

…………………………

Registrar/Deputy Registrar

Solicitors:
Atkins Holm Majurey, Auckland Lowndes, Auckland

NGAI TE HAPU INCORPORATED v BAY OF PLENTY REGIONAL COUNCIL [2018] NZHC 1493 [21 June 2018]

[1] The application by the Astrolabe Community Trust to dismiss the appeal by Ngai Te Hapu Incorporated against decisions of the Environment Court1 granting resource consents, subject to conditions, for the abandonment of the wreck of the MV Rena on and adjacent to Otāiti / Astrolabe Reef and the discharge of contaminants from the vessel is granted.

[2] The appeal by Ngai Te Hapu Incorporated against the decisions of the Environment Court is dismissed and the hearing of the appeal set down for 25-27 June 2018 in Tauranga is vacated.

[3] The stay of the resource consents granted by the Environment Court in its decision of 19 April 20182 is lifted.

[4]Full reasons for these decisions will follow. In summary:

(a)Ngai Te Hapu Incorporated failed to provide security for costs as ordered by the High Court on 11 April 2018 and failed to provide any explanation as why no steps were taken to raise the security ordered by the Court; and

(b)There is no realistic prospect of the appeal succeeding because:

(i)All substantive points of appeal relate to the initial decision of the Environment Court delivered on 18 May 2017,3 any appeal against which is well out of time and no application was made for an extension of time;

(ii)There is no merit in the contention that the Environment Court made an error of law when deciding it did not have jurisdiction

1      Ngai Te Hapu Inc v Bay of Plenty Regional Council [2017] NZEnvC 043; Ngai Te Hapu Inc v Bay of Plenty Regional Council [2017] NZEnvC 169; Ngai Te Hapu Inc v Bay of Plenty Regional Council [2017] NZEnvC 180; Ngai Te Hapu Inc v Bay of Plenty Regional Council [2017] NZEnvC 206.
2      Nga Potiki a Tamapahore Trust v Bay of Plenty Regional Council [2018] NZEnvC 050.
3      Ngai Te Hapu Inc v Bay of Plenty Regional Council [2017] NZEnvC 043.

to require the removal of the wreck in the context of an application for resource consent to abandon the wreck;

(iii)On Ngai Te Hapu Incorporated’s own case, the other substantive points of appeal are subsidiary to and intended to buttress the case for removal of the wreck; accordingly, they serve little practical purpose if there is no jurisdiction to require removal of the wreck;

(iv)In any event, the other substantive points of appeal relate principally to the evaluation of evidence and determinations of fact by the Environment Court and have little merit in the context of an appeal limited to points of law;

(v)There is not and cannot be any challenge to the factual findings by the Environment Court that all that can be done to ameliorate the presence of the wreck has been done, and that further works beyond those required by the consent conditions would have detrimental effects on Otāiti and would be a safety risk.

G J van Bohemen J

CaseChat Overview and Summary

In the High Court of New Zealand, Ngai Te Hapu Incorporated sought to appeal against the granting of resource consents by the Environment Court to the Bay of Plenty Regional Council and the Astrolabe Community Trust for the abandonment of the MV Rena wreck and the discharge of contaminants from the vessel. The case was heard by Justice van Bohemen, who delivered the judgment on 21 June 2018. The key issues before the court were whether the appeal could proceed, given the appellant's failure to provide security for costs as ordered, and whether there was a realistic prospect of the appeal succeeding on the substantive points raised.

The court found that Ngai Te Hapu Incorporated had not provided the required security for costs and had not offered any explanation for this failure. Additionally, the court held that there was no realistic prospect of the appeal succeeding. The substantive points of appeal were deemed to be out of time as they related to an earlier decision of the Environment Court. Furthermore, the court rejected the argument that the Environment Court had erred in law by not requiring the removal of the wreck in the context of the resource consent application. The court also noted that the other substantive points of appeal related to the evaluation of evidence and determinations of fact by the Environment Court, which were outside the scope of the appeal limited to points of law. Consequently, the appeal was dismissed and the hearing set down for 25-27 June 2018 in Tauranga was vacated. The stay of the resource consents granted by the Environment Court was also lifted.

The court's judgment concluded that the appellant had not demonstrated a realistic prospect of success on the substantive points of appeal, and that there were significant procedural failings with respect to the provision of security for costs. The appellant's failure to comply with the court's order to provide security for costs was a critical factor in the dismissal of the appeal. The court's decision effectively upheld the Environment Court's granting of resource consents for the abandonment of the MV Rena wreck and the discharge of contaminants from the vessel.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

Hearing:	20 June 2018
Appearances:	T L Hovell & N Buxeda for the Appellant M E Casey QC for the Respondents
Judgment:	21 June 2018