Ngai Te Hapu Incorporated v Bay of Plenty Regional Council

[2018] NZHC 936

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE

CIV-2018-470-17

[2018] NZHC 936

BETWEEN

NGAI TE HAPU INCORPORATED and NGA POTIKI A TAMAPAHORE TRUST
Appellants

AND

BAY OF PLENTY REGIONAL COUNCIL

First Respondent

ASTROLABE COMMUNITY TRUST

Second Respondent

Hearing:

On the papers

Appearances:

T Hovell for Appellants

R Zame for First Respondent
M Casey QC for Second Respondent

Judgment:

4 May 2018

JUDGMENT OF LANG J

[on application for orders under rr 4.23 and 4.24 of the High Court Rules 2016]

This judgment was delivered by me on 4 May 2018 at 3.30 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date……………

NGAI TE HAPU INC v BAY OF PLENTY REGIONAL COUNCIL [2018] NZHC 936 [4 May 2018]

Background

[1]                  This appeal is scheduled to be the subject of a three-day hearing in the High Court at Tauranga commencing on 25 June 2018.

[2]                  One of the appellants, the Nga Potiki A Tamapahore Trust (Nga Potiki), has now applied under r 4.23 of the High Court Rules 2016 for an order substituting    Mr John Ohia and/or Ms Matire Duncan as appellants in its place. If the Court grants that application Nga Potiki also seeks an order under r 4.24 that Mr Ohia and/or     Ms Duncan represent the interests of the beneficiaries of the trust.

[3]Both respondents oppose the orders.

[4]                  Counsel have agreed that I should determine the applications on the papers and without an oral hearing.

The application for substitution of Mr Ohia and/or Ms Duncan as appellants under r 4.23

The argument

[5]                  Mr Hovell for Nga Potiki argues that the naming of a representative beneficiary instead of the Trust is within the definition of “successor” as that term is defined in   s 2A of the Resource Management Act 1991 (RMA). Section 2A relevantly provides:

2A      Successors

(1)In this Act, unless the context otherwise requires, any reference to a person, however described or referred to (including applicant and consent holder), includes the successor of that person.

(2)For the purposes of this Act, where the person is a body of persons which is unincorporate, the successor shall include a body of persons which is corporate and composed of substantially the same members.

[6]Section 2 of the RMA defines the term “person” as:

person includes the Crown, a corporation sole, and also a body of persons, whether corporate or unincorporate:

[7]                  Mr Hovell referred me to several cases decided in the Environment Court in which that Court has held that the term “successor” should not be restricted to situations in which a person dies or, in the case of a corporate or unincorporated body, otherwise ceases to exist. He submits the Environment Court has taken a liberal approach to ensure that processes under the RMA remain public and participatory.1

[8]Mr Hovell draws the following additional principles from these cases:

(a)The requirement that successors must have “substantially the same members” has been interpreted to mean more than 50% of the members of the preceding body are required to compose the successor, and may mean over 75% of the preceding members are required;²

(b)Where there is the same membership, the entity is the same ‘thing’;³

(c)The original submission must be a group action with a common intent or purpose to the successor;⁴

(d)Where a group made submissions supporting or propounding a common view to obtain a joint purpose, that group of persons can pursue an appeal in the same capacity.⁵

[9]                  Mr Hovell acknowledges that these cases have been decided within the context of unincorporated bodies being succeeded by incorporated bodies. He submits, however, that the definition of successors must apply equally to transitions that occur when an unincorporated body seeks to devolve to unincorporated representation.

Decision

[10]              Even applying an expansive approach to the interpretation of the term “successor” I consider there are fundamental flaws in Mr Hovell’s argument.

[11]              The first is that the proposal does not result in the nominated successors having substantially the same or even similar membership as Nga Potiki. Nga Potiki comprises several trustees and numerous beneficiaries. Mr Ohia and Ms Duncan are just two of the beneficiaries and neither is a trustee.  It follows that they would not

1      See Buckingham Asset Management Ltd v Auckland City Council [2009] NZEnvC 79 at [18]-[24].

2      Gold Mine Action Inc v Otago Regional Council (2002) 8 ELRNZ 129 (EnvC) at [38].

3      East Bay Conservation Society Inc v Marlborough District Council [2004] NZEnvC 283 at [47].

4      Baxter v West Coast Regional Council [2006] NZEnvC 148 at [14]-[15].

5      Schwass Family Partnership v Marlborough District Council (2006) 12 ELRNZ 56 (HC) at [17].

qualify as successors even under the liberal approach the Environment Court has adopted in relation to the term “successor”.

[12]              Furthermore, and regardless of how the term is defined, it involves the concept that an interest or status formerly held by the original party has devolved in some way to the nominated successor. In the present case there is no evidence this has occurred. Rather, the trustees appears to have decided it would be more appropriate for Mr Ohia and/or Ms Duncan to advance the appeal in place of the Trust.

[13]              I therefore do not consider Mr Ohia and/or Ms Duncan come within the definition of “successors” for the purposes of the RMA.

[14]              Furthermore, a right of appeal to the High Court under the RMA is not a matter that can be conferred or transferred at the whim of the original appellant. It is a right that can only be conferred by the RMA.

[15]              The right of appeal to this Court against a decision of the Environment Court is contained in s 299 of the Resource Management Act 1991 (RMA), which relevantly provides:

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.

…

[16]              Section 299(2) of the RMA provides that an appeal to the High Court “must be made in accordance with the High Court Rules 2016, except to any extent that those rules are inconsistent with sections 300 to 307” of the RMA. It follows that the High Court Rules will only apply to appeals to the extent they are not inconsistent with ss 300 to 307 of the RMA.

[17]              As s 299(1) makes clear, the right to appeal is conferred only on parties to the proceeding before the Environment Court. Section 301 widens the scope of persons who may appear at the hearing of an appeal to the High Court. It permits other parties

to the proceeding before the Environment Court and other persons who appeared before the Environment Court to give notice of an intention to appear at the hearing in the High Court. Section 302 of the Act provides that the parties to an appeal to the High Court comprise both the parties to the appeal and those who have given notice of their intention to appear under s 301.

[18]              Mr Ohia and Ms Duncan are both beneficiaries of Nga Potiki but they were not parties to the appeal to the Environment Court. For that reason they have no right under s 299(1) to assume the status of an appellant in an appeal to the High Court. Any order under r 4.23 substituting them as appellants would therefore be inconsistent with s 302. It follows that r 4.23 cannot be used to substitute them as appellants because it would produce a result inconsistent with ss 299(1) and 302 of the RMA.

[19]              The application for an order  under  r  4.23  substituting  Mr  Ohia  and/or  Ms Duncan as appellants fails as a result.

The application for representative orders under r 4.24

[20]Rule 4.24 of the High Court Rules provides:

4.24     Persons having same interest

One or more persons may sue or be sued on behalf of, or for the benefit of, all persons with the same interest in the subject matter of a proceeding—

(a)with the consent of the other persons who have the same interest; or

(b)as directed by the court on an application made by a party or intending party to the proceeding.

[21]              This application cannot succeed because I have declined the application for an order substituting Mr Ohia and/or Ms Duncan to be substituted as appellants. Without that order being made there can be no basis for the Court to make an order under r

4.24. The appeal must proceed on the basis that Nga Potiki remains as one of the appellants.

Result

[22]The applications are dismissed.

Costs

[23]              The respondents have successfully opposed the applications and are entitled to an award of costs on a Category 2B basis. In the case of the first respondent costs are to relate only to the attendance of counsel at the telephone conference on 27 April 2018. In the case of the second respondent costs are to relate to both the memorandum filed in anticipation of the conference and the attendance of counsel at the conference.

Lang J

Solicitors:

Atkins Holm Majurey, Auckland Cooney Lees Morgan, Tauranga Lowndes, Auckland