Norwood Lodge v Upper Hutt City Council CA37/06

[2006] NZCA 425

IN THE COURT OF APPEAL OF NEW ZEALAND

CA37/06

BETWEEN  NORWOOD LODGE Applicant

AND  UPPER HUTT CITY COUNCIL Respondent

Hearing:         19 June 2006

Court:            Robertson, Arnold and Ellen France JJ Counsel:       P J Radich and J K Hodgson for Applicant

J D Lynch for Respondent

N Kean on behalf of Fairleigh Properties Ltd [interested party] S Feary [interested party]

Judgment:      4 July 2006

JUDGMENT OF THE COURT

Leave to appeal out of time is refused.

REASONS OF THE COURT

(Given by Arnold J)

Introduction

[1]      The  applicant  applied  to  the  Upper  Hutt  City  Council  for  consent  to subdivide its four hectare property into two lots of roughly equal size.  The Council declined the application.   The applicant appealed against the Council’s decision to the Environment Court, which rejected the appeal.  The applicant appealed against

that decision to the High Court where, in a decision dated 9 September 2005, Wild J

NORWOOD LODGE V UPPER HUTT CITY COUNCIL CA CA37/06  4 July 2006

dismissed the appeal.  The applicant then sought leave from the High Court to appeal to this Court under s 144 of the Summary Proceedings Act 1957.  On 14 December

2005 Wild J declined to grant leave.

[2]      On 24 February 2006 the applicant applied to this Court for special leave to appeal under s 144(3).   The applicant also sought leave to file out of time as its application for leave to appeal was filed some six weeks after the expiration of the

21 day period provided for in s 144(3).

[3]      A range of factors may be relevant to the determination of an application for leave to file an appeal out of time.  Examples are the period of delay, the reasons for the delay, the extent of any prejudice to the parties and the underlying merits of the proposed appeal.  In the present case we are conscious that two parties who appeared before us in person claimed prejudice arising from the continuing uncertainty caused by the applications before the Court.   On the other hand, we note that the appeal period ran across the Christmas/New Year holiday period and expired on 4 January

2006.    This  provides  at  least  a  partial  explanation  for  the  delay  in  filing  the application for leave.  In such circumstances we would be cautious about denying a party the opportunity to pursue a meritorious appeal by a rigid enforcement of the appeal period.

[4]      Accordingly, we consider the merits of the application for leave to appeal, on the basis that if the intended appeal does not raise any arguable point of law, a detailed examination of the other relevant factors will be unnecessary.

Grounds of appeal

[5]      The applicant seeks leave to appeal in respect of two questions:

(a)     Whether, in considering a subdivision proposal classified as a discretionary  activity  by  a  plan,  the  degree  of  departure  of  the proposal from the standard for permitted and/or controlled activities cannot   itself,   in   the   absence   of  consequential   effects   on   the

environment, be relevant to whether the proposal meets the objectives and policies of the plan; and

(b)      Whether,  in circumstances where the Environment  Court  accepted that there were no adverse environmental effects that it considered relevant to justify rejection of a proposal for subdivision as a discretionary activity there is, however, a precedent effect or threat to the integrity of the plan that alone provides sufficient justification for refusal to grant consent.

These questions differ, at least  in form,  from those which Wild J was asked to consider.

Discussion

[6]      We consider that neither formulation raises a question of law suitable for consideration by this Court.

[7]      The first question focuses on the “degree of departure” of the proposal from the standard for permitted and/or controlled activities, and asks whether that can be a relevant  factor  in  one  particular  situation.    That  situation  is  where  there  is  an “absence of consequential effects [of the proposal] on the environment.”

[8]      There are two difficulties with this proposed question.

[9]      First,  as  Mr  Lynch  submitted,  it  is  based  on  a  false  premise.     The Environment Court was obliged to assess the application against the criteria set out in  s  104  of the  Resource  Management  Act  1991.    Contrary  to  the  assumption underlying the question, the Environment Court did not find that the proposal had no significant adverse effects on the environment.  In its discussion of the s 104(1)(a) criterion (actual and potential effects on the environment) the Environment Court said:

[46]   When we consider the potential adverse effects (of this proposal in isolation) we consider the loss of amenity values for the eastern neighbours

to be the most significant.   Other potential adverse effects such as loss of productive soils and loss of rural character due to increased density of built development, loss of openness and spaciousness we consider minor.

…

[48]   We find this proposed subdivision would create significant adverse effects (loss of amenity) on the Lendrums’ eastern neighbours – Mr and Mrs Feary.   We make no finding as to whether the adverse effects on the neighbours would by themselves be so significant that we would turn down the proposal.

[10]     There  is,  then,  a  clear  finding  of  significant  adverse  effects  on  the environment.  The fact that the Environment Court did not determine whether the adverse effects were, in themselves, so significant as to justify the rejection of the proposal does not mean that the Court’s finding that there were significant adverse effects can be ignored.  Accordingly, the proposed question is not raised on the facts of this case.

[11]     Second, the question posed is not capable of being dealt with in the abstract. The phrase “degree of departure” encompasses both minor and significant departures from  the  objectives  and  policies  of  a  plan.    Where  an  application  involves  a departure from a plan the extent of the departure will almost invariably be a relevant factor in the determination of the application.  What weight is given to the extent of the proposed departure is a matter for evaluative assessment by the decision-maker, in light of all the circumstances.   Given the importance of the factual context, the proposed question is not capable of a generalised answer.   Accordingly, it is not suitable for consideration by this Court as a question of law.

[12]     The other proposed question suffers from similar defects.

[13]     First, it  refers to there being  “no  adverse environmental effects that  [the Environment Court] considered relevant to justify rejection of the proposal for a subdivision.”  However, the Environment Court did find serious adverse effects on the environment, but did not find it necessary to determine whether they justified, without more, rejection of the proposal.  This was because there was an additional, and  to the Environment  Court  more important,  factor,  namely the  threat  to  the integrity of the plan posed by the proposal.

[14]     Second, to the extent that the applicant’s proposed challenge goes to the “precedent effect” of a decision to grant consent for a proposal, it is impossible to argue that such effect is irrelevant.  As we understand it, Mr Radich did not suggest that it was irrelevant.  Rather, he argued that “precedent effect” was more relevant to consideration of applications for non-complying activities than to applications involving  discretionary  activities.    Accordingly,  the  effect  of  his  submission  is simply that the Environment Court gave that aspect too much weight in this instance.

[15]     It is important to note the meaning of “precedent  effect” in this context. Plainly individual applications must be considered on their merits.   A decision on one application will not create a legally binding precedent in respect of a similar application.  However, an earlier decision may be relevant to the determination of a later application.   Consistency of treatment, in the absence of a reason justifying inconsistency, is generally regarded as an important aspect of good public administration.  In that sense “precedent effect” may be relevant.

[16]     This Court held in Manos v Waitakere City Council [1996] NZRMA 145 that precedent    effect    was   a   legitimate   consideration   under    s 104(1)(d)    (now s 104(1)(b)(iv))  in  respect  of  what  was  treated  as  a  discretionary  activity.    In Dye v Auckland Regional City Council [2002] 1 NZLR 337 this Court held that the precedent effect of granting a resource consent (in the sense of like cases being treated alike) was a relevant consideration for a consent authority to take into account under s 104(1)(d) when considering an application for consent to a non- complying activity. Those decisions have been applied subsequently by the High Court and the Environment Court. As Manos deals with a consent application for a discretionary activity it is directly on point.  We do not accept that Manos has been misunderstood, nor has any case been made out that it should be re-examined.

Conclusion

[17]     Accordingly,  neither  of  the  proposed  questions  raises  a  question  of  law suitable for adjudication by this Court. The proposed appeal is without merit.   In those circumstances we would not grant special leave to appeal and accordingly refuse leave to file the application out of time.

[18]     The   applicant   must   pay   the   respondent   costs   of   $1,500   and   usual disbursements.

Solicitors:
Izard Weston, Wellington for Applicant
Upper Hutt City Council (B Dodson)