Palmer v Waimakariri District Council

[2006] NZCA 481

IN THE COURT OF APPEAL OF NEW ZEALAND

CA176/06

BETWEEN  ROGER GORDON PALMER Applicant

ANDWAIMAKARIRI DISTRICT COUNCIL Respondent

Hearing:         18 September 2006

Court:            Robertson, Arnold and Ellen France  JJ Counsel:  Applicant in Person

R M Wolt for Respondent

Judgment:      3 November 2006         at 2.15 pm

JUDGMENT OF THE COURT

A        An extension of time for filing the application for special leave is granted.

B        The application for special leave to appeal is dismissed.

REASONS OF THE COURT

(Given by Ellen France J)

Introduction

[1]      This is an application under s 144(3) of the Summary Proceedings Act 1957 for special        leave    to           appeal         to    this    Court    against   a    judgment   of    Panckhurst    J:

Palmer v Waimakariri District Council HC CH CRI-2005-409-000105 17 October 2005.

ROGER GORDON PALMER V WAIMAKARIRI DISTRICT COUNCIL CA CA176/06 3 November 2006

Panckhurst J dismissed an appeal from a decision of the Environment Court convicting Mr Palmer, the applicant, of an offence under the Resource Management Act 1991.  Leave to appeal to this Court was refused by Panckhurst J on 16 December 2005.

[2]      Mr  Palmer’s  conviction  related  to  using land  as  a  landfill  without  a  resource consent in contravention of rule 22.4.2 of the proposed Waimakariri District Plan which provides   that   landfills   are   a   discretionary   activity.   In   terms   of   s   9   of   the Resource Management Act a person may not use land in a manner that contravenes a rule in a district plan or proposed plan unless the activity is either expressly allowed by a resource consent or an existing use.

[3]      The application for special leave is out of time.

Basis of proposed appeal

[4]      The applicant, in written material, referred to a large number of issues.  However, Mr Palmer explained orally to us that the matters he wishes to raise on appeal are as follows:

(a)The Courts below have relied on photographs to show fill on Mr Palmer’s property but those photographs were of a different property.

(b)The Courts below erred in their approach to the definition of "landfill" in the Plan.

(c)       The area of disturbance on the site was less than 1000m².  Earthworks of that nature are a permitted activity and so Mr Palmer’s activity was lawful.

(d)      Hardfill is the same as landfill.  Hardfill is a permitted activity so it follows

Mr Palmer’s activity was lawful.

(e)       The    effect   of    s    8    of    the    Resource    Management    Act    is    that

Te Ture Whenua Maori Act 1993 governs this case.

(f)       There was no power to proceed by way of an enforcement order under ss 9 and 338 of the Resource Management Act.  Section 332 was the relevant section.

Discussion

[5]      The Court may grant special leave under s 144(3) where there is a question of law which, by reason of its general importance or for any other reason ought to be submitted to this Court.  This Court must be of the opinion that the question ought to be so submitted: R v Slater [1997] 1 NZLR 211 at 214 (CA).

[6]      Applying this test to the matters relied on by Mr Palmer at the hearing, the first of the issues relating to the photographs produced at trial is a factual matter and does not give rise to any question of law.  We note, in any event, that the photographs do not appear to have been conclusive in the Environment Court Judge’s findings.

[7]      The second point about the definition of “landfill” does give rise to a question of law and was dealt with in Panckhurst J’s decision in the High Court.   “Landfill” in the Plan is an area used for the disposal of solid waste.  There is no definition of “solid waste” but “waste” is defined to mean any “contaminant” which is discharged etc in the environment “in such volume, constituency or manner as to cause an adverse effect on the environment”.  The definition of “waste” continues “and which includes all unwanted and economically unusable by-products at any given place or time and any other matter which may be discharged” into the environment.

[8]      The    definition    of    “contaminant”    in    the    Plan    reflects    that    in    the Resource Management Act (s 2(1)) and refers to substances that when discharged, for example into air, change the condition of the air into which they are discharged.

[9]      Mr Palmer’s argument is that the evidence was that the adverse effect of the materials on his property was minimal.  The materials were thus not a contaminant and so outside the definition of waste.

[10] Panckhurst J took the view that the first part of the definition of waste was self-contained and so the onus on the respondent was “simply to demonstrate the existence of a landfill containing waste”: at [29]. There was also no need to show that the unwanted by-products were deposited etc in such a manner as to cause an adverse effect on the environment as Mr Palmer’s counsel had contended.

[11]     We accept the respondent’s submission that while this is a question of law it is not one warranting a further appeal.  There is nothing before us to suggest the point is one creating any more general concern or uncertainty or one raising issues outside of this District Plan.   In terms of any private importance, it is relevant that Judge Smith and Panckhurst J on appeal, both said there was an adverse visual effect on the environment. In other words, the merits of Mr Palmer’s case are not strong.

[12]     None of the other matters were the subject of consideration in the High Court and so cannot give rise to points of law. In any event, these matters do not give rise to points of law within the s 144(3) test.  Judge Smith in the Environment Court made the point that multiple consents may be required and the fact an activity may be permitted for one purpose does not affect the question of whether other consents were required.

[13]     As     to     the     argument     based     on     the     inter-relationship     between Te Ture Whenua Maori Act and the Resource Management Act, that has been the subject of      consideration      by      this      Court      and      the      Privy      Council      in McGuire v Hastings District Council [2000] 1 NZLR 679 (CA) and [2002] 2 NZLR 577 (PC); and see also: Smith v Auckland City Council [1996] NZRMA 276 (CA).

[14]     Finally, there is no merit in the suggestion that it was not open to the Judge to make an enforcement order.  Section 339(5) provides that where a person is convicted of an offence against s 338 any of the orders specified in s 314 may be made.  Section 314 describes the scope of an enforcement order.  Section 338 is engaged because it states that a person commits an offence where he or she contravenes s 9.

Other matters

[15]     The  documentation  filed  in  support  of  the  application  for  special  leave  raises various other matters that were not pursued in argument before us.  For completeness, we note that there was nothing else advanced in that material that would raise points of law meeting the test in s 144(3).

[16]     Although  no  formal  application  was  made  to  extend  the  time  for  filing  the application, we grant an extension of time although dismissing the application for special leave.  The application was made some three and a half months late.  Mr Palmer says the delay  reflected  the  unavailability  of  his  former  counsel  and  uncertainty  about  the procedure to be followed.  We have some sympathy with the respondent’s submission that the explanation does not justify the time taken, but in the circumstances the delay was not extensive given Mr Palmer’s attempts to progress the matter in the meantime.

Result

[17]     An extension of time for filing the application for special leave is granted but the application for special leave is dismissed.

Solicitors:

Goodman Steven Tarendale & Reid, Christchurch for Respondent