Puketotara Lodge Limited v Bluegum Gospel Hall Trust
[2024] NZHC 3306
•7 November 2024
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV 2024-404-000148
[2024] NZHC 3306
UNDER Part 20 of the High Court Rules 2016 IN THE MATTER OF
an appeal on questions of law under section 299 of the Resource Management Act 1991
BETWEEN
PUKETOTARA LODGE LIMITED
Appellant
AND
BLUEGUM GOSPEL HALL TRUST
Respondent
Hearing: 14 August 2024 Appearances:
S J Ryan & S A V Thompson for the Appellant
E S Greensmith-West and A M B Green for the Respondent
Judgment:
7 November 2024
Reissued:
2 December 2024
JUDGMENT OF TAHANA J
This judgment was delivered by me on 7 November 2024 at 4.00pm pursuant to Rule 11.5 of the High Court Rules and re-delivered by me on 2 December 2024 in accordance with
High Court Rules 2016, r 11.10
…………………………
Registrar/Deputy Registrar
Solicitors/Counsel: Godfreys Law, Christchurch
Akarana Chambers, Auckland Shortland Chambers, Auckland Brookfield Lawyers, Auckland
PUKETOTARA LODGE LIMITED v BLUEGUM GOSPEL HALL TRUST [2024] NZHC 3306 [7 November 2024]
CONTENTS PAGE
[Para No.]
Introduction 1
Factual background 5
Litigation background 9
Application to cease work 9
Application for orders to upgrade design of stormwater pond 16
Environment Court decision 22
Jurisdiction to make enforcement orders 22
Expert evidence 27
Approach on appeal 28
Jurisdiction of Environment Court 31
Relevant law 33
Did the Environment Court err in finding compliance with the consent? 39
Did the Environment Court err in assuming continuing compliance? 45
Did the Environment Court err in not relying on s 314(3) to order compliance with the maintenance plan? 54
Did the Environment Court err in finding no change in circumstances under s 319(3)? 62
Did the Environment Court err in failing to take into account future adverse effects? 72
Did the Environment Court err in failing to consider the practicability of judicial review? 76
Did the Environment Court err in its assessment of the expert evidence? 24
Did the Environment Court err in declining to accept Ms Rhynd’s supplementary evidence? 83
Did the Environment Court err in accepting Mr Kumar’s evidence? 94
Overall summary 104
Result 106
Introduction
[1] Puketotara Lodge Ltd (Puketotara) appeals the Environment Court’s decision declining to make an enforcement order under s 314 of the Resource Management Act 1991 (the RMA) requiring Bluegum Gospel Hall Trust (Bluegum) to upgrade its design of a stormwater pond.1
[2] Puketotara and Bluegum own neighbouring properties in Kerikeri. In 2015, Bluegum obtained a resource consent to build a church hall and carpark. In May 2022, Puketotara applied for an interim order to require Bluegum to cease work on sealing the carpark because of concerns about run-off from Bluegum’s property. By consent, an interim order was made in July 2022 and rescinded on 21 December 2022. In January 2023, Puketotara applied for an order requiring Bluegum to upgrade its design of the stormwater pond arguing that it did not meet the consent conditions for storm water run-off and water quality. On 5 December 2023, the Environment Court declined the application finding that it did not have jurisdiction to make the enforcement order because Bluegum was acting in accordance with the consent. Puketotara now appeals.
[3] Puketotara appeals on the grounds that the Environment Court decision raises the following questions of law:
(a)whether the Environment court had jurisdiction under s 319 of the RMA to make the enforcement order;
(b)whether the Environment Court erred in law by refusing to admit the supplementary evidence of Ms Bronwyn Rhynd, the engineering expert for Puketotara; and
(c)whether the Environment Court erred in law by not not providing reasons for preferring the evidence of Mr Pradeep Kumar, the engineering expert for Bluegum when his expertise was challenged and he did not comply with the rules regarding expert evidence.
1 Puketotara Lodge Limited v Bluegum Gospel Hall Trust [2023] NZEnvC 262 [Environment Court decision].
[4]Bluegum opposes the appeal.
Factual background
[5] On 28 April 2015, Bluegum applied for resource consent to build a new church, sealed carpark, and associated works.
[6] In June 2015, the Far North District Council (the Council) granted a resource consent to Bluegum for those works (2150305-RMALUC) (the consent).
[7] The consent included stormwater conditions under the heading “infrastructure” stating:
Infrastructure
6.Prior to undertaking pond construction on site the consent holder shall submit for the approval of Council’s duly delegated officer a report and plan of the stormwater detention/retention pond, a flow attenuated outflow to limit run-off from the site to the pre-development levels for rainfall events up to those with a 2% AEP.
Following approval, the detention/retention storage shall be installed prior to the formation of the car park.
7.All storm water originating from roofs, paved surfaces and tank overflow is to be piped to, and discharged into, the detention/retention pond area located on the lot.
8.Prior to undertaking pond construction on site the consent holder shall provide evidence that the stormwater discharge complies with the Permitted Activity status in the RWSP or, alternatively provide evidence that a discharge consent, has been obtained from the Northland Regional Council for the discharge of stormwater.
[8] In September 2020, Bluegum provided the Council with a stormwater pond design prepared by a civil engineer, Mr Kumar. The design was accompanied by a producer statement stating that it related to “stormwater management and stormwater attenuation design”. The Council approved the design as part of the building consent.
Litigation background
Application to cease work
[9] On 18 May 2022, Puketotara applied for interim enforcement orders requiring Bluegum to cease work on sealing the carpark because of concerns it would cause increased stormwater flow and flooding to its property. Puketotara alleged that the pond likely did not have an attenuated outflow that limits run-off to the levels required by condition 6 and that the sealing of the car park would result in greater than 33 per cent of the site in impermeable surfaces in breach of the consent.
[10] A joint expert witness conference was held on 28 June and 4 July 2022. At the conference the experts agreed that the impermeable area was 26.9 per cent and did not exceed the total requirement in the consent. The Council expert noted that Bluegum needed to provide further information to support compliance with the consent as it had failed to provide that prior to construction. Bluegum’s expert agreed to provide further information to ensure compliance with the consent conditions.
[11] By consent, on 8 July 2022, the Environment Court ordered that the carpark not be sealed.
[12] Further joint expert witness conferences were held on 8 and 23 November 2022 after Mr Kumar provided further information.
[13] On 1 December 2022, the Council expert confirmed that condition 6 would be satisfied provided there is a regular programme of operation and maintenance as provided by Mr Kumar. Ms Rhynd disagreed and considered that further work was required to the design and that the stormwater runoff needed to be treated prior to discharge to satisfy condition 8.
[14] On 6 December 2022, the Commissioner requested a judicial conference to consider whether there remained an emergency justifying the order preventing sealing of the carpark. The parties had agreed the impervious site covering did not breach the consent requirement.
[15] On 21 December 2022, the Environment Court rescinded the interim order preventing sealing of the car park and granted leave for Puketotara to file an amended application by the end of January 2023.
Application for orders to upgrade design of stormwater pond
[16] On 31 January 2023, Puketotara filed a second amended application for enforcement orders requiring Bluegum to upgrade the design of the stormwater pond arguing that it did not meet conditions 6 and 8 of the consent.
[17] On 18 May 2023, the Council issued a code of compliance certificate for the site and on 16 June 2023 notified Bluegum that it was satisfied that the consent conditions had been met and the consent was signed off as completed.
[18] On 17 July 2023, the Environment Court declined to join the Council to the proceedings.
[19] Between July and September 2023 Bluegum undertook landscaping around the stormwater pond and this resulted in silt entering the pond which in turn caused water retention at the pond’s base. In September 2023, Bluegum pumped the pond dry, removed silt and installed silt logs.
[20] The hearing for the second application took place on 29 September 2023 and 20 October 2023.
[21] On 5 December 2023, the Environment Court declined the application for enforcement orders.
Environment Court decision
Jurisdiction to make enforcement orders
[22] The Environment Court considered that its jurisdiction was confined to considering compliance with the consent conditions, or, if the consent conditions were found to be complied with, whether there were adverse effects arising which require
the Court’s intervention.2 The Court also noted that it also needed to consider the submission that the Court was not limited to the terms and conditions sought by the parties and in particular, the absence of any requirement in the consent to meet the design standards in conditions 6 and 8 in the long term.3
[23] The Environment Court then went on to consider the evidence as to stormwater flows, water quality and the accessway culvert.
[24] The Environment Court noted that the fact the required information in relation to the stormwater pond had not been provided until after construction had commenced was a technical breach of the consent but had been resolved.
[25] The Environment Court found that Bluegum was acting in accordance with the consent and which required a stormwater management facility to be designed which met requirements for both the quantity and the quality of discharge flows (conditions 6 and 8).4 The Environment Court held that in imposing those conditions, the Council had recognised that stormwater flows and quality parameters have potential adverse effects downstream from the discharge. Those were the adverse effects in respect of which enforcement orders were sought so s 319(2) was engaged.5
[26] The Environment Court did not consider that s 319(3)(a) was engaged because it was not satisfied that there had been any change in circumstances because there was no evidence that the stormwater flows had changed from the time that the consent was granted, and the design was compliant with the consent conditions.6
Expert evidence
[27] The Court declined to allow further evidence from Ms Rhynd for Puketotara and Mr Levers and Mr Kumar for Bluegum on the grounds that those witnesses had given their evidence, and no opportunity was available to test the supplementary
2 Environment Court decision, above n 1, at [29].
3 At [30].
4 At [71]-[72].
5 At [72].
6 At [76]-[78].
evidence. The supplementary evidence of Mr Simpkin was accepted as that witness had not yet given evidence.7
Approach on appeal
[28] Section 299 of the RMA provides for a right of appeal from a decision of the Environment Court to the High Court. Appeals under s 299 are limited to questions of law.8
[29]The principles to be applied to an appeal under s 299 were summarised in
Ayrburn Farm Estates Ltd v Queenstown Lakes District Council as follows:9
[34] Appellate intervention is therefore only justified if the Environment Court can be shown to have:
i)applied a wrong legal test; or,
ii)come to a conclusion without evidence or one to which on the evidence it could not reasonably have come; or,
iii)taken into account matters which it should not have taken into account; or,
iv)failed to take into account matters which it should have taken into account.
[35] The question of the weight to be given relevant considerations is for the Environment Court alone and is not for reconsideration by the High Court as a point of law.
[36] Further, not only must there have been an error of law, the error must have been a “material” error, in the sense it materially affected the result of the Environment Court's decision.
(footnotes omitted)
[30] Applying the above principles, I consider whether the Environment Court erred and whether any error was “material” to the decision reached.
7 At [36].
8 Resource Management Act, s 299(1).
9 Ayrburn Farm Estates Ltd v Queenstown Lakes District council [2012] NZHC 735, [2013] NZRMA 126 at [34]–[36].
Jurisdiction of Environment Court
[31] Puketotara argues that the Environment Court made the following errors in finding it did not have jurisdiction to make the enforcement orders sought:
(a)First, by assuming compliance with the consent when, in Puketotara’s submission, the consent does not require ongoing compliance.
(b)Second, by finding that there had not been a change in circumstances under s 319(3) warranting the exercise of its jurisdiction despite accepting that the circumstances in September 2023 were unusual.
(c)Third, by concluding that no adverse effects to the environment were caused or likely caused by the pond, on the basis that the Court failed to take into account likely future effects.
(d)Fourth, by failing to consider the relevance and practicality of judicial review.
[32] Before considering the above issues, I set out the relevant provisions of the RMA which prescribe the Environment Court’s jurisdiction to make an enforcement order and the scope of any enforcement order.
Relevant law
[33] Section 319 of the RMA prescribes the Environment Court’s jurisdiction to make an enforcement order under s 314. Section 314 sets out the scope of an enforcement order that may be made under s 319.
[34]Section 319 states:
319 Decision on application
(1)After considering an application for an enforcement order, the Environment Court may—
(a)except as provided in subsection (2), make any appropriate order under section 314; or
(b)refuse the application.
(2)Except as provided in subsection (3), the Environment Court must not make an enforcement order under section 314(1)(a)(ii), (b)(ii), (c), (d)(iv), or (da) against a person if—
(a)that person is acting in accordance with—
(i)a rule in a plan; or
(ii)a resource consent; or
(iii)a designation; and
(b)the adverse effects in respect of which the order is sought were expressly recognised by the person who approved the plan, or granted the resource consent, or approved the designation, at the time of the approval or granting, as the case may be.
(3)The Environment Court may make an enforcement order if—
(a)the court considers it appropriate after having regard to the time that has elapsed and any change in circumstances since the approval or granting, as the case may be; or
(b)the person was acting in accordance with a resource consent that has been changed or cancelled under section 314(1)(e).
[35]Section 314 prescribes the scope of an enforcement order:
314 Scope of enforcement order
(1)An enforcement order is an order made under section 319 by the Environment Court that may do any 1 or more of the following:
(a)require a person to cease, or prohibit a person from commencing, anything done or to be done by or on behalf of that person, that, in the opinion of the court,—
(i) contravenes or is likely to contravene this Act, any regulations, a rule in a plan, a rule in a proposed plan, a requirement for a designation or for a heritage order, or a resource consent, section 10 (certain existing uses protected), or section 20A (certain existing lawful activities allowed); or
(ii) is or is likely to be noxious, dangerous, offensive, or objectionable to such an extent that it has or is likely to have an adverse effect on the environment:
(b)require a person to do something that, in the opinion of the court, is necessary in order to—
(i)ensure compliance by or on behalf of that person with this Act, any regulations, a rule in a plan, a rule in a proposed plan, a requirement for a designation or for a heritage order, or a resource consent; or
(ii)avoid, remedy, or mitigate any actual or likely adverse effect on the environment caused by or on behalf of that person:
(c)require a person to remedy or mitigate any adverse effect on the environment caused by or on behalf of that person:
(d)require a person to pay money to or reimburse any other person for any actual and reasonable costs and expenses which that other person has incurred or is likely to incur in avoiding, remedying, or mitigating any adverse effect on the environment, where the person against whom the order is sought fails to comply with—
(i) an order under any other paragraph of this subsection; or
(ii) an abatement notice; or
(iii) a rule in a plan or a proposed plan or a resource consent; or
(iv) any of that person’s other obligations under this Act: (da) require a person to do something that, in the opinion of
the court, is necessary in order to avoid, remedy, or mitigate any actual or likely adverse effect on the environment relating to any land of which the person is the owner or occupier:
(e)change or cancel a resource consent if, in the opinion of the court, the information made available to the consent authority by the applicant contained inaccuracies relevant to the enforcement order sought which materially influenced the decision to grant the consent:
(f)where the court determines that any 1 or more of the requirements of Schedule 1 have not been observed in respect of a policy statement or a plan, do any 1 or more of the following:
(i) grant a dispensation from the need to comply with those requirements:
(ii) direct compliance with any of those requirements:
(iii) suspend the whole or any part of the policy statement or plan from a particular date (which may be on or after the date of the order, but no such suspension shall affect any court order made before the date of the suspension order).
(2)For the purposes of subsection (1)(d), actual and reasonable costs include the costs of investigation, supervision, and monitoring of the adverse effect on the environment, and the costs of any actions required to avoid, remedy, or mitigate the adverse effect.
(3)Except as provided in section 319(2), an enforcement order may be made on such terms and conditions as the Environment Court thinks fit (including the payment of any administrative charge under section 36, the provision of security, or the entry into a bond for performance).
(4)Without limiting the provisions of subsections (1) to (3), an order may require the restoration of any natural and physical resource to the state it was in before the adverse effect occurred (including the planting or replanting of any tree or other vegetation).
(5)An enforcement order shall, if the court so states, apply to the personal representatives, successors, and assigns of a person to the same extent as it applies to that person.
[36] Here, Puketotara seek an enforcement order requiring Bluegum to undertake positive acts, namely, upgrading of its stormwater design and treatment of the stormwater.
[37] In Awarua Farm (Marlborough) Ltd v Marlborough District Council the Court noted the range of enforcement orders available under s 314 that require positive acts and the jurisdiction to make such orders under s 319 as follows:10
[22] Section 314 provides for a range of enforcement orders, three of which are relevant to this appeal. First, an enforcement order may require positive action where it is necessary to ensure compliance with the Act, a rule in a plan or a resource consent.11 Second, an order may also require positive action if that is necessary to avoid, remedy or mitigate any actual or likely adverse effect on the environment caused by or on behalf of that person.12 Third, an order may change or cancel a resource consent if an application supplied inaccurate information to the consent authority that materially influenced its decision.13
[23] Except as provided in s 319(2), an enforcement order may be made on such terms and conditions as the Court thinks fit.14
…
[24] After considering an application for an enforcement order, the Court may make any appropriate order under s 314 or refuse the application.15 Under
10 Awarua Farm (Marlborough) Ltd v Marlborough District Council [2014] NZHC 2264.
11 Resource Management Act 1991, s 314(1)(b)(i).
12 Section 314(1)(b)(ii).
13 Section 314(1)(e).
14 Section 314(3).
15 Section 319.
s 319(2) the Court is precluded from making certain enforcement orders under s 314(1)16 where the person against whom the order is sought is acting in accordance with a resource consent. An order may only be made against such a person if the adverse effects in respect of which the order is sought were not expressly recognised in the grant of the resource consent.
[25] Section 17 can also provide grounds for an enforcement order. This section imposes a specific duty to avoid, remedy or mitigate the adverse effects of any activities on the environment. The duty applies whether or not an activity is in carried on in accordance with a resource consent. The duty is not of itself enforceable but subs (3) provides that it may be enforced through an enforcement order. Importantly, subs (3) is also subject to s 319(2).
[38] The Environment Court could not make an enforcement order under the provisions of s 314(1) referred to at s 319(2)17 if Bluegum was acting in accordance with the consent and the adverse effects were expressly recognised in the consent unless the Environment Court considered it appropriate after having regard to the time that had elapsed and any change in circumstances since the consent was granted. Puketotara first challenges the Environment Court’s acceptance that Bluegum was acting in accordance with the consent. Puketotara does not explain how Bluegum was not acting in accordance with the consent.
Did the Environment Court err in finding compliance with the consent?
[39] The Environment Court noted that the Council’s expert engineer accepted that provided there is a regular programme of operation and maintenance as described by Mr Kumar, this should satisfy condition 6 of the consent.18
[40] The Environment Court also considered that Bluegum was acting in accordance with the consent and assumed that it would continue to do so:
[48] As a consequence of its experience with the unexpected addition of silt from landscaping works and the recorded outcome of a return to predicted exfiltration following removal of the silt, the Respondent [Bluegum] has been provided with a clear indicator that any retention of standing water during periods without rainfall is a signal that an immediate maintenance response is necessary. We are advised that the Respondent has adopted the maintenance schedule as recommended by Mr Kumar which outlines this.
[49] The unusual circumstance described above and the response to this demonstrate the Respondent’s willingness and ability to carry out silt removal
16 The orders precluded are orders under s 314(l)(a)(ii), (b)(ii), (c), (d)(iv), or (da).
17 See n 16 above.
18 Environment Court decision, above n 1, at [25].
to maintain the performance of the system. We find that to be an inherent component of the design that the Respondent has developed and provided to Council in compliance with Condition 6. Should a circumstance arise where more water than expected is being retained in the pond during periods with no rainfall, we were provided with no evidence to suggest that the Respondent would not take the same action as it did in response to the recorded September 2023. It is accepted that if appropriate maintenance is not undertaken the pond will not operate as intended and an adverse effect may ensue. However, there is no evidence that this has occurred to date.
[50] With the maintenance schedule in place, and the ability to detect and respond to unexpected circumstances, Mr Kumar’s evidence was that the system is designed to limit stormwater discharges from the Respondent’s property to no more than that experienced prior to development of the sealed carpark. We were provided with no evidence that these flows had been exceeded since the carpark has been sealed.
…
[70] As noted earlier, the evidence in these proceedings establishes to our satisfaction that adverse effects from the stormwater run off from the subject site are mitigated by the design and operation of the pond and adherence to the water quality standards set out in the conditions of consent. The Respondent has demonstrated by its actions the ability and commitment to maintain the facility and address any unanticipated build-up of silt that hinders performance to the extent that potential downstream adverse effects are fully mitigated.
(Emphasis added)
[41] The above indicates that the Environment Court considered that silt removal to maintain the performance of the system was an “inherent component of the design”. This was supported by the view of the Council expert.
[42] Puketotara argue that the maintenance schedule was provided after the design was approved by Council and therefore is not included in the conditions of the consent. Puketotara say that because there are no conditions to ensure compliance with ongoing maintenance, the Environment Court’s interpretation of the consent is an error.
[43] The Council did not issue a code compliance certificate or confirm compliance with the conditions until after it had received the maintenance plan. It was open to the Council and the Environment Court to view the maintenance plan as an integral component of the design if it was necessary to ensure the pond operated as the design intended.
[44] I therefore do not consider that the Environment Court erred in finding that compliance with the maintenance plan was an inherent component of the design and therefore incorporated within condition 6.
Did the Environment Court err in assuming continuing compliance?
[45] Puketotara argue that assuming continuing compliance only applies if there are conditions to allow for enforcement. Puketotara refer to Barry v Auckland City Corporation where the Court of Appeal held that neither the Council nor the appeal board were entitled to rely on the possibility that the appellant might commit an illegal act to refuse consent.19 In that case, the illegal act would involve converting a motel to apartments without obtaining the necessary consent.
[46] Puketotara also refer to Guardians of Paku Bay Association Inc v Waikato Regional Council and Gabler Queenstown Lakes District Council. In Guardians of Paku Bay Association v Waikato Regional Council the Court considered that the applicant was entitled to be treated on the basis that it will comply with the consents it holds.20 In Gabler v Queenstown Lakes District Council, the Court also accepted that a consent authority is entitled to assume lawful behaviour, thus compliance with the conditions of the consent.21
[47] The Environment Court’s reasoning that Bluegum was acting in compliance with the consent turned on its view that the maintenance plan was an inherent component of the design. The Environment Court assumed continued compliance consistent with the principle accepted in Barry v Auckland City Corporation.
[48] Puketotara submit that condition 6 does not require on-going compliance with the maintenance plan so that Bluegum may allow the pond to become non-functioning and produce stormwater run-off. That submission is contrary to the Council’s view, and the Environment Court’s view that maintenance was an inherent aspect of the design and therefore condition 6 required compliance with that design intent. If
19 Barry v Auckland City Corporation [1975] 2 NZLR 646 (CA).
20 Guardians of Paku Bay Association Inc v Waikato Regional Council [2012] 1 NZLR 271, [2012] NZRMA 61 (HC) at [134].
21 Gabler v Queenstown Lakes District Council [2017] NZHC 2086 at [85] and [102].
Bluegum were to ignore the maintenance plan, it would not be complying with the consent conditions as interpreted by the Environment Court and as confirmed in writing by the Council.
[49] The fact the maintenance plan was provided after the pond was constructed and building consent was granted does not mean the plan is not captured by condition
6. The Environment Court accepted there was a technical breach. The Council did not confirm compliance with condition 6 until after the maintenance plan was submitted. The Environment Court did not err in interpreting the maintenance plan as an integral component of the design, which was provided to Council to establish that the run-off would meet the required design standard.
[50] The purpose of condition 6 is to ensure the report and plan of the pond meets the requirement that run-off be limited to pre-development levels for rainfall events up to those with a 2 per cent AEP. The requirement to submit a report and plan cannot be divorced from the purpose of those documents (being compliance with this standard). That would allow a report and plan to be submitted and then ignored.
[51] Puketotara are in effect seeking to insert a further condition within the consent requiring compliance with the maintenance plan when this is unnecessary. Both the Council and the Environment Court considered that compliance with the condition 6 already included this requirement because it was an integral part of the design.
[52] I do not consider that the Environment Court erred in law by accepting that compliance with condition 6 required ongoing compliance with the design intent, which included maintenance as an integral component.
[53] Puketotara argue that the discretion under s 314(3) is sufficiently broad to allow the Environment Court to make an order requiring compliance with the maintenance plan. That submission also relies on Puketotara’s interpretation of condition 6, which I have rejected. I nevertheless consider whether the Environment Court could have made an enforcement order requiring compliance with the maintenance plan if I am wrong in my interpretation of condition 6.
Did the Environment Court err in not relying on s 314(3) to order compliance with the maintenance plan?
[54] Section 314(3) provides that except as provided in s 319(2), an enforcement order may be made on such terms and conditions as the Environment Court thinks fit. Puketotara refer to the decision in Bayley v Hicks22 where the Court noted that it had broad remedial powers under the Property Law Act 2007.
[55] I agree with the submission for Bluegum that the decision in Bayly v Hicks does not assist Puketotara. Bayly v Hicks was concerned with the court’s powers under s 339 of the Property Law Act 2007 and whether the court could make orders that were different from those sought by the parties. The Court of Appeal confirmed that it could, provided the parties were notified of the proposed orders and had an opportunity to be heard.23
[56] The Environment Court’s power to make an enforcement order under s 314(3) is subject to s 319(2) and must be read in the context of the scope of orders prescribed in s 314(1).
[57] Section 319(2) is relevant to any enforcement order under s 314(b)(ii) or (da). That then leaves s 314(1)(b)(i) which allows the Environment Court to make an order requiring a person to do something that, in the opinion of the court, is necessary in order to ensure compliance with the resource consent.
[58] This subsection is only engaged if the Environment Court considers the order is necessary to ensure compliance with the resource consent. I have already explained why I do not consider the Environment Court erred in law by accepting that compliance with condition 6 required compliance with the maintenance plan (as an integral part of the design). On the Environment Court’s reasoning, it was not necessary to make an order under s 314(1)(b)(i).
[59] If the Environment Court was to make an order under s 314(b)(i), it would have to be satisfied that it was not changing the resource consent as that would engage s
22 Bayly v Hicks[2012] NZCA 589, [2013] 2 NZLR 401 at [32].
23 At [34].
314(1)(e). Section 314(1)(e) only allows an enforcement order to change or cancel a resource consent if inaccurate information had been provided with the consent application. That is not the case here. The Environment Court could not therefore rely on s 314(3) to make an enforcement order if the effect was to change or cancel the consent. If the consent did not require compliance with the maintenance plan (which is Puketotara’s submission) then making an enforcement order to that effect is contrary to s 314(1)(e).
[60] This view is supported by Bluegum’s submission which refer to Warren Fowler Ltd v Manukau City Council24 where the Environment Court held that an enforcement order under s 314(1)(b)(ii) cannot modify an existing resource consent because there was no such power in the words of that subsection and because 314(1)(e) expressly states the circumstances in which the court may vary or cancel a consent. That decision is consistent with s 314(3) being read subject to s 314(1)(e) so that it does not confer jurisdiction to change or cancel a consent.
[61] The Environment Court did not misconstrue its jurisdiction. It was unnecessary for the Environment Court to make an order requiring compliance with the maintenance plan when it had determined that compliance with condition 6 already required this. Further, s 314(3) does not confer jurisdiction to make an order that changes a resource consent as s 314(3) must be read consistently with s 314(1)(e) which expressly refers to changes to a consent. On the Environment Court’s reasoning, the consent already addressed the compliance issue so an enforcement order was unnecessary.
Did the Environment Court err in finding no change in circumstances under s 319(3)?
[62] Puketotara argue that there was a change in circumstances arising from the silt in the pond, which was not known at the time of the consent. Puketotara submit that any “change in circumstances” is relevant and note that “a change in circumstances” is also used in s 294(1) which provides that:
Where, after any decision has been given by the Environment Court, new and important evidence becomes available or there has been a change in
24 Warren Fowler Ltd v Manukau City Council NZEnvC Christchurch C029/99, 16 March 1999.
circumstances that in either case might have affected the decision, the court shall have power to order a rehearing of the proceedings on such terms and conditions as it thinks reasonable.
[63] The reference to “change in circumstances” in s 294 is relevant to how that change may affect the decision. Puketotara refer to Robinson v Waitakere City Council where the Court in the context of s 294 noted that the change is usually about circumstances which did not exist at the time of the hearing of the original decision and confirms that the change is relevant in so far as it is likely to affect the relevant Environment Court decision.25
[64] I do not consider that Robinson v Waitakere City Council assists Puketotara as it simply affirms the principle that the “change in circumstances” is to be read in the context of the section within which it is used.
[65] The reference to “change in circumstances” in s 319(3) must be read in the context of s 319(2). The phrase cannot be divorced from its obvious intention which is to allow the Court to make orders where new circumstances indicate that there are relevant adverse effects that were not contemplated when the consent was granted.
[66] Puketotara argued that the need to maintain the pond was a new circumstance and the Council would not have understood that the pond design relied on infiltration through the base of the pond. That the Council was unaware of the placement of landscaping and soil around the pond sometime in July 2023, and the Council could not have known about the scale of what was required to maintain and clean out the pond, as was evident in September 2023. In Puketotara’s submission these grounds constitute a change in circumstances which make it appropriate to issue an enforcement order.
[67] In considering the circumstances, the Environment Court noted the landscape work in July 2023 resulted in silt in the pond and required Bluegum to pump out the pond. Bluegum then adopted the maintenance schedule.26 The Environment Court referred to these “unusual circumstances” and considered that Bluegum’s willingness
25 Robinson v Waitakere City Council (No 13) [2020] NZEnvC 314; (2020) 16 ELRNZ 245.
26 Environment Court decision, above n 1, at [46] to [49].
and ability to carry out silt removal to maintain performance was “an inherent component of the design”. If the maintenance plan was not undertaken, an adverse effect may ensue. The Environment Court noted that there was no evidence that this had occurred to date.27
[68] The Environment Court considered Mr Levers’ evidence as to the flows he observed but did not consider that the volume of stormwater reaching the accessway from the stormwater facility was any greater than what had occurred under comparable rain events prior to the development of the site or what was considered by the Council in granting the consent.28 In that context, the Environment Court held that there was no change in circumstance relevant to adverse effects that were not considered when the consent was granted.
[69] The Environment Court held that the silt in the pond did not constitute a material change of circumstances.29 The Environment Court considered that potential adverse effects from the alteration of land use resulting in increased stormwater run- off were recognised by the Council in the consent. No evidence had been provided that adverse effects attributable to the discharge of stormwater from Bluegum’s property had occurred since the development of the site.30
[70] Condition 6 expressly refers to an “attenuated outflow to limit run-off from the site to the pre-development levels for rainfall events up to those with a 2% AEP”. At the time of the consent the Council clearly contemplated adverse effects from increased run-off from the site. The design was intended to address this issue. While the build-up of silt in the pond may not have been contemplated when the consent was granted, the adverse effect from run-off was clearly contemplated and addressed.
[71] The Environment Court did not err in finding that s 319(3) was not engaged because the circumstances did not disclose any change in circumstances relevant to adverse effects that were not contemplated and addressed in the consent.
27 At [49].
28 At [78].
29 At [76].
30 At [77].
Did the Environment Court err in failing to take into account future adverse effects?
[72] Puketotara argue that the Court erred in failing to consider future adverse effects. Puketotara refer to the evidence of Ms Rhynd that there was a non-negligible risk that the pond will fail in the future given the absence of conditions. Again, this submission assumes the consent does not require compliance with the maintenance plan.
[73]The Environment Court did consider potential adverse effects:
[77] Likewise, we have already noted that potential adverse effects from the alteration of land use on the subject site resulting in increased stormwater run off were recognised by the Council in granting the consent. We were provided with no evidence that adverse effects attributable to the discharge of stormwater from the Respondent’s property have occurred since the development of the site and the construction of the stormwater management facility which were not anticipated at the time the consent was granted.
[74] Section 314(1)(da) allows the Environment Court to make an order requiring a person to do something that, in the opinion of the court, is necessary to mitigate any actual or likely adverse effect on the environment. That jurisdiction is subject to s 319(2) so in finding that there was compliance with the consent and the consent had expressly recognised the adverse effects, there was no need for the Environment Court to consider whether it should rely on s 314(da) and nevertheless make an order.
[75] The Environment Court had considered potential adverse effects and rejected Ms Rhynd’s evidence that they were likely. That was a conclusion it was entitled to reach. I am satisfied the Environment Court did not err.
Did the Environment Court err in failing to consider the practicability of judicial review?
[76] Bluegum argue that the Environment Court’s decision suggests that the Court cannot repair or supplement conditions of a resource consent and that the correct approach is judicial review of the Council’s decision. The reasoning of the Environment Court indicates that it considered Bluegum was complying with the consent and that maintenance was an integral component of the design. For that reason, it was unnecessary to “repair” or “supplement” conditions.
[77] The Environment Court held that it did not have inherent jurisdiction to review administrative decisions:
[27] It is common ground that these enforcement order proceedings are not in any way a judicial review of the Council decision regarding compliance of the stormwater facility design with Conditions 6 and 8 of the consent. The Environment Court does not have the inherent jurisdiction to review and quash administrative decisions if a material error of law is found.
…
[29] As such the Court’s jurisdiction here is confined to considering compliance with the consent conditions, or, if the consent conditions are found to be complied with, whether there are adverse effects arising which require the Court’s intervention.
[78] The above passage indicates that it accepted that it had jurisdiction to consider compliance with the consent conditions but not to review the Council’s decision. The Environment Court did consider the consent conditions. The Court noted that:
[64] The application for building consent did not include any reports providing information of how Conditions 6 and 8 of the original resource consent would be achieved. This information deficit was identified at the first expert witness conference and subsequently rectified prior to the second conference.
…
[72] That consent required a stormwater management facility to be designed which met requirements for both the quantity and quality of discharge flows (Conditions 6 and 8 respectively). In imposing those conditions, the Council has recognised that stormwater flows and quality parameters have potential adverse effects downstream from the discharge. These are the same effects in respect of which the order is sought in these proceedings and were expressly recognised in granting the consent (see s 319(2)(b)).
[79] The Environment Court’s decision indicates that it was concerned to ensure it was acting in accordance with s 319 and that it was necessary to be satisfied that it had jurisdiction under s 319. It was not satisfied that it did for the reasons canvassed above. In those circumstances, it was not an error of law for the Environment Court to note that it did not have inherent jurisdiction to review the Council’s decision. Further, the Environment Court was satisfied that compliance with the maintenance plan was an inherent component of the design (which the Council had approved) so on the Environment Court’s analysis it was unnecessary to make an enforcement order to require compliance with the consent.
[80] That s 314 does not confer jurisdiction to review a council’s decisions was confirmed in Queenstown Lakes District Council v Hensman where this Court held that an enforcement order could not be used as a means of reviewing council decisions:31
[65] I also accept that if this statutory function is held to be amenable to performance through an enforcement order, that would create a precedent in respect of other functions that the Council exercises under the RMA, allowing those who take issue with how Council exercises or carries out those functions to use enforcement orders as a means of reviewing the Council’s decisions. I do not accept that enforcement orders could have been intended to be used for that purpose.
[81] Puketotara argue that it should not have to commence fresh enforcement proceedings or judicial review proceedings at some uncertain point in the future if maintenance fails. First, judicial review proceedings could have been brought to challenge the Council’s decision, but the Environment Court correctly noted that it does not have such jurisdiction. Second, Puketotara is focused on form over substance. It seeks enforcement orders when they are unnecessary because the Environment Court has held that the conditions of the consent require compliance with the maintenance plan. That is required to meet the requirement in condition 6 as to run-off outflows. Third, s 314(1)(b)(i) provides jurisdiction to the Environment Court to make an enforcement order if it is necessary in order to ensure compliance with a resource consent so if Bluegum fail to comply with the maintenance plan, the Environment Court has jurisdiction to enforce compliance.
[82] Whether judicial review is impractical is irrelevant to the question of jurisdiction. The Environment Court cannot exercise jurisdiction it does not have, and the impracticality of judicial review does not justify inferring jurisdiction that is contrary to ss 314 and 319.
31 Queenstown Lakes District Council v Hensman [2024] NZHC 2493.
Did the Environment Court err in its assessment of the expert evidence?
Did the Environment Court err in declining to accept Ms Rhynd’s supplementary evidence?
[83] Puketotara argue that the Environment Court erred by refusing to admit the supplementary affidavit of Ms Rhynd dated 16 October 2023. Puketotara argue that the evidence should have been admitted because Ms Rhynd had no opportunity to review the tests undertaken by Mr Kumar, the results of which were produced during his cross-examination and after Ms Rhynd had given evidence.
[84] Puketotara refer to North Eastern Investments v Auckland Transport where the question of whether to allow supplementary evidence was determined by its relevance to the core issues and whether it was in the interests of justice in the case.32 Puketotara argue that it was in the interests of justice for Ms Rhynd’s supplementary affidavit to be admitted.
[85] The Environment Court issued a minute explaining why it had declined to admit the supplementary evidence from Ms Rhynd, Mr Levers and Mr Kumar:33
[2] Those witnesses have given their evidence and been questioned by Counsel and the Court. While the Court endeavours to ensure it receives the most up to date and accurate evidence, it is not in the interests of justice to receive evidence which is unable to be appropriately tested and which is provided to the Court after witnesses have been excused. Evidence is only to be provided in these circumstances if there are matters not reasonably foreseeable which arise. That is not the case here.
[86] The Environment Court also expressed its frustration with the way the parties had sought to continue to adduce new evidence:34
[36] The Court declined the applications to allow further evidence of Ms Rhynd, Mr Levers, and Mr Kumar on the grounds that these witnesses had given their evidence before the Court and no opportunity was available to appropriately test the supplementary evidence. The supplementary evidence of Mr Simpkin was accepted as this witness had yet to be heard.
…
32 North Eastern Investments Ltd v Auckland Transport [2016] NZEnvC 045 at [12] and [15].
33 Puketotara Lodge Ltd v Bluegum Gospel Hall Trust NZEnvC Wellington ENV-2022-AKL- 000113, 19 October 2023.
34 Environment Court decision, above n 1.
[38] The practice followed by the parties in these proceedings to simply file and serve additional evidence without providing the Court with the opportunity to consider whether it was appropriate in the circumstances does little to assist the Court in discharging its obligations to conduct a fair and effective hearing process. To have this occur almost to the eve of the hearing and then to continue after witnesses had been heard by the Court has not been helpful.
[87] Mr Kumar’s affidavit dated 27 September 2023 was available to Ms Rhynd before she gave evidence. At paragraph 4.3 of that affidavit Mr Kumar explained that he had undertaken three percolation tests and found the average exfiltration rate to be 10cm/hr. He attached photographs of his testing to his affidavit as exhibit B.
[88] The notes of evidence record that Ms Rhynd was asked to comment on Mr Kumar’s 27 September 2023 affidavit:
Q. In terms of Mr Kumar’s affidavit of 27 September, Mr Kumar advances the proposition that with the remedial works that have been undertaken effectively this week that that ought to allow the parties and the Court to be satisfied that there will now be suitable exfiltration rates in the future. Can you comment as to whether you agree or differ with that?
A. …
Notwithstanding that, you know, there has been some action to remove the sediments and what I'd like to say on the removal is that they used excavator to do that, they’ve tracked right across the base of the pond whereby that would compact the top layer and then alter the performance that may have been expected to have been undertaken and in fact Mr Kumar’s provided some more design documentation about exfiltration rates et cetera and so just to go on that is that the exfiltration rate that has been provided in Mr Kumar’s last affidavit was based on some hand auguring and some testing that was done and there was some photographs provided. I can't ascertain what those – where those photographs were taken. I'm presuming they at the base of the pond and as Mr Kumar has suggested they were at the base of the pond but I'm – but there's no documentation of what the rate is or the testing that that has been occurred, usually you document it and you do a log of the drop in the water when you're doing a falling head test as mentioned in GDO7. That has not been provided so I'm taking that the infiltration rate that he's stating he got at face value and it is at the surface of – has been taken within the pond base. I'd just like to point out when you’re doing a infiltration test like that you're actually testing the soil beneath the surface. You're not actually testing the infiltration rate at the surface of the pond which goes back to the point of when they’ve done their maintenance they’ve tracked right across it and reduced the possible infiltration rate or exfiltration rate that Mr Kumar is providing us.
[89] While Mr Kumar’s affidavit did not annex the storage test results, his affidavit did disclose the outcome of his tests and the average exfiltration rate. Ms Rhynd explained her concerns (as set out in the passage above) regarding the testing when asked to comment on Mr Kumar’s affidavit. Counsel for Puketotara has not explained how more granular test results were material to the findings of the Environment Court such that it was in the interests of justice that they be before the Court.
[90] During cross-examination Mr Kumar was questioned as to why he did not attach any storage test results recorded in his affidavit. He explained he had them with him and that he did plot the results and was happy to provide them to the Court.
[91] Ms Rhynd’s supplementary affidavit is three pages and responds to Mr Kumar’s testing methodology and opines that regardless of the testing undertaken, the design relies on a full dry pond and if there is not a dry pond the pond does not and will not perform as per the design intent. Ms Rhynd proposes a solution which would “better ensure the pond is dry”.
[92] Puketotara argue that Ms Rhynd’s supplementary affidavit has “significant relevance/probative value” to the issue of whether testing undertaking by Mr Kumar established compliance with design intent. There was an absence of any evidence that the outflows exceeded pre-development levels which is the adverse effect the design of the pond is intended to address. The evidence of Ms Rhynd was not critical to determining compliance with that design intent in the absence of any evidence that there were adverse effects because of the pond’s operations.
[93] The Environment Court has flexibility in receiving evidence and may receive anything in evidence that it considers appropriate.35 I do not consider that it was an error of law to decline to admit Ms Rhynd’s supplementary evidence. The evidence (addressing testing methodology) was not critical to resolution of the issues. Ms Rhynd had already commented on the tests and indicated her concerns with the testing so the Environment Court had the benefit of her view. The Court was entitled to regulate its procedures and there was no injustice by not allowing Ms Rhynd to provide further evidence on why she disputed Mr Kumar’s methodology.
35 Resource Management Act, s 276(1)(a).
Did the Environment Court err in accepting Mr Kumar’s evidence?
[94] Puketotara argue that the Environment Court erred in not giving reasons as to why the evidence of Mr Kumar could be given when he had not referred to the expert code of conduct in his affidavits. Puketotara say the Environment Court did not address the challenge to Mr Kumar’s expertise and there was no analysis of the effect of his non-compliance with the code of conduct on his credibility. Puketotara argue that “the decision of whether to rely on Mr Kumar’s evidence was significant given the extent of the breach” and the decision was “too important” to be left unarticulated.
[95] Despite making this assertion, Puketotara does not explain why the “extent of the breach is so significant”. Here, Mr Kumar confirmed in oral evidence that he confirmed the expert oath, had read the conduct rules and confirmed that his evidence had been prepared in accordance with its terms. The claimed non-compliance was a failure to mention the expert code of conduct in his affidavits. That is a form over substance argument.
[96] Puketotara also argue that reasons were necessary because permission of the presiding judge was required under s 26(2) of the Evidence Act 2006 for any evidence purporting to be expert evidence to be admitted. Section 26 requires that the expert evidence of an expert who has not complied with rules of court relating to the conduct of experts may be given only with the permission of the judge. Clearly, the Environment Court allowed Mr Kumar to give evidence.
[97] Puketotara’s argument is misconceived. Mr Kumar confirmed his compliance when he gave evidence. It was unnecessary for the Environment Court to explain why he should be allowed to do so when Mr Kumar had said on oath that he had prepared his evidence in accordance with the code. The failure to mention the code in his written affidavit was a technical breach which was clearly addressed when he gave evidence.
[98] Puketotara also refer to Mr Kumar acting at the apparent direction of his client at the first joint witness statement. Bluegum argues that there is nothing to suggest that the error impacted his professional judgment as an expert witness. Puketotara did not advance any arguments as to how this error impacted his evidence. This issue was
known to the Environment Court who could determine what weight to give to Mr Kumar’s evidence.
[99] The Environment Court gave reasons as to why it accepted Mr Kumar’s evidence in the absence of evidence that adverse effects had arisen:
[50] With the maintenance schedule in place, and the ability to detect and respond to unexpected circumstances, Mr Kumar’s evidence was that the system as designed will limit stormwater discharge from the Respondent’s property to no more than that experienced prior to development of the sealed carpark. We were provided with no evidence that these flows had been exceeded since the carpark had been sealed.
[100] The Court also explained why it rejected Ms Rhynd’s evidence that pre- treatment of the discharge from the pond was necessary:
[53] … In the absence of evidence to the contrary, and from the evidence we do have, we can only conclude that the discharge meets the water quality standards by some margin and consequently no discharge consent is required. Should this not be the case in the future, it is the responsibility of the Regional Council to address.
[54] In response to questions from the Court, Ms Rhynd acknowledged that the inflow and outflow would meet the TSS standards. Ms Rhynd went on to suggest that the design was not resilient enough to guarantee the measured contaminant levels all of the time and to meet the standards long-term.
[101] Puketotara argue that Mr Kumar has no expertise in stormwater matters and his qualifications and experience do not demonstrate any such expertise. Mr Kumar is a civil engineer. Ms Rhynd is also a civil engineer with expertise in storm water management. They both hold engineering qualifications.
[102] There is no basis for Puketotara’s assertion that the Court should have rejected his evidence on the basis that he lacked expertise. Mr Kumar has engineering expertise. It was a matter for the Environment Court as to how much weight it gave to Mr Kumar’s evidence as against Ms Rhynd’s evidence given her particular expertise in stormwater management systems. The Environment Court’s reasoning indicates that it did not accept that there was evidence to refute Mr Kumar’s evidence that compliance with the maintenance schedule would ensure compliance with the design intent.
[103] I do not consider that the Environment Court erred in law in not providing detailed reasons as to why Mr Kumar was considered an expert.
Overall summary
[104] I am not satisfied that Puketotara has established that the Environment Court erred in law. It was open to the Environment Court to find that Bluegum had complied (and would continue to comply) with the consent. It was unnecessary for the Environment Court to make an order requiring compliance with the maintenance schedule because it considered that this was required by the consent. Further, the Environment Court cannot make an order under s 314(3) that changes a consent unless the requirement of s 314(1)(e) is met (inadequate information was provided to the consenting authority). The Environment Court did take into account future adverse effects and was not satisfied that they were likely. There was no error in the Environment Court noting that it did not have inherent jurisdiction to review the Council’s decision. That was an accurate statement of the law.
[105] The Environment Court did not act contrary to the interests of justice by declining to admit Ms Rhynd’s supplementary affidavit. Further, it was not necessary for the Environment Court to set out detailed reasons as to why it accepted Mr Kumar’s evidence as an expert witness when he holds engineering qualifications. It was a matter for the Environment Court as to what weight it gave to his evidence given Ms Rhynd’s experience regarding stormwater systems.
Result
[106]For the reasons above, the appeal is dismissed.
Tahana J
5
2