Queenstown Lakes District Council v Southern Alps Air Limited

[2008] NZCA 212

IN THE COURT OF APPEAL OF NEW ZEALAND

CA85/08
[2008] NZCA 212

BETWEENQUEENSTOWN LAKES DISTRICT COUNCIL

First Applicant

ANDWILKIN RIVER JET LIMITED

Second Applicant

ANDSOUTHERN ALPS AIR LIMITED

Respondent

Hearing:16 June 2008

Court:O'Regan, Arnold and Baragwanath JJ

Counsel:C S Withnall QC for Applicants

J M Appleyard and L L Sewell for Respondent

Judgment:8 July 2008 at 11am

JUDGMENT OF THE COURT

A        The application for special leave to appeal is dismissed.

B The applicants must pay the respondent’s costs which we fix at $1,600 plus usual disbursements.

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REASONS

(Given by Baragwanath J)

[1]       Wilkin River Jet Limited (WRJ) is the sole commercial operator holding a resource consent to operate jet boats on the Wilkin River at the head of lake Wanaka.  It applies for special leave to appeal from the judgment of Panckhurst J allowing an appeal by Southern Alps Air Limited (SAA) from a decision of the Environment Court declining SAA’s application for resource consent to operate jet boats commercially on the Wilkin.

[2]       The shallowness of the water in the braided river requires jet boats to maintain speed in order to plane if they are to avoid grounding.  The limited visibility at certain points, where the narrow navigable part of the river bends around cliffs, presents risk of collision unless particular care is taken.

[3]       The Environment Court held that the imposition on WRJ of obligations to communicate and co-operate with SAA to avoid risk of collision would amount to an unlawful derogation from the rights of WRJ under its resource consent.  It further held that to leave aspects of safe operation to be determined by the Harbour Master under Part 80 of the Maritime Rules would constitute an unlawful delegation by the Environment Court of its judicial function.

[4]       The High Court held that the Environment Court had misdirected itself as to two legal principles.  One concerned the nature of WRJ’s rights under its resource consent and whether the grant of resource consent to SAA, and the imposition on WRJ of obligations under the Maritime Rules to communicate and co-operate with SAA to avoid risk of collision, would in fact derogate unlawfully from those rights.  The other was whether a decision to leave aspects of safe operation to be determined by the Harbour Master would in fact constitute an unlawful delegation by the Environment Court of its judicial function.  The High Court directed that the case be reconsidered by the Environment Court in the light of its decision.

[5]       Panckhurst J declined leave to appeal for several reasons.  The first was that because, as a result of the High Court’s substantive decision, the reconsideration in the Environment Court is still pending and therefore the case is not ripe for reference to this Court.  Others related to whether the issues sought to be raised were of such importance as to warrant reference to this Court for decision.

[6]       The application for leave to appeal is brought under s 308 of the Resource Management Act 1991, which adopts s 144 of the Summary Proceedings Act 1957 requiring that this Court be satisfied that:

The question of law involving the appeal is one which, by reason of its general or public importance or for any other reason, ought to be submitted to the Court of Appeal for decision.

[7]       Thomas J discussed s 144 in R v Slater  [1997] 1 NZLR 211 (CA) at 214 – 215:

Under subs (3) this Court can grant “special leave” for an appeal to be heard by this Court if it is of the opinion that the question of law which is involved in the appeal is one which, by reason of its general or public importance or for any other reason, ought to be submitted to the Court for decision. Thus, there must be: (i) a question of law; (ii) the question must be one which, by reason of its general and public importance or for any other reason, ought to be submitted to the Court of Appeal; and (iii) the Court must be of the opinion that it ought to be so submitted. It is probably neither necessary nor desirable, however, to break the requirements of the subsection down in this way. Such an analysis merely serves to highlight the essential elements which must be present before leave to appeal can be granted. It is sufficient to pose the statutory question: is there a question of law which, by reason of its general or public importance or for any other reason, ought to be submitted to this Court for decision.

[8]       The role of this Court in giving the guidance for which special leave is granted in such a case is generally best performed when the facts have been settled and we have the advantage of the opinion of the Environment Court and the High Court upon them.  There may be a case for the appeal to be removed into this Court for hearing if the only point at issue after the Environment Court reconsideration is the point already decided by the High Court. 

[9]       We do not see this as a case where the parties will be put to wasteful effort if they go back to the Environment Court before coming here.  The result will be that any later appeal, to which our provisional view will impose no impediment, will be sharply focused.  We do not of course make any prediction whether leave for such appeal would be given.

Solicitors:
Wanaka Law, Wanaka, for Applicants
Chapman Tripp, Wellington for Respondent