R J Davidson Family Trust v Marlborough District Council

[2017] NZCA 194

IN THE COURT OF APPEAL OF NEW ZEALAND

CA97/2017
[2017] NZCA 194

BETWEEN	R J DAVIDSON FAMILY TRUST Applicant
AND	MARLBOROUGH DISTRICT COUNCIL Respondent

Hearing:	15 May 2017
Court:	Kós P, Asher and Brown JJ
Counsel:	J D K Gardner-Hopkins and A M Cameron for Applicant J W Maassen for Respondent J C Ironside for Kenepuru and Central Sounds Residents Association Inc and Friends of Nelson Haven and Tasman Bay Inc as Interested Parties
Judgment:	23 May 2017 at 10.30 am

JUDGMENT OF THE COURT

AThe application for leave to appeal is granted on the following questions of law:

(a)Did the High Court err in holding that the Environment Court was not able or required to consider pt 2 of the Resource Management Act 1991 directly and was bound by its expression in the relevant planning documents?

(b)       If the first question is answered in the affirmative, should the High Court have remitted the case back to the Environment Court for reconsideration? 

BCosts on the application are reserved.

____________________________________________________________________

REASONS OF THE COURT

(Given by Asher J)

1. We grant leave on the primary and subsidiary questions:

   (a)Did the High Court err in holding that the Environment Court was not able or required to consider pt 2 of the Resource Management Act 1991 directly and was bound by its expression in the relevant planning documents?

   (b)If the first question is answered in the affirmative, should the High Court have remitted the case back to the Environment Court for reconsideration?

2. In addition to seeking leave on the two questions where we have granted leave, the applicant also sought leave to appeal on the procedural question of whether the Environment Court should have put the parties on notice of its proposed approach to pt 2, so that they could reframe their submissions accordingly.  It was argued that the High Court did not determine this issue. 

3. We decline leave to appeal in respect of this procedural question as it is not of general or public importance.  The broad issues were fully canvassed in the Environment Court, and in the High Court there were detailed submissions given on all matters relied on in the Environment Court decision.  Therefore, on an overview, there has been no procedural unfairness.  Moreover, as counsel for the applicant accepted, leave being granted in respect of the primary questions above means that the applicant will have another opportunity to put forward all submissions on pt 2 that it considers to be relevant.  

Solicitors:
Russell McVeagh, Auckland for Applicant
Cooper Rapley, Palmerston North for Respondent
Ironside Law, Nelson for Interested Parties