Remarkables Park Limited v Queenstown Airport Corporation Limited

[2018] NZHC 269

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE

CIV-2017-425-000035 [2018] NZHC 269

BETWEEN

REMARKABLES PARK LIMITED

Appellant

AND

QUEENSTOWN AIRPORT CORPORATION LIMITED Respondent

Hearing:	4 December 2017
Appearances:	R J Somerville QC and B P Milo for the Appellant M E Casey QC and C J Somerville-Frost for the Respondent
Judgment:	1 March 2018

JUDGMENT OF NATION J

REMARKABLES PARK LTD v QUEENSTOWN AIRPORT CORPORATION LTD [2018] NZHC 269 [1

March 2018]

Contents

Background .............................................................................................................. 1

The legislative and legal context in which the Environment Court made its decisions ................................................................................................................. 11

The first interim decision - 25 September 2012 ..................................................... 18

First final decision of Environment Court – 8 May 2013 ...................................... 26

High Court judgment - 12 September 2013 ........................................................... 29

The Environment Court’s legitimate expectation decision - 26 November 2014.. 36

The separation distance decision – 22 December 2015 ......................................... 44

The final decision of the Environment Court - 31 March 2017 ............................. 55

Issues on appeal...................................................................................................... 61

Were there errors of law in the way the Environment Court considered the criteria in s 171(1)(b) RMA could be satisfied and whether satisfying

those criteria allowed the Environment Court to confirm the designation?      74

Were there errors of law in the way the Environment Court considered

whether the requirements of s 171(1)(c) RMA had been satisfied?                  101

Were there errors of law in the way the Environment Court addressed or

failed to address Part 2 matters?  114

Were there errors of law in the way the Environment Court had regard to RPL’s legitimate expectations in considering the issues which it had

to decide?  125

Separate from the above issues, were there other respects in which, in a way that was material to the decision it reached, the Environment

Court failed to consider relevant evidence?  139

Other matters  147

Application to admit new evidence ...................................................................... 148

Conclusion............................................................................................................ 167

Background

[1]      In October 1997, the appellant, Remarkables Park Limited (RPL), and the respondent, Queenstown Airport Corporation Limited (QAC), entered into land use and transfer agreements.  QAC acquired from RPL some land north of its existing airport.  RPL acquired land to the south of the airport (Lot 6).  It agreed QAC would not make any claim or requirement regarding Lot 6 other than as an air noise boundary, airport approach or land use controls, and any air purposes designation that QAC needed to maintain for the continuing operation of the airport in accordance with agreed present and future layouts.   RPL agreed to use Lot 6 only for rural and/or recreational uses, and infrastructural utilities not of a noise-sensitive nature.

[2]      QAC’s airport land and a small area of land it owns to the north of the airport are subject to an existing airport designation in the Queenstown Lakes District Plan (District Plan).   It provides for and protects QAC’s right to use the area of this designation for current airport purposes.  The airport is one of the busiest airports in New Zealand and the largest regional airport.

[3]      QAC wanted to provide for the expansion of Queenstown airport to meet projected growth while achieving, as far as possible, the maximum operation efficiency.  It issued a notice of requirement (NOR) seeking a designation over an additional 19 hectares within Lot 6 to achieve this objective. With this additional land, it was proposing to build a precision approach runway and a parallel taxiway, and provide additional space for other aviation activity including the relocation of smaller and private aviation operations (GA – General Aviation) and helicopters.  The NOR was lodged with the Environment Court for consideration on 21 December 2010.

[4]      The airport land (which is subject to an existing airport designation), the further land in respect of which QAC was seeking the new designation in the NOR, and RPL’s land to the south is usefully shown in a plan of the area which was produced earlier by RPL in the proceedings and which was attached to an earlier judgment of the High Court. This is attached to this judgment as Annexure A.

[5]      Mr Somerville QC, counsel for RPL, told me that RPL’s fundamental objection and concern to the designation was the way in which the planned extension of airport

facilities into Lot 6 would detract from the amenities enjoyed or able to be enjoyed by users of RPL land further to the south of Lot 6, the area shown in the District Plan as the Remarkables Park zone.

[6]      The Environment Court considered the effects of the NOR designation on

RPL’s land in its decisions of 25 September 2012 (the first interim decision) and 8

May 2013 (the first final decision).  In short, the Court found that, provided certain mitigation measures were put in place, the noise effects on RPL’s land would not preclude future development on that land or create any annoyance over and above what would be expected by ordinary growth in aircraft movements.

[7]      The Court also found the effects to landscape and visual amenities, and the effects arising out of roading and traffic issues, could be satisfactorily managed.  In the first final decision, it approved conditions relating to these issues, some based on agreements previously reached between the parties and others arising from the Court’s decision on matters in dispute.

[8]      The adequacy of those conditions to meet the identified environmental issues has not been the subject of any further disagreement between the parties, notwithstanding the fact the extent of the NOR designation over Lot 6 has subsequently increased.  However, the designation itself has given rise to numerous hearings and decisions in the Environment Court and one earlier appeal to the High Court. These are discussed below.  In its final decision of February 2017, the subject of the present appeal, the Environment Court confirmed the designation over Lot 6.

[9]      In  summary,  RPL  now  asserts  the  Environment  Court  should  not  have confirmed the designation to the extent it did over Lot 6 because QAC land to the north of the airport is available for the purposes for which the designation is required. The Court’s decisions can however be appealed only on the basis of errors of law.

[10]     In its amended notice of appeal, RPL referred to 18 errors and 13 questions of law for this Court to consider.  Before I refer to those, I summarise:

(a)  the legislative and common law framework in which they are said to have arisen; and

(b)  the decisions of the Environment Court and High Court out of which they have arisen.

The legislative and legal context in which the Environment Court  made its decisions

[11]     The NOR was referred to the Environment Court by the Minister for the Environment  pursuant  to  s  147(1)(b)  Resource  Management Act  1991  (RMA). Section 149U required the Environment Court to consider certain matters, being:

(a)  The Minister’s reasons for making the direction; and

(b)  The information provided by the Environmental Protection Authority.

[12]     Because the matter referred to the Environment Court involved a designation, s 149U(4) applied, meaning the Court:

(a)   must have regard to the matters set out in section 171(1) and comply with section 171(1A) as if it were a territorial authority; and

(b)   may—

(i)     cancel the requirement; or

(ii)     confirm the requirement; or

(iii)    confirm the requirement, but modify it or impose conditions on it as the court thinks fit; and

(c)   may waive the requirement for an outline plan to be submitted under section 176A.

[13]     Section 171(1A) and (1) provides:

171 Recommendation by territorial authority

(1A)  When  considering  a  requirement  and  any  submissions  received,  a

territorial authority must not have regard to trade competition or the effects of trade competition.

(1)   When  considering  a  requirement  and  any  submissions  received,  a

territorial authority must, subject to Part 2, consider the effects on the environment of allowing the requirement, having particular regard to— (a)   any relevant provisions of—

(i)   a national policy statement:

(ii)  a New Zealand coastal policy statement:

(iii) a  regional  policy  statement  or  proposed  regional  policy statement:

(iv) a plan or proposed plan; and

(b)   whether adequate consideration has been given to alternative sites, routes, or methods of undertaking the work if—

(i)   the requiring authority does not have an interest in the land sufficient for undertaking the work; or

(ii)  it is likely that the work will have a significant adverse effect on the environment; and

(c)   whether the work and designation are reasonably necessary for

achieving the objectives of the requiring authority for which the designation is sought; and

(d)   any  other  matter  the  territorial  authority  considers  reasonably necessary in order to make a recommendation on the requirement.

[14]     The relevant Part 2 provisions are s 5:

(1)   The purpose of this Act is to promote the sustainable management of natural and physical resources.

(2) In this Act, sustainable management means managing the use, development, and protection of natural and physical resources in a way, or at a rate, which enables people and communities to provide for their social, economic, and cultural well-being and for their health and safety while—

(a)   sustaining the potential of natural and physical resources (excluding minerals) to meet the reasonably foreseeable needs of future generations; and

(b)   safeguarding the life-supporting capacity of air, water, soil, and ecosystems; and

(c)   avoiding, remedying, or mitigating any adverse effects of activities on the environment.

And ss 7(b), (c) and (f):

In achieving the purpose of this Act, all persons exercising functions and powers under it, in relation to managing the use, development, and protection of natural and physical resources, shall have particular regard to—

…

(b)   the efficient use and development of natural and physical resources:

…

(c)   the maintenance and enhancement of amenity values:

…

(f)   maintenance and enhancement of the quality of the environment.

[15]     On its earlier appeal to the High Court, RPL contended the Environment Court, in  its  first  interim  decision,  had  erred  in  not  considering fairness  as  a relevant consideration in designation proceedings. Specifically, RPL claimed the Environment Court had erred in not considering whether previous dealings between RPL and QAC involving land transfer, and other agreements concerning the use of the land, gave rise to a legitimate expectation on the part of RPL that QAC and the Environment Court would give due consideration to alternatives that did not involve the taking of RPL’s land acquired from QAC as part of the transfer agreement.

[16]     Whata J in the High Court held, consistent with earlier authority, that the doctrine of legitimate expectation might be applied in the RMA context but the application of the doctrine would depend entirely on the facts of the particular case.1

On the facts, Whata J held that the Environment Court had never correctly assessed the designation claim based on legitimate expectation to the extent that might be relevant to the s 171 evaluation.   Allowing the appeals in part, he referred the application back to the Environment Court to reconsider:2

… the assessment of the adequacy of alternatives and reasonable necessity under s 171(1)(b) and (c) after it has provided the parties with an opportunity to be heard in relation to RPL’s legitimate expectation claims and the scarcity of industrial land.

[17]     In its decision of 26 November 2014 (the legitimate expectation decision), the Environment Court held that RPL had a legitimate expectation that QAC would use its own land for airport purposes and not RPL’s land for undertaking the work.3   The Environment Court’s conclusion in this regard was not appealed by QAC.  It is thus part of the legal context in which the Environment Court reached its subsequent decisions.

The first interim decision - 25 September 20124

[18]     In its first interim decision, the Environment Court recorded that, through the

NOR, QAC sought to alter the designation in the District Plan to extend the area of

1      Queenstown Airport Corporation Ltd v Queenstown Lakes District Council [2013] NZHC 2347.

2 At [148].

3      Re Queenstown Airport Corporation Ltd [2014] NZEnvC 244.

4      Re Queenstown Airport Corporation Ltd [2012] NZEnvC 206.

the Queenstown Aerodrome by 19.1 hectares so that it could cope with the growth in aircraft movements and passenger numbers.  To accommodate growth, the existing passenger terminal and associated facilities would be expanded.  That could occur within the existing designation but only if GA works were displaced from their present location.  The NOR was thus sought on the basis it would facilitate the relocation of GA to enable the expansion of the passenger terminal and its associated facilities. The requirement for the designation was a strip of Lot 6 approximately 160 metres in depth, lying parallel to the entire one kilometre length of the common boundary of the airport and Lot 6.

[19]     The Court noted that key elements of the works contemplated with the NOR included a Code B parallel taxiway adjacent to the cross-wind runway, a Code D5 parallel taxiway adjacent to the main runway and a precision approach runway with a

300 metre width runway strip.

[20]     RPL accepted that GA would need  to move from its present  location,  a condition established by uncontested expert evidence, and remaining in situ was not an alternative.

[21]     The Court noted that, because of s 171(1)(b)(i) RMA, a central issue in the case was whether QAC gave adequate consideration to alternative sites, routes or methods. It adopted the summary of principles applied as to this from the final report and the decision of the Board of Inquiry into the upper North Island upgrade project.6   It thus noted the focus was on process, not the outcome. Section 171B did not give the Court the authority to substitute its own choice amongst alternative sites or to enter into an adjudication of the merits determining the best use of alternatives.

[22]   The Environment Court found that within the planning horizon under consideration there was no nexus between the NOR objective and enablement of Code

D aircraft operating at Queenstown airport.  It found the predicted growth in tourist

5      Code D aircraft are larger planes that require a precision approach runway.  Jet aircraft operating at Queenstown Airport fall into the Code C category, that is, they have a wingspan of between 24 and 36 metres. Code D fall into two categories, those with smaller or larger wingspan between 36 and 52 metres.

6      Final Report and Decision of the Board of Inquiry into the Upper North Island Grid Upgrade

Project Ministry for the Environment, Board of Inquiry, 4 September 2009 at [117] and [186].

numbers and need for more flights in and out of the airport could be met using Code C aircraft.   For that reason, it also found there was no nexus between the NOR’s objective and the provisioning for an instrument precision approach runway.  It said the consequence of this was that the lateral extent  of the land required for the designation was reduced by 97.5 metres along the approximate 1,000 metre length of the common boundary with Lot 6, a total land area of 9.75 hectares.  It also said that it was not required to approve the Code C parallel taxiway because land within the existing designation was available for that purpose.7

[23]     The Court then considered and discussed, as required by ss 171(1)(a)-(d), issues as to noise, landscape, amenities, traffic and transportation as already mentioned.8

[24]     The Environment Court then evaluated the NOR in terms of Part 2 of the Act.

[25]     The  outcome  of  this   first  interim  decision  was   that,   pursuant  to  s

149U(4)(b)(iii), the NOR was cancelled in respect of the land required for a precision approach runway and Code D parallel taxiway.  The decision on the balance of the land required for designation was reserved pending the addressing of Court’s concerns as to management of traffic, approval of an integrated design and management plan, and revised designation conditions for an outline plan of the works.  Any decision to extend the aerodrome was to be for the sole purpose of establishing a GA/helicopter precinct. Other works enabled by the existing designation were not considered by the Court.

First final decision of Environment Court – 8 May 2013

[26]     The Environment Court decided the designation would lapse within five years after the date on which it is included in the District Plan, rather than the 10 years which QAC had sought.  The Court decided on appropriate conditions of the designation in

the NOR regarding the purpose of the designation and the activities that would be

7      Re Queenstown Airport Corporation Ltd, above n 4, at [141].

8 At [7].

permitted within the aerodrome designation.   It approved the conditions for traffic/access and other environmental matters, as already discussed.9

[27]     As part of its decision, the Court attached a plan prepared by QAC’s airport planner, Mr Munro, based on the reduced area approved by the Court in its first interim decision of 8.07 hectares.   The plan was titled “Aviation Precinct Concept Plan (optimised) Code C taxiway separation 93 metres”, dated 9 November 2012.  That plan is annexed to this judgment as Annexure B.

[28]     RPL and QAC both appealed the interim decision and the first final decision of 8 May 2013.  QAC identified five errors of law while RPL identified 12 errors of law.

High Court judgment - 12 September 2013

[29]     Whata J recorded that, in the Environment Court, based on then accepted expert evidence, the parties had proceeded on the basis 93 metres was a sufficient separation distance between the main runway and the parallel taxiway under the standards for Code C aircraft.  It had emerged after the interim decision that the Civil Aviation Authority (CAA) might insist on a greater separation distance, potentially as much as 168 metres. The Environment Court had been advised accordingly. Whata J held that the efficacy of the separation distance of 93 metres was dependent on the approval of the Director of the CAA.  If he required a greater separation distance, a key component of the designation works could not then be enabled because QAC would not have sufficient land to make a parallel taxiway.  A condition with that disenabling  effect  could  not  be lawful  unless  it  was  the product  of a  thorough evaluation in terms of s 171.  Whata J held the Environment Court had erred in not turning its mind to the potentially disenabling consequences of a 93 metre limitation.

[30]     As already referred to, Whata J held the Environment Court had erred in not considering whether RPL had a legitimate expectation arising out of previous land

transfer  dealings  with  QAC,  and  that  Lot  6  would  not  be  used  for  aerodrome

9 At [9].

designation purposes or, if it were so used, all alternatives not using RPL land would be thoroughly explored.

[31]     With regard to RPL’s submissions as to errors of law and questions regarding the Environment Court’s assessment of alternatives, Whata J recorded that the arguments advanced included that:10

(a)  the Court erroneously rejected an alternative site involving QAC owned land to the north of the existing designation on the basis that it was suppositious; and

(b)  the Court should have given weight to the absence of an assessment of this alternative by QAC.

[32]     It was in relation to those submissions that Whata J held the Environment Court had erred in referring to the scarcity of industrial land when that had not been mentioned in submissions or evidence. Whata J held that an issue of procedural justice arose when the Environment Court resolved a substantive issue relying on its own knowledge, without notice to the parties.

[33]     Whata J identified errors as to:11

(a) the Court not having regard to the potential disenabling effect of a maximum separation distance of 93 metres between the main runway strip and the taxiway;

(b)  incorrectly excluding fairness as an irrelevant consideration;

(c)  not correctly assessing RPL’s claims based on legitimate expectation; and

(d)  not providing RPL with an opportunity to address the issue of scarcity of industrial  land  and  its  relevance  or  otherwise  to  adequacy  of  the

assessment of alternatives under s 171(b).

10 At [116].

11 At [144].

He decided these errors were material to the decisions the Court had reached.

[34]     Whata J thus allowed the appeals in part and referred the application back to the Environment Court to reconsider:12

(a)   Whether the requirement should be cancelled or modified after it has provided the parties with an opportunity to be heard in relation to the separation requirements for a Code C taxiway and the process for confirming those requirements.

(b)   The assessment of the adequacy of alternatives and reasonable necessity under s 171(1) (b) and (c) after it has provided the parties with an opportunity to be heard in relation to RPL’s legitimate expectation claims and the scarcity of industrial land.

[35]     He said it would be for the Environment Court to determine how it proceeded to reconsider the above matters and any consequential relief that might follow, if any, including but not limited to further modification or cancellation of the designation.13

The Environment Court’s legitimate expectation decision - 26 November 2014

[36]     The Environment Court, for reasons detailed in its judgment of 26 November

2014, dealt with the matters remitted back to it by the High Court in stages.  The first hearing in March 2014 was in relation to RPL’s legitimate expectation claims, the issue over the scarcity of industrial land and reconsideration of the Court’s assessment of the adequacy of consideration given to alternative sites, and the reasonable necessity for the works and designation under s 171(1B) and (1C) in light of those issues.  It gave its decision in relation to those matters on 26 November 2014.  There was a further hearing in June and August 2015 for reconsideration of the separation distance requirements for a Code C taxiway and of the NOR in the context of those requirements.

[37]     The Environment Court held that RPL could not legitimately have expected QAC to develop the airport layout in accordance with a plan associated with a deed which the parties entered into in 1997 nor that QAC would first have to obtain approval

from RPL for a layout that was different from that shown in that plan.14

12 At [148].

13 At [149].

14     Re Queenstown Airport Corporation Ltd, above n 3, at [116].

[38]     The Environment Court recorded the agreement between QAC, RPL and Air

New Zealand (who were then also a party to the proceedings) that:15

If  the  deeds  and/or  the  course  of  dealings  did  give  rise  to a  legitimate expectation held by RPL, this would not be determinative of the NOR. Rather, the Court is to take into account RPL’s expectations when considering s 171 and part two of the Act and, ultimately, when exercising its discretion whether to confirm the NOR (with or without modification) or cancel the notice.

[39]     The Environment Court found that RPL had a legitimate expectation that QAC would use its own land for airport purposes and not RPL’s land.  Provided the use of QAC’s land met the statutory criteria and achieved the statutory purpose, it said fairness would implore this outcome.16

[40]     The Court then addressed the scarcity of industrial land issue in accordance with the High Court’s direction. It discussed the evidence relating to that and recorded

its findings on the issue.17

[41]     Having done that, it returned to consider s 171(1)(b), bringing into account RPL’s legitimate expectation as it had found it to be.  It decided again that QAC had given adequate consideration to alternative sites as required.

[42]     The Court said RPL’s legitimate expectation that QAC use its own land, rather than RPL’s, when undertaking this work was essential to the question of whether the work and designation was reasonably necessary under s 171(1)(c).   That was so, notwithstanding a finding that QAC had given adequate consideration to the alternative site and that the site would not achieve the purpose of the Act.18

[43]     The Court noted that QAC had not sought approval from the director of the the CAA for the proposed extension to the aerodrome.   The Court said the director’s decision would affect the extent of the land required and whether the work and designation  was  reasonably  necessary  to  meet  the  objective  of  its  requirement.

Without his decision, it could thus not finally determine s 171(1)(c) issues as to

15 At [60].

16 At [69].

17 At [49].

18 At [111].

whether and to what extent the designation was reasonably necessary.   The Court indicated it would proceed with that consideration at the same time as it heard from the parties “in relation to the Code C taxiway separation distance and the process for confirming those requirements”.19

The separation distance decision – 22 December 201520

[44]     The resumed hearing took place on 15-19 June and 20-21 August 2015.  The Court recorded that during the hearing QAC led considerable new evidence in support of a dual taxiway at Queenstown airport comprising the existing Code B chip-seal taxiway and a new Code C taxiway.

[45]     In discussing the background to the further hearing, the Court said that the

2012 evidence focused on whether the Code C taxiway should be located at a distance of 93 metres or 168 metres from the centre line of the main runway but that scant attention was given to a dual taxiway either in the notice of requirement or in the evidence.   It said it was self-evident that a new dual taxiway could not be accommodated within 93 metres of the main runway.

[46]     The Court found the purpose of the runway-taxiway separation distance was to avoid or minimise the risk of aircraft colliding in the event one veers off the main runway.

[47]     Code C planes had to use the main runway to taxi for take offs and after landings. This limited the time the runway could be available for the arrival/departure of other aircraft.  Because of separation distance requirements, the existing taxiway suitable for Code B aircraft could not be used by helicopters or Code B aircraft if and when Code C aircraft were scheduled to be on the main runway.  The risk experts for RPL and QAC advised their risk assessments for the taxiway options had been undertaken on the same basis, that is that the Code B taxiway would not be used when

regular passenger transport aircraft were operating on the main runway.

19 At [112].

20     Re Queenstown Airport Corporation Ltd [2015] NZEnvC 222.

[48]     The Court held that  compliance  with CAA criteria required  a separation distance of 168 metres.  This was the minimum required separation distance from a risk perspective.

[49]     The Court said that, while a 93 metre separation distance was not an acceptable means of compliance with CAA rules, it had considered RPL’s proposition that the NOR objective would be achieved with a single taxiway located at a separation distance of 93 metres. The Court held that, to satisfy the relevant CAA safety criteria, a Code C taxiway at 93 metres would require operational constraints to be imposed which would “… significantly affect the regularity of operations by aeroplanes” on the runway.21

[50]     The Court said it had kept in mind that the objective for the NOR was to provide for the expansion of Queenstown airport to meet projected growth while achieving the maximum operational efficiency as far as practicable.  It decided that having a single Code C taxiway at 93 metres would not enhance the main runway’s capacity or provide QAC with the increase in the capacity that would be required. Operational controls would prevent simultaneous regular passenger transport operations on the main runway and this taxiway.  It thus found the objective for the NOR would not be met with a single Code C taxiway located at a separation distance of 93 metres.

[51]     The Court also considered the possibility of a single taxiway located at a separation distance of 168 metres.   The Court concluded that, to achieve the operational efficiency which was an objective of the NOR as well as having a Code C taxiway at 168 metre separation from the main runway, there would also need to be a dual taxiway system.

[52]     The consequence of the increase in separation distance was that, instead of

QAC requiring just over 8 hectares of RPL land for its designation, an area of around

16 hectares would be required.  The Court found that, even with the requirement for this additional area of land, with a Code C taxiway located at a separation distance of

21 At [158].

168 metres, locating both Code C corporate jet, GA and helicopter facilities south of the main runway on Lot 6, would be an efficient use of the land.

[53]     The Court said it was satisfied that, subject to certain operational restrictions, a dual taxiway could operate safely.  However, the Court said it was not yet satisfied a dual taxiway south of the main runway, together with the GA precinct and helicopter final approach and take offs (FATO’s), could be operationalised.

[54]     The Court adjourned the proceedings further because it considered QAC’s response to an approval given by the director of the CAA in respect of a dual taxiway or, more generally, any operational restrictions that might be recommended following an aeronautical study, would be material to the Court’s consideration of s 171(1)(c), that is, whether the works and designation were reasonably necessary, and the ultimate determination of the proceedings under Part 2 of the Act.   It also said, “given the Court’s uncertainty, at this junction, fairness would also implore this outcome in recognition of RPL’s legitimate expectation”.22

The final decision of the Environment Court - 31 March 201723

[55]     In accordance with the directions of the Environment Court, QAC submitted an aeronautical study, including proposed changes to its exposition,24 to the director of the CAA. The study addressed how the airport would be operated with the planned dual taxiway, FATO helicopter area establishment and the new GA precinct in place.

[56]     Without considering a report prepared for RPL, which reviewed that obtained by QAC, the CAA said QAC’s proposal was deemed acceptable in that it complied with various CAA rules but noted:

… a task specific case will be submitted to provide more detailed mitigation for the risk associated with each phase of the introduction to service of the new aerodrome layout. Specifically the risks associated with the dual taxiway, the new FATO and the GAP (General Aviation Precinct).

22 At [270].

23     Re Queenstown Airport Corporation Ltd [2017] NZEnvC 46.

24     New  General  Aviation  Precinct  Proposed  dual  taxiway  and  FATO  Operation  (Astral  Ltd, Aeronautical Study, 20 August 2016).

[57]     QAC asked the Court to release a final determination of the proceedings on the papers.  RPL opposed this and sought to call evidence as to whether the aeronautical study satisfactorily addressed the operational  issues  identified  by the Court  and whether it demonstrated that the proposed arrangements could support acceptable safe airport operations.  After a pre-hearing conference, the Environment Court said it would allow a hearing with evidence limited to the assertion by QAC that it could not progress the intended works or establish any physical work until the designation was approved by the Court.

[58]     The Court accepted that the safety of the new aerodrome layout and how it was to be operationalised by QAC had been assessed through the aeronautical study which QAC had engaged and the CAA had deemed acceptable.  The Court noted that task- specific safety cases would ensure that development of the airport was implemented and made operational in a safe way. The Court was satisfied that, with the director of CAA’s confirmation, QAC would remain compliant with its aerodrome operating certificate.  The proposal in the NOR could be operationalised.  How that was to be achieved, in micro-terms, would appropriately be the subject matter of the task- specific safety cases in accordance with the Civil Aviation Act and its rules. The Court did not require QAC to furnish the Court with the task-specific safety cases. Pursuant to s 171(1)(c), it found the works and designation were reasonably necessary to achieve the requiring authority’s objective.

[59]     After further consideration as to Part 2 issues, the Court, pursuant to s 149U(4) RMA, confirmed the notice of requirement to extend Designation 2, subject to the conditions attached to its decision and approved by the Court in its first final decision.

[60]     It recorded the extent of the designation was shown in a plan attached to its decision entitled “Proposed additional land for designation area Code C taxiway separation 168 metres”. This is attached as Annexure C. It confirmed the designation was to have a lapse period of five years from when it was included in the District Plan. Attached as Annexure D is an indicative layout plan showing how the designation area on Lot 6 was to be used.  This was included in the aeronautical study which was considered at the final decision hearing.

Issues on appeal

[61]     At the hearing, RPL asked the Court to consider 13 questions of law set out with its amended notice of appeal.   I deal with the grounds of appeal and posed questions of law as advanced by RPL at the hearing under five headings:

1.    Were there errors of law in the way the Environment Court considered the criteria in s 171(1)(b) RMA could be satisfied and whether satisfying those criteria allowed the Environment Court to confirm the designation?

2.    Were there errors of law in the way the Environment Court considered whether the requirements of s 171(1)(c) RMA had been satisfied?

3.    Were there errors of law in the way the Environment Court addressed or failed to address Part 2 matters?

4.    Were there errors of law in the way the Environment Court had regard to RPL’s legitimate expectation in considering the issues which it had to decide?

5.    Separate from the above issues, were there other respects in which, in a way that was material to the decisions it reached, the Environment Court failed to consider relevant evidence?

[62]     Under each heading, I set out the relevant grounds of appeal, the questions put to the Court and my answers, followed by the reasons for those answers.

[63]     QAC argued that a number of the suggested questions of law that arose under these different headings were not questions of law at all but are challenges to the Environment Court’s evaluative process and findings of fact which cannot be the subject of an appeal to the High Court.

[64]     Appeal  rights  are  provided  by ss  149V and  299  RMA and  are  only  on

“questions of law”.

[65]     Mr Casey submitted this meant the High Court is not permitted to undertake a merit review of the Environment Court’s conclusions.  He said the only exception to

this principle was where the conclusions of the fact-finding court are clearly insupportable.25   That is, that there is “a state of affairs – in which the true and only reasonable conclusion contradicts the determination”.26

[66]     Like Mr Casey, Mr Somerville referred to the statements of the Supreme Court in Bryson v Three Foot Six Ltd and of the High Court in New Zealand Transport Agency v Architectural Centre Inc.27

[67]     Mr Somerville also referred to Countdown Properties (Northlands) Ltd v Dunedin City Council, where the High Court said a question of law arises where the Environment Court:28

(a)  applied a wrong legal test; or

(b)  came to a conclusion without legal evidence or one to which, on the evidence, it could not reasonably have come; or

(c)  took into account matters which it should not have taken into account; or

(d)  failed to take into account matters which it should have taken into account.

The Court also noted that, for such an error to require the allowing of an appeal, it had to have been material to the decision reached.

[68]     That summary is consistent with the way the Supreme Court summarised the position in Bryson v Three Foot Six.   Whata J considered matters in terms of the summary above from Countdown Properties in his earlier High Court judgment.  I do the same.

[69]     QAC also contended that, in a number of respects, RPL were seeking to appeal decisions where the time for appeal had long passed or, alternatively, where, because

25     Bryson v Three Foot Six Limited [2005] NZSC 34, [2005] 3 NZLR 721 at [26].

26     Edwards v Bairstow [1956] AC 14 at 36.

27     Bryson v Three Foot Six Limited, above n 25; New Zealand Transport Agency v Architectural

Centre Inc [2015] NZHC 1991, (2015) ELRNZ 163.

28     Countdown Properties (Northlands) Ltd v Dunedin City Council (1994) 1B ELRNZ 150 (HC).

issues had been determined as between the parties in earlier proceedings, RPL were estopped from appealing the Environment Court’s decisions on those issues.

[70]     The time to appeal commences once a final decision has been made or an issue in the proceeding is finally determined.29   Determining whether a decision is “final” is a substantive enquiry and the labelling of a decision is not, in itself, determinative.30

The test is whether, in substance, the decision:31

(a)   decides the whole proceedings or, at least, one or more particular issue conclusively, (in which case the Court is functus officio on each such issue); or

(b)   leaves the matter open for parties to return to the court with further submissions and/or evidence notwithstanding the views expressed at the interim stage.

[71]     Mr Somerville, for RPL, argued that, in this case, new issues had arisen with the evidence as to the need for the dual taxiway system in 2015 and, on that basis, issue estoppel should not apply.32   He also referred to statements from the Supreme Court cautioning against an over rigorous application of the issue estoppel doctrine in ways that could produce unfairness disproportionate to the object of achieving finality in litigation.33

[72]     Mr Somerville suggested that, when considering issues under the RMA, the Environment Court, when appropriate, had to be able to revisit decisions it might have reached earlier because it was always required to assess what would be the future effects of proposals that it was considering, rather than what had already happened. He suggested the Court’s consideration of issues involved an iterative process.  He referred to statements from judgments that the concept of issue estoppel would have

limited application in RMA cases.34

29     Fox v Christchurch City Council HC Christchurch CIV-2008-409-898, 5 December 2008 at [49]; Peninsula Watchdog Group (Inc) v Coeur Gold New Zealand Limited [1997] 3 NZLR 463 (HC) at 467.

30     Gardez Investments Limited v Queenstown Lakes District Council EnvC Christchurch C95/05, July 2005 at [40], approved in Federated Farmers Inc v Mackenzie District Council [2013] NZHC

518.

31     Gardez Investments Ltd v Queenstown Lakes District Council, above n 30, at [40].

32     Link Technology 2000 Ltd v Attorney-General [2006] 1 NZLR 1 (CA).

33     Arbuthnot v Chief Executive of the Department of Work and Income [2007] NZSC 55, [2008] 1

NZLR 13 at [29].

34     Guardians of Paku Bay Association Inc v Waikato Regional Council [2012] 1 NZLR 271, (HC) at

[73]     Appeals against Environment Court decisions had to be brought within 15 days of the time such decisions had been made.35    Except to the extent the Environment Court had deferred making decisions on issues between the parties in its earlier decisions, the only decisions in respect of which RPL’s appeals were within time were in the Environment Court’s final decision of 31 March 2017.

Were there errors of law in the way the Environment Court considered the criteria in s 171(1)(b) RMA could be satisfied and whether satisfying those criteria allowed the Environment Court to confirm the designation?

[74]     In its amended notice of appeal, RPL contended that:

4.1     The Environment Court erred in finding that in accordance with s

171(1)(b) of the Act, the QAC had given adequate consideration to alternative sites.  That finding was made without undertaking a further

evaluation in light of evidence concerning:

a)    The QAC’s advice that a dual taxiway would form part of the

NOR;

b)    New safety issues concerning the dual taxiway; and

…

4.17The Court wrongly exercised its discretion when it failed to take into account evidence called on behalf of RPL concerning alternative sites.

[75]     As to those submitted errors, the questions of law and my answers are as follows:

5.1Did the Court err in determining that the QAC had given adequate consideration to relevant alternatives under s 171(1)(b) of the RMA?

Answer

No, and because that issue had been decided between the parties and

was not subject to appeal, the issue could not be pursued further on this appeal.

5.14   Did the Court wrongly exercise its discretion when it:

a)    Failed to take into account evidence called on behalf of RPL

concerning alternative sites;

…

[61]; Man O’ War Station Ltd v Auckland Council [2012] NZEnvC 84; Mawhinney v Auckland

Council [2017] NZEnvC 145.

35     Resource Management Act, s 300(1).

Answer

No.

[76]     Section 171(1)(b) required the Environment Court to be satisfied that adequate consideration had been given to alternative sites for undertaking the work involved in the designation because QAC did not own that part of Lot 6 which it needed for undertaking the work involved with the extension of airport facilities.

[77]     No issue was taken with the Environment Court’s statements in the interim decision that s 171(1)(b) was concerned with process and whether, in the particular circumstances of the case, there had been an adequate investigation of alternatives. If there had been, it was not for the Court to involve itself in considering the merits of the various alternatives in comparison to the option in the designation.36

[78]     I am satisfied that, in its first interim decision, in applying s 171(1)(b), the Environment Court carefully assessed, on the evidence, whether QAC had adequately considered alternatives to the NOR designation and the extension of the GA/helicopter precinct to the south over Lot 6.   In particular, it had adequately considered the alternatives of the potential use of QAC land or other land to the north of the airport.

[79]     The Court referred to the evidence it had received in relation to this issue. The

Court’s overall conclusion, as to ss 171(1)(b) and 171(1)(c), was:

[112]    We conclude that there is an array of factors, including safety, which militate against a northern location for a helicopter facility.  Of these cost (to the  helicopter  operator  and  other  users  of  the Airport)  is  an  important consideration, but it is not determinative. Section 171(1)(b) is satisfied as we find that adequate consideration was given to alternative location of the helicopter facility.

[113]    Likewise we are also satisfied that adequate consideration was given by QAC to alternative locations for corporate jets and that it is operationally efficient to locate these adjacent to the proposed Code C taxiway south of the main runway.

[114]    Apart from the April 2007 study, none of the studies looked at the option of splitting the various aeronautical businesses north or south of the main runway within the existing aerodrome designation.  But in the absence of any contrary evidence we conclude, like corporate jets, it is operationally efficient to locate fixed wing operators adjacent to a proposed Code C taxiway.

36     See also: Queenstown Airport Corporation Ltd v Queenstown Lakes District Council, above n 1, at [61].

[115]  We are also satisfied that under s 171(1)(c) that a general aviation/helicopter precinct south of the main runway is reasonably necessary for achieving the NOR’s objective.

[80]     In the High Court judgment, Whata J observed that RPL faced a major hurdle in seeking to revisit issues before the Environment Court, given what he considered to be the Environment Court’s earlier careful consideration of s 171(1)(b) issues.  He said that, arguably, consideration had remedied its failure to take account of legitimate expectation with regard to s 171(1)(b).  What tipped the balance in his deciding to remit the issue back to the Environment Court was the way that Court had taken the shortage of industrial land into account.37

[81]     In its legitimate expectation decision, the Environment Court explained, after further evidence and submissions, why its conclusions as to the availability of industrial land did not affect the determination it had made in its first interim decision on whether there had been an adequate consideration of alternatives.

[82]     With those findings in mind, the Court then returned to RPL’s expectation in the context of QAC’s consideration of alternative sites.  It said:

[90]      The overarching question is whether giving effect to the expectation that QAC use its own land and not RPL’s land for undertaking the work would meet the statutory criteria and ultimately the sustainable purpose of the Act? The alternative site in contention is QAC’s land to the north of the main runway, some of which is subject to an existing designation and the balance

4.52ha zoned for industrial activities.

[91]      The enquiries under s 171(1)(b) and s 191(1)(c) are inter-related.  If there is an alternative site for undertaking the work owned by the requiring authority, this begs the question whether the requirement for RPL’s land is reasonably necessary.  This question was alluded to in the interim decision when the court said “The suitability or otherwise of existing designated land is a question of fact and degree and where suitable designated land exists there will be less tolerance around the issue whether the land or work is reasonably necessary to achieve the objective of the requiring authority”.  However, in the interim decision the court had not considered whether the parties’ dealings gave rise to a legitimate expectation on the part of RPL.

[92]      Returning again to the High Court’s decision at paragraph [106], the outcome which fairness implores is RPL’s legitimate expectation that QAC would use its own land, and not RPL’s land (which would remain a buffer zone). We consider fairness requires the NOR be cancelled if undertaking the

37 At [129].

work on QAC’s land would meet the statutory criteria and achieve the statute’s purpose.

[83]     The Court referred back to the evidence it had heard in the 2012 hearing, including the evidence of Mr Haines, Mr Munro and Mr Sachmann.   The Court referred to its interim decision and its findings on the consideration given by QAC to alternative sites, noting:

[96]     … The court found an array of factors, including safety, militate against a northern aviation precinct.  Importantly – these findings applied to QAC land both within and outside of its existing designation, including land zoned for industrial activities.

[84]     The Court concluded:

[99]      We are satisfied that QAC’s consideration of the alternative northern location was more than adequate and in the circumstances QAC cannot be criticised for not considering its industrial land as an alternative site to the NOR.

[85]     I am thus satisfied that, through the legitimate expectation hearing and its decision, the Environment Court reconsidered whether the requirements of s 171(1)(b) had been satisfied, taking into account RPL’s legitimate expectation, as the High Court directed it had to do.

[86]     I accept QAC’s submission that it is not open to RPL to challenge the interim decision or the legitimate expectation decision as they relate to QAC’s adequate examination of alternatives.  During those proceedings, relevant conclusive decisions were made as between the parties on particular issues.  The parties proceeded on the basis that, once those determinations had been made, they could not be revisited in subsequent hearings.

[87]     In his judgment, Whata J was most particular as to the issues which he was remitting back to the Environment Court for further consideration.  The Environment Court and the parties proceeded on the basis that it would be only those issues on which the Court was hearing further evidence and reconsidering matters.

[88]     The Environment Court issued a minute after a conference on 29 January 2015 where it referred to an indication from RPL that it may wish to lead evidence on a

certain matter.  Judge Borthwick said the relevance of the matter was not then clear and noted “the introduction of this evidence may be with a view to relitigate matters that are not referred to the Court for reconsideration”.  She directed the matter was to be pursued only at the direction of the Court. The minute recorded that the parties had agreed the issues for determination were as follows:

(a)   the separation requirements of a Code C taxiway and the process for confirming those requirements;

(b)   to reconsider our earlier decision in light of s 171(1)(c) of the Act and in particular the spatial extent of the NOR;

(c)   in light of the findings of the Environment Court on the matters referred back by the High Court, then to reconsider our decision under Part 2 of the Act.

[89]     After the proceedings were remitted back to the Environment Court, that Court was clear it would not be revisiting issues it had already considered and decided.

[90]     Consistent with the parties’ acceptance that the Environment Court would not be revisiting decisions it had earlier made, except to the extent the High Court had directed, RPL submitted, in relation to the separation distance hearing, that it was not then open to QAC to ask the Court to confirm the NOR so as to allow for a runway- taxiway separation distance of 168 metres.

[91]     Perhaps  Mr  Somerville  recognised  RPL  could  not,  through  the  appeal, challenge the Environment Court’s decision as to the adequacy of QAC’s investigation of alternatives in the legitimate expectation decision. In his submissions for RPL, Mr Somerville addressed these claimed errors and questions with regard to the Court’s final decision.

[92]     As Mr Somerville put it, the nub of RPL’s case was that, in terms of the fairness test under s 171(1)(b) as Whata J had held was relevant, there should have been an aeronautical study and safety assessment as to what QAC would have been able to do with a GA/helicopter precinct, or at least a helicopter area, on its own land before the Court could finally determine that there had been adequate consideration of alternatives.

[93]     He argued this was necessary and RPL were entitled to make an issue of it because of the way QAC had introduced evidence as to the need for a dual taxiway. RPL submitted this was a “game changer” as far as the designation proposal was concerned.

[94]     It is not correct to say that the issue of a dual taxiway surfaced only after matters had been remitted back to the Environment Court from the High Court and it was considering the 93 metre separation distance issue. With the original designation, QAC had proposed a dual taxiway that would have been suitable for both Code C and Code D aircraft.  This would have required an additional taxiway.  It was commented on by the airport planning experts for both QAC and RPL.

[95]     In the initial hearings, however, the focus of disagreement was over whether

the designation was needed to provide an additional taxiway for Code D aircraft to use, not whether a dual taxiway was needed, even if it was for just Code B and Code C aircraft.

[96]     In its first interim decision, the Environment Court decided the airport did not need to be extended to cater for Code D aircraft but did not expressly consider if and to what extent a dual taxiway system might be necessary to achieve the objectives of the designation.  It did not decide what or where taxiways ought to be built within the modified designation because the Court assumed that, with the required separation distance of 93 metres between the runway and the taxiway, any new taxiway could be built on QAC’s land within its existing designation.  I note however that, on the plan which was part of the Court’s first final decision, there was only one taxiway shown. The Environment Court was thus right to say in its separation decision that it was only with the separation distance hearing that the focus shifted to whether or not there needed to be dual taxiways.

[97]     The Court however decided QAC’s investigation of northern options had been adequate in considering s 171(1)(b) issues with its first interim decision and with due regard to legitimate expectation issues in its legitimate expectation decision.  In both contexts, it was satisfied that safety and efficiency issues ruled out the northern option as a viable alternative.  In its final decision, the Court recorded RPL’s acceptance of

the Court’s findings that QAC had given adequate consideration to the use of alternative sites, including the use of its own land.38

[98]     In making submissions before me in relation to the application of s 171(1)(c), Mr Somerville for RPL said “we submit that simply because the Court had found that QAC had given adequate consideration to alternative sites, it does not follow that the enquiry under s 171(1)(c) only extends to Lot 6 land”.  In making that submission, he of course acknowledged that QAC had given adequate consideration to alternative sites.   He also said that RPL did not appeal the Environment Court’s finding on alternatives in its first interim decision “as it accepted that QAC had not acted arbitrarily”.

[99]     In  its  final  decision,  the  Environment  Court  said  that  in  its  legitimate expectation decision it found QAC had given adequate consideration under s 171(1)(b) RMA to the alternative of locating the taxiway, together with the GA precinct, on the north side of the runway. It noted the submission RPL had made that a safety and risk assessment should have been made as to the potential alternative of a northern location for a GA precinct.  The Court rejected that submission on the basis the work already undertaken by QAC’s advisors was sufficiently robust for the assessment that had to be made as to that alternative. That evidence came from the two helicopter pilots, one of whom was particularly concerned about safety, and also the evidence of Mr Haines, the manager of the Aeronautical Services Unit from the CAA.39

[100]   This was an evaluative decision on the facts and is thus not amenable to appeal. For reasons which it had articulated and on the basis of evidence which it had heard, the Environment Court, with due regard to s 171(1)(b) and legitimate expectation principles, decided that QAC had adequately considered alternatives to the designation expansion over Lot 6.

Were there errors of law in the way the Environment Court considered whether the requirements of s 171(1)(c) RMA had been satisfied?

[101]   RPL asserted:

38     Re Queenstown Airport Corporation Ltd, above n 23, at [20].

39     At [29]-[33].

4.9The Court erred in finding that the enquiry under s 171(1)(c) of the RMA, having regard to RPL’s substantive legitimate expectation, does not require the QAC to conduct a sufficient and robust evaluation of the efficiency and safety effects of GA activities being located on its own land.  This is contrary to the evidence given.  The emergence of a dual taxiway ought to have given rise to an evaluation of north side options.

4.10The Court erred in finding, if it did so find, that the QAC cannot progress the proposed works, or establish physical works (and actually amend its exposition), until the NOR is confirmed by the Court.

4.11   The Court erred in finding that the QAC is not required to furnish the Court (or the Director of Civil Aviation) with task specific safety cases before a decision on the NOR is made.

…

4.14The Court made a finding, namely that the works and designation are reasonably necessary to achieve the QAC’s objective, when the finding was not supported by evidence on all relevant airport layout safety issues, including evidence on how potential risks are to be managed on Lot 6 land.

4.15   The Court erred in finding that there is no conflict between ss 171(1)(b)

and (c) of the RMA.

[102]   Relating to those claimed errors, RPL raised the following claimed questions of law, my answers to which are as follows:

5.8Is the case one in which the only reasonable conclusion contradicts the determinations that:

a)    The QAC is able to use the designated land for the proposed works;

Answer

No.

b)    The enquiry under s 171(1)(c) of the RMA, having regard to RPL’s legitimate expectation, does not require QAC to conduct a sufficient and robust evaluation of the efficiency and safety effects of GA activities being located within QAC land;

Answer

The Environment Court explained, with regard to its enquiry

under ss 171(1)(b) and 171(1)(c), and Part 2 RMA considerations and RPL’s legitimate expectations, why it did not require QAC to obtain an aeronautical study and assessment of the efficiency and safety effects of GA activities being located within QAC land and why, on the evidence it had heard, it was able to consider whether that had been an adequate investigation as to whether there was a viable alternative to the NOR

designation.   The decision it reached in that regard was a factual evaluation not amenable to appeal.  There was no error of law in the decision which the Environment Court reached in this regard.

c)    The works and designation are reasonably necessary to achieve

QAC’s objective;

Answer

No.

5.9Is the case one in which the only reasonable conclusion contradicts the determination that QAC cannot progress the proposed works, or establish physical work, until the NOR is confirmed?

Answer

No.

5.10Is the case one in which the only reasonable conclusion contradicts the determination that QAC is not required to furnish the Court (or Director of Civil Aviation) with task specific safety cases before a decision on the NOR is made?

Answer

No.

5.13   Did the Court err in determining that there is no conflict between ss

171(1)(b) and (c) of the RMA?

Answer

No.

[103]   RPL submitted, under s 171(1)(c), the issue was whether the proposed works and designation for Lot 6 were reasonably necessary for achieving QAC’s objective. RPL submitted the focus here is on outcome and its position is that “there was insufficient evidence before the Court for it to be satisfied that designating Lot 6 was reasonably necessary for achieving QAC’s objective”.

[104]   RPL said its position was that there should have been a full evaluation of a hybrid approach with various aeronautical businesses split north or south of the main runway within the existing aerodrome designation. RPL submitted that, in considering whether the proposed works and designation for the subject site were reasonably necessary for achieving QAC’s objective, the Environment Court, in its final decision, had said its enquiry did not extend to an examination of the existing aerodrome, including land owned by QAC.

[105]   In its final decision, the Environment Court said that, for the purposes of s

171(1)(c) RMA, it had to be satisfied the work and designation were reasonably necessary.  It set out the essential elements that had to be established for it to be so satisfied.40

[106]   Nowhere in its final decision did the Environment Court say it did not have to be concerned with the efficiency and safety effects of GA activities being located on QAC land.  What it said was that issues as to that had already been determined to the extent required.

[107]   In its final decision, the Court said its enquiry into whether QAC could use part of Lot 6 arose out of certain key findings in its separation distance decision. It included that an array of factors – including safety – militated against a northern location of GA and/or helicopter facilities.  In relation to that, it also referred to its finding that QAC had given adequate consideration under s 171(1)(b) RMA to locating the Code C taxiway together with a proposed new GA precinct to the north of the main runway. Another finding from that decision was that the designation was required to ensure the continued safe and efficient functioning of the airport by the expansion of its aerodrome to meet projected growth.

[108]   It was with reference to that background and its earlier decisions that the Environment Court said in its final decision that its enquiry did not extend to an examination of the existing aerodrome, including land owned by QAC, and said it did not require QAC to conduct a further aeronautical study examining the use of its land for QAC and other services.41

[109]   RPL did not develop submissions during the appeal as to how there had been an error in the Environment Court not recognising a claimed conflict between ss

171(1)(b) and (c).42

[110]   The Environment Court carefully considered the evidence as to whether QAC

would be able to operationalise the proposed works.  It had refused to make a final

40 At [9].

41 At [34].

42 At [26].

determination on the designation until QAC had obtained the aeronautical study and an approval from the CAA showing the proposed works could be put into operation. I agree the Court’s conclusion in this regard was a finding of fact that cannot be the subject of an appeal.

[111]   The Court accepted that it was open to a prudent airport operator not to go any further in progressing the intended works pending the Court’s final determination.  I agree that was a finding of fact by the Court that cannot be challenged on appeal.  I also agree with QAC’s submission that an operator’s decision as to when it would progress the intended works was of no relevance in deciding whether the designation was reasonably necessary to achieve the objectives of the designation.

[112]   The Court noted that the purpose of the aeronautical study was not to address the micro level management of risk but to have the safety of the new aerodrome layout and how it could be operationalised [sic] assessed, ultimately by the CAA.  In due course, task-specific safety cases would ensure that the development of the airport was implemented and made operational in a safe way.  The task-specific safety case was the mechanism the CAA used to ensure compliance with the aeronautical study and to ensure there was CAA progressive overview of QAC’s management of risk.   The Court accepted the evidence of QAC’s expert that the management of risk inherently needs to be progressive, with continual assessment, review and feedback, especially as elements of the proposal were sequenced and constructed.43

[113]   The Court concluded that it did not require QAC to furnish the Court with the task-specific safety cases for the Court to determine that the proposal in the designation could be operationalised.  It was satisfied this could be achieved through the aeronautical study that had been obtained and the way it had been approved by the CAA. This was another finding of fact and not open to challenge on appeal.

Were there errors of law in the way the Environment Court addressed or failed to address Part 2 matters?

[114]   As to this, in its notice of appeal, RPL asserted:

43 At [55].

4.7  The Court failed to have regard to, and apply, Part 2 matters when addressing RPL’s substantive legitimate expectation.

[115]   The questions and my answers as to these are:

5.7  Did the Court fail to have regard to, and apply, Part 2 matters when addressing RPL’s substantive legitimate expectation?

Answer

No.

5.2  Is the case one in which the only reasonable conclusion contradicts the determination that undertaking the work on QAC land for GA purposes would not promote the sustainable management of natural and physical resources?

Answer

No.    There  was  a  reasonable  evidential  basis  for  the  Court’s

conclusion.   In any event, its determination as to this in the legitimate expectation decision had not been appealed and could not be pursued further on this appeal.

5.8  Is the case one in which the only reasonable conclusion contradicts the determination that:

(d)   The NOR will promote the sustainable management of natural and physical resources.

Answer

No.

[116]   In his submissions for RPL, Mr Somerville acknowledged that, in its final decision, the Environment Court confirmed its earlier finding in the legitimate expectation decision of 2014 that the use of QAC land would not promote the sustainable management of natural and physical resources.   He acknowledged the Court also stated that designating Lot 6 would promote the sustainable management of natural and physical resources.

[117]   In its amended notice of appeal, RPL submitted the Environment Court had made an error of law in making a finding:

4.16     … namely that the NOR will provide the sustainable management of natural and physical resources, when that finding was not supported by any evidence on how potential risks are to be managed on Lot 6 land.

In the way it described that error, RPL acknowledged the Court had made a finding as to Part 2 matters.

[118]   In his submissions as to this question, Mr Somerville’s argument was not that the Environment Court had failed to consider Part 2 matters but that, in considering them, it should also have brought into account legitimate expectation principles in a particular way.

[119]   In the legitimate expectation decision, the Court referred to the conclusion it had reached earlier with regard to Part 2 RMA and s 7(b) that:

A general aviation/helicopter precinct including air and landside buildings, infrastructure and landscaping was an efficient use of lot 6 and that it was efficient also to co-locate these with facilities for Code C corporate jets.

And that:

A hybrid alternative (ie splitting facilities north and south of the main runway) would be inefficient because it would compromise the benefits which would accrue from the colocation of all operations on one site.

[120]   It concluded:

Having given the matter further consideration we confirm that the safety and operational constraints on the airfield are such that we are satisfied for the purposes of s 7(b) that the use and development of the alternative site would not be efficient.

[121]   The Court referred to s 7(c) the maintenance and enhancement of amenity values, and s 7(f) the maintenance and enhancement of the quality of the environment. It was of the view that the measures which could be taken to address noise, landscape and traffic management conditions for the southern NOR could also be taken if the same work was undertaken on QAC land but concluded:

[103]    The purpose of the Act is to promote the sustainable management of natural and physical resources, this includes the Airport as a physical resource. An important finding in the interim decision is the array of factors – including safety – militating against a northern location for a helicopter facility.  The operation of general aviation and helicopters from a northern precinct would constrain the use of the main runway.  The splitting of facilities north and south of the main runway is inefficient and would reduce the benefits which would otherwise accrue from the collation of all operations.  We are satisfied

that undertaking work on QAC’s land would not promote the sustainable management of natural and physical resources.

[104]    We conclude that for the works required under the designation to achieve the sustainable management purposes of the Act, the general aviation and helicopter precinct needs to be collocated with other facilities to the south of the main runway.

[122]   The Court referred to that conclusion again in its separation distance decision, as part of its reason for not requiring an aeronautical study and safety assessment in respect of a possible GA and helicopter precinct on QAC’s existing land and thus for a northern option.

[123]   In the legitimate expectation decision, the Court ultimately found that, overall:

… the significant benefits to QAC and the wider community of developing and using the affected resources in the manner proposed, subject to the modifications and the conditions we have identified to avoid, remedy or mitigate adverse effects on the environment, to be consistent with the sustainable management purpose of the Act.

[124]   In its final judgment, the Environment Court said:

[69]      Ultimately the exercise of any decision-making discretion under s

149U(4) RMA is to be undertaken in a principled manner.  The discretion is to be exercised for the purpose that it was conferred and unless the context clearly indicates otherwise, under the RMA this will be for the purpose of promoting the sustainable management of natural and physical resources.

[70]     QAC’s objective is to “provide for the expansion of Queenstown airport to meet projected growth while achieving the maximum operational efficiency as far as possible.” In order to achieve that objective, operations at the aerodrome must, as “far as possible”, be both safe and efficient.

[71]      We conclude with the words of Whata J. The court, like QAC, cannot be bound to give effect to RPL’s expectations where to do so is inconsistent with the requirements of s 171.  Regrettably for RPL we have found the use of QAC land would not achieve the statutory criteria and achieve the statutory purpose.

[72]      The matter does not end there. We have reconsidered our findings in light of the directions in Part 2, including the further planning evidence produced during the Separation Distance hearing (which we said we would return to in the final decision). Having done so we are satisfied that the NOR, subject to the conditions we approved earlier, will promote the sustainable management of natural and physical resources.

Were there errors of law in the way the Environment Court had regard to RPL’s legitimate expectations in considering the issues which it had to decide?

[125]   In its notice of appeal, RPL contended:

4.1  The  Environment  Court  erred in finding that,  in accordance  with s

171(1)(b) of the Act, QAC had given adequate consideration to alternative sites.  That finding was made without undertaking a further evaluation in light of evidence concerning:

…

c)RPL’s substantive legitimate expectation that the QAC would use its own land and not RPL’s land, and that the Lot 6 land it owned would remain as a buffer zone.

4.2  The Environment Court erred in finding that undertaking the work on the QAC’s land for general aviation (“GA”) purposes would not promote the sustainable management of natural and physical resources. That finding was made without having regard to evidence concerning:

a)    New safety issues concerning the dual taxiway; and

b)RPL’s substantive legitimate expectation that the QAC would use its own land and not RPL’s land, and that the Lot 6 land it owned would remain as a buffer zone.

4.3  The Court erred in finding that its jurisdiction is founded in the relevant sections of the RMA.  Compliance with the RMA does not remove the need to comply with the common law, which exists independently of the RMA.

4.4  The Court applied an incorrect test when it stated in The Decision that RPL may legitimately expect compliance with the assurance given by the QAC subject only to an express statutory duty or power to do otherwise. The correct legal test is that RPL may legitimately expect compliance with the QAC’s assurance subject to satisfaction of the criteria stated in s 171(1) of the RMA, having regard to its substantive legitimate expectation that the QAC would use its own land and not RPL’s land, and that the Lot 6 land it owned would remain as a buffer zone.

4.5  Having accepted that RPL has a substantive legitimate expectation that the QAC would use its own land and not RPL’s land, and that the Lot 6 land it owned would remain as a buffer zone, the Court failed to give reasons for its decision that confirming the NOR is a proportionate response in the circumstances of the case.

4.6  The Court failed to have regard to the following relevant considerations when considering whether confirming the NOR is a proportionate response under s 171(1)(c) of the RMA:

a)The level of public interest required to override a substantive legitimate expectation should be compelling;

b)The onus is on the QAC to show compelling evidence as to why RPL’s private property rights, which are protected in law, should be overridden to meet its objective; and

c)The need for the QAC to fully assess the operational safety and efficiency of Queenstown Airport in order to show that confirming Lot 6 for GA activities in breach of RPL’s substantive legitimate expectation, is justified in the public interest.

[126]   Arising out of those submitted errors, RPL raised these questions on appeal which I answer as follows:

5.3  Did the Court err in determining that its jurisdiction is founded solely in the relevant sections of the RMA?

Answer  : No.

5.4  Did the Court apply the correct test as stated by the High Court namely that RPL may legitimately expect compliance with the assurance given by  QAC  subject  only  to  an  express  statutory  duty or  power  to  do otherwise?

Answer

Yes.

5.5: Did the Court fail to give reasons for its decision that confirming the NOR

is a proportionate response in the circumstances?

Answer

No.

5.6:  Did the Court fail to take into account the following relevant matters?

(a)   The level of public interest required to override a substantive legitimate expectation should be compelling;

Answer

No.

(b)   The onus is on the QAC to show compelling evidence as to why RPL’s private property rights that are protected in law should be overridden to meet its objectives;

Answer

No.

(c)   The need for the QAC to fully assess the operational safety and efficiency of the Queenstown Airport in order to show that confirming Lot 6 for GA activities in breach of RPL’s substantive legitimate expectation is justified in the public interest.

Answer

In its separation distance and final decisions, the Environment Court

explained why, on its assessment of all the evidence, it did not require an aeronautical study and CAA assessment of the operational safety and efficiency of that alternative. In doing so, it had regard to the public interest. The decision

it reached in this regard involved a factual evaluation and determination and is not amenable to appeal. There was no error of law in the decision it reached on this issue.

[127]   In  his  submissions,  Mr  Somerville  did  not  point  to  any passages  in  the Environment Court’s legitimate expectation decision, its 93 metre separation distance decision or its final decision consistent with it having determined the issues before it in any of those decisions solely with regard to the relevant sections of the RMA and ignoring legitimate expectation principles.  Rather, he argued that the conclusions it ultimately came to were inconsistent with what QAC had to establish for the purpose of the NOR to override RPL’s legitimate expectation entitlements.

[128]   The Environment Court had jurisdiction to consider and to confirm or modify the designation pursuant to s 149U(4) RMA. As Mr Casey submitted, the RMA will override common law rights.  In Falkner v Gisborne District Council, the High Court said:44

The whole thrust of the [RMA] regime is the regulation and control of the use of the land, sea and air … It is a necessary implication of such a regime that common law property rights pertaining to the use of land or sea are to be subject to it. …

[129]   This reasoning was followed in the High Court judgment where Whata J

concluded that:

[45]     The application of the doctrine will however depend entirely on the facts of the particular case.  But a key ingredient is whether there has been reliance on an assurance given by a public authority, made in the lawful exercise of the authority’s powers. If so, the affected person may legitimately expect compliance with that assurance subject only to an express statutory duty or power to do otherwise. In the present case, that must mean satisfaction of the criteria expressed at s 171 and in particular at subs (1)(b) and (c), having regard to any relevant legitimate expectations, properly established.  Fairness would then implore an outcome which is consistent with those expectations provided that the outcome met the statutory criteria and achieved the statutory

44     Falkner v Gisborne District Council [1995] 3 NZLR 622 (HC).

purpose.  Conversely, the Court, like QAC, cannot be bound to give effect to those expectations where to do so is inconsistent with the requirements of s

171.  In short the Court’s jurisdiction, thought wide, is framed by the scheme and purpose of the RMA.

(citations omitted)

[130]   In its legitimate expectation decision, the Environment Court, after recording its findings on the industrial land issue, said it was returning again to the High Court’s decision and specifically that part of Whata J’s judgment just cited.

[131]   The Environment Court considered that the enquiries under 171(1)(b) and (c) were inter-related, as if there was an alternative site for undertaking the work owned by the requiring authority, this begged the question whether the requirements for RPL’s land were reasonably necessary.  With reference to the expert evidence before the Court, it concluded that the consideration of the alternative northern location was “more than adequate”.  Revisiting the submission raised in the interim decision, that it was an inefficient use of resources to designate land owned by a third party where QAC owns land already designated for the purpose, it concluded that the safety and operational constraints on the airfield are such that the use and development of the alternative site would not be efficient.  It found that splitting the facilities north and south of the main runway would reduce the benefits which would otherwise accrue from the collation of all operations, and that such splitting “would not promote the sustainable management of natural and physical resources”. As a result, ‘fairness’, in the terms of Whata J’s test, did not require the NOR to be cancelled.

[132]   It was also in terms of the test as stated by Whata J that, in its legitimate expectation decision, the Court considered Part 2 RMA principles and s 171(1)(c). As already mentioned, it was not satisfied as a result of the legitimate expectation hearings that the works and designation were reasonably necessary in terms of s 171(1)(c), but

it considered this again in the separation distance hearing.  It noted RPL’s submission that it was incumbent on QAC to produce sufficient evidence on safety and operational efficiency to objectively justify the denial of RPL’s legitimate expectation. It referred to RPL’s argument that, in the absence of an aeronautical study, QAC had failed to establish there was an overriding public interest justifying the breach of its legitimate

expectations. In relation to that submission, it again referred to Whata J’s direction as to how legitimate expectation should be considered, as quoted above.

[133]   It  was  with regard to those submissions and observations that  the Court declined to confirm the designation and adjourned the proceedings for QAC to obtain an aeronautical study and the CAA’s response as to whether, and on what terms, the works and designation, as then modified, could be put into operation.  The Court said the adjournment of the proceedings for that purpose was justified, and that, “given the Court’s uncertainty, at this juncture, fairness would also employ this outcome in recognition of RPL’s legitimate expectation”.45    In adopting that course and in ultimately confirming the modified designation in its final decision, the Environment Court considered issues with regard to legitimate expectation against the provisions of the RMA as it had been directed to by Whata J.

[134]   RPL submitted “the correct legal test is that RPL may legitimately expect compliance with QAC’s assurance subject to satisfaction of the criteria stated in s

171(1) having regard to its substantive legitimate expectation”. That is the test which the Environment Court applied.

[135]   In its final decision, the Environment Court said:

[29]      RPL is right to say the outcome in these proceedings must be a fair and proportionate response.  The law of legitimate expectation is based on fairness, the broad principle being that good administration requires that public bodies deal straightforwardly and consistently with the public. Fairness implores an outcome which is consistent with those expectations provided, however, that the outcome meets the statutory criteria and achieves the statutory purpose.

[136]   It referred to the way the term “proportionate response” had been used by the English  Court  of Appeal  in  Nadarajah  v  The  Secretary  of  State  for  the  Home Department and then said “when expressed in the language of the RMA, the question of whether the NOR is a “proportionate response under s 171(1)(c) is to be considered

relative to QAC’s objectives”.46

45 At [270].

46     At [31]-[32], referring to Nadarajah v The Secretary of State for the Home Department [2005] EWCA Civ 1363.

[137]   In summarising matters that way, the Environment Court made it clear that it was concerned as to whether the outcome in the proceedings would be a fair and proportionate response to issues arising out of RPL’s legitimate expectation.  It also made it clear that its reasons for reaching the conclusion it did were to be found in the consideration it had given earlier as to possible alternative sites, whether the works and designation were reasonably necessary to achieve the objective for the designation, whether there was a nexus between the works proposed and the achievement of QAC’s objectives, the extent of the land required and whether QAC would actually be able to use RPL’s land for the proposed works.

[138]   The Court carefully considered the threshold QAC had to meet regarding whether the evidence was sufficiently compelling that, in the public interest, RPL’s legitimate expectation permitted approval of the NOR.   The Court had however considered the public interest in the context of the Court’s jurisdiction being framed

by the scheme and purpose of the RMA.   In broad terms, what the Court had to consider, in the public interest, were the Part 2 matters set out in ss 5 and 7 RMA. Those matters were considered and the Court’s ultimate evaluation of these issues was a decision on the facts not amenable to appeal.

Separate from the above issues, were there other respects in which, in a way that was material to the decision it reached, the Environment Court failed to consider relevant evidence?

[139]   RPL said in the notice of appeal that the Environment Court had made errors of law through failing to consider relevant evidence. The claimed errors, to the extent they have not already been discussed, were:

4.13The Court erred in finding that a Code C taxiway located at 168 metres as part of a dual taxiway, could operate safely.

4.18The Court wrongly exercised its discretion when it failed to have proper regard to the evidence called on behalf of RPL concerning the sufficiency of the Aeronautical Study.

[140]   The suggested questions of law and the answers arising out of those claimed errors for me to consider and my answers are:

5.12Is the case one in which the only reasonable conclusion contradicts the determination that a Code C taxiway located at 168 metres as part of a dual taxiway system could operate safely?

Answer

No.

5.14   Did the Court wrongly exercise its discretion when it:

a)    Failed to take into account evidence called on behalf of RPL

concerning alternative sites;

Answer

The Environment Court considered the evidence called on

behalf of RPL concerning alternative sites when it gave its first interim decision.   It considered  that evidence again when having regard to legitimate expectation issues in its legitimate expectation decision. Evidence which RPL had attempted to put before it as to alternative sites was ruled as irrelevant at the hearing leading to its final decision.

At that point, the Environment Court had already made substantive decisions with regard to the adequacy of QAC’s investigation as to potential alternative sites, s 171(1)(c), Part 2 and legitimate expectation issues.  Its decisions have not been appealed.

The evidence which the Environment Court refused to consider with regard to alternative sites was irrelevant to the issues which it had reserved to be determined in the hearing of 31 March 2017 and its final decision.  There was thus no error in the Environment Court refusing to have regard to that evidence.

b)    Failed to have proper regard to the evidence called on behalf of

RPL concerning the sufficiency of the Aeronautical Study?

Answer

There was no error of law on this basis. The Court did, in fact,

consider the evidence called on behalf of RPL as to the sufficiency of the aeronautical study. The assessment which the Environment Court made as to this evidence involved an evaluation and determination on the facts and is not amenable to appeal.

[141]   In its separation distance decision, the Environment Court considered the expert evidence as to what separation distance was required for the airport to operate safely with a dual taxiway.  The dispute between the experts was not over whether a dual taxiway could be operated safely but whether a dual taxiway was necessary and, if so, the separation distance required. As already noted, the Court was satisfied that, subject to certain operational restrictions, a dual taxiway could operate safely.47   The Court’s final decision was however reached only after the director of the CAA had confirmed QAC’s plan for the expansion, including the Code C taxiway located at 168 metres as part of a dual taxiway system, could be operated safely.

[142]   The decisions which the Environment Court came to in both the separation distance decision and the final decision on this issue were factual determinations. There was evidence on which the Court could reasonably come to the decision it reached.  There was no error of law in this regard and the determination which the Court came to in both decisions was not amenable to appeal.

[143]   In its final decision, the Environment Court noted that the aeronautical study obtained by QAC was reviewed by The Ambidji Group Pty Ltd for RPL and that it was highly critical of the aeronautical study.   The Court recorded that RPL subsequently filed extensive evidence challenging the aeronautical study.   The admissibility of most of that evidence was challenged by QAC but was admitted provisionally.

[144]   The Court said it had carefully considered the evidence of Mr Sachmann, Mr Morgan and Ms Selwyn, called on behalf of RPL.  To the extent that the evidence responded to evidence given by the General Manager, Operations and Safety for QAC, the evidence was relevant and admitted.  The Court reiterated that its enquiry did not necessitate an examination of alternative sites, having found in earlier decisions that QAC had given adequate consideration under s 171(1)(b) RMA to locating the Code C taxiway together with a proposed new GA precinct to the north of the main runway.

Evidence on that issue was regarded as not relevant to any issue before the Court.

47     Para [53] above.

[145]   The Court summarised its conclusion as to the rest of the evidence as follows:48

Having had regard to the evidence, we place little weight on the opinions expressed by RPL’s witnesses criticising the Aeronautical Study.  The Study has been accepted by the Director of CAA, and RPL has not sought a judicial review of his decision. Second, and notwithstanding the witnesses’ criticism, any residual safety risk is able to be addressed in the task specific safety cases.

[146]   The Court’s decision in this regard was as to a question of fact.   It was an evaluative exercise.  It is not amenable to appeal.

Other matters

[147]   In its amended notice of appeal, RPL had referred to claimed errors and questions of law relating to the Environment Court’s separation decision conclusions in finding that the minimum separation distance required between the Code C taxiway and the runway was 168 metres.   It did not pursue those grounds of appeal at the hearing.

Application to admit new evidence

[148]   On 23 November 2017,  just prior to the appeal hearing scheduled for 4

December 2017, RPL filed an application for leave to adduce further evidence and an application that the proceedings be adjourned. Both applications were made as a result of QAC on 29 August 2017 publicly announcing and releasing a master plan options document titled “Master Plan Options – Let’s start talking about tomorrow” (future options document).  The document purports to be an “open mind and a clean sheet approach” as to various options that could be considered to cope with demands over the next 30 years.  It is a document for discussion on which QAC invited feedback. One of the three options for discussion included a helicopter precinct located to the north of the current runway.

[149]   RPL sought an adjournment of the appeal on the ground that it had lodged an application for rehearing in the Environment Court on 22 November 2017.   It suggested it would be in the interests of justice for the hearing of the appeal to be

adjourned until the Environment Court had determined whether it needs to rehear the

48     Re Queenstown Airport Corporation Ltd, above n 23, at [77].

case.   It also wanted the future options document to be before the High Court as evidence on the appeal.

[150]   I refused to adjourn the appeal but reserved my decision in relation to the admission of the future options document as evidence for reasons discussed in a judgment of 30 November 2017.49  I said I would make a final determination as to the application for leave to adduce evidence after the appeal hearing.

[151]   At the commencement of the hearing, Mr Somerville made further submissions as to the relevance of the future options document but did not ask me to revisit the decision I had made as to the requested adjournment and accepted that my ruling as to the admission of the document as evidence would be dealt with in my judgment.

[152]   RPL says this document was not available at the time the proceedings were before the Environment Court.  It says it is particularly relevant because it includes information as to forecasted demands (7.1 passenger movements from both international and domestic flights in 2045 and 55,000 forecasted aircraft movements in 2045) which are significantly in excess of the forecasted demands which the NOR was designed to meet.

[153]   The document sets out three viable options for Queenstown Airport.  Option two is shown as including a terminal area, main terminal transport/parking area, private jet precinct and fixed wing GA precinct all on Lot 6, but with a helicopter precinct largely on existing airport land to the north of the runway.

[154]   Mr Somerville said the Environment Court had confirmed the NOR with a finding that QAC had adequately investigated the option of having all or some of the works north of the runway and had been justified in dismissing that as a viable option. He said option 2 in the future options document shows that, contrary to the expert evidence QAC called in the Environment Court and the findings of that Court, QAC

does see a helicopter precinct to the north of the runway as a viable option.

49     Remarkables Park Limited v Queenstown Airport Corporation Limited [2017] NZHC 2962.

[155]   RPL also suggests the document is relevant in that it indicates the way in which Lot 6 would be used, in accordance with the NOR as approved, will be neither sustainable nor efficient in the long term because, with that development, the airport will still not be able to cater for the demands that might be made on it over the next 30 years.

[156]   Mr Somerville submitted that this future options document is relevant in assessing the integrity of the reasons for the designation.   He submitted that, in essence, there is information in it which means that the whole process by which the Environment Court has approved the modified designation has been potentially unfair.

[157]   I have benefited from full submissions as to the issues that had to be considered on this appeal, with reference to evidence which the Environment Court had considered in reaching its decisions.  I have decided that the future options document is not sufficiently relevant to the issues which I had to consider on this appeal for it to be admitted as evidence. For such evidence to be admitted, when the appeal can be as to questions of law only, there would have to be, at the very least, exceptional circumstances or very special reasons for admitting the evidence.50  This is not such a situation.

[158]   The Environment Court was concerned with whether the works or designation were reasonably necessary for achieving the objective of QAC within the planning horizon then under consideration.   QAC’s evidence was that the designation was needed to provide new facilities “in the near future”.

[159]   In all three options referred to in the future options document, QAC would still be using that part of Lot 6 in the NOR designation as confirmed by the Environment Court for airport facilities. Although it would involve having a helicopter GA precinct to the north of the runway, option 2 would actually require the airport to extend over a significantly greater proportion of Lot 6 than would be permitted with the NOR

designation.

50     High Court Rules 2016, r 20.16; Chamberlain v Scott [2012] NZHC 2596, (2012) 21 PRNZ 176.

[160]   The summary in the future options document confirms that QAC is committed to progressing plans to build a parallel taxiway, it will remain a narrow body aircraft airport, and GA and private jet operations will continue to be key components.  The plan associated with option 2 shows that there would still be a GA and private jet precinct on Lot 6 to the south of the runway.

[161]   There is thus nothing in the future options document to indicate that the use of part of Lot 6, as confirmed with the NOR designation for airport purposes, would not be sustainable or efficient in the long term.

[162]   The future options document does not, on its face, suggest that it would be safe or more efficient to have a helicopter precinct to the north of the airport. The document is simply a basis for discussion.   The document states that any of the options for discussion “would require further aeronautical, operational and safety assessments”.

[163]   The future options document is obviously very much a platform for discussion. With the way any long term future development and expansion of the airport would have to be approved under the RMA, mention in the document of an option involving a helicopter precinct to the north of the runway could be seen simply as evidence that, in its long term planning, this option has been adequately considered by QAC, as would be required by s 171(1)(b) RMA.  Given the tenacious way in which RPL has, with regard to the current NOR designation, maintained that QAC did not adequately investigate that option, and the delays, costs and uncertainties that have resulted from that, there would be good reason for QAC to mention this as a possibility it intends to consider as part of more extensive long term planning.  Mention of it as a possibility is not inconsistent with the evidence its experts gave as to the safety or efficiency of such a possibility or the findings of the Environment Court in this regard.

[164]   In any event, the current appeal is over whether or not there were errors of law in the way the Environment Court dealt with relevant issues before it on the evidence which was then available. I do not consider the future options document demonstrates there was a factual error in the Environment Court.  Even if it did, this would not constitute special reason to admit it on an appeal limited to a question of law.

[165]   In Chamberlain v Scott, Fogarty J explained why there needed to be sparing use of the power in r 20.16 High Court Rules to admit new evidence, particularly in cases where appeals were limited by Parliament to issues of law.51  As he said, in such situations, Parliament has taken the view “that there will be one hearing or trial on the facts and therefore review is confined to issues of law, akin to judicial review. This is particularly the case with the Environment Court.”  He held that, arguing that new evidence totally undermines the weight that should have been  given to existing evidence or even that it showed the earlier decision was plainly wrong, would not justify the admission of the new evidence.

[166]   For all these reasons, the application to admit the future options document as evidence on the appeal is denied.

Conclusion

[167]   RPL has failed to establish that there was any error of law in the final decision of the Environment Court.  That has been reflected in my answer to all the questions of law which it argued arose with this appeal. The appeal is accordingly dismissed.

[168]   QAC are entitled to costs.  If costs issues cannot be resolved by agreement, QAC’s memorandum as to costs is to be filed by 30 March 2018. RPL’s memorandum in reply is to be filed by 20 April 2018.  Any reply for QAC is to be filed by 4 May

2018.  The memoranda are to be no longer than six pages.  I will deal with costs on the basis of those memoranda.

Solicitors:

R J Somerville QC, Barrister, Dunedin

Brookfields Lawyers, Auckland

Chapman Tripp, Auckland.

51     Chamberlain v Scott, above n 50, at [15].