Remarkables Park Limited v Queenstown Airport Corporation Limited

[2017] NZHC 2962

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE

CIV-2017-425-000035 [2017] NZHC 2962

BETWEEN

REMARKABLES PARK LIMITED

Appellant

AND

QUEENSTOWN AIRPORT CORPORATION LIMITED Respondent

Hearing:	29 November 2017
Appearances:	R J Somerville QC and B Milo for the Appellant M Casey QC and C Somerville-Frost for the Respondent
Judgment:	30 November 2017

JUDGMENT OF NATION J

[1]      On 5 May 2017, the appellant (RPL) filed a notice of appeal against a decision of the Environment Court dated 31 March 2017. On 12 June 2017, the appeal was set down for hearing over two days beginning 30 October 2017.  Submissions were filed for RPL on 28 August 2017 and for the respondent (QAC) on 29 September 2017. That hearing had to be adjourned due to the illness of counsel for QAC.   On 6

November 2017, the matter was set down for hearing in Christchurch on 4 December

2017.

[2]      On 23 November 2017, RPL filed an application for an adjournment of the hearing and an application for leave to adduce further evidence.

REMARKABLES PARK LTD v QUEENSTOWN AIRPORT CORPORATION LTD [2017] NZHC 2962 [30

November 2017]

[3]      RPL says that both applications are necessary because of a recent development which may impact on the correctness of the Environment Court decision, which is the subject of the appeal.

[4]      RPL says the Environment Court decision effectively authorised QAC to acquire part  of RPL’s  land known as  Lot  6  to  the south  of the airport  for the development of general aviation and helicopter facilities that are required to meet further  demands  on  the  airport.    RPL says  that,  in  reaching  that  decision,  the Environment  Court  accepted  the  case  presented  by QAC,  partly through  expert evidence,  that such  facilities, for reasons of safety and otherwise, could not be developed on land which QAC owned to the north.

[5]      On 29 August 2017, QAC published a document titled “Master Plan Options – Let’s start talking about tomorrow”.  The document, on its face, 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 invites feedback.   One of the three options for discussion would include a helicopter precinct located to the north of the airport.

[6]      RPL sought an adjournment of the appeal on the grounds that it had lodged an application for rehearing in the Environment Court on 22 November 2017 and 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 case. RPL also filed the application for leave to adduce evidence, essentially to put before the High Court the future options document recently published by QAC.   Both applications were opposed by QAC.

[7]      Counsel for both parties filed submissions and memoranda for the Court. Because of the closeness of the scheduled hearing, I convened a telephone conference with counsel on 29 November 2017.

[8]      For RPL, Mr Somerville submitted that an adjournment of the appeal would be in the interests of justice, both for the parties and with regard to the public interest. He argued it would be a more efficient use of Court resources for the appeal to await

the Environment Court’s decision as to whether this new document justifies it revisiting the decision which is now subject to appeal.

[9]      For QAC, Mr Casey QC submitted that, on its face, the various options for future development are advanced in ways, and subject to qualifications, that mean they are unlikely to impact on the determinations which the Environment Court reached on the factual issues before it. He indicated that QAC would be opposing the application in the Environment Court by RPL for a rehearing.  He also argued that the current appeal can only address the alleged errors of law that have been raised on the appeal. He submitted it would be in the interests of efficiency for the Environment Court to have the High Court’s judgment on the issues of law raised on the appeal when considering the application for a rehearing, and if the application succeeds and there is such a rehearing.

[10]     After hearing from counsel, I decided I would not adjourn the hearing of the appeal.  I indicated that I would reserve the application for leave to adduce further evidence for final determination when the appeal is heard.  I now set out briefly the reasons for those decisions.

[11]     It is in the interest of the parties and also with regard to the public interest for there to be certainty over whether or not QAC can expand to the south through acquisition of part Lot 6.  It is thus in the public interest that the litigation, which has been before the Environment Court and the High Court over that, be concluded without unnecessary delay.

[12]   The appeal relates to QAC’s notice of requirement (NoR) to extend a designation for general aviation purposes.

[13]     That  NoR  was  lodged  with  the  Environment  Protection  Agency  on  21

December 2010.  It was the subject of an Environment Court hearing in July 2012, an interim decision of 25 September 2012 and a final decision of 8 May 2013. That final decision was the subject of an appeal to the High Court and its of 12 September 2013. There were further hearings in the Environment Court in March 2014, June 2015, August  2015,  December  2015  and  February  2016,  and  a  final  decision  of  the

Environment Court of 31 March 2017.  It is that final decision which is the subject of the present appeal.

[14]   The future options document, if material, is relevant to the factual determinations made by the Environment Court.  If there is to be a rehearing in the Environment Court, it will be because the Environment Court decides the information in the future options document materially impacts on the correctness of the factual determinations it came to earlier.  The appeal relates to claimed errors of law.  Mr Somerville accepted that the High Court will not be entitled to review evaluative decisions which were reached by the Environment Court as to factual issues.  QAC’s issuing of the future options document is unlikely to be relevant in the High Court’s judgment as to whether errors of law did occur.

[15]     If the High Court decides there were errors of law in the way the Environment Court reached its decision which is the subject of the appeal, it is likely the proceedings would be remitted back to the Environment Court for further consideration.  If that were to happen, it would be of benefit to the parties, and reduce the prospect of further delays, if the Environment Court has the benefit of the High Court’s judgment on the legal issues which are the subject of its judgment.

[16]     With the hearing scheduled to begin on 4 December 2017, those benefits should be realised without there being any undue delay in the hearing of RPL’s application for a rehearing if RPL wished to continue with that application.

[17]     In that sense, the situation here can be distinguished from that in Makara Guardians Incorporated v Wellington City Council.1  There, but only by a fine margin, the High Court did agree not to immediately set an appeal down for hearing and adjourned the appeal for two six weeks to await and monitor progress on the application which had been made to the Environment Court. It appears the appeal and the application for a rehearing had been made at about the same time. The appeal had

not yet been set down for hearing.

1      Makara Guardians Incorporated v Wellington City Council HC Wellington CIV-2007-485-1742,

28 August 2007.

[18]     Here, the appeal was filed on 5 May 2017.  At the first case management conference on 2 June 2017, the parties agreed the appeal would proceed to hearing and agreed on the timetable for steps to be taken.

[19]     The Environment Court will be best placed to determine whether the issuing of the future options document could materially impact on the factual determinations it made in the judgment which is the subject of the appeal. It is being asked to do that through the application that has been made for a rehearing.  Mr Somerville did not suggest the hearing of the appeal will, of itself, prejudice RPL on its application for a rehearing. In his judgment in the Makara Gardians case, Associate Judge Gendall, as he then was, referred to Meadow Mushrooms Ltd v Paparua County Council, where the Planning Tribunal had said, under the then legislation, the Planning Tribunal could consider an application for a rehearing even after an appeal had been heard and determined.2

[20]     In summary, I consider that the parties and the public are likely to benefit from the hearing of this appeal proceeding as scheduled on 4 December 2017 and there is unlikely to be any prejudice if it does. It is thus in the interests of justice for the appeal to proceed and for the adjournment to be denied.

[21]     I have reserved my decision on the application for leave to adduce the further evidence so that I can consider it in the context of all the submissions I hear on the appeal with the more detailed understanding of the factual findings which are the context for the appeal. Reserving my decision in this way is unlikely to prejudice any party. If the application were to be granted, I would be considering the future options document as it stands without further evidence or cross-examination as to the background to it.  Mr Casey accepted that QAC would be relying on the form and content of that document as it stands in answering whatever points RPL might wish to make as to how it could affect the issues which the Court can properly consider on the appeal.

[22]     The application for an adjournment is thus denied.  The application for leave to adduce further evidence is adjourned for determination on the hearing of the appeal.

2      Meadow Mushrooms Ltd v Paparua County Council [1987] NZTPA 1.

Solicitors:

R J Somerville QC, Barrister, Dunedin

Brookfields Lawyers, Auckland
Chapman Tripp, Auckland.