Saddle Views Estate Limited v Dunedin City Council
[2018] NZCA 115
•23 April 2018 at 2.15 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA472/2017 [2018] NZCA 115 |
| BETWEEN | SADDLE VIEWS ESTATE LIMITED |
| AND | DUNEDIN CITY COUNCIL |
| Hearing: | 20 November 2017 |
Court: | Miller, Cooper and Asher JJ |
Counsel: | T J Shiels QC for Applicant |
Judgment: | 23 April 2018 at 2.15 pm |
JUDGMENT OF THE COURT
AThe application for leave to appeal is declined.
BThe applicant must pay the respondent costs for a standard application on a Band A basis and usual disbursements.
____________________________________________________________________
REASONS OF THE COURT
(Given by Cooper J)
Saddle Views Estate Ltd (SVEL) seeks leave to appeal from a decision of the High Court which allowed in part and dismissed in part SVEL’s appeals from two Environment Court decisions. The combination of s 308 of the Resource Management Act 1991 (the RMA) and s 303 of the Criminal Procedure Act 2011 means that an appeal to this Court may only be made with leave, and the Court must not give leave unless satisfied that the appeal involves a question of law of general or public importance.
The case is of some procedural and factual complexity, but we have not been satisfied that it raises any issue justifying a second appeal.
The history of this litigation includes four Environment Court decisions and two High Court judgments. It is necessary, albeit briefly, to summarise the history to explain the issues that now arise.
Background
SVEL is the current owner of a quarry on Saddle Hill near Dunedin which has been operated since about 1959 or 1960. There were issues as to the lawful authority for the activity, whether it was authorised historically by a Council consent and/or whether it had and could assert existing use rights for its continued operation.
In 2011, the Dunedin City Council sought declarations under s 310 of the RMA as to whether there was a lawful right for the quarry to operate on the site and, if so, the extent of that right. The Environment Court declared that there had been no consent for the activity and that there were no rights to carry out the quarrying activity under any deemed resource consent pursuant to s 383 of the RMA.[1]
[1]Dunedin City Council v Saddle Views Estate Ltd [2013] NZEnvC 196 at [97].
Section 38A of the Town and Country Planning Act 1953 (the TCPA) provided that except with the consent of the Council, no use of any land not of the same character as that which immediately preceded it could be commenced, after the date of the commencement of the section and before the date when a relevant district scheme became operative. The question of whether there was a consent for those purposes was a factual inquiry which engaged the Environment Court in a close scrutiny of the available evidence about what had taken place when the quarry activity commenced and subsequently in the 1960s and the 1970s (later events being considered for what light they could shed on what the parties must have considered the position to be when quarrying commenced).
SVEL appealed from the Environment Court’s decision to the High Court. Whata J delivered a comprehensive judgment on 20 November 2014.[2] Although he dismissed many of the grounds of appeal, he held the Environment Court had erred. He considered that the Council as the applicant had a persuasive burden to show that no consent had been granted.[3] SVEL, on the other hand, had an evidential burden of showing that there was a reasonable possibility there had been a consent. He agreed with the Environment Court that the absence of any contemporaneous record of the granting of consent raised a serious issue about whether that was the case.[4] Nevertheless, having regard to a particular letter written by a planning consultant from whom the Council sought advice in April 1966, the Judge said that he was “not satisfied on the balance of probabilities that consent was not granted for a quarry at Saddle Hill”.[5]
[2]Saddle Views Estate Ltd v Dunedin City Council [2014] NZHC 2897.
[3]At [134].
[4]At [135].
[5]At [135].
As a consequence, he allowed the appeal and set aside the Environment Court’s declaration.[6] The judgment included the following, under the heading, “Cautionary note–need for consensus on scope”:
[137] While I have declined to grant the negative declaration sought by the Council, I do not thereby affirm that the quarry is “expressly allowed by a resource consent” for the purposes of the removal of the entire hill. In the absence of a written record of the consent, it will be difficult for any Court to definitively find that this outcome is expressly allowed by consent. This places the activity in an unusual category. It is authorised by a consent, but the precise terms for which cannot be accurately defined. It seems to me that the next task for the parties is to seek to reach consensus on the proper scope of the activity, having regard to the full legal and factual matrix as at the time of the grant, including the likely scope of any grant given the implicit requirement at s 38A(2) to notify the public for activity that might significantly affect neighbourhood amenities.
[6]At [136].
The Judge’s reference to the expression “expressly allowed by a resource consent” was clearly a reference to the rule in s 9(3) of the RMA that no person may use land in a manner contravening a district rule unless the use is expressly allowed by a resource consent.
The Council made a new application for a declaration to the Environment Court on 6 March 2015. On this occasion, the Council sought a declaration that SVEL had a resource consent to operate the quarry, restricted to an area identified on a survey plan attached to the application, and subject to the condition that earthworks carried out would not visibly change the profile of the ridge line. In an interim decision, the Environment Court declined to make the declaration sought by the Council but gave the parties “one final opportunity” to make submissions in relation to a possible “more accurate declaration as to the extent of the 1960 consent.”[7] It set out on an indicative basis what the submissions of the parties should cover, these including limits as to the intensity of the activity.[8] It reserved leave for the Council to apply when lodging its submissions for an alternative declaration.
[7]Dunedin City Council v Saddle Views Estate Ltd [2016] NZEnvC 107 at [147]–[148].
[8]At [148].
The Environment Court’s final decision was issued on 13 October 2016 after the receipt of the further submissions.[9] The Court declared that:
(a)Consent had been granted in 1960 to Downer and Co to commence quarrying of Jaffray Hill to supply approximately 50,000 cubic yards of rock for the construction of a new airport at Momona.
(b)However, consent to commence an activity under s 38A of the TCPA was not, as a matter of law, still “in force” within the meaning of s 383(b) of the RMA. The Court reasoned that since s 38A of the TCPA related to the commencement of activities prior to a district scheme becoming operative the consent was spent once the activity had been commenced. When the district scheme became operative the activity in question, if in existence, was authorised by existing use rights.
(c)Whether and to what extent quarrying on Jaffray Hill was authorised under a deemed consent under s 383 of the RMA depended, amongst other things, on “whether as a matter of fact quarrying was an existing use under the TCPA 1953 on 2 November 1970” (when the relevant district scheme came into operation).
[9]Dunedin City Council v Saddle Views Estate Ltd [2016] NZEnvC 199.
SVEL appealed to the High Court. Dunningham J’s decision resolving that appeal is the subject of the present application. In her judgment, she described the effect of the Environment Court’s decision as meaning in practical terms that while a consent had been granted in 1960 under s 38A of the TCPA, there was no longer any right to quarry in reliance on that consent.[10]
[10]Saddle Views Estate Ltd v Dunedin City Council [2017] NZHC 1727, [2017] NZRMA 505 [High Court judgment] at [4].
A number of issues were canvassed in the High Court, but it is not necessary to mention them all. Dunningham J upheld SVEL’s argument that the Environment Court had exceeded its jurisdiction by making the declarations described at [10] (b) and (c) above, given the limited scope of the declaration that had been sought by the Council.[11] She considered the Environment Court should have given closer consideration to whether those declarations were necessary or desirable in terms of s 313 of the RMA. She reached a different conclusion in respect of the declaration described in [10] (a), which she considered dealt with an issue that properly arose on the Council’s application. She held that it was open to the Environment Court to enquire into what rights there presently were to quarry the site and make such declarations as it saw fit on that issue.[12]
[11]We are not called on to express any view on that aspect of the High Court judgment, and refrain from doing so.
[12]High Court judgment, above n 10, at [43].
The Judge rejected SVEL’s contention that the declaration was inconsistent with the judgment of Whata J. SVEL had argued that Whata J held that SVEL’s consent under s 38A of the TCPA was a deemed resource consent under s 383 of the RMA, and “the Environment Court could not make any finding which undermined or contradicted that finding.”[13] SVEL sought to rely on cause of action or alternatively issue estoppel. Dunningham J however concluded that Whata J had not squarely addressed the issue, nor decided it in SVEL’S favour.[14] Rather, he had simply found on the evidence as a whole that the Council had not shown that consent was not granted. Since Whata J had not purported to go beyond the position as it was in 1960, the judgment could not be taken as concluding under the RMA that the activity was authorised by a consent.[15] In a passage now focused on by Mr Shiels QC for SVEL, she observed that Whata J had not made findings on “the legal, or the factual, route from the grant of the consent in 1960 to the recognition of a resource consent under s 383” of the RMA.[16]
[13]At [62].
[14]At [65].
[15]At [67]–[68].
[16]At [68].
In other parts of the judgment the Judge rejected an argument advanced by SVEL that the Environment Court erred in law by concluding and declaring that the 1960 consent was limited by quantity and purpose. The particular issues advanced were described by the Judge as challenges to findings of fact made by the Environment Court.[17] She noted a contention advanced for SVEL that the matters raised were legal issues on the basis that “the existence of a consent is a question of law.”[18] She then said:[19]
… I do not consider that the assessment of the relevant facts that precedes that determination engages a question of law unless it is tainted by some error in the reasoning process.
The application for leave
[17]At [94]. The issues were discussed at [82]–[88].
[18]At [94].
[19]At [94].
There is no doubt about the basis on which this Court must deal with applications for leave to bring a second appeal. As noted earlier, we must be satisfied that the appeal involves a question of law of general or public importance.
The applicant seeks to advance three grounds of appeal. The first is a contention that the Judge erred in finding that the Environment Court had jurisdiction to enquire into and make declarations as it did, and was not bound by the application for directions. The second is that the Judge erred in failing to find there was an estoppel (or abuse of process) precluding the respondent from contending there was not a deemed land use consent under the RMA. The third is a claim that the Judge erred in finding that the assessment of relevant facts preceding a determination as to the existence and terms of a statutory consent does not engage a question of law unless tainted by some error in the reasoning process.
We are satisfied that none of the grounds referred to satisfies the statutory criteria for a grant of leave to bring a second appeal. Addressed generally they raise issues that very much arise out of the circumstances of this case and lack any quality of general importance that would justify a second appeal. Nor could they be advanced with any real prospects of success.
First issue
The first issue essentially asks this Court to give a kind of advisory opinion on the extent of the power conveyed by s 313(b) of the RMA. Section 313 provides as follows:
313 Decision on application
After hearing the applicant, and any person served with notice of the application, and any other person who has the right to be represented at proceedings under section 274, who wishes to be heard, the court may—
(a)make the declaration sought by an application under section 311, with or without modification; or
(b)make any other declaration that it considers necessary or desirable; or
(c) decline to make a declaration.
Consequently, in disposing of an application for a declaration the Environment Court may make the declaration sought “with or without modification”, or it may decline to make a declaration. Importantly, however, it may make any other declaration it considers necessary or desirable. This is a very broad conferral of power. No doubt there are limits on the power to make “any other” declaration, but it would not be appropriate to attempt to define those limits except in the broadest terms suggested by such concepts as rationality, relevance and natural justice.
Here, the council’s application was for an order that SVEL had a resource consent to operate the quarry, restricted to a specified area and subject to the condition that earthworks carried out would not visibly change the profile of the ridge line. The only issue that could be considered on a second appeal is whether the Environment Court had power to declare that consent was granted to commence quarrying subject to a limitation as to volume. We think it is clear it did, under s 313(b), if not (a). We can see no arguable question of law arising.
Second issue
As to the second issue, Mr Shiels QC seeks to advance for a second time the argument based on cause of action estoppel or issue estoppel, submitting that the terms of Whata J’s judgment on the first application for declaration meant that the Environment Court was precluded from making findings that were inconsistent with SVEL having at least some lawful right to quarry in reliance on a resource consent. Alternatively, Mr Shiels argued there had been abuse of process by re-litigation.
The issues addressed in argument were all related to the circumstances of this case. There was no general legal issue affecting either kind of estoppel or abuse of process such as might be said to be of general importance. The argument was based on a close focus on the true implications of Whata J’s judgment when properly analysed. This is not the kind of issue contemplated for a second appeal.
But even if it were, we see no prospect of a successful argument that Dunningham J had misunderstood or misconstrued Whata J’s judgment. Whata J was not able to be satisfied that there had not been a consent for the commencement of the quarry. So he declined to make the declaration sought. Some of the language he used might be construed as having reference to a wider kind of resource consent, but that does not affect the fact that he did not determine there was a deemed permission authorising ongoing activity for the purposes of s 383 of the RMA. Indeed, he could not have done so, without further information about any limits on what had been consented to beyond “commencement”. We see his “cautionary note”, set out above, as an express recognition of the limited effect of his judgment.
In other words there was no positive finding that there was a resource consent of the kind that might be necessary to provide ongoing permission for quarrying of the hill under s 383 of the RMA. Whether that was the case could only be determined in subsequent processes. It was those processes that led to the second declaration application and the Environment Court decision giving rise to the judgment of Dunningham J.
It follows that there could be no prospect of this ground succeeding on a second appeal.
Third issue
The third ground, as has been seen, is expressed in very general terms. Its focus is on the issues discussed by Dunningham J preceding her conclusion at [94], quoted in [14] above. SVEL essentially sought to challenge the Environment Court’s findings that the 1960 consent was limited by quantity and purpose, arguing on various grounds that the finding was inconsistent with other findings of that Court, or not supported by evidence, and unreasonable. We agree with the Judge that the issues were essentially factual in nature.
Mr Shiels argues that construction of the 1960 consent was a matter of law, but in the particular circumstances of this case that required factual findings, and the drawing of inferences. This is essentially the task the Environment Court carried out. We do not consider there is a legitimate question of law in this ground, still less one of general importance.
Result
The application for leave to appeal is declined.
The applicant must pay the respondent costs for a standard application on a Band A basis and usual disbursements.
Solicitors:
O’Neill Devereux, Dunedin for Applicant
Anderson Lloyd, Dunedin for Respondent
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