Saddle Views Estate Limited v Dunedin City Council
[2016] NZHC 1721
•27 July 2016
IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY
CIV-2016-412-000085 [2016] NZHC 1721
BETWEEN SADDLE VIEWS ESTATE LIMITED
Appellant
AND
DUNEDIN CITY COUNCIL Respondent
Hearing: 26 July 2016 Appearances:
T J Shiels QC for Appellant
M R Garbett and R J Brooking for RespondentJudgment:
27 July 2016
JUDGMENT OF DUNNINGHAM J
[1] On 31 May 2016, the Environment Court issued an interim decision on the application by Dunedin City Council for a declaration.1 The declaration sought by the Council related to the terms and conditions of the consent which the appellant, Saddle Views Estate Limited (SVEL), held to quarry Jaffray Hill, one of the two hills which comprise the landscape feature known as Saddle Hill, near Mosgiel.
[2] The Environment Court declined to make the declaration sought by the Council. However, the Environment Court sought further submissions from the parties on whether it should make an alternative declaration under s 313(b) of the Resource Management Act 1991 (“the Act”) and, if so, on what terms.
[3] The Environment Court’s decision to consider an alternative declaration is the subject of SVEL’s appeal. SVEL says, until its appeal is heard, there should be a stay of the interim decision so that the parties are not required to make submissions
on the matters the Environment Court has directed.
1 Dunedin City Council v Saddle Views Estate Ltd [2016] NZEnvC 107.
SADDLE VIEWS ESTATE LIMITED v DUNEDIN CITY COUNCIL [2016] NZHC 1721 [27 July 2016]
[4] The issue before this Court is whether, pursuant to High Court r 20.10, I
should stay the Environment Court proceedings while the appeal is heard.
Background to the appeal
[5] As SVEL explains in its submission, the proceedings between the two parties regarding the existence and scope of SVEL’s ability to operate the Saddle Hill quarry, have some considerable history.
[6] On 7 April 2011 the Council filed an application for declaration as to whether SVEL had a lawful right to operate the quarry and, if so, what the extent of that right was under the Act. There were also successive associated applications for enforcement orders but they are not relevant to the present application.
[7] That initial declaration application was heard on 18 December 2012 and the Environment Court’s decision issued on 22 August 2013.2 In summary, the Environment Court found there was no consent under s 38A of the Town and Country Planning Act 1953 to quarry at Saddle Hill, nor was there a deemed resource consent under s 383 of the Act. However, the question of the nature and extent of existing use rights was reserved.
[8] On 18 September 2013, SVEL lodged an appeal of the Environment Court’s decision. Shortly afterwards, on 26 September 2013, the Environment Court issued a second decision on the application for declaration, where it declined to make a declaration as to the existence of rights under s 10 of the Act.
[9] The appeal was heard almost a year later, and the decision of Whata J was delivered on 20 November 2014.3 He allowed the appeal and set aside the declaration made by the Environment Court. The High Court decided not to make a declaration and Whata J noted that the activity was “in an unusual category … [as it] is authorised by a consent, but the precise terms for which cannot be accurately
defined”.4
2 Dunedin City Council v Saddle Views Estate Ltd [2013] NZEnvC 196.
3 Saddle Views Estate Ltd v Dunedin City Council [2014] NZHC 2897, (2014) 18 ELRNZ 97.
4 At [137].
[10] There was then a dispute over whether the Environment Court still had jurisdiction pursuant to the first declaration application to determine the scope of the consent held to exist by the High Court, or whether it was functus officio in respect of that application. That debate was resolved by the Council making a fresh application for a declaration in the Environment Court (the second declaration application). The interim decision on that application is the subject of SVEL’s current appeal to this Court.
[11] In the second declaration application, the Council sought a declaration in the following (or similar) terms:
Saddle Views Estate Limited has resource consent to operate a quarry located at 275 Saddle Hill Road, legally described as Lot 3 DP 317701 held in Certificate of Title OT 69455. This right to quarry is restricted to these terms and conditions:
Scope
The resource consent allows removal and processing of rock in the area identified as Area ‘B’ on the attached survey plan, and an access road located as shown on the aerial photo attached.
[12] The proposed declaration then went on to list five conditions which related to the extent and timing of the quarrying activity and to the remediation required.
[13] The second declaration was heard on 28 May 2015 by the same members of the Environment Court as had heard the first declaration application. The orders made in the interim decision are as follows:
A: Under s 313 Resource Management Act 1991 the Environment Court declines to make the precise declarations sought by the Dunedin City Council in respect of quarrying at Jaffray Hill
B: The parties are directed to lodge submissions on the issue identified in the final paragraph of the Reasons and on whether an alternative declaration should be made under s 313 of the Act in accordance with the following timetable:
Friday 24 June 2016 – submissions for Dunedin City Council;
Friday 15 July 2016 – submissions for Saddle View Estates Limited; Friday 29 July 2016 – submissions for the Council in reply.
C: Leave is reserved for the Council to apply, when lodging its submissions under Order B, for an alternative declaration(s) if on reflection it considers there is a more accurate statement as to the extent of the 1960 consent than that suggested by the court in the Reasons below.
D: Costs are reserved.
[14] At [148] of the interim decision, the Court listed some of the matters that it proposed should be addressed when filing submissions pursuant to Order B.
The appeal
[15] SVEL appeals against orders B and C.
[16] The alleged errors of law are expressed in the notice of appeal as follows:
1.1 Having declined to make the precise declaration sought by the Respondent (Order A), and having determined that there is no evidence “that the Taieri County Council put any limit on the area to be quarried when it gave consent in or about 1960” (para [80]), the Court was functus officio (except as to costs) and has no jurisdiction to consider alternate declarations restricting or preventing quarrying.
1.2 That it is not open to the Environment Court to make the alternate declarations suggested by the Environment Court having regard to the terms of the application pending, and that it would not now be open to the Environment Court to permit an amendment of the application to seek the alternate declarations suggested by the Environment Court.
1.3 That having regard to the decision of the High Court in [2014] NZHC
2897; (2014) 18 ELRNZ (being a decision on appeal from [2013] NZ Env 196, i.e. a decision by the Environment Court in ENV-2011-CHC-
32) it is not open to the Environment Court to entertain argument in
ENV-2015-CHC-20 or to determine that the consent given by Taieri
County Council in or about 1960 was not ‘in force’ on 30 September
1991 for the purpose of section 383 Resource Management Act 1991.
1.4 That it would be in breach of common law principles of fair trial, and/or common law principles of natural justice, and/or section 27(1) of the New Zealand Bill of Rights Act 1990 for the Environment Court to now consider granting alternate declarations not in accordance with either the terms or the substance of the application before it, such declarations having been suggested by the Environment Court and the Environment Court having reached preliminary conclusions on factual and legal matters supporting the alternate declarations.
1.5 A fair-minded observer might reasonably apprehend that, having regard to decisions and procedural histories in ENV-2011-CHC-32, ENV-2011- CHC-33, ENV-2012-CHC-127, ENV-2015-CHC-15, and ENV-2015- CHC-20, there is a real and not remote possibility that Environment
Court Judge JR Jackson, Environment Commissioner JR Mills, and Environment Commissioner OM Borlace might not bring impartial minds to the resolution of such remaining issues, if any, as require to be decided in ENV-2015-CHC-20.
[17] In summary, I consider the issues raised by the appeal are:
(a) what is the scope of the Court’s ability to make an alternative declaration under s 313(b) of the Act, including in light of the circumstances of this particular application? (grounds of appeal 1.1 and 1.2);
(b)does the principle of issue estoppel (which SVEL says arises as a consequence of the High Court’s decision), preclude the Environment Court from considering whether the 1960 consent was still in force on
30 September 1991? (ground of appeal 1.3);
(c) do the common law principles of natural justice and/or s 27(1) of the New Zealand Bill of Rights Act 1990 preclude the Environment Court from considering making an alternate declaration which is inconsistent with the declaration sought by either party? (ground of appeal 1.4);
(d)do issues of pre-determination or apparent bias arise in the circumstances, such that the Environment Court should be precluded from hearing and determining these remaining issues? (grounds of appeal 1.4 and 1.5).
Steps taken since the interim decision issued
[18] SVEL initially asked the Environment Court to stay its directions in the interim decision on the second declaration application, pending determination of this appeal. As Judge Jackson was on leave, the matter was referred to Judge Borthwick. She, understandably, considered she was not in a position to weigh the conflicting interests of the parties nor, in the absence of an application to the High Court seeking an order to stay the proceedings in the Environment Court, to make the directions
sought by SVEL that it file its submissions 10 working days after disposal by the
High Court.
[19] Instead, she sought confirmation of whether an application had been made to stay proceedings in the High Court and of any directions or orders made by the High Court. She also extended the time for filing submissions by SVEL and the Council in reply (noting the Council has already filed its primary submissions), and reserved leave to apply to further amend the directions for filing the balance of submissions in the Environment Court.
The application for a stay
[20] The application for a stay pursuant to r 20.10 has now been filed and, as the
Council opposed it, I heard argument on it.
[21] Rule 20.10 is expressed in permissive form and does not specify the factors to be considered. While reference was made by the parties to the decision of the Court of Appeal in Dymocks Franchise Systems (NSW) Pty Ltd v Bilgola Enterprises Ltd,5 which sets out a range of factors to be considered on an application for a stay, these were of limited relevance to the present case. Of the various factors discussed, the only factors which emerged as material were the following:
(a) if no stay was granted, would the applicant’s right of appeal be
rendered nugatory? and
(b) where did the overall balance of convenience lie?
[22] I consider the application turns on these factors because this is not a case where one party is seeking a stay of enforcement of a judgment pending appeal. Instead, the issue is whether it would be more convenient, and appropriate, to hear SVEL’s appeal before the Environment Court continues the hearing, than to allow the Environment Court process to run its course and then hear SVEL’s appeal (including any appeal of a substantive declaration decision), at the conclusion of that
process.
5 Dymocks Franchise Systems (NSW) Pty Ltd v Bigola Enterprises Ltd (1999) 13 PRNZ 48 (HC).
SVEL’s submissions
[23] SVEL accepted that its appeal in respect of grounds 1.1 and 1.2 would not be rendered nugatory if the stay was not granted. However, it considered that grounds
1.3 to 1.5 were in a different category as they related, more fundamentally, to whether the Environment Court, as presently constituted, was entitled to embark on a consideration of the issues that it was proposing to consider.
[24] In addressing the other factors identified in Bilgola, Mr Sheils QC, submitted that the questions on appeal were novel and important, noting there is no directly applicable authority on the scope of the Environment Court’s powers under s 313(b) of the Act to make any other declaration it considers necessary or desirable, nor how such powers intersect with issues of natural justice, rights to a fair trial, or perceived bias. He also submitted that there was a real public interest in the issue estoppel
argument.6
[25] However, he acknowledged that there were really only two options open to the Court. They were:
(a) to not stay the Environment Court proceedings, and adjourn the appeal pending the outcome of the further deliberations by the Environment Court;
(b)to stay the Environment Court proceedings and proceed with the appeal.
[26] In Mr Sheils’ submission, the overall balance of convenience favoured the second alternative, because the issues raised by the appeal are directly related to whether the Environment Court is even entitled to consider the matters it proposes to consider. Given the delays to date in resolving the issues between the parties, it would be more efficient to determine in advance the Environment Court’s
jurisdiction than to do so in retrospect.
6 In ground of appeal 1.3.
The Council’s submissions
[27] The Council opposed the stay. It noted that the orders made at B and C of the interim decision were only interim statements from the Environment Court, and did not represent decisions which were binding on the parties. In such circumstances, it requested the appeal itself be placed on hold to allow the Environment Court to issue a final decision. If that course was not taken, the parties would be required to litigate issues in the High Court which were based on an interim position which could ultimately change.
[28] The Council was also concerned about the real possibility that a second appeal to the High Court could result if the High Court heard the appeal now. This is because if the Council was successful in opposing the appeal, then a final decision would be required from the Environment Court which could still be the subject of another appeal. It would be more efficient if the Environment Court was able to make a final decision first, with the parties then lodging all appeals against the final decision at that point.
[29] The Council also expressed reservations about whether there was even jurisdiction to lodge an appeal against orders B and C of the interim decision, citing Federated Farmers of New Zealand (Inc) Mackenzie Branch v Mackenzie District Council.7 The Council submitted that an appeal could only be pursued against an interim decision if that decision finally resolves the particular issue which is being appealed. If it leaves the matter open for parties to return to the Court with further
submissions or evidence, then, notwithstanding the views expressed at the interim stage, it was not appropriate to appeal.
[30] In short, the Council considered that placing the High Court appeal on hold to enable the Environment Court to issue a final decision would allow the more just, speedy and inexpensive determination of the proceedings and would not prejudice the rights of SVEL, or the Council, to pursue any appeal from the final Court
decision, including the matters raised in grounds 1.3 to 1.5 of SVEL’s appeal.
7 Federated Farmers of New Zealand (Inc) Mackenzie Branch v Mackenzie District Council
[2013] NZHC 518 at [33].
Which proceedings should go first?
[31] As I have said, the real issue is whether the balance of convenience favours staying the Environment Court proceedings to allow the appeals against the interim decision to be heard in this Court, or placing this appeal on hold while the directions for filing further submissions in the Environment Court proceedings are completed, and a final decision then issues.
[32] In my view, the balance of convenience favours declining the application to stay the Environment Court proceedings. Rather, I consider that this appeal should be placed on hold until the conclusion of those proceedings.
[33] I have several reasons for reaching this view. It is clear that the Environment Court is seeking submissions both on the terms of any alternate declaration to be made and on whether one should be made at all. There is at least a possibility that the Environment Court will make no declaration at all. If that is the case then SVEL’s appeal would be rendered nugatory. Alternatively, if the Environment Court makes an alternate declaration (which it has, at least in theory, jurisdiction to do so under s 313(b)), then the appeal can be run in light of the declaration which actually issues. If the scope of the Environment Court’s powers under s 313 is to be explored, then I consider it is preferable that is done in light of the actual exercise of that power, because the appropriateness of the alternate declaration will depend on the circumstances of the case. It will require the Court to consider issues such as whether the parties (including any third parties), could reasonably have anticipated that the particular alternate declaration would be made and whether they have been given an adequate opportunity to respond to it.
[34] In other words, to the extent that an appeal will deal with the scope of the powers under s 313, that will best be dealt with in an actual, rather than hypothetical factual situation, and it will be helpful to have the Environment Court’s specialist views expressed on what they think the extent of those powers are. In any event, it will be more efficient for an appeal to be heard after the Court’s final decision is made and in light of the decision actually made and the reasons given for it, rather
than to make a decision in a void where it is not clear what the Environment Court proposes to do.
[35] Finally, and importantly, I consider that all the issues SVEL wishes to raise on appeal can be:
(a) raised with the Environment Court before its final decision is made;
and
(b) raised on appeal to challenge the final decision that is made by that
Court.
[36] In conclusion, I am not satisfied that the proceedings will be more efficiently disposed of by staying the Environment Court proceedings. Indeed I think the converse is likely.
[37] Accordingly, I making the following orders:
(a) the application for a stay of the Environment Court proceedings is declined;
(b) this appeal is placed on hold until the final decision of the
Environment Court on the second declaration application issues;
(c) within 10 working days of the conclusion of the appeal period following the issue of the Environment Court’s final decision, the parties are to file a joint memorandum in this Court which updates the Court, by addressing:
(i)whether any fresh or amended notice of appeal has been filed by either party; and
(ii)the standard directions for appeals in light of the appeal/s filed at that date.
[38] If directions to progress the appeal, or appeals, are agreed, then those directions can be made on the papers. Alternatively, if there are disputed matters, a further telephone conference will be convened with the parties to discuss these.
Solicitors:
O’Neill Devereux, Dunedin
Anderson Lloyd, Dunedin
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