Saddle Views Estate Ltd v Dunedin City Council
[2014] NZHC 2897
•20 November 2014
IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY
CIV 2013-412-000465 [2014] NZHC 2897
BETWEEN SADDLE VIEWS ESTATE LIMITED
Appellant
AND
DUNEDIN CITY COUNCIL Respondent
Hearing: 8 & 9 September 2014 Counsel:
C S Withnall QC and T J Shiels QC for Appellant
M R Garbett and R J Brooking for RespondentJudgment:
20 November 2014
JUDGMENT OF WHATA J
SADDLE VIEWS ESTATE LIMITED v DUNEDIN CITY COUNCIL [2014] NZHC 2897 [20 November 2014]
TABLE OF CONTENTS
Introduction [1] Central issues in the Environment Court [4] The immediate background to this appeal [5]
The wider context
The site and the quarry [6]
Statutory regime in 1960 [6] The planning history [11] The wider history [13]
The Court’s reasons [14] Sections 9 and 10 [16] Jurisdiction [18]
Alleged errors of law
First alleged error of law – Wrong approach to hearsay evidence [20]
Assessment [23]
Second alleged error of law – Assessing weight statements against
interest [26]
Third and eighth alleged error of law: Misinterpretation of the
Edwards letter and wrongly held consent could not be a s 38A
consent [28] Assessment [32] Fourth alleged error of law: Wrongly treating documents as
referring to “existing use rights” [36] Assessment [39] Fifth alleged error of law: Wrong interpretation of documents in
light of later terminology and planning practice [40] Assessment [42] Sixth alleged error of law: Wrong test in the evaluation of
circumstantial evidence [44] Assessment [45] Seventh alleged error of law: Wrong treatment of newspaper
reports [47] Assessment [48] Ninth alleged error of law: Wrong interpretation of the word
“character” [49]
Assessment [52]
Tenth alleged error of law: Wrong interpretation of s 38A of
the TCPA [62]
Eleventh alleged error of law: Irrelevant findings of conflict
of interest [64]
Twelfth alleged error of law: Speculation about invalidity [68] Assessment [69] Thirteenth alleged error of law: Speculation about “planning
approval” in respondent’s concession [70] Assessment [72] Fourteenth alleged error of law: Burden of proof [73] Assessment [75] Fifteenth alleged error of law: Disregarding relevant evidence
of the existence of a consent [77] Assessment [81] Sixteenth alleged error of law: True and only proper finding was
that a consent existed [84] Materiality of errors [85] Relief [88]
Resolution
Burden of proof [89]
General principles [93] NZBORA [95] The statutory frame [98] Natural meaning [102] Justification [106] The proper approach [114] Applying the three steps [115] Evidence of consent [116] Evidence as a whole [126]
Outcome [130] Result [136] Cautionary note – need for consensus on scope [137]
Costs [138]
Introduction
[1] The Environment Court made a declaration that a large, 55 year old quarry was not authorised by a consent. The owner of the quarry, Saddle Views Estate Limited (Saddle Views) appeals under s 299 of the Resource Management Act 1991 (the RMA) on the basis that the Environment Court made 16 errors of law - a truly remarkable feat, if correct, given that the Court was essentially engaged in a single issue inquiry.
[2] It transpires that the Court made one clear error. The Court found that Taieri County Council (the TCC) had a conflict of interest over the use of the quarry.1 This finding informed the Court’s overall assessment that it was more likely that a consent or permission was not granted to authorise the quarrying.2 The Council disavows any conflict and Saddle Views says there was no evidence on it. I am also advised by counsel that they were not given the opportunity to submit on the existence or relevance of this conflict. In so doing the Court fell into procedural and substantive error.3 No regard should have been had to the conflict of interest without putting the issue of conflict to the parties.
[3] Ordinarily I would simply refer the matter back to the Environment Court for its reconsideration given the fulsome fact finding review undertaken by it. But, by the end of the hearing, both parties requested that I assess the merits. This is difficult given the scheme of the RMA and the limited jurisdiction of this Court to resolve
issues of law, not fact.4 Any merits assessment must be approached with caution
and, where appropriate, with due deference to the Environment Court’s findings.5
Accordingly, I will:
(a) briefly set out the (essentially undisputed) background to the current appeal;
(b) summarise the key findings of the Environment Court;
1 At [69], [79] and [80].
2 At [80] and [97].
3 Tainui Maori Trust Board v Treaty of Waitangi Fisheries Commission [1997] 1 NZLR 513 (PC).
4 Port Otago Ltd v Dunedin City HC Dunedin AP112/93, 15 November 1993 at 9.
5 At 9.
(c) address the alleged errors of law; and
(d) resolve the central issues (as far as I am able) in light of the above.
The central issues in the Environment Court:
[4] The Council sought the following declarations:
a.Whether there exists a lawful right for the Saddle Hill Quarry to operate on the site at 275 Saddle Hill Road, Saddle Hill (legally described as Lot 3 DP 317701 held in Certificate of Title OT 69455); and
b. If so, the extent of that right under the Resource Management Act
1991.
The immediate background to this appeal
[5] A quarry has operated at the current rate of extraction since 1960. This has caused significant controversy over many years because of the effect of quarrying on Saddle Hill, a local feature said to have been sighted by Captain Cook. There have been at least two investigations into the legality of the operations, including by the Minister of the Environment in 1974. Those investigations concluded that nothing could be done to curtail the quarrying. However, after Saddle Views recently appeared to claim that it could remove the entire hill, the Dunedin City Council commenced enforcement proceedings to ring fence the operations. It was then agreed that declarations should be sought by the Council as to the legal status of the quarry operation. An application was duly made and the Environment Court
resolved:6
[97] We find that the evidence establishes on the balance of probabilities that the Taieri County Council did not grant consent under s 38A of the TCPA 1953 to Downer in 1959 or 1960. Consequently we hold that a “permission” does not exist which could be deemed to be a resource consent under the RMA. We will make a declaration to that effect.
6 Dunedin City Council v Saddle Views Estate Ltd [2013] EnvC 196.
The wider context
The site and the quarry
[6] I adopt the site description provided by the Environment Court:
[14] Saddle Hill is close to Mosgiel and about 18 kilometres from the Octagon in Dunedin. One or other of its two peaks is sometimes called Jaffray Hill due to the long association with William and Margaret Jaffray (some early Scottish settlers) who purchased the land in the late 1840s and built a house between the peaks. However, the peaks, together with the land between them, have been generally referred to as Saddle Hill in the district plan and other documents, as it is all part of the same land feature. Because the name ‘Saddle Hill” better describes the whole complex, that is the two peaks and the land between, we will continue with that usage. The hill on which SVEL is quarrying is called “Jaffray Hill” on the Land Information New Zealand Map NZ Topo50-CE16 (Mosgiel) so we will follow that usage.
[15] In the 1950s the owner of the land was a company called George Scurr and co. Ltd (“Scurr and co.”). That company leased the land or part of it to a construction company called Downer and Co. Ltd. In 1960 Downer commenced quarrying on a royalty basis on the face of the hill visible from Taieri Plain, because of the high quality of the metal, and its accessibility. The reason for Downer’s quarrying was “… because of their contract requirements for a substantial quantity of high class metal … for the construction of the Momona Airport”. Momona Airport is the principal commercial airport for Dunedin and is located on the Taieri Plain, south of Mosgiel and to the east of the whaleback shape of Maungatua.
[16] An aerial photograph taken in 1962 shows that quite extensive quarrying on both the northern (or pommel) side of Jaffray Hill and on the southern side had taken place since 1959.
[17] Downer operated the quarry until 1965 when it sold “the [crushing] plant” to George Scurr and Co Ltd. It is noteworthy that no rights were sold with it, leading to a possible inference there was nothing to sell.
Statutory regime in 1960
[7] As there was no district scheme in the 1950s, the ability to control the Saddle Hill quarry initially rested on s 38 of the Town and Country Planning Act 1953. This enabled control via an “undisclosed district scheme”. But there is no evidence of an undisclosed district scheme.
[8] Section 38A of the TCPA was then introduced under the Town and Country
Planning Amendment Act 1957. Section 38A(1) stated:
38A
(1) Except with the consent of the Council, no use of any land or building that is not of the same character as that which immediately preceded it shall be commenced by any person after the date of the commencement of this section and before the date when the relevant district scheme or section thereof becomes operative in any case where the use detracts or is likely to detract from the amenities of the neighbourhood.
[9] Section 38A then provided for an application process and recorded that:
(2) In any case where application is made to the Council for its consent under this section, if the Council so determines or any regulations made under this Act so require, particulars of the application shall be published by the council at the expense of the applicant in some daily newspaper circulating in the district, and copies of the application shall be forwarded to the occupiers of all properties in the vicinity who in the opinion of the council may be affected by the proposed use.
(3) The applicant and every person who claims to be affected by the proposed use shall have a right to be heard by the Council in person or by counsel and to call evidence in support of his contentions; and may appeal to the Board against the decision of the Council within fourteen days after that decision is given.
(4) No use of any land or building established in contravention of the section shall be an “existing use” within the meaning or for the purposes of Section 36 or Section 37 of this Act.
[10] There is no dispute that the pre-1960 quarrying activity was materially smaller in scale and character than the quarrying undertaken by Downer in the early
1960s and then carried on by Mr Scurr and subsequent quarry operators.
The planning history
[11] The planning history is also essayed by the Environment Court and again is not disputed. In the 1950s the Saddle Hill quarry was subject to the jurisdiction of the TCC. TCC was obliged to produce a district scheme but did not do so until about November 1967 and that scheme became operative on 2 November 1970. Saddle Hill was then zoned Rural B zone in which quarrying was a conditional use.
[12] In October 1977 TCC was merged with Silver Peaks County Council. Silver Peaks County’s district scheme was notified in 1984 and became operative in December 1986. Again quarrying was a conditional use. In 1989 Silver Peaks was amalgamated with Dunedin City and Dunedin City’s district plan was notified in
1995. Saddle Hill quarry is not among the quarries scheduled in the district plan. It was subject to a rural zoning and also classified as part of the “Saddle Hill landscape conservation area”. A resource consent is required for any quarry operations in this area.
The wider history
[13] The Environment Court’s chronology of events is based on the documentation assembled by Mr Abercrombie, whose evidence was not challenged. I therefore adopt it, without, for present purposes, accepting the Court’s interpretation of that documentation:
3.2 The events of 1959 and the 1960s
[47] Mr Abercrombie's affidavit usefully establishes why activity on Jaffray Hill increased in 1960. He produced documents showing that the District Commissioner of Works ("DCW") advertised for suppliers of gravel for a new airport at Momona – now formally known as "the Dunedin Airport"- in 1959. Downer obtained the contract and supplied basecourse of crushed rock from the quarry and river gravel for the sub-base. As from
27 July 1960 Downer advised the DCW it would "step up" production of subbase course to "5,000 yds weekly" and basecourse to "2,000 yds weekly".
[48] As early as August 1960 there were concerns about quarrying of Jaffray Hill/Saddle Hill. The Otago Daily Times for 27 August 1960 records that:
East Taieri residents have been worried at the thought of Saddle Hill losing its appearance with the removal of rock from the smaller cone.
The article also contained the byline:
Saddle Hill will not be losing its familiar shape [at] the expense of
Momona airport. It continued:
Fifty thousand yards of rock is to be excavated from the well-known landmark to provide basecourse material, but this will not materially affect the hill's features.
Mr AD Swainson, a spokesman for Downer and Co, the contractors on the Momona project, gave this assurance last night.
"We realise the hill's historical value," he said.
Saddle Hill contained millions of yards of material; enough for 50,
60 or maybe even 1,000 Momona airport projects. He doubted anyone alive today would see its shape altered.
….
[49] The article continued:
Mr Swainson explained that authority to excavate the material had come from Mr George Scurr of Abbotsford, who owned most of the hill.
Rock was being taken from the small southern knob for crushing, and quarrying was at present being carried out on the western side of this knob because of the better rock there.
So far, about 8,000 yds of material had been removed. It was being stockpiled until the weather permitted its being placed. The company planned on excavating about 2,000 yds a week until January.
[50] On 23 September 1960 Mr George Scurr, a principal of Scurr and Co., was quoted in the Otago Daily Times ("ODT") as saying "Saddle Hill is freehold property - we own it. The quarrying work will not affect the appearance of the hill for many years to come."
[51] In the same article in the ODT, but on a later page, Mr AD Swainson, South Island Manager of Downer, was quoted as saying:
The intention [is] to quarry in all some 50,000 cubic yards of rock for the hill. The point from which the rock [is] being taken [is] the site of a quarry from which rock had been taken for some years.
The TCC Minutes
[52] One of the most relevant parts of Mr Abercrombie's research was his locating and producing the Taieri County Council's Minutes for 1960- actually from 18 December 1959 to 27 January 1961. The council appears to have met monthly towards the end of the month, usually with the finance committee meeting in the morning, and the full council in the afternoon.
[53] The Minutes show that the Councillors from late 1959 through to early 1961 were Messrs Ross (chair), Finnie, Findlay, Free, Jones, Miller and Stevenson.
[54] The TCC's monthly meetings were concerned with the routine business of a county at the time - issues about road conditions and maintenance, reserves, gravel pits, rates, plant, and dealings with other authorities (Fire Authority Committees, the Metropolitan Milk Board, the Dunedin City Council, and the Ministry of Works). As Mr Abercrombie pointed out there were regular reports from the County Engineer which were routinely read and approved, after the Minutes of the previous meeting were read and confirmed and the Finance Committee's report adopted (all by seconded motion).
[55] The council was regularly involved in relation to planning matters. Inspection of the minutes shows discussions and sometimes motions on the following issues:
• subdivision of land at Valpy's Comer and transfer to Green Island
Borough Council (meetings 25/3/60 and 24/6/60 amongst others);
• removal of hoardings (meeting 26/2/60);
• subdivision at Mosgiel (meeting 25/3/60);
• erection of a scout den on a road (meeting 25/3/60);
• future of the now-replaced Taieri airport (27/5/60);
• prohibition of subdivision under section 38 of the TCPA (1953) (Finance Minutes 22/7 /60);
• industrial zoning at Mosgiel (28/1 0/60);
• subdivisions at Halfway Bush and Factory Road (25/11/60);
• rezoning from residential to light industrial - County Clerk authorised to sign affidavit (16/12/60).
1964 to 1965
[56] The ODT of 15 February 1964 records that Momona airport construction had been completed but that quarrying continued. Mr George Scurr was quoted as saying that 150,000 yards of the best quality metal "had been won from the hill, and that quarrying would continue". Mr Scurr is also reported as having said "I have at no time given an assurance that the face of Saddle Hill would not be disfigured, and no other person has authority to give such assurance".
[57] After Downer withdrew, Scurr seems to have continued operating at or approaching the new scale, not at its pre-1960 small scale. This caused some concern to locals. In 1964 a Mr R Smellie of North Taieri wrote to the Taieri County Council. The council's Minutes of 20 March 1964 record that Mr Smellie was:
... drawing attention to the desecration of ... Saddle Hill, and asking whether anything could be done to preserve the land. [After] discussion it was finally resolved on the motion of Crs Miller and Walker ... "Received".
[58] A local newspaper, The Evening Star, reported on 21 March 1964 the Councillors' debate as follows:
The Taieri County Council decided at its meeting ... [to take no]
action on the "desecration of Saddle Hill."
A letter from Mr R Smellie, a ratepayer, asking for the council "to deplore the desecration of Saddle Hill," was received but no action would be taken.
In moving that the council ... to Mr Smellie's letter, Cr J A Jones said "We [could] be late, but it's never [too] late to save an historic landmark."
Cr R A Stevenson: There's not a show in the world of stopping the work now. Anyway, where else would you get that quality [of] stone from? Let the owner do what he likes; it's his land."
Cr D Finnie: "Where do you propose to get that quality highway stone from if you stop the quarrying? Tests have shown there is no other suitable rock around here."
MOTION LOST
The motion was lost 4-3.
"I've had scores of people approach me-at least I've lodged my protest," Cr Jones said.
…
1966
[60] Further concern from some voters about quarrying on Saddle Hill appears to be reflected two years later in the Minutes of the TCC in March
1966. These record:
Councillor Chisholm raised the question regarding excavation at present being carried out at Saddle Hill and ... it was resolved that the Planning Officer be asked to report as to whether any restriction to preserve the hilly [outline] can be placed on excavation work of this nature.
[61] In response to that request, on 31 March 1966 the County Clerk
Mr J M Smithson wrote this letter:
Mr. C.R. Edwards, P.O. Box 5052, DUNEDIN.
Dear Sir,
During the meeting of my Council held last Friday discussion took place on the excavation which is at present taking place in the Saddle Hill area.
Council has asked me to request you to report as to whether any restriction can be placed on excavation of this nature.
I shall be pleased if you will kindly make arrangements for your report to be forwarded in time for our next meeting which will be held on Friday 29th April.
Yours faithfully,
(J.M. SMITHSON) COUNTY CLERK
[62] Mr Edwards from the "Otago Planning Group", TCC, reported to the
County Clerk by letter dated 26 April 1966, writing:
Dear Sir
I understand that the Council is anxious to know if any restriction can be placed upon the excavation which is at present being carried out by Messrs Geo. Scurr & Co. Ltd.
The original permit in respect of this quarry was, I believe, granted by the Council to another firm and the project was some time later taken over by Scurr’s. If memory serves correct, the original consent was made conditional that landscaping etc was to be carried out as each part of the area was excavated but I cannot recall any limit to the area to be excavated being imposed.
It is pointed out that any consent granted by the council is given in connection with the use of the land regardless of ownership and that once a consent has been granted, that use received the "existing use" protection of the Town and Country Planning Act 1953.
I understand from discussion with the County Engineer that members of council are fearful of the disfiguration of the skyline in this particular area. Unfortunately there seems little the council can do in this respect other than to appeal to the present operators of the quarry to refrain from destroying the outline.
Yours faithfully
C R Edwards
This letter is important to SVEL's case and we consider it later...
[63] At the meeting of the council in 29 April 1966 that letter was considered and the council resolved that a letter be written to Messrs George Scurr and Co Ltd "appealing to them to refrain from destroying the outline" of Saddle Hill.
3.3 The 1970s
[64] In the early 1970s there were complaints by locals to the Government in Wellington. To an enquiry by the Minister for the Environment, a letter dated 31 January 1973 from the County Clerk, Mr J M Smithson, states:
I have been asked by Council to inform you that the consent for the quarrying was given by council in 1960, primarily for the production of metal for the construction of the Dunedin Airport at Momona.
The area had, in fact, been used as a quarry for many years prior to this.
The use as a quarry would in any case have protection as an "existing use" so that anyone desiring to stop the operation would presumably have to buy out the quarry.
[65] SVEL claims that position is corroborated by a "report by a staff member for the Commissioner for the Environment written to the Director General of Lands dated 19 March 1973" which states:
... However, as I told you, the County Clerk for Taieri County informed us that as the consent for the quarrying was given by his council in 1960 before it promulgated a District Scheme under the Town and Country Planning Act, the only way to stop the quarrying operations would be to buy out the quarry since it was an "existing use" under the Act ...
….
[66] Similarly, in a sequence of letters and memoranda in the Ministry for the Environment's file for 1974 we find:
•a letter from the Minister for the Environment to Mr I Quigley, MP, dated 8 November 1974. This contains comment made that the quarry had been in operation for many years and is an approved use of the land.
• a press statement issued by the Minister for the Environment dated
8 November 1974 -there was no practicable or reasonable way in which quarrying on 'Jefferey's Hill' could be stopped. The owner had
been quarrying for many years with the full authority of the County
Council and was quite within his rights to continue quarrying. The
Minister alluded to protection being sought with regard to the larger of the two hills and that this be achieved through the District Planning Scheme.
• memorandum from Secretary of Mines to the Commissioner for the
Environment dated 11 June 1974.
•a letter from Prime Minister's office dated 17 June 1974 and from the Prime Minister dated 11 December 1974
…
[67] The CFE File also showed some involvement by the following
Ministers and Members of Parliament:
• Prime Minister (Hon W E Rowling)
• Ministers for the Environment (J A Walding, T W M Tirikatane- Sullivan)
• Minister of Internal Affairs (D A Highet)
• Ministry of Works (Percy B Allen)
• W A Fraser, Minister of Housing
• H May, Minister of lnternal Affairs
• Minister of Lands (M J Faulkner)
• Hon Duncan McIntyre
• Mr I T Quigley MP
[68] The position of these Officers of the Crown and of the Members of Parliament is perhaps summarised in the Minister for the Environment (Honourable Ms Tirikatane Sullivan) Press Release (8 November 1974) which started "I see no practicable, or reasonable way, in which quarrying on Jeffrey's [sic] Hill can be stopped." It continued with the reasons for that, including this statement:
... I fully appreciate the strong feelings which local residents and others further afield have on this issue. I too would like to see the profile protected, but there are also other factors which must be taken into account. These are that the land is in private ownership, the owner has been quarrying for many years with the full authority of the County Council, and is quite within his rights to continue quarrying. The outlay which has been involved for him represents a most substantial investment. It should also be noted that a benefit of the quarry is ready access to high grade metal for roading construction in the surrounding area.
…
Other relevant circumstances
[69] The council used 7,000 cubic yards per annum from the quarry. That was merely continuing a practice for the early 1960s, as the TCC minutes (quoted earlier) show. We find that the TCC had a conflict of interest over the use of the quarry.
3.4 Evidence of the landowner's and quarry-operator's position
[70] A letter dated 13 December 1973 from Hutchison Hull & Co. (Chartered Accountants) on behalf of Scurr and Co. to the Minister for the Environment contains a history of quarrying operations. It states:
... the company was incorporated in 1923 primarily for the purpose of recovering minerals in the area under discussion. Shares in the Company have been owned by the Scurr family since the formation of the Company. Many tons of coal were removed from Saddle Hill under terms of a mineral licence, and for forty-six years the Company supplied dross to the Mosgiel Woollen Mills. In 1937 the freehold of the area was purchased to provide greater security for the operations of the Company, who diversified into farming on a major scale.
In 1960, Downer & Co. Ltd. because of their contract requirements for a substantial quantity of high class metal of M.O.W. standard for the construction of the Momona Airport, built the existing crushing plant which is located out of sight of the general public at the foot of
the hill. They also commenced quarrying on a royalty basis on the face of the hill visible from Taieri Plain, because of the high quality of the metal, and its accessibility.
After their contract was completed, Downer & Co. Ltd. continued to operate the quarry for a period until in 1965 the plant was sold to our clients. Prior to Downers activity on the hill, the Taieri County Council had obtained some metal from the hill for roading purposes.
From this brief summary you can see that George Scurr & Co. Ltd. is a mining company established in the area for over fifty years. They are therefore very conscious of their responsibilities to the community. However it is fair comment that these responsibilities work both ways, and the metal extracted from the hill is much in demand by the M.O.W. and local authorities for main highway development and general roading maintenance in the area, as well as for flood protection and airfield construction etc. In fact almost all metal produced is supplied either to the M.O.W. (directly or through Contractors), or to the Taieri County Council, Mosgiel Borough Council or Catchment Board, all of whom are entirely satisfied with the quality of the metal produced and its availability locally. This considerably reduces the cost of transport which would otherwise be incurred.
Because of this substantial local demand, and in order to provide a reasonable financial return on their investment in quarrying operations, our client expects to continue removing metal from the hill for some years to come.
[71] In 1974 Mr Scurr is reported in (we think) the Otago Daily Times as saying:
Saddle Hill has been the property of our family for the last 50 years. It is a business on freehold land and we are free to do with it what we wish ...
Saddle Hill may be a monument to Captain Cook but Momona Airport and the local roads are a monument to the hill. We have provided metal for roading works since 1960 and before that the hill was mined for coal, he said.
…
The Court’s reasons
[14] The central reasons for the Court’s decision can be summarised as follows:
(a) The Environment Court found that the contemporaneous evidence does not support the grant of a consent and in particular there is no
record of an application for consent or of the approval or granting of a consent.7
(b)There is no contemporaneous evidence that the owner and/or the operator of the quarry asserted or stated that a consent had been granted.8
(c) The non-contemporaneous record, including Council minutes, correspondence from Council staff, utterances by landowners and correspondence from Ministry officials does not reliably support the existence of a consent having been granted in 1959 or 1960 for the
quarry activity.9
(d)The expert opinion evidence in support of the existence of a consent was flawed and in particular Mr Andersen did not appear to appreciate that a consent under s 38A of the TCPA was not necessary.10
(e) The Environment Court also did not accept that the Council planner conceded that a consent had been granted.
[15] It is unnecessary to further elaborate on the reasons given by the Court at this juncture, because they are fully addressed in the canvas of the alleged 16 errors of law. But in summary, the Environment Court did not accept that the contemporaneous evidence supported the conclusion that a consent was applied for or granted in 1959 or 1960. It also found that the indirect non-contemporaneous record did not support the conclusion that a consent had in fact been granted.
Sections 9 and 10
[16] Sections 9 and 10 of the RMA set out the frame for the declarations sought. In particular, section 9 stipulates:
7 Dunedin City Council v Saddle Views Estate Ltd, above n 6, at [74], [78] and [91].
8 At [70], [71].
9 At [78], [79], [80], [84], [85], [88] and [87].
10 At [90].
9 Restrictions on use of land
...
(3) No person may use land in a manner that contravenes a district rule unless the use—
(a) is expressly allowed by a resource consent; or
(b) is allowed by section 10; or
(c) is an activity allowed by s 10A.
[17] Section 10(1) states:
10 Certain existing uses in relation to land protected
(1) Land may be used in a manner that contravenes a rule in a district plan or proposed district plan if–
(a) either–
(i) the use was lawfully established before the rule became operative or the proposed plan was notified; and
(ii) the effects of the use are the same or similar in character, intensity, and scale to those which existed before the rule became operative or the proposed plan was notified:
(b) or–
(i) the use was lawfully established by way of a designation; and
(ii) the effects of the use are the same or similar in character, intensity, and scale to those which existed before the designation was removed.
Jurisdiction
[18] Section 299 of the RMA confers a right of appeal on questions of law only. As stated in Countdown Properties (Northlands) Ltd v Dunedin City Council:11
…this Court will interfere with decisions of the Tribunal only if it considers
that the Tribunal:
11 Countdown Properties (Northlands) Ltd v Dunedin City Council [1994] NZRMA 145 (HC) at
153.
· applied a wrong legal test; or
·came to a conclusion without evidence or one to which, on evidence, it could not reasonably have come; or
·took into account matters which it should not have taken into account; or
·failed to take into account matters which it should have taken into account.
Moreover, the Tribunal should be given some latitude in reaching findings of fact within its areas of expertise: see Environmental Defence Society Inc v Mangonui County Council (1987) 12 NZTPA 349, 353.
Any error of law must materially affect the result of the Tribunal's decision before this Court should grant relief: Royal Forest and Bird Protection Society Inc v W A Habgood Ltd (1987) 12 NZTPA 76, 81-82.
[19] Decisions about the lawfulness of an activity may however be in a special category, as this Court will ordinarily assume jurisdiction on questions of legality. For example, the Supreme Court in McGrath v Accident Compensation Corporation stated that the supervisory jurisdiction of the High Court extends to substantively determining whether a legal condition antecedant to the exercise of statutory power
exists.12 The central issue in this case is whether a legal condition, namely the grant
of a consent, has been satisfied for the purpose of ss 9 and 10. By parity of reasoning, this Court should have the capacity to resolve that question as an issue of law. But I do not consider it is necessary for me to form a final view on this given I have found an error of law applying the orthodox frame for Environment Court appeals.
Alleged errors of law
First alleged error of law: Wrong approach to hearsay evidence
[20] The Court referred to s 18 of the Evidence Act 2006 and opined that a hearsay statement should only be received if the “circumstances relating to the statement provide a reasonable assurance as to its reliability.”13
[21] Section 18 provides:
12 McGrath v Accident Compensation Corporation [2011] NZSC 77, [2011] 3 NZLR 733 at [30], [31].
13 Dunedin City Council v Saddle Views Estate Ltd, above n 6, at [29].
18 General admissibility of hearsay
(1) A hearsay statement is admissible in any proceeding if-
(a) the circumstances relating to the statement provide reasonable assurance that the statement is reliable; and
(b) either
(i) the maker of the statement is unavailable as a witness; or
(ii) the Judge considers that undue expense or delay would be caused if the maker of the statement were required to be a witness.
(2) This section is subject to sections 20 and 22.
[22] Mr Withnall QC and Mr Shiels QC submit that the Court erred by referring to the test of admissibility of hearsay evidence at s 18 of the Evidence Act 2006. They contend further that:
(a) all evidence was tendered without objection and was therefore admissible;
(b) the relevant evidence was admissible under s 19(1) of the Evidence Act 2006 on the basis that the person who supplied the information for the composition of the record was unavailable as a witness; and or
(c) any admissions were pursuant to s 34 of the Evidence Act 2006, being an admission by a party of the proceeding.
(d) the Court is not bound by rules of evidence; and
(e) the Court failed to have regard to circumstances which added weight to the reliability of the hearsay statements.
Assessment
[23] By s 276(6) of the RMA the Environment Court is not bound by rules of evidence in ordinary judicial proceedings. It was, as Mr Shiels contends, available to the Environment Court to conclude that the circumstances of the making of the
letters reinforced their reliability – they were made in times of high controversy, by independent Council staff, where accuracy might be expected. Further, the key statements by Council staff were admissions by a party to the proceeding and therefore generally admissible.
[24] Nevertheless I do not agree that the Environment Court’s erred by referring to s 18 or in the reasoning that followed. The Environment Court simply examined whether the various hearsay statements could be relied upon. While the cross reference to s 18 may have been superfluous, the assessment of reliability by reference to the s 18 framework was not plainly wrong. Moreover, when the judgment is read as a whole, the reasons for rejecting the significance of the letters said to favour the plaintiff’s case and other documentary evidence rested on various factors, including the Court’s interpretation of them. I therefore do not consider that any material error of law arises under this heading.
[25] Furthermore, the fact that the Environment Court it is not bound to follow rules of law about evidence reflects a strong legislative policy that significant latitude is to be afforded to the Environment Court on assessment of fact. While I may have come to a different conclusion on the strict application of s 18, no proper question of law arises under this heading.
Second alleged error of law: Assessing weight – statements against interest
[26] Mr Withnall complains that the Court misused the principle that statements against interest can be given greater weight. The relevant evidence concerns statements by or attributed to Mr Scurr, the former owner of the quarry. The Court observed:14
It is notable that there, and in all the statements made by Mr Scurr, he always relied on the company’s ownership rights. Nowhere did the Scurr interests ever claim to hold a consent from the Taieri County Council. We regard these hearsay statements as more likely to be reliable because they are against the landowner’s interest.
[27] Mr Withnall might be right that Mr Scurr’s statements do not fall to be
captured by the concept of statements against interest, as he is not a party to the
14 Dunedin City Council v Saddle Views Estate Ltd, above n 6, at [71].
proceeding. He may also be right that Mr Scurr’s silence on the existence of a consent is not a “statement against interest”. But whatever label is put on Mr Scurr’s statements, it was available to the Court to infer that had there been a consent, Mr Scurr could have been expected to refer to it to respond to public concern about the quarry. I am also satisfied that Mr Scurr’s silence was simply one of a number of considerations and not by itself determinative of the outcome. I see no merit in this ground of appeal.
Third and eighth alleged error of law: Misinterpretation of the Edwards letter and wrongly held consent could not be a s 38A consent
[28] Mr Edwards’ letter formed a key part of the Appellant’s case. Its contents are
noted at [13] and a copy of it is attached as appendix A for ease of reference.
[29] The Environment Court placed minimal weight on this letter, resolving that the “actual contents of Mr Edwards’ letter make it unreliable,” including the reference to “permit” as opposed to consent. The Court also considered that the language used by Mr Edwards was “evasive”. The Court concluded that “a more likely explanation of Mr Edwards’ letter is that “the County Engineer…. was consulted by Downer and advised that the company did not need approval”.
[30] The appellant contends that this reasoning is flawed in several respects:
(a) It was not open to the Court to find that it is more likely that no approval was given as it was not an issue in contention.
(b)The finding that no formal consent was given is a finding without evidence.
(c) The emphasis on the word “permit” was erroneous, and missed the
references to consent in the same letter.
(d)The Court did not have a proper basis for concluding that the language used was evasive, and that the letter should have been read in context, namely a reasonably informal response to a query.
(e) The Court also erred in concluding (without input from Counsel), that the Council could not impose conditions on the consent. The Court found that the power to impose conditions was not conferred until
1966 (the year Mr Edwards wrote the letter). That finding was one reason given for doubting the reliability of the letter, because he says that the original consent may have been conditional.
[31] The Council does not accept that the existence of approval was not in issue. It also responds, in short, that the observations made by the Court were available to it on the evidence. The appellant might disagree with them, but that does not mean that the Court was wrong or erred in law.
Assessment
[32] Subject to what I say at [64] about conflict of interest, it was available to the
Court on the evidence to find that:
(a) the language used in the letter was evasive in the sense that it does not unambiguously affirm the existence of a written consent;
(b)the various strands of available evidence suggest that the letter does not unequivocally support the existence of such a consent, including the absence of contemporaneous record of a consent or other Council record referring to the process by which consent was granted; and
(c) an alternative explanation, not involving the formal grant of consent, was more likely.
[33] The Court’s assumption that there was no power to impose conditions is however problematic. There are various authorities in the early part of the 1960s which suggest that various Councils assumed they could impose conditions.15
Mr Edwards, a Council planner at the key times, was better placed to know what the
15 Most relevant is the case cited by the Environment Court Aspinall v Taieri County Council (1962) 2 NZTCPA 42 which provides a contemporaneous example of the imposition of conditions for the purposes of an application under s 38A.
Council practice was in the late 1950s and 1960s and I do not think it was available to the Court to rely on the claimed absence of a power to impose conditions without evidence as to the Council’s practice.
[34] In addition, I consider that the Court’s interpretation of the Edwards letter may have been influenced by its finding of conflict of interest referred to at [2] and below at [64].
[35] I therefore consider that the Environment Court erred by placing minimal
weight on Mr Edwards’ letter.
Fourth alleged error of law: Wrongly treating documents as referring to “existing use rights”
[36] The appellant contends that the Court misread or misinterpreted certain key documents as referring to existing use rights.16 In particular, the appellant criticised the following observation:
[66] …
These documents tend to conflate the question of authority under existing use rights, with other “approval” or authorities from the Taieri County Council and so are ambiguous. Nor are they independent of the earlier documents, rather they rely on them. No weight can be given to them as evidence of a s 38A consent.
[37] The appellant says that Environment Court was wrong in law for refusing to place any weight on these documents and even if they are ambiguous as to their references, some weight should have been placed on them.
[38] The respondent contends that the interpretation given to the documents was available to the Court as the various references to authority referred to in them were
ambiguous.
16 The documents included a letter from the Minister for the Environment dated 8 November 1974, a Press statement issued by the Minister for the Environment dated 8 November 1974, a memorandum from the Secretary of Mines to the Commissioner for the Environment dated
11 June 1974 and a letter from the Prime Minister’s office dated 17 June 1974, and from the
Prime Minister dated 11 December 1974.
Assessment
[39] The relevant documents refer to “authority” or “consent” without explaining what they mean. It was, therefore, available to the Environment Court to conclude that they do not materially assist in the determination of whether a planning consent or a permit was granted or some other approval was given. Notably, all of the documents are not contemporaneous with the alleged grant of consent and have doubtful relevance in terms of the precise issue of the form of authority given. There was, therefore, no error of law under this heading.
Fifth alleged error of law: Wrong interpretation of documents in light of later terminology and planning practice
[40] The appellant criticises the Environment Court for interpreting the import of historical documentation in light of later terminology and planning practice. The appellant does not specify the particular part of the judgment said to be wrong but I apprehend that the appellant is complaining that the Environment Court used or interpreted words like consent or permit in a post RMA sense, rather than as they could have been used in 1960. The appellant goes on to criticise the Environment Court as taking an unduly semantic approach, for example, when the Court appeared to place some weight on the fact that Mr Edwards in his letter referred to “permit” instead of consent. The appellant also notes that in fact the word consent was used on three other occasions in the same letter by Mr Edwards.
[41] The Council submits that the interpretation of the documents was an evaluative matter for the Court. It is also noted that having regard to wider indicia (and in particular the complete absence of any direct evidence of a consent having been granted) the alleged semantics were justified or were not materially wrong.
Assessment
[42] It was the Environment Court’s function to interpret and weigh references to “permit” and “consent” as it thinks fit. As the respondent also says, the Environment Court did this so called semantic interpretation against a backdrop of a complete absence of evidence that a written consent was in fact granted.
[43] Accordingly, I see no error of law under this heading.
Sixth alleged error of law: Wrong test in the evaluation of circumstantial evidence
[44] The appellant contends that the Environment Court failed to have regard to all circumstantial evidence. In particular, the appellant says that having dismissed all individual strands, the Environment Court then failed to have regard to the evidence as a whole and its cumulative import. The Council responds that the Court did look at the individual strands and having dismissed their weight was entitled to disregard them further.
Assessment
[45] I do not consider that the appellant’s criticism is fairly made, especially when the judgment is read as a whole. It is quite plain to me that while the Court placed little or no value on various parts of the documentary evidence relied upon by the appellant, it assessed the weight of the evidence as a whole for the purposes of determining whether there was a sufficient basis for a finding that a consent had been granted. In any event, if I am wrong about this, it was for the Environment Court to attach whatever weight it wished to attach to the evidence. The short point is that if the individual strands do not have probative value, then the Court cannot be criticised in an appeal on a point of law for placing little or no weight on their collective strength.
[46] I dismiss this ground of appeal.
Seventh alleged error of law: Wrong treatment of newspaper reports
[47] The appellant submits that the Court was wrong to place significance on the absence of references in Press reports to a consent having been granted. It is submitted that that is not a matter that is logically deserving of “significant” weight.
Assessment
[48] There is some irony to this appeal point. The appellant invited the Court to draw inferences from a range of sources of information, none of which included
direct contemporaneous evidence of the grant of a consent. The Court therefore had to make do with whatever was available to it, including newspaper reports. In my view, it can be hardly criticised when faced with this type of evidence, for drawing an inference that newspaper reports or any other reasonably contemporaneous material, do not refer to a written consent or other written for the quarrying activity. As with several of the other matters raised on appeal, I consider that this also invites this Court to address an assessment of fact rather than law. This ground is also dismissed.
Ninth alleged error of law: Wrong interpretation of the word “character”
[49] The appellant contends that the Court erred in approaching the assessment by noting that s 38A managed a change in character, not scale. The salient part of the judgment reads:17
Several features of s 38A are relevant to ascertaining when and how it might have been used. They are:
· Section 38A manages a change in “character” of activity, not a
change in scale.
· There needed to be also a likely detraction … from the amenities of
the neighbourhood.
·The application for consent was to be notified if the Council considered that appropriate or if regulations required that. (There were no applicable regulations until the middle of 1960.)
·The Council had no power to impose conditions on its consent (that power was not conferred until 1966).
[50] The appellant submits that whether or not there is a change of character is a question of fact and that an expansion of an activity may well result in a change of character because additional effects of a different type are generated by the expansion.18
[51] The respondent says that the Court correctly identified that s 38A managed changes in character that detracted from the amenities of the neighbourhood. The
17 Dunedin City Council v Saddle Views Estate Ltd, above n 6, at [40].
18 Citing Attorney-General v Birkenhead Borough Council [1968] NZLR 383 (NZSC); Lendich
Construction Ltd v Waitakere City Council EnvC Auckland A077/99, 20 July 1999.
respondent also contends regardless, “the change in use would clearly have detracted from the amenities of the neighbourhood and required consent under s 38A.” It says “there has never been a dispute that a 1960 expansion of the quarry would have needed such a consent”.
Assessment
[52] The significance placed on “change in character” by Environment Court is revealed in three passages. First, the Court dismissed the significance of Mr Edwards’ references to “permit” and “consent” in this way:
[85] …. a more likely explanation of Mr Edwards’ letter is that the County Engineer (or possibly Mr Edwards – but then he would not have written “I believe”) was consulted by Downer and advised that company did not need approval because its proposal was of the same character as the quarrying that had already occurred or that there was no detraction from the amenities of the neighbourhood.
[53] Second, the Court rejected Mr Anderson’s expert opinion evidence that
consent was likely to have been granted on the following basis:
[90] …. It is easy to see that the County Engineer may have said to Downer and even recorded in his report (now lost), that he agreed there would be no change in the character of the activity if Downer quarried for metal. However, that is not a consent and there is nothing in Mr Anderson’s affidavit to show that he is aware of this precondition to the use of section
38A.
[54] Third, the Court also explained Mr Thompson’s (a senior planner for the Dunedin City Council since 1991) statement “that some form of approval was given” by noting:
[94] …. [Mr Thompson’s] statement is consistent with … an informal agreement by the County Engineer with Downer in 1960 that its proposed quarrying was the same kind of activity as previously occurred, or that it would have no effect on amenities. In that case there would have been no need for a formal consent under section 38A TCPA 1953.
[55] I agree with the appellant that these findings must be premised on the assumption that the change in scale of the quarrying or its effects did not necessarily trigger the requirement for a consent under s 38A. I also accept that this is highly disputable.
[56] Relevantly, the Supreme Court (as it then was) in Attorney-General v
Birkenhead Borough Council made the following observation:19
In the present case the erection of multi unit flats was clearly a change in use of the land. In deciding whether or not such use was of the same character as that which preceded it, one must have regard to the provisions of s 2(4) whereby the term “character” in relation to use of any land shall be construed with regard to the effect of that use upon the amenities of the neighbourhood. It also has to be borne in mind that when deciding whether or not any particular use detracts from the amenities of the neighbourhood that s 38A does not in terms lay down any particular degree of detraction.
[57] This reasoning is replicated in planning jurisprudence. In Lendich
Construction Ltd v Waitakere City Council, the Environment Court observed:20
[33] Whether or not there has been a change of character as determined by its effects on the amenities is as Cooke J said in Attorney General v Cunningham a question of fact and degree. A common sense approach is required in an assessment of the evidence. There may be circumstances where an expansion of an existing activity may well result in a change in character because additional effects of a different type are generated by that expansion.
[58] Based on this reasoning, the very significant increase in quarrying activity to enable the airport likely qualified as a change in the character of the use of the land for the purpose of s 38A.21 Furthermore, there was no dispute between the parties that the proposed quarrying involved a major increase in the scale of the effects of quarrying activity and that these effects detracted from neighbourhood amenities.
[59] But the threshold test is whether it was reasonably available to the Court on the evidence to conclude that the Council Officer could have assumed that no consent was required by s 38A. Significantly there was opinion evidence from the Senior Council Planner, Mr Thompson that:
It may be that the planning consent referred to by Mr Edwards was some confirmation … that the established quarrying activity was a legitimate use of the land could continue (pursuant to existing use rights as they are now known).
19 Attorney-General v Birkenhead Borough Council, above n 18, at 387.
20 Lendich Construction Ltd v Waitakere City Council, above n 18, at [33].
21 Notably, the Environment Court in its decision on existing use rights described the scale of quarrying as “minor until 1960” at [51]. Mr Abercrombie identified that Mines Department report for the year ended 1959 did not contain any reference to Saddle Hill. By contrast the
1960 and 1961 report records 25000 and 30000 tonnes extracted from the Saddle Hill Quarry.
[60] This largely mirrors the conclusion of the Court at [85]. Accordingly, it cannot be said that there was no evidence upon which the Court could draw the conclusions it reached at [85], [90] and [94]. Furthermore, whether the Council Engineer may have thought a consent was needed in 1959 or 1960 is plainly still an assessment of fact. While I would have reached a different view on the same facts, I cannot say that the Court was incontrovertibly wrong about the likely approach taken by the Council Engineer.
[61] This ground of appeal is also dismissed.
Tenth alleged error of law: Wrong interpretation of s 38A of the TCPA
[62] The appellant’s submissions on the tenth alleged error are elaborate. The
appellant contends (in short):
(a) section 38A applied to uses that were not of the same character as the previous use;
(b)section 38A only applied to use commencing before an operative scheme;
(c) a use consented under s 38A(1) must be treated as an existing use within the meaning of s 37;
(d)therefore s 37(3) enforcement procedures did not apply where a s 38A(1) consent had been given;
(e) a s 38A consent is now an existing permission under s 383 of the RMA and deemed resource consent. But under the TCPA it would have been treated as an existing use;
(f) at paragraph [90] the Environment Court erroneously rejected Mr Anderson’s evidence that the new quarry would have needed consent under s 38A on the basis that the County engineer may have agreed that there would be no change in character;
(g)the Court therefore erred in placing weight on documentary evidence referring to existing use rights as meaning something other than consent under s 38A;
(h)the Environment Court also erred assuming that the Council had to be satisfied there was a change in character before granting a consent under s 38A;22 and
(i) overall, the Environment Court’s misunderstanding of s 38A has led it
to find erroneously that:
(i) Mr Edwards’ letter was unreliable;
(ii) no weight should be put on material from the Commissioner
for the Environment’s file; and
(iii) Mr Anderson’s evidence is flawed.
[63] I have dealt with the substance of this alleged error in my discussion dealing with the ninth alleged error. I would simply add that the appellant’s fine grained analysis misses the basic point made by the Environment Court, namely that the various references to permit or consent or approval can be reasonably explained as a reference to confirmation of existing use rights – that is the right to undertake the same kind of activity that is already lawfully authorised. This was a finding of fact that was available to it.
Eleventh alleged error of law: Irrelevant findings of conflict of interest
[64] I have foreshadowed my response to this issue at [2]. The Environment
Court made the following observations:
22 Citing Lionel Lawrence Ltd v Waitemata County Council [1965] NZLR 415 (SCNZ) where the
Court stated at 416:
Nor are we asked to decide whether an application for consent under [subs 38A(1)] can only be made if the change of use is one which does in fact come within the words of s. 38A (1). We would hope (while expressing no views on the matter) that the section could be so construed as to enable a person in doubt as to whether his proposed use might contravene the section to apply ex abundante cautela for the consent of the council.
[80] When further complaints came to the Taieri County Council in 1966, several points came out of the response:
·That none of the Councillors refer then or later to the Council having given consent to the quarry;
·At least some of the Councillors simply assumed this was an ownership issue;
·The Councillors might have been part of the consent process if it had occurred;
·The TCC still had a conflict of interest: it relied on gravel from the quarry for its roads.
Both this and the events of 1964 suggest that hypotheses (c) to (e) set out above are more likely explanations of what occurred in 1960.
[65] Notably, the hypotheses (c) to (e) assume that no consent was granted.
[66] As the issue of conflict of interest was not put to counsel, and in fact the respondent does not accept that there was a conflict of interest, the Court was obliged to afford the parties an opportunity to submit on its significance before relying on it as a factor relevant to its determination.
[67] I consider this to be a material error, as I will explain below at [85].
Twelfth alleged error of law: Speculation about invalidity
[68] The appellant contends that the Environment Court erred at [92] by speculating on the potential invalidity for uncertainty of any consent granted. The appellant submits that as a matter of law, uncertainty would be a potential ground for judicial review. It goes on to say that it would be very unlikely that the High Court would judicial review a 1960 consent on that ground over 50 years later when there has been more or less continuous quarrying. Moreover, the appellant contends that the Environment Court’s doubts about certainty of a consent was an irrelevant matter.
Assessment
[69] I accept that the issue of invalidity is not a relevant consideration insofar as concerns whether consent was in fact granted. But the lack of certainty about scope
of consent is a relevant factor, especially given the likely impact of the proposed quarrying activity. It goes to the likelihood or improbability of such activity being approved without a formal written consent. In any event, the observation made at [92] was one of many factors and in my view not material to the overall correctness of the decision.
Thirteenth alleged error of law: Speculation about “planning approval” in respondent’s concession
[70] At paragraph [94] of its decision, the Environment Court dismissed the evidence given on behalf of the Council by Mr Thompson in terms of a concession made by him that some form of “approval” was given.
[71] The appellant criticises the Court’s analysis of the word approval, namely that it meant something other than consent. The appellant emphasises that Mr Thompson used the words “planning approval” and that is commonly understood to involve some form of consent.
Assessment
[72] I see nothing in this. It is the role of the Environment Court to interpret evidence and its significance. There is nothing illogical in the interpretation made of Mr Thompson’s evidence, especially in light of his further evidence (recorded at [59] above) that the approval may have been an informal agreement as to existing use.
Fourteenth alleged error of law: Burden of proof
[73] The appellant contends that the Environment Court erred in its approach to the burden of proof. The Environment Court said at paragraph [27]:
Mr Withnall QC, for SVEL, submitted that “he who asserts must prove”. We accept that there is an evidential burden on the application for a declaration but ultimately the burden of proof of existing use rights must rest on the person who claims them. We doubt if there is a legal burden in RMA proceedings, but if there is it is likely to be on the Council as applicant. The evidential onus starts with the Council and thereafter shifts to the party which will fail without further evidence.
[74] The appellant says that this is confusing and that the normal principles and burden should apply, that is, that the Council has the legal burden as the applicant for a declaration. Furthermore, the appellant says that the Court appears to have imposed the burden on the appellant.
Assessment
[75] At first blush the Environment Court’s statement about burden of proof is slightly confusing because it suggests that Saddle Views had the persuasive burden to prove the existence of a existing use rights, while the Council, as applicant, must prove to the Court that no such rights existed. But I think this apparent difficulty arises from succinctness of expression. In any event, it is not necessary for me to speculate further on what the Court meant. The Court’s findings plainly did not turn on who carried the burden of proof. In short, the Court did not consider that the appellant’s evidence was sufficiently clear or reliable to support an inference, let alone a conclusion, that a consent was granted.
[76] Accordingly, I dismiss this ground of appeal. However, I describe my preferred approach to the burden of proof in this case at [89]–[92 ].
Fifteenth alleged error of law: Disregarding relevant evidence of the existence of a consent
[77] The appellant refers to minutes of the Council dated 26 January 1973. The minutes record:
It was reported to the meeting that the consent was given by Council in
1960, primarily for the construction of the airport at Momona but the area had, in fact, been used for many years prior to this.
[78] The appellant notes that the minutes refer to a Mr G D King (the County Engineer in 1960) and Mr Smithson (the County Clerk), as having attended the meeting.
[79] The appellant says that this evidence was not referred to in the decision. The appellant therefore contends that the Environment Court failed to have regard to
relevant evidence and that this failure was material in that it was evidence favouring the existence of a consent.
[80] The respondent submits that the Court had before it a large amount of evidence and was not obliged to refer to all of it. The respondent further contends that the Court undoubtedly had regard to this evidence and simply omitted to refer to it.
Assessment
[81] The omission to refer to the minutes in the judgment is problematic. It is one of the few statements referring to the existence of a “consent” and its purpose. Mr King was present at the meeting and had been the County Engineer in 1960. I think this adds to the weight to be afforded to the minutes, as I think it can fairly be supposed that he had some knowledge of the quarry’s legal status and would have advised the Council members about it.
[82] In any event, while I have some disquiet about this omission, I do not consider that it constitutes an error of law. First, I agree with the respondent’s submissions that there was a high volume of evidence before the Environment Court, and it cannot be expected to refer to every piece that might be relevant to a determination. Second, I also consider it highly unlikely that a very experienced Environment Court Judge, together with two experienced Commissioners, would have failed to regard to this material. Furthermore, I doubt that the Environment Court would have changed its decision on the basis of this evidence given the overall tenor of the judgment, the concerns raised by the Court as to the lack of reliability of other documentation and the domino like reliance on it.
[83] This ground is also dismissed.
Sixteenth alleged error of law: True and only proper finding was that a consent existed
[84] The final ground of appeal is a generic one claiming that in all the circumstances the decision was not available to the Environment Court. Given
where I have got to, it is unnecessary for me to form a final conclusion about this. However, but for the identified errors, I would have been disinclined to find that the decision was not available to the Environment Court on the evidence.
Materiality of errors
[85] To recap, I have identified the two errors:
(a) the Court erroneously had regard to an alleged conflict of interest without affording the parties an opportunity to submit on that conflict and its significance; and
(b)the Environment Court erroneously had regard to the assumed inability of the Council to impose conditions in the early 1960s as a reason to place minimal weight on Mr Edwards’ letter.
[86] I consider that these errors must have materially affected the Court’s interpretation of the significance of evidence said to support the consent. The finding of conflict of interest goes directly to the integrity of the Council processes and the veracity of the various statements of the Council (including its officers). The assumption about the power to impose conditions undermined, in the Court’s view, the reliability and coherency of Mr Edwards’ letter. Conversely, if these errors are removed from the frame, the Council’s utterances, including Mr Edwards’ letter is probative evidence that the quarry was lawfully authorised by a permit or consent.
[87] On that basis I consider that the identified errors were material and provide a proper basis for the grant of relief.
Relief
[88] At the request of the parties I turn to resolve whether a declaration should be granted. I am conscious nevertheless that the Environment Court is a specialist tribunal tasked with making the primary factual assessment. I proceed on the basis that I should not depart from its findings of fact unless those findings have been materially affected by an error of law.
Resolution
Burden of proof
[89] I commence by describing my approach to the burden of proof in this case. Given the significance of this issue to RMA proceedings generally, I issued a minute expressing the tentative view that the persuasive burden rested with the Council as applicant, but that Saddle Views carried a evidential burden to place sufficient evidence before the Court to justify a finding that consent had been granted. I invited submissions, referring to various authorities that Counsel might wish to consider. Submissions were filed. I do not propose to repeat them at length here. I simply record that they were of considerable assistance to me.
[90] Burden of proof is a complex issue in RMA proceedings. Very often RMA proceedings involve proof of existing fact, assessment of future effects and an evaluative judgment in light of prescribed statutory thresholds. Allocation of evidential and persuasive burden is problematic and sometimes inapposite in this
context, as several leading cases demonstrate.23
[91] For this reason, what I say here is context specific. To be clear, my assessment relates to an application by a local authority for a negative declaration under Part 12 RMA that a person does not have a lawful right to operate in reliance on a resource consent for the purpose of s 9(3) of the RMA. The purpose of the declaration is enforcement and the grant of a declaration in the terms sought will remove a complete defence to the enforcement proceedings under s 314 of the RMA.
[92] On this, Mr Garbett emphasised that these are not criminal proceedings and I should not apply presumption of innocence reasoning to my analysis. I wish to dispel that objection at the outset. It cannot possibly be right for a Council to be able seek by side route of declaratory proceedings that which it could not achieve directly
via enforcement or prosecution. If, as is the case here, the purpose of the declaration
23 Refer McIntyre v Christchurch City Council (1996) 2 ELRNZ 84; Shirley Primary School v Christchurch City Council [1999] NZRMA 66 (EnvC); Ngati Maru Iwi Authority v Auckland City Council HC Auckland AP18/02, 7 June 2002; Director-General of Conservation v Marlborough District Council [2004] 3 NZLR 127; Royal Forest and Bird Protection Society of New Zealand Inc v Buller District Council [2006] NZRMA 193 (HC).
is to show that an activity is unlawful as a precursor to enforcement proceedings, then in my view the Court is bound to apply presumption of innocence reasoning. By contrast, if the applicant is a land user seeking clarification of his or her rights for commercial purposes, then the applicant for declaration will carry the onus of proof in the usual way – that is s/he who asserts must prove their case.
General principles
[93] Ordinarily the onus is on the applicant for a declaration to prove on the balance of probabilities the factual matters to justify a declaration, as the Council accepts.24 This aligns with the rule that a plaintiff in a civil suit carries the legal burden of proving all the facts essential to the claim.25 There will be cases however the burden will rest with the defendant to prove an affirmative proposition, for example, limitation.26 But, as I have said, these statements of principle must be coloured by the context of the declaration, namely as a precursor to enforcement.
[94] For the purpose of enforcement and prosecution, the ‘golden thread” in criminal law is that the prosecution must prove guilt.27 Nevertheless, for a long time the common law and legislation were aligned to the effect that the burden of proof was reversed in cases where an individual claimed a right by statutory licence or
consent to undertake an otherwise prohibited activity.28 Section 67(8) of the
24 In KB Furniture Ltd v Tauranga District Council [1993] 3 NZLR 197 (HC) Thorp J put it this way at 207: “There must have been an onus on the respondent, claiming as it did a declaration that a use was contrary to the ordinances, to prove all essential factual matters necessary to justify making of the declaration sought.”
25 Donald Mathiesen, Grant Burston and Bernard Robertson Cross on Evidence (NZ) (online
looseleaf ed, LexisNexis) at [2.3].
26 See Humphrey v Fairweather [1993] 3 NZLR 91 (HC) at 99.
27 As the House of Lords said in Woolmington v Director of Public Prosecutions [1935] AC 462 (HL) at 481–482:
Throughout the web of the English criminal law one golden thread is always to be seen, that
it is the duty of the prosecution to prove the prisoner’s guilt subject to what I have already said as a defence of insanity and subject to any statutory exception … no matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained.
Summary Proceedings Act 1967 (the SPA) incorporated this rule by placing the onus on a defendant to put to proof in proceedings alleging contravention of s 9(3) that their activity was expressly allowed by a resource consent.29 But s 67(8) was repealed from 1 July 2013,30 so an issue arises as to whether the old common law exception should nevertheless apply in terms of s 9(3). An important factor in that
analysis is the effect now of the New Zealand Bill of Rights Act 1990 (NZBORA), something which it seems has not been examined in the previous case law, probably because s 67(8) of the SPA imposed the reverse onus in clear terms. I turn to that now.
NZBORA
[95] The right to be presumed innocent until proven guilty according to law is affirmed by s 25(c) NZBORA 1990. Section 25(c) provides:
25 Minimum standards of criminal procedure
Everyone who is charged with an offence has, in relation to the determination of the charge, the following minimum rights:
…
(c) the right to be presumed innocent until proved guilty according to law:
28 In R v Edwards [1974] 3 WLR 285, 2 ALL ER 1085 (Crim App) the UK Court of Appeal affirmed that the persuasive burden rested with a defendant in these clear terms:
Over the centuries the common law, as a result of experience and the need to ensure that
justice is done both to the community and to defendants, has evolved an exception to the fundamental rule of our criminal law that the prosecution must prove every element of the offence charged. This exception, like so much else in the common law was hammered out on the amble of pleadings. It is limited to offences arising under enactments which prohibit the doing of an act save in specified circumstances or by persons of specified classes or with specified qualifications or with the licence or permission of specified authorities. Whenever the prosecution seeks to rely on this exception, the Court must construe the enactment under which the charge is laid. If the true construction is that the enactment prohibits the doing of acts, subject to provisos, exemptions and the like, then the prosecution can rely on the exception.
29 See Gillies Waiheke Ltd v Auckland City Council [2004] NZRMA 385 (CA); Burrell v
Wellington City Council [2012] NZRMA 1275 at [57].
30 See s 7(2) Summary Proceedings Amendment Act (2) 2011. Mr Garbett also submitted that as these proceedings were commenced prior to that date, s 67(8) still applied. Section 397 of the Criminal Procedure Act 2011 provides that proceedings commenced before the commencement
date must continue in accordance with the law as it was before the commencement date
(s 397(2)). Proceedings are however defined at s 397(3). Without exception they are summary offence proceedings. Summary offence proceedings in relation to the underlying activity have not yet been commenced. The repeal of s 67(8) will therefore be relevant if and when such or equivalent proceedings are commenced. It is also presently relevant for interpretative purposes as it can no longer be assumed that the legislative scheme contemplates a reverse onus.
[96] In Hansen v R, Tipping J (who occupied a seat in both majority decisions) set out a six step interpretative process to ascertain whether the affirmed right applies.31
The first two steps concern ascertaining Parliament’s meaning and whether there is any apparent inconsistency with a protected right. If there is an apparent inconsistency, the next three steps involve assessing whether it is a justified. If so, then the Court must adopt it. If not then the Court must assess whether there is an available interpretation that is consistent with the right. The final step is triggered where an alternative meaning is not reasonably possible and in which case, Parliament’s intended meaning is to be adopted.
[97] Turning first then to the interpretation of s 9 of the RMA.
The statutory frame
[98] For ease of reference I repeat s 9(3) here:
(3) No person may use land in a manner that contravenes a district rule unless the use—
(a) is expressly allowed by a resource consent;
[99] Section 338(1) then states:
338 Offences against this Act
(1) Every person commits an offence against this Act who contravenes, or permits a contravention of, any of the following:
(a) sections 9, 11, 12, 13, 14, and 15 (which impose duties and restrictions in relation to land, subdivision, the coastal marine area, the beds of certain rivers and lakes, water, and discharges of contaminants):
(b) any enforcement order:
(c) any abatement notice, other than a notice under s 322(1)(c): (d) any water shortage direction under section 329.
[100] Section 339(1)(a) imposes the following penalties:
31 Hansen v R [2007] NZSC 7, [2007] 3 NZLR 1.
339 Penalties
(1) Every person who commits an offence against section 338(1), (1A), or (1B) is liable on conviction,—
(a) in the case of a natural person, to imprisonment for a term not exceeding 2 years or a fine not exceeding $300,000:
(b) in the case of a person other than a natural person, to a fine not exceeding $600,000.
[101] Relevantly also, by s 341 of the RMA, contravention of s 9 is a strict liability offence.
Natural meaning
[102] Section 9(3) does not expressly purport to reverse the ordinary onus of proof. It is not framed like a defence clause of the kind expressly recording that it is a defence to show some exculpatory factor.32 If Parliament had intended to reverse the onus it could have easily reframed s 9 in this way:
(3) No person may use land in a manner that contravenes a district rule unless the person shows that the use—
(a) is expressly allowed by a resource consent (emphasis added).
[103] But, s 9(3) is arguably a classic example of the type of regulation inviting by implication a reverse onus at least for the purpose of prosecution under s 338(1). And it may be that Parliament had s 67(8) in mind when s 9 was first drafted and did not think it necessary to overtly qualify s 9 in this way. Nevertheless I think there is major problem with construing s 9 in this way. It drives from the basic assumption that Parliament intended that all pre-existing activity that contravenes a new District Plan rule became presumptively unlawful – that is subject to strict liability prosecution unless the existing land user proved that his or her conduct was in fact lawful. I think very clear words are necessary to achieve this outcome. Section 9 is
not clear.
32 For example a majority of Judges in Hansen concluded that the deemed possession of a drug for sale “until the contrary is proved” per s 6(6) of the Misuse of Drugs Act 1975 could not be interpreted to mean the onus on the defendant was discharged by evidence that would raise a reasonable doubt.
[104] Accordingly, s 9 does not expressly purport to reverse the ordinary onus of proof and is not inconsistent with the presumption of innocence affirmed by s 25(c) of the NZBORA. Rather s 9 has prospective effect, and subject to what I say at [113], is contravened only when existing activity is shown to be unlawful by the relevant enforcing authority.
[105] In case I am wrong about this I move to steps 3, 4 and 5 dealing with justification.
Justification
[106] The significance of the requirement for justification was expressed by
Tipping J in Hansen v R in this way:
[102] In this case the limit on the right to be presumed innocent (the reverse onus) clearly satisfies the need for prescription by law. It is a specific feature of the legislation. There remains the need for it to be reasonable and demonstrably justified. Section 5’s stipulation that a limit must be demonstrably justified emphasises New Zealand’s commitment to the rule of law. The legal principles affirmed by the Bill of Rights cannot be limited or overridden without demonstrable justification.
[107] Against this backdrop, Tipping J identifies two primary requirements that must be satisfied, namely a sufficiently important objective and proportionality of the means chosen to achieve the objective.33
[108] Plainly the RMA’s sustainable management purpose is best achieved via compliance with rules and other standards generated by RMA processes. Avoidance of unauthorised adverse effects on the environment is also a matter of significant public interest. Given the potential breadth of the environmental regulation and the
cost of enforcement, effective control of unlawful activity is an important objective.
33 Notably also United Kingdom Courts have been less willing to apply a reverse onus where that would be incompatible the presumption of innocence required art 6 (2) of the European Convention on Human Rights. The effect of those authorities was summarised by Lord Bingham in Sheldrake v Director of Public Prosecutions [2004] UKHL 43, 3 WLR 976 namely that any incursion into the presumption of innocence must be demonstrably justified on the examination of all the facts and circumstances of the particular provision as applied in the particular case. Refer also C Tapper Cross & Tapper on Evidence (12th ed, Oxford University Press, Oxford, 2010) at 143-150 dealing with the impact of the Human Rights Act 1998.
But I do not accept that reversing the constitutional presumption of innocence is a proportionate means to achieving that objective.
[109] One possible justification for the reverse onus is that the contravener is better placed than the Council to show that he or she has a consent or some form of lawful authority. But as this case starkly shows that cannot be fairly assumed. Moreover, modern local authorities should be expected to keep an accurate record of resource and building consents granted, especially in light of the land information regime.34
In my view reversing the onus would serve little real purpose other than to excuse
poor council record keeping and is hardly a proportionate response to violation of a fundamental right.
[110] Another justification might be that in the planning regulatory context we are accustomed to constraints on land use unless specifically authorised under a Plan, by consent or under existing use rights – ie there is no such thing as liberty when it comes to land use anymore. That might be right,35 but as Tipping J asseverates, the rule of law still demands that State intervention in our ordinary lives must be authorised by a clear statutory power to do so.36
[111] Beyond this, I have found it difficult to find any proportionate justification for reversing the onus of proof. In this regard it is apt to note that another majority of judges in Hansen found that the reversal of the burden of proof in s 6(6) of the Misuse of Drugs Act 1975 was inconsistent with the presumption of innocence and was not a justified limitation in terms of s 5 of the NZBORA. By parity of reasoning, the requirement for a defendant to prove lawfulness in terms of s 9(3) is similarly not demonstrably justified.
[112] Is there then an available alternative interpretation that is consistent with the legislative objective and the presumption of innocence? In resolving this question, I
34 Refer Marlborough District Council v Altimarloch Joint Venture Ltd [2010] NZSC 11, [2012] NZLR 276; Local Government Official Information and Meetings Act 1987, s 44A.
35 See Waitakere City Council v Estate Homes Ltd [2006] NZSC 112, [2007] 2 NZLR 149.
36 Refer also statement of Lord Steyn in R v Home Secretary ex p Pierson [1997] 3 WLR 492, [1998] AC 539 (HL) at 591:
Unless there is the clearest provision to the contrary, Parliament must be presumed not to legislate contrary to the rule of law. And the rule of law enforces minimum standards of fairness, both substantive and procedural.
draw some guidance from the decision of the UK Court of Appeal in R v Keogh.37 In that case reverse burdens imposed by s 2(3) and 3(4) of the Official Secrets Act 1989 were deemed to be incompatible with art 6 of the European Convention on Human Rights (being the equivalent of s 25(c) of the NZBORA). The Court was required to assess whether the Act could operate effectively without the imposition of the reverse burdens that ss 2(3) and 3(4). The Court resolved that the Act could operate effectively by reading down the s 2(3) and 3(4) to mean that if the person adduces evidence which is sufficient to raise an issue with respect to the matter the Court shall assume the defence is satisfied unless the prosecution proves beyond
reasonable doubt that it is not.38
[113] I consider that a similar result can be achieved here not by reading down s 9(3), but by interpreting it to require that a defendant establish by way of sufficient evidence to raise a reasonable possibility that a consent was granted for the activity. If this is done, then the Council must prove on the balance of probabilities39 that no consent was granted.
The proper approach
[114] Accordingly, I find that s 9(3) does not impose a reverse burden in enforcement related proceedings. Rather, the Council, as applicant, must carry the persuasive burden of proving that the quarrying was unlawful especially given the punitive consequences of a declaration to that effect. Nevertheless, if Saddle Views wishes to rely on one of the exceptions stated at s 9(3) then it bears the evidential burden of placing sufficient probative evidence before the Court to raise the reasonable possibility of the existence of a consent and its terms. It follows from this that provided there was probative evidence of this kind, it was for the Council to satisfy the Court on the balance of probabilities that the consent on those terms was
not, in fact, granted.
37 R v Keogh [2007] 1 WLR 1500, 3 All ER 789 (Crim App).
38 At 801.
39 It will be seen that I have not modified the standard of proof. The issue of standard was not argued and if pressed I would have resolved that a balance of probabilities standard is appropriate for declaratory purposes.
Applying the three steps
[115] There is no dispute that the quarrying contravenes a rule in the District Plan. I therefore approach the resolution of the central issue in three steps:
(a) I will examine whether there is sufficient reliable probative evidence to raise the reasonable possibility that a consent had been granted for the quarrying activity.
(b)If so, I will examine whether the evidence as a whole shows, on the balance of probabilities, that no consent was in fact granted.
(c) I will then decide whether a declaration should be made based on the outcome of these analyses.
Evidence of consent
[116] Mr Edwards’ letter is central to the appellant’s case.
[117] Mr Edwards was a regional planner for the Dunedin Metropolitan Planning Authorities in 1960 but also carried out work for local authorities, including TCC. There is no challenge to the veracity of what is recorded in his letter. Further the circumstances of the production of the letter support the proposition that the statement he made was reliable. Mr Edwards must have been aware that the quarrying activity was subject to public controversy and that he needed to proceed with some care about the legal status of the quarrying. Once the assumption about the conflict of interest is disregarded, there is no evidence to suggest that he had any reason to provide anything other than a professional opinion and recollection about the existence or otherwise of a consent.
[118] Significantly, his letter states:
The original permit in respect of this quarry was, I believe, granted by the Council to another firm and the project was some time later overtaken by Scurrs. If memory serves me correct, the original consent was made conditional that landscaping etc was to be carried out as each part was of the
area was excavated but I cannot recall any limit to the area to be excavated being imposed.
[119] Even if I accept the Court’s reasoning that it was available to the then Council Engineer in 1959 or 1960 to approve the activity as an existing use, I am unable to accept that this letter was referring to such an approval. On its face the letter refers to the “original permit” and the “original consent”. I acknowledge it also states that “if memory serves correct” the consent was conditional on landscaping. This raises some doubt about accuracy, but I do not consider that it displaces the dominant inference to be drawn, namely that Mr Edwards recalled that a consent was granted for the quarrying.
[120] There is also nothing in the letter to suggest that he was referring to existing use rights as that term was defined by ss 36, 37, 38, 38A or otherwise. Those sections collectively deal with the interface of existing uses and proposed or operative plans.
[121] In any event, I consider that a reasonably strong inference may be drawn from the words used in the letter that an honest and reliable person with contemporaneous knowledge of events recalled that a permit or consent had been granted for the quarrying activity.
[122] There is then the minutes of the Council in 1973, not addressed by the Court in its judgment, specifically declaring that:
the consent was given by Council in 1960, primarily for the construction of
the airport at Momona…
[123] As noted at [78], Mr King, the TCC engineer in 1960 was present at this meeting. When the assumption that there was a conflict of interest is disregarded, there is nothing in the evidence to suggest that he would have misled the councillors about this important matter or stayed silent when it was raised in the meeting. I am therefore prepared to infer that this statement represents the honest opinion or recollection of those present at the meeting, including the Council engineer and adds weight to the evidence that a consent was granted.
[124] Accordingly, even if I disregard the balance of the documentary evidence dismissed by the Environment Court as unreliable, the appellant produced cogent and probative evidence of the existence of a consent to carry out quarrying activity at the Saddle View site.
Evidence as a whole
[125] The remaining issue therefore is whether the balance of the evidence relied upon by the respondent is sufficient to persuade me on the balance of probabilities that a consent was not, in fact, granted.
[126] Putting aside Mr Edwards’ letter and the 1973 minutes, the stark absence of a contemporaneous record of or utterances about the grant of consent raises serious doubts about the existence of a consent. I also share the concerns of the Environment Court that the balance of the documentary evidence appears to provide second hand opinion or views of what occurred. The weight to be afforded to such evidence must be small. This applies with respect to the opinion evidence given by the professional witnesses. While for example Mr Anderson provides some helpful insight into the integrity and practices of the Council at the time, it is speculative to suggest, on the available information that the relevant council staff would have acted in a particular way.
[127] But, unlike the Environment Court, I consider that the Edwards letter and the minutes cannot and should not be lightly dismissed from the historical record. They provide a plausible basis for inferring that a consent was in fact granted. Importantly, the absence of a contemporaneous record does not directly contradict the letter or the minutes.
[128] Furthermore, the Council accepts that consent would obviously have been needed in 1959 to enable the rapid increase in the scale of the quarrying. There is no reason in the evidence to suspect that the relevant Council officers would have acted in bad faith about this. In this regard the Court’s finding of conflict of interest comes back into focus. But the Council does not seek to rely on this finding.
[129] Given the foregoing, I consider that the Council has not discharged the burden of showing on the balance of probabilities that consent for a quarry was not granted.
Outcome
[130] I dismiss 14 of the 16 grounds of appeal.
[131] The Environment Court erred by having regard to a conflict of interest without affording the parties an opportunity to submit on its significance.
[132] The Environment Court also erred in assuming that the Council could not and therefore did not impose conditions at the time of the alleged grant of consent and that this provided a basis for reducing the weight to be afforded to Mr Edwards’ letter.
[133] The errors materially affected the weight given by the Court to the key evidence said to support the grant of the consent.
[134] At the request of the parties I have examined the central issue of whether a consent was granted. I proceeded on the basis that the Council, as applicant, carried the persuasive burden of showing that no consent was granted, but that Saddle Views carried an evidential burden of showing that there was a reasonable possibility that consent was granted.
[135] I agree with the Environment Court that the absence of any contemporaneous record of a consent having been granted raises serious doubts about whether consent was granted. But when Mr Edwards’ letter, together with the 1973 minute is properly taken into account, I am not satisfied on the balance of probabilities that consent was not granted for a quarry at Saddle Hill.
Result
[136] The appeal is allowed. The declaration of the Environment Court is set aside.
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.40 The nature of that duty was
addressed by the Court in Attorney-General v Birkenhead Borough Council, helpfully cited by the appellant.41 Richmond J stated:42
In these circumstances, the next question is to inquire whether or not the Council consent to the change of use. I respectfully agree with the conclusion arrived at by Wild C.J. in Wilsher v Bennett (1966) 3 N.Z.T. & C.P.A. 13 that a consent given without compliance with the requirements of s. 38A (2) is no consent at all for the purposes of s. 38A (1). In the present case, for reasons already explained, there was no advertising as required by s. 38A (2) nor did the Council direct its attention to the question of what occupiers of properties in the vicinity might be.
[138] Intuitively the removal of the entire hill is a significant effect on neighbourhood amenities that, if intended, should have attracted notification to the public. However, as I have not heard argument on this aspect I say nothing more
about it.
40 Refer s 38(2)-(4), recorded at [9].
41 Attorney-General v Birkenhead Borough Council, above n 18.
42 At 387.
Costs
[139] I am not minded to grant costs. Nevertheless, submissions of no more than five pages may be filed within ten days.
Solicitors:
O’Neill Devereux, Dunedin
Anderson Lloyd, Dunedin
APPENDIX A
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