Schmuck v Northland Regional Council
[2020] NZHC 590
•20 March 2020
IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE
CIV-2019-488-000075
[2020] NZHC 590
UNDER the Resource Management Act 1991 IN THE MATTER
of an appeal under ss 299, 300 of the Act
BETWEEN
DOUGLAS CRAIG SCHMUCK
Appellant
AND
NORTHLAND REGIONAL COUNCIL
Respondent
Hearing: 24 February 2020 Appearances:
A Galbraith QC and M Prendergast for the Appellant G Mathias for the Respondent
R Mark for the Opua Coastal Preservation Inc
Judgment:
20 March 2020
JUDGMENT OF GORDON J
This judgment was delivered by me on Friday, 20 March 2020 at 4 pm pursuant to r 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Solicitors: Henderson Reeves, Whangarei
Thomson Wilson, Whangarei
Counsel:A Galbraith QC, Auckland R Mark, Kerikeri
SCHMUCK v NORTHLAND REGIONAL COUNCIL [2020] NZHC 590 [20 March 2020]
[1] The appellant, Douglas Schmuck, owns and operates a small boat yard, Doug’s Opua Boat Yard, (the boat yard) which is situated in Walls Bay, Opua, in the Bay of Islands. Part of the boat yard activity has occurred under various consents and permits in the Esplanade Reserve (the Reserve), which is between the boat yard and foreshore, as well as on the boat yard land itself.1
[2] In September 2017, in anticipation of the expiry on 30 March 2018 of discharge consents under which the boat yard operated, Mr Schmuck applied to the respondent, the Northland Regional Council (NRC), for their renewal. The following month Mr Schmuck made an unrelated application for structures and activities in the Coastal Marine Area (CMA). The NRC amalgamated the applications and notified them together as one application in December 2017.
[3] The NRC declined the amalgamated application. Mr Schmuck appealed to the Environment Court. During the pre-hearing procedures, Mr Schmuck withdrew the appeal relating to his application for structures and activities in the CMA and proceeded only on the appeal in relation to the discharge consents.
[4] The Environment Court refused the renewal of the discharge consents as they applied to the Reserve on the basis that it lacked jurisdiction to grant renewals (for reasons that I will come to). The Court determined that consents could be granted but effectively confined the operation of the boat yard under the discharge consents to the boat yard land.
[5]Mr Schmuck appeals that decision alleging various errors of law.
Historical context2
[6] The boat yard has operated in Walls Bay since around 1966 with the slipway moving to its present location in 1976. Mr Schmuck and his parents bought the boat yard in 1994. At the time of purchase by Mr Schmuck and his parents, boat yard
1 I will refer to the land owned by Mr Schmuck as the boat yard land.
2 This section is largely drawn from the summary in the submissions of counsel for Mr Schmuck. Counsel for both the NRC and the s 274 party, Opua Coastal Preservation Inc (OPC), agree that the summary is accurate.
activities extended onto what was the abutting unformed Crown Grant Road. At the time, boats were cleaned and maintained on the foreshore. Planning consent allowed for the slipway over the road to be used only to move boats to and from the sea.
[7] Mr Schmuck sought and obtained the agreement of the Minister of Conservation (Minister) and the Far North District Council (FNDC) to allow the FNDC to follow the process required to close the unformed road. Once closed, the road was to vest in the FNDC as a Local Purpose (Esplanade) Reserve. The FNDC was then to notify its intention to grant an easement under s 48 of the Reserves Act 1977 in favour of the boat yard over the reserve to be created, so as to formalise the existing and proposed boat yard activities. The road was formally closed in June 1998 and the record of title for the Local Purpose Reserve which had been created was issued in October 1998.
[8] Easements over the reserve, which replicated the activity authorised by resource consent, were registered in July 2015 after a process characterised by Heath J as “tortuous”.3 A challenge by Opua Coastal Preservation Inc (OCP), a s 274 party in this proceeding, to those easements made its way to the Supreme Court. The Supreme Court reinstated the FNDC decision, as the Minister’s delegate, consenting to the easement providing for wash down, repair and maintenance of boats on the Reserve.4
The resource consents5
[9] By a consent order of the Environment Court dated 31 January 2002 Mr Schmuck has held land use and discharge consents and coastal permits authorising boat yard activities on the boat yard land, on specified parts of the Reserve and into the CMA.
Land use consent
[10] The land use consent issued by the FNDC is open-ended. It has no expiry date. Counsel for both the NRC and OCP accept there is no issue likely to lead to
3 Schmuck v Director General, Department of Conservation [2015] NZHC 422 at [7].
4 Schmuck v Opua Coastal Preservation Inc [2019] NZSC 118, [2019] 1 NZLR 750.
5 This section is also largely drawn from the summary in the submissions of counsel for Mr Schmuck. No issue is taken with that summary by counsel for the NRC or the OCP.
cancellation or surrender of the land use consent. Both counsel further accept that the boat yard has a good compliance record and no enforcement issues arise from either the NRC or the FNDC.
[11] Of relevance to this appeal, the consent provides, subject to conditions, for a commercial marine slipway and associated boat yard facilities and activities on the boat yard land and on Sections 1-4, SO 68634, being all of the Reserve (the number 68634 should be noted as it relevant to the key alleged error of law).
[12]The activities permitted on the Reserve include:
(a)A concrete wash-down area with an associated discharge containment system, as shown on the plan attached to the consent and to be located 10 metres above mean high water springs (MHWS);
(b)To carry out the activity of washing down boats prior to the boats being moved to the boat yard for repairs or maintenance or being returned to the water, provided however that repairs and maintenance may be carried out on the Reserve only in accordance with condition 8.
[13]Condition 8 reads as follows:
Except as provided herein any repair or maintenance work on vessels shall be undertaken within the Consent Holder’s site. Vessels may be washed down within that area of the Esplanade Reserve marked “A” on the attached plan. Any vessel which by virtue of its length or configuration is unable to be moved so that it is entirely within the Consent Holder’s site may be repaired or maintained on that part of the Esplanade Reserve marked “A” on the attached plan. That part of the Esplanade Reserve marked “B” on the attached plan may be used for the purposes of permitting the repair or maintenance of any vessel standing on the southern branch of the slipway marked “C” on the attached plan.
[14] For ease of understanding the areas of authorised activities in the above condition, a copy of the plan referred to as the “attached plan” is annexed to this judgment.
[15]Other conditions of the consent which are relevant to issues on this appeal are:
3.That the Discharge Containment System and the Stormwater Containment System shall be located as far as is practicable within the Consent Holder’s site with these arrangements being to the satisfaction of the District Council’s Resource Consent Manager.
4.Except as provided in condition 8 that no materials, tools or other items shall be placed or left on the Esplanade Reserve except as may be necessary for the passage of boats on the slipway and only whilst those activities are being carried out.
…
9.Except as provided in this consent no vessel shall be left on the slipway within the Esplanade Reserve. All relevant safety requirements shall be adhered to at all times. The only permitted closure of the Esplanade Reserve is for safety reasons during vessel haulage. No more of the Esplanade Reserve shall be closed than is absolutely necessary.
…
13. During periods when that part of the slipway through the Esplanade Reserve area is being used for the washing down of boats, the Consent Holder shall erect screens or implement similar measures to effectively contain all contaminants within the washdown perimeter. Screening shall be arranged at the Consent Holder’s expense and to be to the satisfaction of the District Council’s Resource Consent Manager.
…
15.The Consent Holder shall submit a Management Plan to the Far North District Council, for approval, within three months of the date of commencement of these consents. The Management Plan shall cover all aspects of :
(a)The operation and maintenance of the boat washdown area.
(b)Contingency measures for unforeseen or emergency situations. The operation and maintenance of the above systems, for the boatyard operations shall be carried out in accordance with the approved Management Plan.
(c)The need to minimise effects on the public use of the walking track and Esplanade Reserve.
(Emphasis in original omitted).
Coastal permits
[16] The coastal permits issued by the NRC have an expiry date of 2036. Mr Schmuck is permitted to carry out activities associated with the operation of the boat yard including the following: a wharf, wharf abutment and access pontoon; a slipway with dinghy ramp; the parts of a timber and stone sea wall and associated reclamation that are within the CMA; work boat mooring; maintenance dredging of seabed material at the slipway; to use the structures referred to above for the purposes associated with the boat yard; and to occupy an area of seabed associated with the slipway and wharf structures.
Discharge consents
[17] The discharge consents issued by the NRC, held by Mr Schmuck pursuant to the 31 January 2002 consent order, were reviewed and replaced in 2008 for a 10 year period expiring on 30 March 2018.6 The discharge consents, which by the time of the hearing of appeal, had expired were AUT.007914.10 – 13 and AUT.007914.15. As summarised below, each was for a different activity:
10.To discharge treated wash water to the CMA.
11.To discharge contaminants to air from marine vessel construction, sale, repair, maintenance and associated activities on the boat yard land and Sections 1-4, SO 63634.7
12.To discharge contaminants to air in the CMA from marine vessel construction, sale, repair and maintenance and associated activities.
13.To discharge contaminants to ground as a result of boat maintenance activities on the boat yard land and Sections 2 and 3, SO 63634.8
…
15. To discharge stormwater to the CMA.
6 Except for AUT.007914.14 which expired on 30 March 2009.
7 The number 63634 is relevant to the key alleged error of law.
8 The number 63634 is again relevant to the key alleged error of law.
[18] A copy of the discharge consents with the precise wording for each activity is attached to the decision of the Environment Court. A copy is also attached to this judgment.9
[19] Mr Schmuck sought a renewal for a term of 18 years to coincide with the expiry date for the coastal permits.
Approach to appeals from the Environment Court
[20] Under s 299 of the Resource Management Act 1991 (RMA) an appeal from a decision of the Environment Court may only be brought on a question of law. Section 299(1) provides:
299 Appeal to High Court on question of law
(1)A party to a proceeding before the Environment Court under this Act or any other enactment may appeal on a question of law to the High Court against any decision, report, or recommendation of the Environment Court made in the proceeding.
[21] The nature of a question of law was considered by the Supreme Court in Bryson v Three Foot Six Ltd in the context of a similar provision in the Employment Relations Act 2000 as follows:10
[25] An appeal cannot, however, be said to be on a question of law where the fact-finding Court has merely applied law which it has correctly understood to the facts of an individual case. It is for the Court to weigh the relevant facts in the light of the applicable law. Provided that the Court has not overlooked any relevant matter or taken account of some matter which is irrelevant to the proper application of the law, the conclusion is a matter for the fact-finding Court, unless it is clearly insupportable.
[26] An ultimate conclusion of a fact-finding body can sometimes be so insupportable – so clearly untenable – as to amount to an error of law: proper application of the law requires a different answer. That will be the position only in the rare case in which there has been, in the well-known words of Lord Radcliffe in Edwards v Bairstow, a state of affairs “in which there is no evidence to support the determination” or “one in which the evidence is inconsistent with and contradictory of the determination” or “one in which the true and only reasonable conclusion contradicts the determination”. …
9 The copy of the discharge consents as attached to the Environment Court decision (and now this judgment) was not complete as it did not include all the conditions.
10 Bryson v Three Foot Six Ltd [2005] NZSC 34, [2005] 3 NZLR 721.
[22] In an appeal under s 299, this Court has said that the Environment Court may have made an error of law if it:11
(a)applied a wrong legal test; or
(b)came to a conclusion without evidence or one to which, on the evidence, it could not reasonably have come; or
(c)took into account matters which it should not have taken into account; or
(d)failed to take into account matters which it should have taken into account.
[23] Any error of law found must materially affect the result of the Environment Court’s decision before the High Court should grant relief.12
[24]I proceed on the basis of the principles set out above.
Errors of law alleged
[25] Mr Schmuck acknowledges that several of his grounds of appeal overlap to some extent. He also says that the Court’s decision that it lacked jurisdiction to consider activities on the Reserve materially affected the decision overall.
[26]The alleged errors of law are expressed as follows:
(a)The Environment Court erred in law when, after the hearing and without hearing from the parties on the issue, it declined jurisdiction to consider discharges from the authorised boat yard activities located on the Reserve due to what was obviously a typographical error, but then granted consent limiting the area of the Reserve on which the activities and discharges could occur;
11 Countdown Properties (Northlands Ltd) v Dunedin City Council [1994] NZRMA 145 (HC) at 153.
12 At 153.
(b)The Environment Court came to a conclusion which, on the evidence, it could not reasonably have come;
(c)The Environment Court did not have jurisdiction to amend a valid land use consent providing for activities on the Reserve without hearing from the issuing consent authority, FNDC;
(d)The Environment Court focused on irrelevant matters and failed to take into account and/or consider relevant matters;
(e)The Environment Court erred in law in interpreting s 105(1)(c) of the RMA as requiring consideration of alternative locations for the treatment facilities and the repair and maintenance activities.
First alleged error – Breach of natural justice
[27] I consider this alleged error in two parts. First, was there a procedural error, which constituted an error of law, in the Court determining that it had no jurisdiction to renew the discharge consents in respect of the Reserve without first hearing from the parties on that issue?
[28] Second, I will consider whether the Court was correct in law that it did not have jurisdiction to consider the renewal applications as they related to the Reserve. This latter issue did not strictly form part of the errors alleged in the notice of appeal. However, Mr Galbraith QC, appearing for Mr Schmuck, submits it is important for the Court to determine the issue so as to ensure that Mr Schmuck is able to continue operating the boat yard under s 124 of the RMA. That section enables a consent holder to operate under an expired consent until all appeals are determined if the application for renewal is for the same activity. Neither of the other parties took issue with the Court proceeding in this way.
Environment Court decision
[29]The Reserve is comprised in Sections 1-4, SO 68634. As can be seen from
[17] above and the copy of the discharge consents attached to this judgment, consents
11 and 13 refer to SO 63634. The Court asked itself what areas were the subject of the application for renewal of consents. It said:
[15] Given that this was an application for renewal of existing consents, one must assume that it cannot extend or increase the coverage of these consents.
[16] As can be seen from the consent annexed as A, the areas involved are explicitly described by their section numbers or DP numbers. The reason for this is unclear and there is no reference in the consent itself to reliance on the maps attached. In its terms, condition 11 refers to Section 1-4 SO63634 Blk V Russell SD. Condition 13, discharge of contaminants to ground, refers to Sections 2 and 3 SO 63634 Blk V Russell SD.
[30] The Court went on to consider whether the GPS coordinates referred to in the consents gave certainty about included areas. It said:
[17] In both cases, all of the various sites are referred to by a general reference to a location to coordinates east and north. The exact position of those coordinates varies slightly with some referring to a coordinate 1701470E 6091840N, i.e., discharge to air, whereas discharge to air from marine vessel construction, sale and repair is at or about locations 1701520E 6091850N.
[18] We were not provided with any documents which established the point of these coordinates nor are they annexed to the consent itself. Nor do these appear to be readily available as fixed points or areas with LINZ advising that coordinates cannot be regarded as reliable in terms of Geodetic Datum 2000 New Zealand, given they were prepared in 2000. We conclude the GPS coordinates do not clarify the areas included in the consents. In addition, the reference to a general area does not assist in this case.
[31] The Court then asked itself whether it could extend the applications to include the Reserve. It said:
[21] The legal question for this Court is that given that it was an application for renewal for consent CON20060791410 (10-15), (now excluding 14 which has expired), are we able to extend the application to include the correct identification of the SO number as 68634 rather than that shown in all the resource consents the subject of the renewal application.
…
[23] We have concluded that this Court is limited to the application that has been appealed before it. That application cannot be extended by an appeal although it can be reduced in scope including area. There is clearly an inference that Sections 1-4 identified on the plan are intended to be a reference to SO 68634. Yet there is no indication in the consent itself that the map is determinative for the purposes of the identity of the land in question. The map does not delineate the areas covered by the consent. Nor can it be said that the
words “at or about the GPS coordinates” establish a different regime for identifying the properties concerned. As we have pointed out, this information does not appear to be readily available, nor can it be regarded as reliable given LINZ’s concerns as to land movement in the time since the coordinates were set up in the 2000 data.
…
[26] Having now expired, the application for renewal cannot be said to provide any potential for amendment of the original consent. The applicant can operate under the existing base consent, notwithstanding the expiry, because of the provisions of s124 only. To change the identification of the property would now be a relatively fundamental matter given the way in which both consent and the renewal application were framed.
[27] We recognise that in this we are taking a technical approach, but we are left with little choice given the wording of the Regional Council resource consent and the wording of the application for renewal.
[28] We conclude we are only able to consider the appeal as it relates to the properties identified in the original consent. Given that the description of the land now known as the reserve is incorrect, we cannot properly consider a consent in relation to the wrongly named block of land as it does not appear to be associated with this area at all.
[29] This being the case, we are left to consider the application for discharge consents in relation to the other blocks of land which could be cumulatively described as the Opua Boatyard land. The conclusion is that Opua Boatyard needs to apply for consents in respect of the esplanade reserve land which for whatever reason were not properly included within the original consents.
Discussion
[32] Mr Galbraith says that the discrepancy in the legal description of the Reserve in the resource consents was not a matter referred to or discussed during the hearing. Nor was the issue of the reliability of the GPS co-ordinates. Mr Mathias for the NRC accepts that at no stage in the process was it identified that there was an error with the misdescription of SO Plan 68634 as SO 63634 in the consents. He agrees that this was an issue seemingly only identified by the Court after the hearing.
[33] The parties were therefore not given an opportunity by the Court to address the issue. I agree with Mr Galbraith that a minute to the parties noting the discrepancy and giving the parties the opportunity to address the Court would have enabled the parties, particularly Mr Schmuck, to provide some answers (which I refer to below).
[34] The Court said it was taking a “technical” approach. In my view, it was much more than that. It was a fundamental jurisdictional point, as a result of which the Court did not consider the application for renewal relative to activities on the Reserve.
[35] I refer to judgments of this Court which provide useful assistance on this issue. In Plain Sense (Taieri Plains Environmental Protection Society) Inc v Dunedin City Council,13 Fogarty J considered a submission that the text of s 299 of the RMA should not be read down and could include a procedural error of law. In that context, the Judge referred to his earlier judgment in Shearing v Southland District Council.14 In that case the Environment Court had viewed the site. As a result of doing so, the Court had formed some conclusions on facts at variance with affidavit evidence lodged in the Court which had not been challenged. In Shearing Fogarty J said:
[25] … where the view is relied upon to obtain evidence or to contradict or reject evidence given in Court, great care must be taken to ensure that the process is fair.
…
[27] Inasmuch as the Court gathers information on a view, which is different information from that presented in Court, the Court has to at the very least give serious consideration to reporting that information to the parties before drawing inferences from it.
[36] The High Court concluded in Shearing that, at the very least, the Environment Court had failed to take into account relevant factors and had thus fallen into an error of law. While neither Shearing nor Plain Sense is on all fours with the issue I am presently considering,15 they are of assistance on the point that the text in s 299(1), “on a question of law”, includes a procedural question of law.
[37] The judgment of Heath J in Te Whare o Te Kaitiaki Ngahere Inc v West Coast Regional Council16 is also of assistance. The primary ground of appeal in that case was that the Principal Environment Court Judge erred in law in two ways. The first was by failing to notify the parties of an intention to strike out the proceeding and the
13 Plain Sense (Taieri Plains Environmental Protection Society) Inc v Dunedin City Council HC Dunedin CIV-2006-412-903, 15 May 2007.
14 Shearing v Southland District Council HC Invercargill CIV-2005-485-694, 14 November 2005.
15 I will also refer to Shearing in the context of a further submission by Mr Galbraith relating to the view of the site taken by the Court in this case.
16 Te Whare o Te Kaitiaki Ngahere Inc v West Coast Regional Council [2015] NZHC 2769.
second was by failing to hear from them before determining whether to do so. The issue for the Court was whether the process by which the Judge reached the decision breached the principles of natural justice (as affirmed by s 27 of the New Zealand Bill of Rights Act 1990 (NZBORA)).
[38] After referring to s 299(1) of the RMA, Heath J was similarly satisfied that the natural justice point qualifies as a question of law fit for appeal.17 Heath J referred to his earlier judgment in Skelton v Family Court at Hamilton,18 where he held that the Family Court Judge had erred in making a publication order without providing an opportunity for the parties to be heard. The Judge had acted in breach of the right to natural justice conferred by s 27(1) of the NZBORA.19
[39] In Te Whare o Te Kaitiaki Ngahere Inc Heath J observed that if notice had been given to the parties, the Judge would have been told about steps that were being taken to seek special leave to appeal to the Court of Appeal. It was apparent that the Judge regarded the existence or otherwise of an attempt to appeal further against a security for costs orders as an important factor to be considered in the exercise of his discretion to strike out. Heath J continued:
[21] … In those circumstances, it cannot be said that the strike out order would inevitably have been made. In my view, the failure to give notice to the parties and to afford them the opportunity to be heard on the proposal to strike out the declaration proceedings was a breach of the principles of natural justice and constitutes an error of law.
[40] While in this case there was no Court order made, the Court’s decision to decline jurisdiction meant that Mr Schmuck was deprived of his statutory right to have his appeal fully considered and to do so under the protection afforded by s 124 of the RMA.
[41] I record that neither Mr Mathias nor Mr Mark for the OPC sought to persuade the Court otherwise. Mr Mathias simply takes the position that, whether the failure to call for submissions on the issue was or was not an error of law, it was not determinative. He submits that if the other alleged errors of law should fail, such that
17 At [18].
18 Skelton v Family Court (No 2) [2007] 3 NZLR 368 (HC).
19 At [91]-[94], [101] and [105].
the decision given on the merits should stand, the appeal should be dismissed. Mr Mark, for OPC, in a similar vein, while acknowledging the natural justice argument, submits that the Court nevertheless granted consents which permit the activities to all be carried out on the boat yard land.
[42] I do not accept those submissions. This is not simply a process issue. It is a substantive issue. The Court confined its consideration to activities on the boat yard land. It excluded from its consideration activities on the Reserve. It said:
[33] … as further applications are in any event going to be necessary for the range of additional activities for which consent was originally sought. The use of the reserve for discharge purposes might be revisited at that time. For current purposes we consider we are left with the discharge activities as they relate to the applicant’s land itself and proceed to consider those.
[43] Mr Schmuck was deprived of a fundamental right given to him under the NZBORA. The Court failed to hear from him before determining it did not have jurisdiction to consider his appeal as it related to the Reserve. For that reason alone I would allow the appeal. The error had a material effect on the decision.
[44] I turn now to the second part of the first alleged error, namely whether the Court was correct in law in determining that it did not have jurisdiction to consider the applications for discharge consents in respect of the Reserve.
[45]The Court stated:
[15] Given that this was an application for renewal of existing consents, one must assume that it cannot extend or increase the coverage of these consents.
[46] That is a correct statement of principle if put rather generally (but which applies after the discharge consents have been interpreted). More particularly, the Court of Appeal said in Shell New Zealand Ltd v Porirua City Council:20
[7] We think it plain that jurisdiction to consider an amendment to an application is reasonably constrained by the ambit of an application in the sense that there will be permissible amendments to detail which are reasonably and fairly contemplatable as being within the ambit, but there may be proposed amendments which go beyond such scope. Whether details of an
20 Shell New Zealand Ltd v Porirua City Council CA57/05, 19 May 2005.
amendment fall within the ambit or outside it will depend on the facts of any particular case, including such environmental impacts as may be rationally perceived by an authority.
[47] In this case, the Court simply proceeded on the basis that because the number read SO 63634 rather than SO 68634 (the Reserve), the Reserve was not the land identified in the original consents and therefore Mr Schmuck was, as the Court put it, seeking to “extend or increase the coverage of these consents”.
[48] In my view, this was the wrong approach. The Court first needed to decide what the discharge consents meant. The proper approach would have been to first interpret the discharge consents objectively, just as a Court approaches the interpretation of legislation, contracts and Court orders as well as other legal documentation. Had the Court done so, it would not have said, for example:
[19] While the application did not contain any change of description, it is notable that in the Notice of Appeal … and in the amended appeal … the reference is to SO 68634 (the reserve) and “being part of the reserve”… We are able to conclude by the time of filing the appeal it was recognised the reference in the original consent to SO 63634 was not a reference to the reserve.
(emphasis in original)
[49] In my view there was no basis for the Court to reach that conclusion without raising it with counsel for Mr Schmuck.
[50] Had the Court proceeded to interpret the discharge consents on an objective basis, it would have taken into account the following:
(a)A search of SO 63634 would have pointed to the strong likelihood of a typographical error. That plan is drawn by Electricorp and depicts Transmission Lines existing or under construction as at 31 December 1987 in the Riverhead area, which is at a considerable distance from Opua.
(b)The discharge consents were first issued by the NRC as part of a consent order of the Environment Court in 2002 which also included the FNDC land used consent. That land use consent referred to the
application by D C Schmuck “… for the following activities and structures on the Esplanade Reserve (Sec 1, Sec 2, Sec 3 & Sec 4 as shown on SO 68634).” (I have already referred to the activities approved and conditions imposed for that consent in [10] to [15] above).
(c)The plan annexed to the 2002 FNDC land use consent was virtually identical to the plan annexed to the 2002 discharge consents.21 As already noted they were part of the same consent order. Although the plan annexed to the FNDC consent does not include the SO number (SO 68634), but only identifies Sec 1, Sec 2, Sec 3 and Sec 4, the FNDC consent itself (as noted above) refers to “Sec 1, Sec 2, Sec 3 & Sec 4 as shown on SO 68634” and the FNDC consent refers to “the attached plan”.
(d)The discrepancy in the legal description as between the FNDC consent and the NRC discharge consents was not noted by the Environment Court at the time it issued the consent order in 2002.
(e)The NRC notified and reviewed the discharge consents over the period 2006 to 2008. There was no indication that the incorrect legal description was picked up either by the NRC or the submitters at the time.
(f)In February 2019, the FNDC and the NRC approved the most recent review of the Operational Management Plan (the Management Plan) for the boat yard required by the conditions of the various consents held by Mr Schmuck, including both the land use and discharge consents. The Management Plan is a detailed document which sets out requirements for the sustainable management of the boat yard on the boat yard site, the Reserve and the CMA. It is apparent from that document both Councils accepted the rights of Mr Schmuck to carry out his activity on the Reserve under their respective consents.
21 Which was the same plan as annexed to the 2008 discharge consents.
[51]The Court said at [20]:
This led the Court to inspect in more detail the document prepared in 2008 as it related to the land in question. It is notable that the diagram attached to the consent prepared by the Northland Regional Council NTS 3231c shows the SO numbers in respect of all of the sites but not the SO numbers for Sections 1-4. Nor are these delineated in any detail.
[52] While that is the case, not only is that plan annexed to the Management Plan, there is also annexed to the Management Plan a plan prepared by Thomson Survey Ltd (showing more or less the same area) on which both sections 1 and 3 contain the reference SO 68634.
[53] Finally, the OCP and its predecessor have taken a strong stance against the boat yard activities on the Reserve over a lengthy period. The opposition however has been on compliance and enforcement issues. There has never been any doubt that the discharge consents applied to the Reserve as well as to the boat yard land and indeed the appeal in the Environment Court proceeded on that basis.
[54] For his part, Mr Mathias did not take issue with the argument for Mr Schmuck regarding the interpretation of the legal description of the land which is subject to the discharge consents. He accepts that it appears to have been an error on the part of the NRC in the way in which it recorded the legal description in the resource consents. He acknowledges that the correct number appears on the FNDC land use consent and also in the Management Plan. He acknowledges that both Councils were effectively a party to the Management Plan. Mr Mathias also acknowledges that as far as the hearing before the Environment Court was concerned, there was no doubt in the NRC’s mind, nor in the approach of the other parties, as to what land was included in the discharge consents. In short, for the NRC, Mr Mathias accepts there was a clear error in the legal description referred to in the discharge consents and that the section numbers were intended to refer to the Reserve.
[55] I consider that the objective analysis I have carried out above establishes that the discharge consents applied to the Reserve. The Court erred in determining otherwise. The error was material. It resulted in the Court approaching its analysis and decision-making by excluding the Reserve from its considerations.
Second alleged breach of natural justice
[56] Mr Galbraith submits that there was an additional fundamental breach of natural justice by the Court. As is apparent from the decision, the Court viewed the subject site. This Court is told that the parties understood that would happen and there was no objection to it. Mr Galbraith’s submission was that there was a failure on the part of the Court after viewing the site in developing its own solution, that is a discharge system, because it did not refer this proposal to the parties for comment or to hear from the expert witnesses and Mr Schmuck as to its feasibility. Mr Galbraith says this was a breach of natural justice.
[57]The Court said this:
[70] When we looked more closely at the turntable area immediately in front of the building, it became clear that this had been modified so that the turntable could no longer move. It now consists of a large concrete dial within a circular hole with some outer concreting which directs water into this hole.
[71] We were unable to see how this operated or filtered wastewater but it appears that it was connected by a pipe to a small sump slightly to the west which appears to have been in this position for many decades. It was covered simply by wooden planks. It did not appear to be large (less than 1 m3). Given that the turntable is no longer utilised, we were perplexed as to why this system had not been replaced with a more appropriate catchment pit grid system with associated sump storage to enable washdown to occur and the removal of debris.
…
[76] Mr Schmuck indicated that he wished to clean down the hull of the vessel closer to the water before moving the vessel up for more significant repairs and maintenance. The reason for this was very unclear until we examined more closely the circular sump area. Because the old turntable [which is almost completely on the boat yard land] has not been installed with a more relevant catchment grating system, it appears that if hull washdown is sent to the turntable, then the barnacles, seaweed and other items get wedged around the edge of the circular dial with no clear way to clean them out. This could be addressed simply by installing a crosshatch grill but this does not appear to have occurred. It would be completely solved by installing a proper catchment at the top of the slipway and ensuring the washdown was simply directed into that catchment area.
…
[81] … The turntable area outside has been decommissioned from its original purpose and now serves no practical purpose at all except as a makeshift sump. For whatever reason, it has not been replaced with an appropriate sump and grid system which will enable removal of gross solids
and the treatment of other materials before distribution to a wastewater system.
…
[185] We are satisfied that with a slight extension of say 1.5-2m beyond the applicant’s boundary, repairs, maintenance and washdown of vessels could be contained. To that extent, this would require a catch-sheet that would redirect any washdown materials, overspray and the like, back into the site to be caught in the catch-pit and impermeable areas that would be required to be constructed.
[58] Mr Galbraith submits that in circumstances where the solution arrived at by the Court, set out above, was not raised with Mr Schmuck or the expert witnesses during the hearing, natural justice required the Court to do so before making its decision. The Court needed to hear from the expert witnesses and Mr Schmuck as to whether the solution was practicable and feasible.
[59] Mr Mathias acknowledged that whether such a system was feasible was not discussed during the evidence. It was not put to any of the witnesses that a system could be worked from the turntable. Mr Mathias acknowledged that this was a conclusion which might have more properly gone back to the parties for consideration, especially as this was a methodology which confined the containment and discharge system effectively to the boat yard land. He also accepted that the Court’s failure to come back to the parties for comment arguably affected the whole decision. There was the issue of how spray would be collected; how particulate would be disposed of; and whether that activity would be feasible in the same area being used for painting and grinding.
[60] I have no doubt that the Court should have referred its “solution” to the parties and their witnesses and to hear further from those witnesses on the workability of the solution and to hear submissions on the issue. Shearing, already referred to above,22 is directly relevant here. Mr Schmuck had conducted his operations over an extended period utilising the Reserve. He called a number of expert witnesses at the hearing in support. The Court needed to tell Mr Schmuck, as the party adversely affected, what conclusion it had reached after its view of the site, to enable him to comment and produce evidence.
22 At [35] and [36].
[61] The Court’s failure to revert to the parties, especially as the Court was operating from a position that it did not have jurisdiction to renew the discharge consents as they applied to the Reserve, exacerbated the breach of natural justice. The breach arising from the failure to revert to the parties with its ‘solution’ was material as it resulted, in combination with the first breach, in the Court granting consent on the basis of a discharge system on which the Court had not heard evidence and which confined the boat yard operation to (effectively) the boat yard land.
[62] I also observe there is something of an inconsistency in [185] set out in [57] above where the Court, having said it did not have jurisdiction to consider the application insofar as it applied to the Reserve, nevertheless allowed a protrusion of “say 1.5-2m beyond the applicant’s boundary”.
[63] Mr Galbraith submits the two breaches of natural justice, namely the failure to hear from the parties on the jurisdictional point and the failure to revert to the parties after the view, are all encompassing. He was content for the appeal to be determined on that basis. I agree with Mr Galbraith that the breaches of natural justice overtake all the remaining alleged errors of law.
Summary
[64] In summary, the errors of law and resulting answers to the questions of law that Mr Schmuck accepted should be addressed are:
(a)The Environment Court erred when, after the hearing and without hearing from the parties on the issue, declined jurisdiction to consider discharge activities located on the Reserve. This failure was a breach of the principles of natural justice;
(b)The Environment Court erred when it determined that the discharge consents did not apply to activities on the Reserve;
(c)The Environment Court further erred when it did not revert to the parties after its view of the site to enable the parties to comment by way
of evidence and/or submission on its solution for a discharge system. This was again a breach of the principles of natural justice.
Result
[65] The appeal is allowed. The decision of the Environment Court is set aside. The matter is remitted to the Environment Court for further consideration and with the following directions:
(a)The discharge consents applied to activities on the Reserve (as well as on the boat yard land);
(b)The evidence will need to be further considered in light of (a); and
(c)The discharge system proposed by the Court in its decision is one on which the parties may comment and/or produce evidence.
Costs
[66] Costs are reserved. If the parties are able to agree costs a joint memorandum should be filed within 20 working days of the date of this judgment. In the event agreement cannot be reached, Mr Schmuck is to file and serve his submissions within five working days of the date for the joint memorandum and NRC and OCP are to file and serve their memoranda within a further five working days. Memoranda should not exceed five pages (excluding any attachments). I will then determine costs on the papers.
Gordon J
3
1