Shepherd v The Environment Court HC Auckland CIV 2011-404-3091

[2011] NZHC 1341

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2011-404-3091

UNDER  Part 1 of the Judicature Amendment Act

1972

BETWEEN  DENNIS AND VALERIE SHEPHERD Applicants

ANDTHE ENVIRONMENT COURT First Defendant

ANDAUCKLAND CITY COUNCIL Second Defendant

ANDPARAKAI AIRFIELD LTD Third Defendant

Hearing:         20 October 2011

Counsel:         K R M Littlejohn for Applicants

No appearance by, or on behalf of First Defendant
S H Smith for Second Defendant
B S Carruthers for Third Defendant

Judgment:      21 October 2011

JUDGMENT OF HEATH J

This judgment was delivered by me on 21 October 2011 at 3.30pm pursuant to Rule 11.5 of the High

Court Rules

Registrar/Deputy Registrar

Solicitors:

Whaley Garnett, PO Box 17181, Greenlane, Auckland Simpson Grierson, Private Bag 92518, Auckland Russell McVeagh, PO Box 8, Auckland

Crown Law, PO Box 2858, Wellington

Counsel:

K Littlejohn, PO Box 106 215, Auckland

SHEPHERD V THE ENVIRONMENT COURT HC AK CIV 2011-404-3091 21 October 2011

The application

[1]      Mr and Mrs Shepherd seek judicial review of decisions of the Environment

Court. There are three relevant decisions.  They were delivered on 3 March 2009, 15

December 2010 and 27 April 2011 respectively.

[2]      At issue in the substantive proceeding is the right of the Environment Court to make orders requiring Mr and Mrs Shepherd to trim trees on their property that might affect the operation of a nearby airfield.  The Court’s orders were designed to uphold height restriction provisions of the relevant district plan.

[3]      Yesterday, I heard Mr and Mrs Shepherd’s application for interim orders to prevent further steps from being taken to enforce terms of the plan, pending determination  of  the  substantive  proceeding.    The  interim  relief  application  is opposed by both the Auckland Council and the airfield operator, Parakai Airfield Ltd.  The Environment Court abides the decision and has been excused from active participation in the proceeding.

Background facts

[4]      Mr and Mrs Shepherd own a farm property at Green Road, Parakai.   The Parakai Airfield is located to the east of their land.  The two properties are separated by an access-way to another piece of land.

[5]      There are two rows of trees on Mr and Mrs Shepherd’s property that infringe height restrictions imposed by the relevant district plan.  One is a line of eucalyptus, to which I will refer as gum trees.  The second is a row of willows.  The gum trees were planted around 1955, while the willows were established in about 1989.

[6]      The Rodney District Council notified a proposed district plan in November

2000.  That is the plan in which the height restrictions appear.  The restrictions were designed to enhance safety in the operation of the airfield and reflected guidelines

promulgated by the Civil Aviation Authority.  The trees on Mr and Mrs Shepherd’s

property are situated at the end of the runway at which approaching aircraft land.

[7]      The relevant height restriction rule is contained in rule 7.10.1.3.  Relevantly, it states:

.... no tree shall exceed the height limits specified on the relevant Planning Maps for land around the airfields at ... Parakai (see .... Map Appendix 1 ... and Maps ... 24).

[8]      The relevant appendix and map, based on scaling from a sheet, commences at the end of the formed runway at a point approximately 70 metres to the east of the trees, rising at the rate of 1:20 from that point.  The practical effect of the rule was to limit the maximum height of the willow trees to approximately 4 metres and the gum trees to between 18 metres and 19 metres.

[9]      At the time the plan was notified, the willow trees were between 9 metres and

11 metres in height.  There was no reliable evidence before the Environment Court about the height of the gum trees in November 2000.

[10]     Mr  and  Mrs  Shepherd  took  the  view  that  the  willow  and  gum  trees represented an existing use1  of their farm property.  They objected to the proposed plan on the grounds that it took away or reduced permitted rights of use on rural land. The Rodney District Council dismissed their objection.

[11]     Mr  and  Mrs  Shepherd  appealed  to  the  Environment  Court  against  that decision.  Subject to the addition of a note to one of the maps requiring trimming of trees to be undertaken at the instruction of and payment by the airfield, that appeal was dismissed, on 3 March 2009.2

[12]     No steps were taken by Mr and Mrs Shepherd to comply with the height restriction requirement.  Application was made for an enforcement order to compel

1 Resource Management Act 1991, s 10, set out at para [20] below.

2 Shepherd v Rodney District Council Environment Court A 24/2009, 3 March 2009 (Judge J A Smith and Commissioner McConachy).

compliance.3   By this time the Rodney District Council had been disestablished.  Its successor, the new Auckland Council, made the application.

[13]     In a judgment given on 15 December 2010, the Environment Court made an enforcement order to ensure the trees were trimmed or removed, so as to comply with the requirements of the plan.4

[14]     On 2 March 2011, Mr and Mrs Shepherd applied to the Environment Court to review  its  decision  of  15  December  2010.5      That  application  was  made  under s 294(1) of the Resource Management Act 1991 (the Act), by which the Court has power to direct a rehearing in circumstances where ―new or important evidence becomes available or there has been a change in circumstances that in either case might have affected‖ the relevant decision.6   In a judgment given on 27 April 2011, after considering the respective positions  on  the papers,  the  Court  held  that  no grounds had been made out for a review of the earlier decision.7

[15]     No appeal was brought to this Court against any of the three decisions of the Environment Court.  A decision of the Environment Court is final in nature unless reheard under s 294 or appealed under s 299.8   An appeal to this Court may only be

brought on a question of law.9

The grounds on which the interim order application is made

[16]     Initially, interim relief was sought in respect of the requirement to trim all of the trees.   Mr and Mrs Shepherd’s position was that refusal would render the substantive proceeding nugatory.  However, at the commencement of the hearing, Mr Littlejohn, for Mr and Mrs Shepherd, refined their position. They now accept that no order is necessary in respect of the line of willow trees because it will be possible for

them to grow back to their present state within a reasonable period of time.

3 Auckland Council v Shepherd [2010] NZ EnvC 423.

4 Ibid, at para [24].

5 Auckland Council v Shepherd [2011] NZ EnvC 102.
6 Section 294(1) is set out at para [33] below.
7 Ibid, at para [23].
8 Resource Management Act 1991, s 295.

9 Ibid, s 299(1).

[17]     The application remains in respect of the gum trees, for two reasons.  First, there is a concern that compliance with the enforcement order might remove Mr and Mrs Shepherd’s ability to maintain their position that the trees may stand in their present state under an existing use.   Second, it is submitted that to trim the trees would result in disfigurement of them, in a manner that would affect adversely their aesthetic value.

The Environment Court’s decisions

[18]     In its judgment of 3 March 2009, the Environment Court, applying Nugent Consultants   Ltd   v  Auckland   City   Council,10    considered   whether   the   height restrictions contained in the proposed District Plan should apply both before and after public notification.  Judge J A Smith, delivering the Court’s decision, held that

―the objectives and the policies of [the] plan clearly reinforce the operation of the‖ airfield and where ―there is a conflict with farming activities, those are resolved in favour of the airstrip‖.11

[19]     After considering the efficiency and effectiveness of various provisions in the plan and the benefits and costs to both the airfield and the farming activity, the Court concluded:

[43]      The  Council  slope  constraint  is  appropriate.    The  Council  have already provided a reasonable setback from the boundary to achieve a height of four metres at the Shepherd boundary.   Thus trees can grow there and serve a proper purpose.   We consider that the planning map could have added to it a note:

Where the owner consents, trimming of trees required to comply with the AHR will be undertaken at the instruction of and paid for by the adjacent airfield.

[44]      Overall,  we  have  concluded  that  there  is  a  narrow  band  at  the Shepherd property affected, and the cost of trimming would be met by the Airfield at the owners’ agreement.  Furthermore, we consider that the height limitation is a limited restriction and does not prevent the operation of the farm as it currently is configured.

...

[20]     The second decision arose out of the Council’s application to enforce the requirement to trim the trees to comply with the height restriction provisions of the district plan.   One of the points raised concerned the existing use provisions of s 10(1) of the Act:

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.

...

[21]     Mr and  Mrs  Shepherd  argued  that  there were,  at  the time the  plan  was notified in November 2000, existing use rights in respect of both the willow and gum trees.  The Principal Environment Judge was not satisfied that Mr and Mrs Shepherd had met the burden of demonstrating existing rights, at that date.  In summarising his

conclusion, Judge Thompson said:12

[20]      In summary then, my views on the existing use rights point are that in respect of the Gum Trees, there is no evidence on which I could base a defensible finding that they exceeded the ... height limit at the relevant time. In the absence of being able to make such a finding, Mr and Mrs Shepherd have not established that there are existing use rights in respect of those trees.    In  respect  of  the  Willows  my  clear  view  is  that  the  evidence establishes that any existing use protection has long since been discontinued and no longer exists.  (original emphasis)

12 Auckland Council v Shepherd [2010] NZ EnvC 423 at para [20].

[22]   In the third decision, the Environment Court was invited to review its enforcement order on the grounds that there was ―new and important evidence‖13 relevant  to  the  decision  that  Judge  Thompson  had  not  had  the  opportunity  to consider.  Counsel informed me that Mr Shepherd filed an affidavit in support of this application that annexed a statement from a proposed expert witness, Mr Fischer, indicating the likely height of the trees in 2000.

[23]     Judge Thompson rejected the application on the grounds that the proposed evidence was neither ―new‖ nor ―important‖.   Further, he held that no ―miscarriage of justice‖ would result if the application were dismissed.  The Judge was influenced significantly by the need for finality in the litigation and his impression that Mr and Mrs Shepherd were simply repenting of their decision to run their defence to the

enforcement order application without evidence of that type.14

Interim orders: Legal principles

[24]     Section 8(1) and (3) of the Judicature Amendment Act 1972 provides:

8.        Interim orders

(1)       Subject to subsection (2) of this section, at any time before the final determination of an application for review, and on the application of any party, the Court may, if in its opinion it is necessary to do so for the purpose of preserving the position of the applicant, make an interim order for all or any of the following purposes:

(a)       Prohibiting  any  respondent  to  the  application  for  review from taking any further action that is or would be consequential on the exercise of the statutory power:

(b)       Prohibiting or staying any proceedings, civil or criminal, in connection with any matter to which the application for review relates:

(c)       Declaring any licence that has been revoked or suspended in the exercise of the statutory power, or that will expire by effluxion of time before the final determination of the application for review, to continue and, where necessary, to be deemed to have continued in force.

...

(3)       Any order under subsection (1) or subsection (2) of this section may be made subject to such terms and conditions as the Court thinks fit, and may be expressed to continue in force until the application for review  is  finally  determined  or  until  such  other  date,  or  the happening of such other event, as the Court may specify.

Section 8(2) has no relevance in the present case.

[25]     Section  8  was  considered  by  the  Court  of Appeal  in  Carlton  & United Breweries Ltd v Minister of Customs,15  a decision now regarded as authoritatively defining its scope.   The decision was one of a Full Court comprising Cooke, Richardson, McMullin, Somers and Casey JJ.  Reasoned judgments were given by all but Casey J, who in concurring in the result, said that he had nothing to add.16

[26]     Cooke J, while expressly disavowing the notion that a general rule requiring a prima facie case to be established as a condition precedent to invocation of the s 8 jurisdiction made it clear that the Court must be satisfied that the order sought was necessary to preserve the applicant’s position.  The Judge made it clear that the term

―necessary‖ in s 8(1) should be read as meaning ―reasonably necessary‖.17

[27]     Richardson J, took the view that s 8 did not mandate any particular approach to the question whether an interim order was necessary to preserve the position of an applicant.  His Honour said that the ―legal answer must depend on an assessment by the Judge of all the circumstances of the particular case‖, including ―the nature of the review proceeding‖, ―the character, scheme and purpose of the legislation under which the impugned decision was made‖, as well as ―all the factual circumstances, including the nature and prima facie strength‖  of the challenge and the expected

duration of any interim order.18

[28]     Somers J, agreed that no gloss should be put on the word ―necessary‖.  He opined that it was ―for the court to determine whether, in the circumstances shown to

15 Carlton & United Breweries Ltd v Minister of Customs [1986] 1 NZLR 423 (CA).

exist, the necessity to preserve the applicant’s position has been established, and, if

so, whether an interim order should be made‖.19

[29]     McMullin J, while not addressing the question of construction, expressed reasons for agreeing with other members of the Court which were consistent with the way in which the broad nature of the s 8 jurisdiction had been articulated by Cooke, Richardson and Somers JJ.20

Analysis

[30]     It is clear from Carlton & United Breweries that an assessment of what is

―necessary‖ is fact-specific.  In the context of the present case, while there are also strong discretionary factors weighing against the grant of interim relief,21 I consider that the determinative point is the lack strength of the substantive arguments in relation to the gum trees.

[31]     Mr Littlejohn placed significant weight on proposed expert evidence from Mr Fischer that was put before Judge Thompson when he was asked to review the enforcement order.  Mr Fischer, by reference to the likely time at which a particular gum tree was planted (1955) calculated the likely height of it in 2000.  In a signed statement Mr Fischer opined that ―a conservative estimate of height of the tree in the year 2000 would be 20.1 metres above ground level with the reasonable possibility that it may in fact have been higher than 20.1 metres.  That proposed evidence may be contrasted with a schedule that was before the Environment Court when the enforcement   order   was   made   which   indicated   that   the   particular   tree   was

22.65 metres high in May 2010.

[32]     Mr Littlejohn accepted that reliance could only be placed on Mr Fischer’s proposed evidence if he could successfully review the Environment Court’s decision not to grant a rehearing, under s 294.  That was a responsible concession.  If there were no merit in any challenge to Judge Thompson’s decision to dismiss the s 294 application, interim relief could not be justified.

[33]     Section 294(1) of the Act states:

294     Review of decision by Environment Court

(1)       Where, after any decision has been given by the Environment Court, new and important evidence becomes available or there has been a change in circumstances that in either case might have affected the decision,  the  Environment  Court  shall  have  power  to  order  a rehearing of the proceedings  on  such terms  and conditions  as it thinks reasonable.

...

[34]     Judge Thompson considered this issue in the context of rr 12.15 and 12.16 of the District Courts Rules 2009 which deal with the power to order a retrial.  Rule

12.15.1 provides that a retrial may only be ordered if the court is of opinion that

―there  has  been  a  miscarriage  of  justice  that  justifies  a  retrial‖.    Rule  12.15.3 provides examples of circumstances in which a ―miscarriage of justice‖ might arise: namely, where the judgment has been obtained by any unfair or improper practice of the successful party to the prejudice of the other, material evidence has been discovered since the hearing that could not reasonably have been foreseen or known before the trial or any witness had been guilty of misconduct that affected the result of the trial.

[35]     Although his approach was more favourable to Mr and Mrs Shepherd, I consider, with respect, that Judge Thompson took too broad a view of the s 294 jurisdiction.  Section 294 codifies the circumstances in which the Environment Court may embark upon a reconsideration of a prior decision it has made.  The fact that s 294 is an independent source of jurisdiction is confirmed by s 295 by which it is provided that a decision of the Environment Court is final unless reheard under s 294 or appealed under s 299.

[36]     Judge  Thompson’s  approach  was  to  consider  whether  either  ―new  and important  evidence‖ had  been  brought  forward  or there had  been  a  ―change in circumstances‖ that meant a miscarriage of justice might have occurred.  The term

―miscarriage of justice‖ does not appear in s 294(1).   Rather, before the Court’s jurisdiction  may  be  exercised,  it  must  be  satisfied  that  the  new  and  important evidence  or  the  change  in  circumstances  ―might  have  affected  the  decision‖  in

question.  There does not need to be a ―miscarriage of justice‖.  All that is required is a finding that either ―new  and important evidence‖  exists or that there has been a

―change in circumstances‖ that ―might have affected the decision‖.  The requirement to consider whether one of the preconditions ―might have affected the decision‖ invokes the concept of materiality rather than one of miscarriage or interests of justice.

[37]     I  consider  it  is  clear  that  the  term  ―new  and  important  evidence‖  is  a composite phrase requiring both freshness and cogency to be considered.  In many other areas of the law a retrial may be ordered if a Court were satisfied that course best serves  the interests of justice.22     The more prescriptive terms of s 294 are justifiable on the grounds that decisions of the Environment Court tend to affect not only the immediate parties but members of the public.  The Court’s public function

adds emphasis to the need for finality in litigation, thereby providing a solid foundation for a rehearing rule that is focussed on the establishment of particular criteria and an assessment of materiality.

[38]     There was no material change of circumstances in this case.   That left the threshold question, under s 294(1), as being whether there was ―new and important‖ evidence.

[39]     Judge Thompson  considered  that  the  proposed  evidence  was  not  ―new‖. Judge  Thompson  referred  to  Mr  Shepherd’s  affidavit  in  support  of  the  s 294 application.  I agree with the Principal Judge that Mr Shepherd’s deposition makes it clear  that  he  was  repenting  of  his  decision  to  defend  the  enforcement  order application in the absence of evidence of existing use in respect of both the willow

and gum trees.  Mr Shepherd had said:23

Since the decision in this case I worked diligently to find and engage three experts to advise me on the issues raised by the decision.

22 For example, R v Bain [2004] 1 NZLR 638 (CA) at paras [22] and [23].

23 The affidavit of Mr Shepherd was not before me on the interim relief application. My quotation from Mr Shepherd’s evidence is taken from Judge Thompson’s decision: Auckland Council v Shepherd [2011] NZ EnvC 102 at para [6].

[40]     Those circumstances make it impossible to argue that the proposed evidence of Mr Fischer was ―new‖.  It could have been discovered with reasonable and proper diligence and presented at the enforcement order hearing.   In my view, Judge Thompson was right to reject the application on that ground alone.  In the absence of

―new‖ evidence the ―new and important‖ criterion could not be met.

[41]     In  the  absence  of  evidence  of  the  type  given  by  Mr  Fischer,  there  is insufficient strength in Mr and Mrs Shepherd’s case to justify an interim order in respect of the gum trees.   In the second judgment, Judge Thompson found that Mr and Mrs Shepherd had not discharged the onus of showing an existing use.

[42]     The grounds on which a party may seek judicial review of a decision of the Environment Court are narrow.   It is well established that this Court must be persuaded, on a substantive application, that the impugned decision is contrary to law, was made erroneously or unfairly or was unreasonable.24

[43]     There is no basis on which this Court could, on a judicial review application, against Judge Thompson’s finding that there was no evidence of existing use, so far as the gum trees were concerned.25   The hopeless nature of the argument advanced in relation  to  the  gum  trees  means  that  the  interim  application  must  be  declined. Having regard to the stance taken in respect of the willow trees,26 no interim order is

―necessary‖ to hold the position pending trial of the substantive proceeding.

[44]     Although I have found that the application must fail on substantive grounds, there are other discretionary factors that militate against the grant of relief.  First, no appeal was brought against any of the three decisions in issue in the substantive proceeding.  Second, so far as the first and second decisions are concerned, there was a considerable delay in issuing this proceeding.   Third, the importance of public aspects  of  the  Environment  Court’s  decisions  suggest  care  should  be  taken  in

determining whether to suspend their operation when safety issues are involved.

24 Te Runanga a-iwi o Ngati Kahu v Carrington Farms Ltd HC Whangarei CIV 2010-488-348, 29

September 2011 (White J) at paras [100] and [101], citing Joseph, Constitutional and Administrative

Law in New Zealand at [21.10].

25 Auckland Council v Shepherd [2010] NZ EDnvC 423 at para [20], set out at para [21] above.

26 See para [16] above.

Further observation

[45]     In argument, Mr Littlejohn expressed concern that Mr and Mrs Shepherd’s ability to maintain their position on existing uses would be prejudiced if they were required to comply with the enforcement order pending determination of their substantive  judicial  review  application.     As  well  as  the  present  proceeding, Mr Littlejohn drew attention to a further remedy that might exist under s 139A of the Act.

[46]     I do not consider this point is relevant to the balancing of factors in favour of or against interim relief.   There is no jurisdictional bar to Mr and Mrs Shepherd maintaining  their  position,  either  in  the  present  proceeding  or  on  a  s 139A application to the consent authority.  A party cannot lose an ability to put forward a position because it has been compelled by Court order to act contrary to it.   An involuntary act could not operate as a waiver of rights.  Waiver is a concept based on consensual activity.

Result

[47]     The application for interim relief is dismissed.

[48]     There is no reason why costs should not follow the event.  Costs are awarded against Mr and Mrs Shepherd in favour of each of the Auckland Council and Parakai Airfield Ltd on a 2B basis, together with reasonable disbursements.

[49]     The Registrar is directed to set the substantive proceeding down for a case management conference before a Judge on the first available date after 11 November

2011.   Counsel for Mr and Mrs Shepherd shall file and serve a memorandum indicating the orders he seeks by 5pm on 7 November 2011.  Any memorandum in response from counsel for the Auckland Council and Parakai Airfield Ltd shall be filed and served by 5pm on 11 November 2011.

[50]     No doubt counsel will advise Mr and Mrs Shepherd as to the desirability or otherwise of their pursuit of a substantive application in respect of the gum tree

issue, having regard to  adverse costs that might be awarded if that claim were

unsuccessful.

P R Heath J

Delivered at 3.30pm on 21 October 2011