Simons Hill Station Limited v Royal Forest & Bird Protection Society of New Zealand Incorporated
[2015] NZHC 292
•26 February 2015
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CIV-2014-409-000054 [2015] NZHC 292
BETWEEN SIMONS HILL STATION LIMITED AND SIMONS PASS STATION LIMITED
Appellants
AND
ROYAL FOREST & BIRD PROTECTION SOCIETY OF NEW ZEALAND INCORPORATED
First Respondent
CANTERBURY REGIONAL COUNCIL Second Respondent
Hearing: 17 February 2015 Appearances:
M Casey QC for Appellants
P Anderson and S Gepp for First Respondent
M Dysart for Second RespondentJudgment:
26 February 2015
JUDGMENT OF GENDALL J
The application
[1] On 17 June 2014, I delivered judgment in relation to this appeal from the decision of the Environment Court.1 In that decision, the Environment Court had refused to partially strike out substantive appeals to that court by the first respondent (“RFB”), or otherwise to give directions limiting the scope of the RFB appeals.2
Ultimately in my 17 June 2014 judgment, I dismissed the appeal to this Court against
the Environment Court decision.
1 Simons Hill Station Ltd v Royal Forest & Bird Protection Society of New Zealand Inc and
Canterbury Regional Council [2014] NZHC 1362 [High Court decision].
2 Royal Forest and Bird Protection Society of New Zealand Inc v Canterbury Regional Council
[2013] NZEnvC 301 [Environment Court decision].
SIMONS HILL STATION LIMITED v ROYAL FOREST & BIRD PROTECTION SOCIETY OF NEW ZEALAND INCORPORATED [2015] NZHC 292 [26 February 2015]
[2] The appellants now seek leave to appeal this High Court decision to the Court of Appeal. Leave to bring this application out of time is also sought, but is not generally opposed.
[3] I note in passing at this point that the substantive appeal remains to be heard by the Environment Court as the scope of that appeal is contingent on the outcome of the current appeal.3
Background
[4] On 20 December 2013, the Environment Court refused to strike out RFB’s appeals against the decisions of Commissioners appointed by the second respondents, the Canterbury Regional Council (“CRC”). Pursuant to the Resource Management Act 1991 (“the RMA”), the Commissioners had granted the appellants resource consents to take and use water from Lake Pukaki or the Pukaki Canal to irrigate their farmland.
[5] The applications for resource consent were made under the Waitaki Catchment Water Allocation Plan (“WCWAP”), which was established under the Resource Management (Waitaki Catchment) Amendment Act 2003. These consent applications were publicly notified along with 159 other applications for similar activities in the Upper Waitaki region. RFB made submissions on these applications, the relevant submission being dated 28 September 2007 (“the 2007 submission”).
[6] In a strike-out application before the Environment Court, the appellants argued that RFB’s appeals raised issues beyond the scope of their 2007 submission. The appellants submit that the 2007 submission was solely confined to issues related to the WCWAP and the effects of the taking of the water. RFB’s substantive appeal against the Commissioners’ decision cited adverse effects on landscape, terrestrial ecology and water quality. The appellants maintain that these matters fall outside the
scope of both the WCWAP and the 2007 submission.
3 High Court decision, above n 1, at [5].
[7] The application for a partial strike-out of RFB’s substantive appeals was two- pronged:
(a) An appeal against the grant of a resource consent is constrained as to its scope by the appealing party’s original submission lodged with the consenting authority.
(b)The matters raised by RFB on its appeal to the Environment Court were not, as a matter of interpretation, within the scope of its 2007 submission.
[8] The Environment Court found in favour of the appellants on the first issue, but against them on the second issue, thus declining to strike out RFB’s appeals. The appellants appealed to the High Court under s 299 of the RMA, on the grounds that:
(a) The Court incorrectly interpreted RFB’s original 2007 submission as raising issues of the effects on terrestrial ecology of the appellant’s proposed use of the water.
(b) The Court wrongly interpreted the objectives and policies of the
Waitaki Plan and reached incorrect conclusions as a result.
(c) The Court wrongly interpreted Policy 12 of the WCWAP and therefore incorrectly concluded it was relevant.
(d)The Court was wrong to consider the adequacy or otherwise of an applicant’s AEE and its responses to s 92 requests as a consideration relevant to the scope of submissions made on the application for resource consent.
(e) The Court was wrong to hold that RFB’s statement of issues did not
qualify its notice of appeal.
High Court decision
[9]
appel
In th
lants’ a
(a)
e High Court decision allowing RFB’s cross-appeal and dismissing the ppeal, I held, inter alia:
A submitter who appeals under s 120 of the RMA is not constrained
by the subject matter of its original submission and is able to appeal the whole or any part of that original decision.4 (b)
The Environment Court was entitled to make a factual finding, on the
evidence before it, that the grounds of RFB’s appeals were sufficiently disclosed in the 2007 submission to warrant the substantive appeal being heard.5 (c)
The findings of the Environment Court as to the interpretation of the
WCWAP and the 2007 submission were findings of fact.6
(d)
Certain principles, policies and objectives of the WCWAP were
relevant to the proceeding, and tended to assist RFB’s position.7
Submissions
Appellants
[10] The appellants now seek to appeal both aspects of the High Court decision. In support of the present application, they advance the following six grounds of appeal:
(a) Is the scope of an appeal under s 120 of the RMA constrained by the original submission made by the party appealing?
(b) Is the proper interpretation of:
(i) a statutory plan prepared under the RMA;
4 At [32].
5 At [40].
6 At [46].
7 At [41].
(ii) a submission made on a resource consent application;
a question of law?
(c) On its proper interpretation, does the WCWAP make the effects of use of water for irrigation on terrestrial ecology and landscape, beyond the water body from which the take is proposed, relevant to the appellants’ applications for resource consent?
(d)Did the Environment Court wrongly interpret Policy 12 of the WCWAP and therefore wrongly conclude that it was relevant to the determination of the appellants’ resource consent applications?
(e) Did the Environment Court wrongly interpret the 2007 submission as referring to the effects of the proposed use of the water for irrigation on terrestrial ecology and landscape on the appellants’ proposed irrigation site?
(f) Should the Court, as an alternative to striking out the RFB appeals, have given directions as to the scope of matters able to be raised by RFB?
First Respondents
[11] RFB opposes the application for leave on the basis that the appellants’ submissions raise no question of law that is of any possible importance beyond this particular interlocutory application in this particular proceeding. Consequently, the appellants have not surmounted the high threshold of s 144 of the Summary Proceedings Act 1957 (“the SPA), and the other alleged errors are immaterial. RFB submits that this combination of circumstances is fatal to the appellants’ application for leave to appeal.
Second Respondents
[12] The CRC does not oppose either application here. In fact, the CRC actually supports the appellants’ submissions on grounds one to four of their appeal, and does not oppose either the fifth or sixth points proceeding on appeal.
Analysis
Test for second appeal to Court of Appeal
[13] Section 66 of the Judicature Act 1908 confers jurisdiction on the Court of Appeal to hear appeals from any decision of the High Court. This general right of appeal entails no requirement of leave to appeal. However, s 67(1) states that the High Court’s decision on appeal from an inferior court is final unless the party
obtains leave to appeal against that decision to the Court of Appeal.8 In the interests
of protecting the finality of litigation and preventing delay and further expense, the threshold for granting leave for a second appeal is high. The purpose of a second appeal is not the general correction of error but the clarification and development of
the law.9 The two-pronged test requires the following:10
(a) the appeal must raise some question of law or fact capable of bona fide and serious argument; and (b)
the case involves some interest, public or private, of sufficient importance to outweigh the cost and delay of the further appeal.
[14]
The
Court of Appeal has commented on the judicial trend, evident both in
New Zealand and the United Kingdom,
8 As a “Court of judicature within New Zealand of inferior jurisdiction to the High Court”, the
Environment Court constitutes an “inferior court” for the purposes of the Act: Judicature Act
1908, s 2.
9 Waller v Hider [1998] 1 NZLR 412 (CA) at 413, endorsed in Downer Construction (New Zealand) Ltd v Silverfield Developments Ltd [2007] NZCA 355, [2008] 2 NZLR 591 (CA) at [33].
10 Waller v Hider, above n 9; Snee v Snee (1999) 13 PRNZ 609 (CA) at 612; Cuff v Broadlands Finance Ltd [1987] 2 NZLR 343 (CA) at 346-347, approving the formulation in Rutherfurd v Waite [1923] GLR 34.
…to reverse the steady increase in the number of [second appeals] reaching the Court of Appeal, and so to free up valuable and expensive judicial resources to give more and more effective attention to hearing first appeals.11
This trend has been deemed to reflect the Court’s fundamental role and the need for
proportionality in civil litigation.12
[15] Section 67 appeals are subject to specific provisions in other statutes precluding or limiting this right of appeal, depending on “the language of the particular provision; its text and purpose in the context of the particular statute.”13 In Osborne v Auckland City Council, the Court of Appeal listed four examples of specific statutory provisions that could preclude the application of s 67, including cases where:
[31] … the statute may say nothing about the finality of the appeal to the High Court and may simply contain a provision permitting a restricted appeal on a question of law with leave being first obtained.
[16] As an example of such a statutory provision, the Court cited s 308(1) of the RMA. On 1 July 2013, this section was amended to provide that the relevant provisions of the Criminal Procedure Act 2011 (“the CPA”) apply, as if the High Court’s decision had been made under that Act.14 Prior to this date, s 308 was governed by s 144 of the SPA. Under the transitional provisions of the CPA, appeals on proceedings commenced before 1 July 2013 must continue in accordance with the law as it was before the commencement date.15 The present application for leave is brought under s 308 of the RMA. In Foodstuffs South Island Ltd v Queenstown Lakes District Council, the Court of Appeal confirmed that s 144 of the SPA applies to appeals under s 308 of the RMA in cases commencing before 1 July 2013.16
Accordingly, this application is governed by the SPA, not the new regime under the
CPA.
11 Downer Construction (New Zealand) Ltd v Silverfield Developments Ltd, above n 9, at [36].
12 Chief Executive of Land Information New Zealand v Luke [2008] NZCA 43 at [18].
13 Osborne v Auckland City Council [2012] NZCA 199 at [35].
14 Criminal Procedure Act 2011, s 413.
15 Sections 397(1) and (2).
16 Foodstuffs South Island Ltd v Queenstown Lakes District Council [2013] NZCA 458.
[17] Section 144 of the SPA permits a second appeal on a question of law with the leave either of the High Court (or with the special leave of the Court of Appeal) in limited circumstances. The Court may grant leave: 17
… if in the opinion of that Court the question of law involved in the appeal is one which, by reason of its general or public importance or for any other reason, ought to be submitted to the Court of Appeal for decision.
Do the appellants’ submissions contain a question of law?
[18] The grounds of appeal raised by the appellants have disclosed some questions of law at least, albeit mixed with questions of fact. In my view, the first two grounds of appeal are questions of law. As I see it, ground one sets out a primary question of law here, concerning the application of a wrong legal test. Ground two asks whether the interpretation of the WCWAP and the 2007 submission is itself a question of law. According to RFB, however, the remaining four issues are thinly-veiled attempts by the appellants to re-litigate questions of fact which have been determined by both the Environment Court and this Court. In the context of s 299 appeals, RFB notes that this Court has adamantly refused to re-examine the merits of a case under the guise
of a question of law.18 The final four grounds of appeal RFB says should therefore be
dismissed, as they do not meet the first threshold of s 144(2).
[19] As to three of those four remaining questions however, I take a different view to that advanced by RFB. Concerning ground three (or the third proposed point of appeal), before me counsel for the CRC contended that the interpretation of the WCWAP is fundamental to its processing of resource consents for water. This question it is said directly concerns the interpretation of the WCWAP and affects any applicant for consent for an irrigation activity in the Waitaki Catchment. Therefore it is said to be a legal issue. In any event, this issue is linked to the fourth proposed point of appeal which I deal with below. Suffice to say at this stage that the effects on terrestrial ecology and landscape arising from water use are matters which may well arise in future applications and are not entirely specific factual issues limited to
this case before the Court.
17 Summary Proceedings Act 1957, s 144(2).
18 Sean Investments v Mackellar (1981) 38 ALR 363. For the general proposition on the impropriety of re-assessing the merits, see Murphy v Takapuna City Council HC Auckland M456/88, 7 August 1989.
[20] Turning to the fourth proposed point of appeal, this similarly poses a question over the Environment Court’s interpretation of Policy 12 of the WCWAP and whether or not Policy 12 may apply to the processing of discretionary activities by the CRC or some other local authority. Again, it is said to be a question of law, according to counsel for both the appellants and CRC because resolution of the issue requires consideration of the intent of the WCWAP.
[21] By a fine margin, I agree and find therefore that both the third and fourth proposed points of appeal do involve questions of law.
[22] I turn now to the fifth proposed point of appeal. Subject to the appropriate Court answering question two (above) in the affirmative it could be that this fifth question which is interlinked will be seen in part as a question of law and in part as a question of fact. A long line of common law authorities affirm that, as here, an appeal is limited to questions of law, a mixed question of law and fact is a question
of law.19
[23] Finally, I address the sixth proposed point of appeal. In doing this, I remind myself that the application which was the subject of the appeal was one for strike out. Whether or not the applicants for strike out may have applied in the alternative for directions as to the scope of matters able to be raised by RFB (as opposed to a strike out order) may well seem a little unclear at this point. However, as this question relates to possible remedy it is not appropriately raised here as a question of law. This sixth proposed ground of appeal is therefore dismissed.
Are these questions of law ones which, by reason of their general or public importance or for any other reason, ought to be submitted to the Court of Appeal?
[24] Ground one, noted at [10](a) above, involves conflicting lines of authority in the Environment Court as to the proper determination of the scope of an appeal under s 120 of the RMA. It also entails uncertainty as to the correct interpretation and application of the High Court decision in Transit New Zealand v Pearson.20 As
the appellants submit, this issue has wide implications for resource management
19 CIR v Walker [1963] NZLR 339 (SC) at 359.
20 Transit New Zealand v Pearson [2002] NZRMA 318 (HC).
practice, both in the Environment Court and before consent authorities hearing resource consent applications at first instance. It also has significant implications for prospective applicants for resource consents, thus the matter raises an issue of significant public and general importance.
[25] I note that RFB accepts that leave could properly be granted on ground one as a matter of general or public importance, but it says that leave should not be granted here because, even if the appellants succeed on this question, it is immaterial to the outcome of the case. For this point of appeal to be material, RFB maintains the appellants must also obtain leave and succeed in relation to its other proposed points
of appeal.21 But this argument does not address the fact that this question may well
be significant in its own right – on this see the decision of Venning J in Waitakere
City Council v Estate Homes Ltd.22
[26] Regarding ground two, noted at [10](b) above, the appellants contend that the availability of an appeal on a question of law has “wide implications for the application of the RMA and [for] the practice and procedure of the Environment Court”. While conceding that the issue may not quite satisfy the standard of “general or public importance”, they submit that its importance extends beyond the parties themselves. The appellants maintain that the Court can at least invoke the second limb of s 144 (“for any other reason”) to grant leave where the issues involved are, as here, of importance to a small community.
[27] In Centrepoint Community Trust v Takapuna City Council, the High Court considered the application of s 144 to the interpretation of objectives, policies and rules in a planning ordinance (the equivalent of a regional or district plan today).23
Casey J held that the appellant’s primary submission was:24
… a matter perhaps not altogether of the extended general or public
importance contemplated by s 144(2) of the Summary Proceedings Act, but
21 RFB Amended Notice of Opposition, 18 August 2014 at [5] and [9]. RFB contends that succeeding on ground two is equally immaterial to the outcome of the proceedings, but denies that it raises any matter of general or public importance.
22 Waitakere City Council v Estate Homes Ltd HC, Auckland, CIV-2003-485-2168, 1 September
2004.
23 Centrepoint Community Trust v Takapuna City Council HC Wellington M596/83, 22 August
1984.
24 At 2.
certainly of importance going beyond the concerns of the immediate parties and one which could well warrant in the context of this case further consideration on appeal.
[28] Under the second ground for granting leave (“any other reason”), His Honour was satisfied that “having regard to the numbers of people involved, the size of their investment in this property, and the effect that this decision could have on their lifestyle and the future growth and development of the Community”, it was a proper
exercise of his discretion to allow this case to proceed to the Court of Appeal.25
[29] Palmerston North City Council v New Zealand Windfarms Ltd followed this “crucial conclusion in Centrepoint,” finding that where a matter is of “genuine importance” to an identifiable community, this can be a factor in granting leave “under the second leg of s 144.”26
[30] In the present case, I am satisfied these issues are significant not only for the appellants, but also for a particular community of other landowners and occupiers for whom irrigation is said to be critical in their farming operations and also for the CRC as the local authority concerned. As the appellants point out, there remains a significant volume of “unallocated” water within the WCWAP, for which applications for consent have yet to be lodged. The correct interpretation of the WCWAP, and in particular, whether it applies to control the effects of the use of the water, is therefore a matter of “genuine importance” to this agrarian community. Consequently, I agree that ground two ought to be submitted to the Court of Appeal.
[31] Turning now to grounds three and four noted at [10](c) and (d) above, it is convenient to address both these grounds together.
[32] On these aspects, as I have noted at paras [19] and [20] above, I agree with counsel for CRC, who noted that the interpretation of the WCWAP and the interpretation of policy 12 was important to its processing of resource consents for water and thus affected any applicant for consent for an irrigation activity in the large Waitaki Catchment. I therefore find that, on this aspect apart from the CRC,
other potential applicants and submitters may have sufficient interest in this question
25 At 3.
26 Palmerston North City Council v New Zealand Windfarms Ltd [2013] NZHC 2654 at [12]-[13].
so as to satisfy the “for any other reason test” noted in s 144(2) of the SPA. Such a finding means that these are matters which should be addressed by the Court of Appeal. I accept that these are matters which may well be of some importance to all current and prospective users of water in the Catchment as well as to the appellants here, and that these third and fourth points should proceed on appeal.
[33] I turn now to ground five or the fifth proposed point of appeal noted at para [10](e) above. At paras [40] and [46] of my 17 June 2014 judgment in this Court, I described the Environment Court’s findings as findings of fact and not law. However, by a fine margin I am prepared to accept for present purposes that, on the basis that the appellant’s submission that the findings of the Environment Court on the 2007 submission referring to the effects on terrestrial ecology was derived from its erroneous interpretation of the WCWAP and not simply on the wording of the submission, this matter is a consequential point of law linked to the earlier points two, three, four and five noted above. Accordingly it is an appropriate matter to proceed to appeal.
[34] Finally, turning to ground six noted at para [10](f) above, as will be apparent from my finding at paragraph [23] above, this does not raise a question of law. Consequently, it does not fall to be considered whether it is a matter that ought to be submitted to the Court of Appeal.
Extension of time to appeal
[35] I turn now to the question of whether leave should be granted to bring the present application out of time. Section 144(2) of the SPA requires that a notice of application for leave to appeal must be filed within 21 calendar days after the date of the determination appealed against, “or within such further time as that Court may allow.”
[36] This application for leave was filed out of time. Judgment was delivered on
17 June 2014, with the 21st calendar day following delivery being 8 July 2014. The
appellant’s original application was dated 28 July 2014, and was not filed until 30
July 2014. The amended application was dated 4 August 2014, and was not filed until 6 August 2014, or 36 working days after judgment was delivered.
[37] As explanation for the late filing, the appellants point to their misunderstanding of the applicability of the transitional provisions of the CPA. The appellants incorrectly believed that s 308(1) of the RMA, as amended by s 413 of the CPA, applied to their actions, requiring them to seek leave directly from the Court of Appeal. In accordance with s 308 as amended, the appellants filed their application for leave to appeal with the Court of Appeal within the new 20 working day time limit (which expired on 15 July 2014). I note, however, that the case file does not contain this application for leave to appeal.
[38] As the Court of Appeal has confirmed, however, under the transitional provisions of the CPA, Environment Court appeals commenced prior to 1 July 2013 must be dealt with under s 308(1) of the RMA as it was before 1 July 2013.27 As the appeals to which this application relates were filed on 3 April 2012 and 5 April 2012, the current application should have been brought in the High Court.
[39] As soon as the applicants realised their error, they re-filed the current application in the High Court on 28 July 2014 (noted above). They submit that there has been no prejudice to RFB as a result of the late filing, noting in particular:
(a) The current application repeats all of the points on appeal and supporting grounds as set out in the application to the Court of Appeal. The respondents received a copy of this application within time (15 July 2014).
(b)No issue was taken with the filing of the application in the Court of Appeal by RFB with the appellant, nor were any steps taken by RFB in the Court of Appeal.
[40] In their notice of opposition, RFB opposes leave being granted to appeal out of time, but does not oppose the application for leave being considered out of time. This notice is silent as to the issue of prejudice, which is raised and denied in the
appellants’ submissions.
27 Foodstuffs South Island Ltd v Queenstown Lake District Council, above n 16, at [19].
[41] In support of this application, the appellants cite B Bullock & Co Ltd v Matthews, a case where “by dint of a genuine slip on the part of [the appellant’s] solicitor”, the time limit was not observed.28 In that case, the Court of Appeal found it compelling that “little, if any, hardship or prejudice resulting to the respondent from the short delay”, and was clearly impressed by the appellants having “moved very promptly” upon realising their procedural error.29 It is submitted that in the present case, as in Bullock, the interests of justice favour grant of special leave to apply out of time.
[42] In Ludemann v Police, Whata J refused to grant an extension of the time to appeal where counsel for the appellant thought he had 28 days to appeal and consequently filed six days late.30 Despite the parallel error of counsel, that case is distinguishable from the current scenario. Ludemann was characterised by a “compelling” need to conclude the proceedings and a “desire for finality” which warranted “alacrity in the filing of an appeal.”31 There is no similar temporal pressure in the present application.
[43] Nor is this a case exhibiting an unexplained, “extraordinary delay” such that the Court “could not possibly countenance extending time to allow a late application.”32 Rather, the appellants have conceded and coherently explained their mistake in law and made persuasive, unanswered submissions on the lack of prejudicial effect on RFB. Consequently, this is not a case where “the applicant has failed to adequately explain his substantial delay in seeking leave to appeal out of time.”33 It should not be dismissed on that basis.
[44] Further, as Clifford J declared in Dawson v Police:34
The question of whether an out of time leave application should be granted is to be determined with a view to avoiding a miscarriage of justice. A strong case for leave to appeal will necessitate a grant of leave, notwithstanding even a lengthy delay.
28 B Bullock & Co Ltd v Matthews (1998) 13 PRNZ 505.
29 At 506.
30 Ludemann v Police [2013] NZHC 2062 at [26].
31 At [27]-[28].
32 R v Dellabarca CA130/06, 26 July 2006 at [6].
33 Fairley v Auckland Council (formerly the North Shore City Council) [2012] NZHC 2782 at [21].
34 Dawson v Police HC Wellington CRI-2008-485-151, 9 June 2010 at [9].
[45] As discussed above, I take the view that five of the six grounds of appeal raise legal questions of significant public and general importance, and include matters of “genuine importance” to a community of farmers, local authorities and the wider community. This is an appropriate case for leave to appeal to be granted. Despite the applicant’s late filing, this is also a situation where leave should be granted to apply out of time, and I so order.
Conclusion
[46] Leave is granted to bring this application out of time. The threshold for an appeal to the Court of Appeal has been met by the appellants. Leave to appeal is granted on the first five questions of law outlined at [10](a), (b), (c), (d) and (e) above but refused on the question outlined at [10](f) above.
[47] Costs are reserved.
...................................................
Gendall J
Solicitors:
Matthew Casey QC, Auckland
Copy to First Respondent
Copy to Second Respondent
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