SKP Inc v Auckland Council
[2021] NZSC 35
•27 April 2021
| IN THE SUPREME COURT OF NEW ZEALAND I TE KŌTI MANA NUI |
| SC 118/2020 [2021] NZSC 35 |
| BETWEEN | SKP INCORPORATED |
| AND | AUCKLAND COUNCIL |
| Court: | William Young, O’Regan and Ellen France JJ |
Counsel: | J D K Gardner‑Hopkins for Applicant |
Judgment: | 27 April 2021 |
Reissued: | 5 May 2021 |
JUDGMENT OF THE COURT
A The application for an extension of time to apply for leave to appeal is granted.
B The application for leave to appeal is dismissed.
CThe applicant must pay costs of $1,750 to each of the respondents.
____________________________________________________________________
REASONS
Introduction
In a judgment delivered on 19 June 2020, the High Court dismissed an appeal by SKP Inc from a decision of the Environment Court.[1] The Environment Court had declined SKP’s application for a rehearing of its appeal in that Court.[2] SKP was unsuccessful in its application for leave to appeal from the High Court to the Court of Appeal.[3] SKP now seeks leave to appeal out of time directly to this Court from the decision of the High Court.
Background
[1]SKP Inc v Auckland Council [2020] NZHC 1390, (2020) 21 ELRNZ 879 (Gault J) [HC judgment].
[2]SKP Inc v Auckland Council [2019] NZEnvC 199 (Principal Judge Newhook and Commissioners Leijnen and Buchanan).
[3]SKP Inc v Auckland Council [2020] NZCA 610, (2020) 22 ELRNZ 268 (Brown and Clifford JJ) [CA leave judgment].
The present application has its genesis in opposition to a resource consent granted in May 2017 by the first respondent, Auckland Council, to the second respondent, Kennedy Point Boatharbour Ltd (KPBL), following public consultation. The consent authorised KPBL to build and operate a marina at Kennedy Point, Waiheke Island. SKP was incorporated in June 2017 by submitters who had opposed the resource consent application. The resource consent was confirmed by the Environment Court in a decision delivered on 30 May 2018 following an appeal by SKP and another submitter.[4]
[4]SKP Inc v Auckland Council [2018] NZEnvC 81 (Principal Judge Newhook and Commissioners Leijnen and Buchanan).
SKP then pursued a rehearing of its appeal in the Environment Court.[5] Section 294(1) of the Resource Management Act 1991 allows the Court to order a rehearing where “new and important evidence becomes available” or where there is a “change in circumstances” that in either case might have affected its original decision.
[5]SKP also made a parallel application for leave to appeal out of time to the High Court against the initial decision of the Environment Court. This application was declined on 24 April 2019: SKP Inc v Auckland Council [2019] NZHC 900 (Gault J).
For present purposes, reference only needs to be made to the change in circumstances relied on by SKP in the High Court.[6] The change in circumstances concerned the representative body of Ngāti Paoa for the purposes of resource consent applications. SKP said there had been a change in circumstances because when the Environment Court originally heard the application for a resource consent, the Ngāti Paoa Trust Board was not recognised by the Council as representative of Ngāti Paoa. At the time, the Council had decided to treat the Ngāti Paoa Iwi Trust as the representative entity and KPBL had consulted with the Iwi Trust in respect of its proposal. Subsequently, since 2018, the Council had agreed to recognise both the Trust Board and the Iwi Trust as representatives, albeit on an interim basis. One of the results of this change was that the Trust Board would be notified of resource consent applications.
[6]SKP does not challenge the finding that the new and important evidence limb was not met.
To put this aspect into context, the Māori Appellate Court in a related decision recently explained the “leadership struggle” in which Ngāti Paoa has been “embroiled”.[7] The Court said:[8]
On one side is the Ngāti Pāoa Trust Board (the ‘Trust Board’), which was constituted to represent the interests of Ngāti Pāoa and mandated to negotiate Treaty settlements, and on the other side is the Ngāti Pāoa Iwi Trust (the ‘Iwi Trust’) which in 2013 was ratified as the post‑settlement governance entity for Ngāti Pāoa. In accordance with their legal structures both entities have, or will have, representative roles and both have support from some iwi members.
[7]Ngāti Paoa is acknowledged as holding mana whenua for Waiheke Island and its surrounding waters.
[8]Ngāti Pāoa Trust Board v Ngāti Pāoa Iwi Trust [2020] Māori Appellate Court MB 318 (2018 APPEAL 24) [MAC judgment] at [1].
To complete the background picture, we note that in 2009 the Māori Land Court made an order under s 30 of Te Ture Whenua Maori Act 1993 declaring the Trust Board as the representative body for Ngāti Paoa in respect of the Resource Management Act and the Local Government Act 2002.[9] In late 2018, on the application of the Iwi Trust, the Māori Land Court reviewed the s 30 order and imposed an expiry date on it of 21 December 2018.[10] On appeal to the Māori Appellate Court, the question was whether the s 30 order ought to have been ended.
[9]Ngāti Pāoa Whānau Trust (2009) 141 Waikato MB 271 (141 W 271) at [40].
[10]Ngāti Pāoa Iwi Trust v Ngāti Pāoa Iwi Trust Board (2018) 173 Waikato Maniapoto MB 51 (173 WMN 51).
In a decision delivered on 10 December 2020, that is, after the Court of Appeal decision in this case, the Māori Appellate Court said that the s 30 order bound the Council as the consent authority to recognise the representative capacity of the Trust Board in relation to the Resource Management and Local Government Acts. While that order was in force, the Court indicated it considered the Council was wrong to engage with the Iwi Trust “as if it were the representative of the iwi in the knowledge that there was an extant s 30 order”.[11] If there was uncertainty or where circumstances had changed, the remedy was to apply to the Māori Land Court for directions or a review of that order. We interpolate here that, on this analysis, the effect of the s 30 order then in force was that at the time of KPBL’s application for a resource consent, the Trust Board should have been notified of the resource consent application but was not. Instead, the Council notified the Iwi Trust and engaged with that body in relation to the application.
[11]MAC judgment, above n 8, at [34].
Although the Māori Appellate Court saw the effect of the s 30 order differently from the Court below, the Māori Appellate Court upheld the Māori Land Court’s finding that the grounds for review of the s 30 order were made out. That was because:[12]
… a reasonable inference can be drawn that there was a material change of circumstance within Ngāti Pāoa during the period between 2014–2017 when the Trust Board was not legally constituted and only partially active. That inference being that there had been a shift in the politics within Ngāti Pāoa concerning how the iwi wished to organise and represent itself going forward. While that shift may not have been tidy or complete, we do not see error in the way the lower Court weighed these factors and concluded that grounds for a review of the s 30 order were made out and that the order should be amended to expire within seven days.
The proposed appeal
[12]At [66].
SKP wishes to argue that the following questions of law, some of which SKP says reflect questions of general or public importance, arise from the decision of the High Court:[13]
(a)Did the Court err in failing to apply the proper test in determining what constitutes a change in circumstances under s 294 of the Resource Management Act?
(b)When considering whether the change of circumstances might have affected the decision, did the High Court err in failing to:
(i)apply the counterfactual as required, that is, to ask whether there has been a change in circumstances that might, if it had (in the counterfactual) occurred at or prior to the time of the hearing (or decision), have affected that decision;[14] and/or
(ii)have regard to the legal and factual consequences that would have arisen from the Council’s recognition of the Trust Board as the representative entity, had that recognition occurred at the time of the consent application.
[13]Appeals from the Environment Court are limited to questions of law: Resource Management Act 1991, s 299.
[14]See Robinson v Waitakere City Council (No 13) [2010] NZEnvC 314, (2010) 16 ELRNZ 245 at [22].
SKP also submits a substantial miscarriage of justice has occurred. Finally, it says the heightened threshold for direct appeals of this nature is met, emphasising in particular the delivery of the Māori Appellate Court decision shortly after the Court of Appeal declined leave.
The first and second respondents oppose leave on the basis there are no questions of general or public importance or any risk of a miscarriage of justice.[15] Nor has SKP shown that there are exceptional circumstances that would justify a direct appeal from the High Court decision,[16] let alone the higher threshold of very exceptional or extremely compelling circumstances applied in Burke v Western Bay of Plenty District Council.[17] In that case, the applicants had similarly sought leave to appeal directly from a decision of the High Court after the Court of Appeal had declined leave to appeal.
Our assessment
[15]KPBL also opposes the application for an extension of time.
[16]Senior Courts Act 2016, s 75.
[17]Burke v Western Bay of Plenty District Council [2005] NZSC 46, (2005) 18 PRNZ 560 at [4]. The case was decided under the Supreme Court Act 2003. Section 68(b) of the Senior Courts Act, like s 7(b) of the Supreme Court Act, provides that this Court cannot hear an appeal against a decision of the Court of Appeal refusing to give leave to appeal to that Court.
SKP wishes to argue that the Courts below departed from the usual approach to what constitutes a change in circumstances for the purposes of s 294. This argument relates to the conclusion of the High Court that the change must be more than the Council’s recognition of the status of a potential submitter and the Court’s approach to the counterfactual analysis. The High Court considered that while that status may ensure notification, it is not an end in itself. Rather, what is important under the Resource Management Act is the input by a submitter as to effects. Further, the Court saw it as relevant that the Council’s recognition of the Trust Board was “inherently prospective”.[18] To give that recognition retrospective effect, which would be the outcome on SKP’s approach, would effectively decide mandate issues which were outside the scope of the appeal.[19]
[18]HC judgment, above n 1, at [69].
[19]The Judge also said that even if he had found there was a qualifying change in circumstances, he would have nevertheless concluded that the change did not affect the decision. This was because of the features of the Council’s recognition already discussed, and because there was no new important evidence as to adverse cultural effects: at [74].
SKP made similar submissions in its application for leave to appeal to the Court of Appeal. In rejecting those submissions as not raising matters of general or public importance, the Court of Appeal took the view that the proposed grounds of appeal “turn[ed] on the Council recognising, for an interim period of time, the Trust Board as a representative of a specific iwi in response to a specific ruling by the Māori Land Court”. The Court considered the proposed questions did “not have implications beyond the particular factual matrix”.[20] We agree. The proposed grounds of appeal are very much linked to the particular circumstances and the surrounding facts. No questions of general or public importance arise.[21]
[20]CA leave judgment, above n 3, at [28].
[21]Senior Courts Act, s 74(2)(a).
In arguing that a miscarriage of justice has occurred, SKP emphasises that the Environment Court determined cultural effects on the basis the consent application was supported by an entity (the Iwi Trust) which did not have representative status in terms of the Resource Management Act. Thus, the Court’s conclusion that the iwi supported the marina proposal was wrong in fact and in law.[22] SKP also submits that there was a “paucity of cultural effects evidence” presented by the Iwi Trust to the Court. Failing to order a rehearing deprived the Trust Board of the right to fill that evidential gap.[23]
[22]SKP emphasises ss 6(e), 7(a) and 8 of the Resource Management Act.
[23]The panel constituted to consider SKP’s application for leave declined leave to the Trust Board to intervene on the leave application: SKP Inc v Auckland Council SC 118/2020, 12 February 2021.
This argument faces the difficulty, as the Court of Appeal said, that “from the point in time that the application was publicly notified the Trust Board had the opportunity to make submissions in opposition to the marina”.[24] SKP maintains that the Board only became aware of the consent application three months after the conclusion of the original Environment Court hearing. Even so, as the Court of Appeal also says, “SKP has always had the opportunity to call evidence as to any claimed harmful cultural effects of the proposal. They did not do so.”[25] As SKP notes, it did call evidence of harmful cultural effects in the original hearing in the Environment Court. However, the point being made by the Court of Appeal reflected the finding that there was no new important evidence of these concerns in the context of the rehearing application. In these circumstances, we do not consider the assessment of the Courts below gives rise to a miscarriage of justice.[26] Certainly, the heightened threshold for leave to appeal applicable in this case is not met in these circumstances.
Result
[24]CA leave judgment, above n 3, at [29].
[25]At [29].
[26]Senior Courts Act, s 74(2)(b); and Junior Farms Ltd v Hampton Securities Ltd (in liq) [2006] NZSC 60, (2006) 18 PRNZ 369.
The application for an extension of time to apply for leave to appeal is granted but the application for leave to appeal is dismissed. SKP sought leave to file reply submissions. We agree with the respondents that there was nothing in their submissions that could not have been anticipated at the time that the applicant’s submissions were filed. Leave to file reply submissions is accordingly formally declined.
Finally, the respondents are entitled to costs. The applicant must pay costs of $1,750 to each of the respondents.
Solicitors:
Greenwood Law Ltd, Waiheke Island for Applicant
Brookfields, Auckland for First Respondent
Atkins Holm Majurey Ltd, Auckland for Second Respondent
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