SKP Inc v Auckland Council
[2020] NZCA 610
•2 December 2020 at 11.00 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA387/2020 [2020] NZCA 610 |
| BETWEEN | SKP INCORPORATED |
| AND | AUCKLAND COUNCIL |
| Court: | Brown and Clifford JJ |
Counsel: | J D K Gardner-Hopkins for Applicant |
Judgment: | 2 December 2020 at 11.00 am |
JUDGMENT OF THE COURT
The application for leave to appeal is declined.
____________________________________________________________________
REASONS OF THE COURT
(Given by Brown J)
Introduction
SKP Inc (SKP) seeks to appeal against a High Court judgment[1] affirming a decision of the Environment Court[2] refusing SKP’s application for a rehearing of its appeal against a resource consent granted by the first respondent, Auckland Council (the Council) to the second respondent, Kennedy Point Boatharbour Ltd (KPBL), for the construction of a marina at Kennedy Point, Waiheke Island.
[1]SKP Inc v Auckland Council [2020] NZHC 1390 [High Court judgment].
[2]SKP Inc v Auckland Council [2019] NZEnvC 199 [Environment Court judgment].
SKP’s proposed second appeal is governed by s 308 of the Resource Management Act 1991 (RMA) which provides that sub-pt 8 of pt 6 of the Criminal Procedure Act 2011 (CPA), relating to appeals on questions of law, applies. Section 303 of the CPA therefore applies. It provides that this Court must not grant leave for a second appeal unless it is satisfied that the appeal involves a matter of general or public importance or a miscarriage of justice may have occurred, or may occur unless the appeal is heard.
The application is opposed by the Council and KPBL. Other entities of significance in the context of the application are the Ngāti Paoa Iwi Trust (Iwi Trust) and the Ngāti Paoa Trust Board (Trust Board), neither of which is a party to the application.
Background
The backdrop to the application is a dispute between the Iwi Trust and the Trust Board concerning the entitlement to represent the Ngāti Paoa iwi. In short, in 2009 the Trust Board obtained an order from the Māori Land Court under s 30 of the Te Ture Whenua Maori Act 1993 that it be the representative of the Ngāti Paoa iwi for resource management and local government purposes.[3] The Iwi Trust says that in 2013 the Trust Board resolved to transfer day-to-day management operations and assets of the Trust Board to the Iwi Trust. The Trust Board disputes that.
[3]Ngāti Paoa Whanau Trust (2009) 141 Waikato MB 271 (141 W 271) at [40].
In any event, in 2013 the Council updated its website and iwi contact list to record the Iwi Trust as the representative of the Ngāti Paoa iwi for resource management matters. In 2014 the Trust Board met with the Council to discuss its mandate to represent the iwi. However, the Council maintained the Iwi Trust as the iwi’s formal representative and in 2015 KPBL began consultation with the Iwi Trust about the proposed Kennedy Point marina.
On 19 September 2016 KPBL applied for resource consent authorising the construction and operation of the Kennedy Point marina. The application was lodged following public consultation. KPBL also obtained cultural values assessments from the Iwi Trust and the Ngāi Tai ki Tāmaki Tribal Trust, as mana whenua of Tāmaki Makaurau. The Council granted KPBL consent on 18 May 2017.
On 7 June 2017 SKP was incorporated by a number of submitters who had opposed the resource consent application. SKP and another submitter filed appeals in the Environment Court which were heard in April 2018. In relation to cultural effects evidence was given by the Iwi Trust but not the Trust Board. On 30 May 2018 the Environment Court’s decision (the 2018 decision) was issued dismissing the appeals and confirming the resource consent.[4]
[4]SKP Inc v Auckland Council [2018] NZEnvC 81.
On 12 December 2018 the Māori Land Court, on the application of the Iwi Trust, issued a decision that the Trust Board was in legal abeyance between 2014 and 2017 and imposed an expiry date for the s 30 order of 21 December 2018.[5] The Court referred the parties to mediation on the mandate issue. On 18 December 2018 the Council advised it would engage with both the Iwi Trust and the Trust Board on an interim basis pending resolution of the mandate dispute. On 21 December 2018 the Trust Board filed a notice of appeal in the Māori Appellate Court against the Māori Land Court’s decision.
[5]Ngāti Pāoa Iwi Trust v Ngāti Pāoa Trust Board (2018) 173 Waikato Maniapoto MB 51 (173 WMN 51).
On 31 August 2018 SKP filed an application for leave to appeal out of time to the High Court against the Environment Court’s decision. The application was declined on 24 April 2019.[6]
[6]SKP Inc v Auckland Council [2019] NZHC 900.
SKP also filed an application to the Environment Court for a rehearing of its appeal in the Environment Court pursuant to s 294 of the RMA, which provides:
294 Review of decision by 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 court shall have power to order a rehearing of the proceedings on such terms and conditions as it thinks reasonable.
That application was declined by the Environment Court on 13 December 2019.[7]
The High Court judgment
[7]Environment Court judgment, above n 2.
SKP appealed the Environment Court’s refusal to order a rehearing to the High Court. It also appealed the Environment Court’s refusal to adjourn the rehearing application either to await the outcome of the Trust Board’s appeal to the Māori Appellate Court or to allow the appointment of a Māori Land Court Judge to sit with the Environment Court to hear and determine the rehearing application. Fourteen questions of law were identified in the notice of appeal.[8]
[8]Appeals under s 299 of the Resource Management Act 1991 are limited to questions of law.
The High Court’s judgment dismissing that appeal is the subject of the present application for leave to bring a second appeal. In that judgment Gault J summarised the Environment Court’s reasoning as follows:[9]
[30] In essence, on the primary issue of whether there was “new and important evidence” in relation to cultural effects, the Environment Court accepted that because the representation debate was unknown to the Court when it made its original decision, it was probably “new” and there might be “new” evidence, but the Court concluded that SKP had not demonstrated there was “important” evidence. The cultural matters set out in the Cultural Values Assessment by the Iwi Trust, accepted in principle by the Trust Board, and the evidence of kaumātua Mr Wilson for the Iwi Trust, had not been successfully challenged by SKP’s rehearing application, even prima facie.
[31] The Environment Court also addressed the alternative criterion in s 294, that is whether there was a “change in circumstances”, which it said was at best only faintly argued. The Court concluded that the mandate dispute was a steady state situation and not a determining factor.
[9]High Court judgment, above n 1.
The Judge concluded that the Council’s recognition of the Trust Board’s representative status in December 2018 was not a change in circumstances for the purposes of the RMA, stating:
[69] I consider the underlying point is that a “change in circumstances” must be more than the Council’s recognition of the status of a potential submitter. While that may ensure notification, as indicated, status is not an end in itself. What matters under the RMA is a submitter’s input in relation to effects. Also, the Council’s recognition of the Trust Board was inherently prospective. Treating that as a change in circumstances would be giving it retrospective effect and tantamount to determining that the Council was wrong to recognise the Iwi Trust and should have continued to recognise the Trust Board from 2013 onwards. That would effectively be determining the mandate dispute, which I consider is beyond the scope of this appeal. I do not consider the Council’s December 2018 prospective and interim recognition of the Trust Board for RMA purposes amounts to a change in circumstances.
The Judge further stated that, if it had been concluded that there was a change of circumstances on account of the Council’s recognition of the Trust Board in December 2018, he would have concluded it did not affect the decision because the Council’s recognition was prospective and interim, representative status was not an end in itself and there was no new important evidence as to adverse cultural effects which contradicted the evidence at the original hearing upon which the Environment Court had relied.[10]
SKP’s application to this Court for leave to appeal
[10]At [74].
SKP proposes four questions of law for consideration by this Court which are said to involve matters of general or public importance:
(a)Can a Council’s recognition of an entity as representative of an iwi amount to a change of circumstances under s 294?
(b)Does a Council’s recognition of an entity as representative of an iwi have the effect of determining a mandate dispute as between competing iwi representative entities?
(c)In considering whether a change in circumstances under s 294 “might have affected the decision”, is the question of whether there is “new and important evidence” an irrelevant consideration (as that relates to a different test under s 294)?
(d)In considering whether a change of circumstance “might have affected the decision”:
(i)is the Court required to consider whether the change “might, if it had (counterfactually) occurred at or prior to the time of the hearing (or decision), have affected the decision”, as found in Robinson v Waitakere City Council (No 13)[11]?; and
(ii)if so, does this require consideration of all the consequences of that counterfactual position, rather than simply considering whether there is (now) “new and important evidence” adduced as part of an application under s 294?
[11]Robinson v Waitakere City Council (No 13) [2010] NZEnvC 314, (2010) 16 ELRNZ 245 at [22].
SKP also contends that a miscarriage of justice may have occurred or may occur unless the appeal is heard because:
(i)if the appeal is not heard, the Trust Board will have been denied the ability to put its position and evidence before the Environment Court in determining the cultural effects of the Kennedy Point marina proposal;
(ii)this risks the Kennedy Point marina proposal occurring without consideration by the Environment Court of the adverse effects of the proposal on Ngāti Paoa iwi; and
(iii)this would perpetuate the harm to Ngāti Paoa of the Council’s earlier decision to refuse to recognise the Trust Board as a representative of Ngāti Paoa.
SKP seeks a judgment from this Court as follows:
(a)A finding that:
(i)the Council’s later recognition of the Trust Board as representative of the Ngāti Paoa iwi (when the Council did not recognise the Trust Board at the time of the Kennedy Point marina application and the determination of appeals before the Environment Court) amounts to a change of circumstances under s 294; and
(ii)such a change in circumstances “might have affected” the 2018 decision.
(b)An order that the Environment Court rehears the 2018 decision, and considers the appropriate conditions of the rehearing in light of this Court’s findings.
Submissions
SKP contends there is no doubt that the Council’s replacement of the Trust Board with the Iwi Trust on its mana whenua register in late 2013 was a change in circumstances under s 294 of the RMA, as was recognition of the Trust Board as an additional representative of the iwi in December 2018. It argues that if KPBL had consulted the Trust Board and found that it opposed the marina, KPBL may not have proceeded with the application. However, if the application had proceeded, it is said that the Trust Board would have actively involved itself in the opposition to the resource consent application which might have resulted in a different decision.
SKP takes issue with the High Court’s reasoning at [69] arguing that it is irrelevant that the recognition of the Trust Board was forward-looking. It also challenges the reasoning that a finding that the Council’s recognition of the Trust Board was a change in circumstances would effectively determine the mandate dispute, emphasising that such a dispute could be resolved only by the iwi or the Māori Land Court.
On the issue of the materiality of a change in circumstances, SKP contends that the High Court erred in failing to undertake the correct counterfactual analysis as to what the consequences would have been or would have likely been had the Council recognised the Trust Board at the relevant time.
The questions of law are said to be of general or public importance because they concerned the duty of a Council to maintain an accurate mana whenua register, and because notification requirements are crucial to iwi exercising rights of natural justice and to be heard. SKP also submits that what amounts to a change of circumstances under s 294 of the RMA raises fundamental issues that had not been previously considered by this Court, and it would be of significant assistance to iwi, the Environment Court, the applicants and other participants for this Court to provide guidance. A miscarriage of justice is said to arise if the appeal is not heard as the Trust Board was denied consultation with KPBL and, if leave was denied, there would be no further opportunity for the injustice to be remedied by the Trust Board being heard by the Environment Court.
The Council contends that the statutory criteria in s 303 of the CPA are not satisfied as the challenge is confined to the particular factual circumstances and has no wider implications for iwi. The Council emphasises that the identification of the Iwi Trust as the kaitiaki for the iwi on the mana whenua register was made on the basis of documentation provided by the Iwi Trust in November 2013, including minutes of the annual general meeting recording that the day-to-day management of the iwi and its operations and assets would be transferred to the Iwi Trust. Furthermore, when the Council decided to recognise the Trust Board as well as the Iwi Trust in December 2018, it did so expressly on an interim basis and only in relation to new matters, pending resolution of the mandate dispute.
KPBL first notes that the application for consent was publicly notified and interested parties were thereby able to make submissions. KPBL submits it should be entitled to rely on the outcome of the process and it would be prejudicial if a rehearing was ordered in circumstances where a potential submitter could have, but did not, engage in the process.
KPBL further observes that SKP has not indicated what evidence the Trust Board might adduce. Without evidence of the cultural effects of the development that might be said to cast the Environment Court’s findings into doubt, there could be no basis for concluding that the Court’s decision might have been affected. KPBL maintains there is no risk of a miscarriage of justice because the potential cultural effects had been canvassed in evidence by a senior kaumātua of the iwi and considered by the Environment Court.
Relevant principles
The approach to be taken to a civil appeal governed by s 303 of the CPA was considered by this Court in Tan v Chief Executive, Ministry of Social Development as follows:[12]
[8] As this Court observed in McAllister v R, these criteria are almost identical to the criteria for leave to appeal to the Supreme Court under s 13 of the Supreme Court Act 2003 (now found in s 74 of the Senior Courts Act 2016). For that reason, the Court considered that the same approach should generally be followed but taking into account that the Court of Appeal’s role differs from that of the Supreme Court.
[9] In Junior Farms Ltd v Hampton Securities Ltd (in liq) the Supreme Court held that the miscarriage of justice criterion has limited application in civil cases and was not intended by the legislature as a means of permitting a further exercise of error-correction. The Court considered that this ground could only justify leave in cases not involving general or public importance where the error was so apparent and substantial that it would be repugnant to justice to leave it uncorrected in the particular case. The Court considered that such cases would be rare.
[10] In Prime Commercial Ltd v Wool Board Disestablishment Co Ltd the Supreme Court held that an application for leave to appeal is likely to be declined where the prospects of the appeal succeeding are low.
(Footnotes omitted.)
Discussion
[12]Tan v Chief Executive, Ministry of Social Development [2017] NZCA 369.
We do not accept the criticisms of the High Court judgment by SKP, in particular those directed at [69]. In our view the conclusion that the Council’s interim recognition of the Trust Board as having representative status in December 2018 did not constitute a change in circumstances was well reasoned and cogent. The flaw in SKP’s argument lies in its failure to acknowledge that, as the Judge found, the Council’s recognition of the Trust Board was expressly interim and prospective.
With reference to the materiality requirement, the Judge did not, as SKP contends, conflate the tests of “new and important evidence” with whether there had been a change in circumstances. SKP did not produce evidence in the Environment Court or in the High Court on behalf of the Trust Board detailing the harmful cultural effects that would ensue if the marina development proceeded. That consideration was relevant to the determination of whether the Council’s recognition of the Trust Board might have affected the Environment Court’s decision. The Judge was entitled to take into account the fact that no such evidence had been produced.[13] Consequently, we assess the prospects of success on the proposed appeal to be low.
[13]High Court judgment, above n 1, at [74].
The grounds of appeal turn 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. It is not apparent that the proposed appeal has any wider importance for the recognition of iwi generally or for their involvement in resource consent applications. It follows in our view that the questions which the Court is invited to consider do not have implications beyond the particular factual matrix. They do not involve matters of general or public importance.
The essential difficulty with SKP’s argument is 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. Similarly, SKP has always had the opportunity to call evidence as to any claimed harmful cultural effects of the proposal. They did not do so. We do not consider that this is one of those rare cases where there has been an error of such substantial character that it would be repugnant to justice to allow it to go uncorrected. Consequently, there is no basis for the grant of leave for a second appeal on the grounds of a miscarriage of justice.
Result
The application for leave to appeal is declined.
Solicitors:
Greenwood Law Ltd, Waiheke Island for Applicant
Brookfields Lawyers, Auckland for First Respondent
Atkins Holm Majurey, Auckland for Second Respondent
8
2
0