Soroka v Waikato District Council
[2024] NZCA 175
•23 May 2024 at 11 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA575/2021 [2024] NZCA 175 |
| BETWEEN | GLENN MICHAEL SOROKA AS TRUSTEE OF THE PAKAU TRUST |
| AND | WAIKATO DISTRICT COUNCIL |
| Court: | Mallon, Fitzgerald and Moore JJ |
Counsel: | J E Hodder KC for Applicant |
Judgment: | 23 May 2024 at 11 am |
JUDGMENT OF THE COURT
AThe application for leave to file affidavit evidence is declined.
BThe application for recall or to reopen is declined.
CThe applicant is ordered to pay costs to the respondent for a standard application on a band A basis together with usual disbursements.
____________________________________________________________________
REASONS OF THE COURT
(Given by Mallon J)
The applicant contends that, under relevant planning instruments at the time, he was entitled to 59 Transferable Rural Lot Rights (TRLRs) in return for registering a covenant with the Queen Elizabeth II National Trust over land (the Klondyke Block). He had utilised 29 TRLRs and sought declarations in the High Court relating to the remaining TRLRs to which he believes he was entitled. The High Court dismissed the applicant’s claim.[1] An appeal was dismissed by this Court.[2]
[1]Soroka v Waikato District Council [2021] NZHC 2191 [High Court judgment].
[2]Soroka v Waikato District Council [2023] NZCA 510, (2023) 25 ELR NZ 295 [Court of Appeal judgment].
The applicant applies for a recall or reopening of this Court’s judgment.[3] The applicant also seeks leave to adduce affidavit evidence in support of this application.[4] The applicant has also applied for leave to appeal to the Supreme Court. The respondent’s submissions advise that an extension of time for filing submissions on the application for leave to appeal to the Supreme Court has been granted pending this Court’s determination of the current applications.
[3]Court of Appeal (Civil) Rules 2005, r 8A(1).
[4]Rule 45(1)(b).
In pursuing the current applications in this Court, the applicant notes that this Court is the last appeal as of right. He submits that this Court made several errors in its judgment dismissing the appeal from the High Court decision. In a memorandum dated 7 December 2023 these were summarised as follows:
7.The errors in the recall application are clearly identified and should they remain uncorrected then there will be a miscarriage of justice. A lawful and correct judgment requires that the rules / tables being relied on for pivotal determinations:
a)actually exist (column 5 in Table 2 does not);
b)are the rules that apply to the geographical location of the property rights being determined (Table 2 is applicable, Table 1 is not applicable);
c)That the Court applies exemptions (rule 22.7.3) it has correctly identified to the relevant rules (rule 22.11.2) to arrive at a correct outcome.
d)That rules that exempt any restrictions regarding maximum entitlements are referred to and analysed fully to provide clear and correct reasons [para 110];
e)that the Court applies its own findings regarding interpretation of words in a title consistently to both tables in the same rule (rule 22.7.3, and the meaning of the headings in the fourth columns and fifth column of the tables).
In submissions dated 20 December 2023, the applicant submits that key questions in the Notice of Appeal were not answered because this Court failed to address the difference between a Lot Entitlement and a Lot. The applicant submits that an Environmental Lot is an intangible right (and is a development right) whereas a Lot is a physical lot. The applicant submits that when this difference is understood Tables 1 and 2 of Plan Change 14, r 22.11.2.1 can only be interpreted in one way. The submissions go on to advance reasons in support of this position.
In further submissions filed on behalf of the applicant dated 13 February 2024, his “essential submissions” are that:[5]
3.1The “transfer titles system” … is founded on a fundamental distinction between Lot Entitlements (intangible rights) and Lots (geographical areas).
3.2That “system” reflects a bargain between the donor landowner and the local authority concerned to protect and enhance areas featuring remnant indigenous vegetation … That is, the local authority ensures that the area is protected from development in perpetuity “in return for” subdivision opportunities created (by the bargain) for the future but described and calculated in terms of “Lot Entitlements” by (for Klondyke) Rule 22.11.2.1(b) and its Table 2, columns 2 and 3 …
3.3In Tables 1 and 2 the “Maximum Number of Lots on any Lot” in each Table’s column 4 means “in situ” on the properties where the development opportunity will be deployed (under Table 2, on the receiving properties).
3.4Importantly, there is no requirement within Plan Change 14 for simultaneity in the creation and the utilisation of the development rights involved.
[5]By this time Mr Hodder KC was acting for the applicant.
The submissions go on to acknowledge that the Court reached a contrary view but contend that the applicant’s essential submissions were not directly addressed or explained to be in error.
Before turning to whether these submissions support a recall or reponing of the judgment, we first consider the application for leave to file affidavit evidence. The affidavit seeks to respond to comments in this Court’s judgment concerning a consent order of the Environment Court recording that “14 environmental lots existed as at 12/11/2015” from the applicant’s subdivision consent for its application lodged on 20 April 2012.[6] This contrasted with his application for declaratory relief in the High Court that was the subject of the appeal from this Court which sought an order that he was entitled to 59 TRLRs of which he had utilised 29.
[6]Court of Appeal judgment, above n 2, at [77]–[84] and [87].
The applicant explains in his affidavit that he always maintained that he was entitled to 59 TRLRs as a result of his 20 April 2012 subdivision application and that the Council had unlawfully extinguished them. He explains that he considered it would be futile to ask for the confirmation of 30 TRLRs from the Environment Court because of the Council’s resistance and that his barrister advised him to ask for confirmation of the more limited number and to seek the additional entitlements via a High Court application.
To be admissible the evidence must be fresh, credible and cogent. Evidence is not fresh if it could with reasonable diligence have been produced at the substantive hearing. If the evidence is not fresh, it should only be admitted in exceptional and compelling circumstances.[7] Here, the evidence is not fresh. The applicant says he was advised by his counsel that evidence did not have to be provided for the High Court proceeding, but that does not make the evidence fresh. It could have been adduced at the hearing (assuming it was relevant to the issues before the Court) but was not as a result of a decision made on counsel’s advice. Further, the evidence is not relevant or cogent. This Court’s decision was determined on the basis of its interpretation of the rules, not the background that ultimately led to the applicant’s claim for declaratory relief.
[7]Erceg v Balenia Ltd [2008] NZCA 535 at [15]. See also Jessica Gorman and others McGechan on Procedure (online ed, Thomson Reuters) at [CR45.02].
Turning to the submissions advanced for why the Court should grant recall or should reopen its judgment, the judgment records the key issues accepted by the parties. In the course of addressing those issues, the Court comprehensively reviewed the relevant planning rules and determined the nature of Environmental Lots and what the Council needed to be satisfied about if they were to be created. The Court also addressed why it reached the view that the maximum number of Environmental Lots available to the applicant was 20. In doing so the Court addressed why it disagreed with the applicant’s interpretation of Table 2 which was to be read in the context of the rules as a whole.
In short, the judgment did not overlook or fail to address the nature of Environmental Lots. It determined and explained its view of them. As to the matters set out in [3] above, the first is clearly in context a typographical error (to which the “slip” rule applies)[8] and the balance are submissions about why this Court should have come to a different conclusion than the one it did.
[8]Court of Appeal (Civil) Rules, r 8.
In these circumstances, the application to recall or reopen the Court’s judgment is no more than an attempt to relitigate the issues that were before the Court and squarely addressed. That does not constitute a “very special reason” to exercise the jurisdiction.[9] Rather, the proper avenue for seeking to obtain a different view to the one this Court reached is by way of an application for leave to appeal to the Supreme Court.
[9]Gorman and others McGechan on Procedure, above n 7, at [CR8A.03], [HR11.9.01(1)] and [HR11.9.01(6)].
Lastly, we note that the submissions dated 13 February 2024 suggest that the recall application involves matters of some complexity that might usefully be the subject of an oral hearing. The parties were previously advised that the matter would be determined on the papers. Having heard the substantive appeal, this Court is well placed to understand the issues. We are satisfied that the determination of the application can be fairly dealt with on the papers.
Result
The application for leave to file affidavit evidence is declined.
The application for recall or to reopen is declined.
The applicant is ordered to pay costs to the respondent for a standard application on a band A basis together with usual disbursements.
Solicitors:
Molloy Hucker, Auckland for Applicant
Brookfields Lawyers, Auckland for Respondent
0
2
0