STAR HOLDINGS LIMITED AND PUKAKI FARMS LIMITED Plaintiff AND MERIDIAN ENERGY LIMITED
[2004] NZHC 1233
•23 March 2003
IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY
CIV 2003-476-000732
BETWEENSTAR HOLDINGS LIMITED AND PUKAKI FARMS LIMITED
Plaintiff
AND MERIDIAN ENERGY LIMITED
First Defendant
AND THE ATTORNEY-GENERAL
Second Defendant
CIV 2003-476-000733
AND BETWEEN AORAKI WATER TRUST AND
TIMARU DISTRICT COUNCIL AND MACKENZIE DISTRICT COUNCIL
Plaintiff
AND MERIDIAN ENERGY LIMITED
First Defendant
AND CANTERBURY REGIONAL COUNCIL
Second Defendant
AND THE ATTORNEY-GENERAL
Third Defendant
Hearing: 23 March 2003
(Heard at Christchurch)
Appearances: J S Kos, J M Appleyard and S Bradley for Meridian Energy Ltd (the Applicant)
P J Milne and T Stephens for Aoraki Water Trust, Timaru District Council and Mackenzie District Council
K Reid for Star Holdings and Pukaki Farms Limited B H Arthur for Attorney-General
M Perpick and J V Ormsby for Canterbury Regional Council Judgment: 23 March 2004
STAR HOLDINGS LIMITED AND PUKAKI FARMS LIMITED V MERIDIAN ENERGY LIMITED And Anor HC TEK CIV 2003-476-000732 [23 March 2004]
ORAL JUDGMENT OF FOGARTY J
[1] This is an application by the first defendant in these proceedings to strike out or stay the substantive proceedings. I am going to deal with the application for stay first.
[2] The subject matter of both these proceedings is the extent of the first defendant’s resource consents in the upper Waitaki catchment, particularly associated with Lake Tekapo, Lake Pukaki, and associated inflowing waters and waters discharging from those lakes.
[3] The plaintiffs in proceedings 733 are the Aoraki Water Trust, the Timaru District Council and the Mackenzie District Council. I will refer to the Aoraki Water Trust as AWT.
[4] On 17 March 2003 AWT lodged applications with ECan (Canterbury Regional Council) including for a water permit to take and deliver water from Lake Tekapo up to about 9 million cubic metres per week at a maximum rate of 15 cumecs.
[5] In proceedings 732 the two plaintiffs are Star Holdings Ltd (Star) and Pukaki Farms Ltd (Pukaki). Star is the corporate vehicle and owner of Godley Peak Station. In February 2003 Star filed applications for resource consent with ECan to authorise a proposed irrigation project on Godley Peak Station on the shores of Lake Tekapo. Star applied inter alia for a water permit to take up to approximately 40,000 cubic metres per day of water, diverted from the Mistake River, for spray, irrigation of pasture and for driving turbines and for stock, water and domestic use.
[6] Pukaki farms nearly 4,000ha of land located between the Pukaki and Tekapo rivers. On 15 August last year it applied to ECan for resource consents to irrigate that land and one of the resource consents it applied for was a water permit to take up to 2.7m³/s of water from Lake Pukaki, again for spray, irrigation and for stock, water and domestic use.
[7] The issues in the substantive proceedings do not yet have a common definition in the sense that the parties are not yet able to agree precisely on the core issues that fall to be decided. For the purpose only of dealing with an application to strike out, and conscious of the ability of the parties to refine their pleadings, and conscious also that this judgment should not be interpreted as any definitive definition of the issues, it does seem to me that the substantive proceedings raise two kinds of questions. These questions may ultimately be one issue or there may be differences between the two formulations.
[8] The first is whether the first defendant’s consents allocate effectively, to the benefit of the first defendant, water beyond the points at which the defendant is entitled to take the water or beyond or upstream of the dams that it is authorised to construct and maintain?
[9] The second question is whether the first defendant has a priority of right over the water in the Waitaki catchment which has to be recognised and not eroded when any consent authority grants any future consents?
[10] These issues have been highlighted by two recent decisions, one of the Environment Court delivered by Judge Jackson (Re Meridian 125/2003), and the other by a Hearing Committee of ECan. The Environment Court decision was upon an application by the first defendant for declarations under s311 of the Act, in respect of its existing water permits in the Waitaki River catchment.
[11] The problem the application addressed is that the ECan records did not accurately describe the consents that were obtained in or about 1991. The application for declaration was granted. In the course of discussing the application in Decision 125 the learned Judge made what counsel before me agree are obiter comments in paragraphs [36] and [37]:-
[36] It is desirable to make declarations (nearly) as sought for the following reasons. When the extent (especially geographically and volumetrically) of Meridian’s water permits in the Waitaki catchment are known, the public – and in particular potential applicants – may realise that in many ways those permits (together with any existing water permits currently held by third persons) already constitute a working allocation plan for much of the water of the catchment at least down to the point
downstream of the Lake Waitaki tailrace. That is because, as the fresh applicants have found, any new application under section 12 of the RMA is likely to be opposed in a submission by Meridian in order to protect the economic (but not real or personal property) right constituted by its water permits. All existing water permits and their effects are part of the environment to be considered by the Regional Councils when considering any further application: Contact Energy Ltd v Waikato Regional Council”. For that reason I consider I should make declarations clarifying the scope of Meridian’s water permits.
[37] It may be worth observing, given current public interest in the application for consents for what is known as Project Aqua, that except for the waters of the Waitaki River and tributaries below the Lake Waitaki tailrace, it is difficult, at first sight, to see how much scope there is for a plan carrying out the Regional councils’ functions under section 30(12)e) of the RMA – which one would call a “water allocation plan” – except to confirm the water permits referred to below, together with any existing water permits held by others, and state whether there is any spare water for anyone else in future. Only if there is, can further water be allocated.
[12] As a result an appeal was lodged in this Court by Simons Hill Station Ltd . Simons Hill is the landowner of the land which is the subject of Pukaki’s application for consent. Without going into the detail of that appeal, its scope has been recently confined and for practical purposes Pukaki is now seeking through these declaration proceedings outcomes which directly or indirectly will undermine what it perceives to be potential effect of those aforesaid paragraphs in decision 125, paragraphs [36] and [37].
[13] The second ECan decision which has brought some focus on the issues is the decision of the Hearing Committee in respect of an application by Mr M Urquhart trading as Gray Hills Partnership. to take and use up to a maximum rate of take of 150 litres per second from a gallery and bore adjacent to the Tekapo Riverbed. This riverbed is downstream of the lake and for the most part dry because the lake waters are diverted into the hydroelectric works of the first defendant. The Hearing Committee comprising of Ms Jane Borthwick, who is a lawyer with considerable expertise in RMA work and Dr Brent Cowie, a well known resource management consultant. The Committee found that there was either no measurable adverse effect on the first defendant’s use of its consents or, if measurable, the effects would be minor. Notwithstanding that finding the application was declined on the basis that the resource of water had already been allocated to existing consent holders, and in the context that meant effectively to the first defendant.
[14] Before the Hearing Committee, the first defendant had argued that a consent authority has no power under the RMA to grant consent to an application where effect will be to erode or deny an existing consent, and relied upon a decision of this Court in Dart River Safaris Ltd v Kemp and Anor, AP 600/2000, (High Court, Christchurch, judgment of Panckhurst J, 15 June 2000):-
[27] Regardless of the merits of the situation, the fact remains that DRSL has legal rights by virtue of its resource consent. I do not accept that such rights may be deprecated because they are not founded in land law. They remain rights which may not be denied or eroded by imposition of a condition on another person’s resource consent. But the narrow point for present purposes is whether the obligatory terms in which condition 3(a) is cast render it invalid. I accept it is invalid to the extent that an obligation to reach agreement is assumed. On the other hand it was entirely competent of the Court to provide the opportunity for operators to negotiate and agree to a new operating memorandum. In these circumstances I do not propose to strike out condition 3(a), but rather to make a finding that to the extent it is expressed in obligatory terms the condition is invalid.
[15] Before me, Mr Kos, for the first defendant, qualified the position that the first defendant is taking. He said that Meridian’s position is accurately regarded in paragraph 30 of Decision 125 so that Meridian is not contending that as a matter of law its water permits entitle it to all water in the Waitaki catchment subject to existing water permits to third parties, above the tailrace of Lake Waitaki. Mr Kos said that there were four qualifications to that proposition:-
1.The first defendant’s consents were not a barrier to any other use of the water catchment where the effects on the first defendant were minor or de minimis;
2.Where the effects were uncertain and therefore minor;
3.Where there were applications by persons for renewal of existing rights;
4.Other cases where Meridian and others concerned were in agreement.
[16] I note on that latter point that in Decision 125 the judgment records that there is a side agreement negotiated at the time that the first defendant’s predecessor, ECNZ, obtained the consents and, as I read the material provided to me by
Ms Perpick for ECan, that side agreement includes reserving an opportunity for irrigation in the Mackenzie Basin by Benmore Irrigation Co Ltd.
[17] On the basis of these qualifications it would appear at face value that the position being taken in this Court by the first defendant is different from the position at least being described by the Hearing Committee in the Gray Hills case. Once again, I remind the reader that this is just a judgment on an application to strike out and not in any way ruling on the precise character of Meridian’s position here or the position it took in the Gray Hills’ application.
[18] The Gray Hills decision has been appealed to the Environment Court. The appellant is currently taking the position that it is content for the appeal to lie in the Environment Court pending continuation of these declaration proceedings should they be allowed to continue. However, the first defendant is applying for a priority fixture and I understand that that application will be heard by the Court on Thursday of this week.
[19] It is largely common ground, between counsel before me, that at least potentially the issues raised by the Gray Hills appeal to the Environment Court largely overlap the issues raised in the applications for declarations by the plaintiffs in these proceedings. I say potentially because given the fact that the Gray Hills’ application involves the taking of a very small quantity of water it is possible that the Environment Court decision may not confront the issues which I have endeavoured to formulate into two questions set out above. As I have said, these substantive proceedings are applications for declarations. I do not propose to set out the declarations sought as there are many and in my view they are broadly caught by the two issues that I have endeavoured to formulate. The point that needs to be emphasised here is more as to the procedural character of the substantive proceedings. They are applications for declarations to be made under the Declaratory Judgments Act 1908. Save for one qualification which I will come to shortly, it is envisaged that they would be taking advantage of the summary jurisdiction created by s3 of that Act.
Summary of the arguments before me
Applicant
[20] The first defendant, being the applicant in these proceedings, has argued that it is not possible for the plaintiffs to bring the issues within s3 so that there is simply no jurisdiction of a summary character available. This is principally because the first defendant’s resource consents are not instruments or documents within an exhaustive list contained within s3 of the Declaratory Judgments Act which provides:-
3 Declaratory orders on originating summons
Where any person has done or desires to do any act the validity, legality, or effect of which depends on the construction or validity of any statute, or any regulation made by the Governor-General in Council under statutory authority, or any bylaw made by a local authority, or any deed, will, or document of title, or any agreement made or evidenced by writing, or any memorandum or articles of association of any company or body corporate, or any instrument prescribing the powers of any company or body corporate; or
Where any person claims to have acquired any right under any such statute, regulation, bylaw, deed, will, document of title, agreement, memorandum, articles, or instrument, or to be in any other manner interested in the construction or validity thereof,—
such person may apply to the High Court by originating summons for a declaratory order determining any question as to the construction or validity of such statute, regulation, bylaw, deed, will, document of title, agreement, memorandum, articles, or instrument, or of any part thereof.
[21] Secondly, the applicant argues that the plaintiffs are not a person wanting to do an act, nor are they a person claiming a right under any document, nor a person in any other manner interested in the construction or validity of any of the documents and materials referred to in s3. If the applicant is correct on that proposition then the only way for the Court to grant declarations would be pursuant to the Court’s inherent jurisdiction to do so as recognised by s2 of the Declaratory Judgments Act but by way of ordinary action. Secondly, the first defendant argues that it is not in any practical fashion possible to grant these declarations in a summary way as they raise mixed questions of fact and law and involve taking the Court to a considerable amount of factual material, a significant amount of which will be inevitably disputed.
Thirdly, the first defendant argues that it is an important principle, which should inform the exercise of the residual discretion, that the High Court should not displace a statutory process present here in the RMA which provides for these sort of issues to be decided at first instance by an expert Court, in this case the Environment Court; that to bring these proceedings directly to the High Court is an abuse of process in the particular context.
Plaintiffs
[22] In summary, counsel for the plaintiffs answer these three points by saying that s3 of the Act has been and is to be construed in a liberal and non-technical fashion, and instance at least one decision, the case of Young v Otago Regional Council (HC Dunedin, M112/96, 18 May 1999, Chisholm J) where a resource consent was the subject matter of a declaration. Secondly, they say that the first defendant is overstating the difficulty of bringing appropriate factual material of contextual character before the Court. Thirdly, they argue that there are special reasons why this Court should consider these proceedings for declarations.
Crown and ECan
[23] The Crown formally abides the outcome of this application. But, if there are to be declaratory proceedings and declarations on these issues, given the character of the issues, Crown counsel favours the declarations to be made by this Court in the first instance rather than the Environment Court, for reasons of urgency and for the special character of the decisions. Ms Perpick for ECan abides.
[24] I am quite satisfied that the first defendant has a serious argument that the applications do not fall within the ambit of the text of s3 of the Act. That said, there is a competing argument that s3 is to be applied in a liberal rather than in a fussily precise fashion and that similar to the approach of Chisholm J in Young v Otago Regional Council:-
The plaintiffs qualify as persons claiming to have acquired a right under a statute or instrument. The deemed water permits confer rights on the
plaintiffs pursuant to the Resource Management Act and qualify as instruments. It follows that the plaintiffs have the necessary locus standi.
[25] It may be possible for the plaintiffs to persuade the Court that the first defendant is claiming to have acquired by its resource consents a right under the RMA and that the plaintiffs in these proceedings are interested in the construction or validity of that right and are applying to the High Court to determine the question as to the construction of the RMA as it bears upon that right. Again, that formulation should be understood, as merely one way of encapsulating a possible argument that the plaintiffs are bringing to bear, to bring themselves within s3.
[26] Mr Milne also reserved the right to fall back on s2 albeit by way of still proceeding in some sort of summary fashion, as I understood him.
[27] Because the plaintiffs have requested a full Court of this Court, and that may be possible, I do not think it is appropriate for me to go into the details of these competing arguments. I am satisfied that it is sufficient for Mr Milne to be able to point to the High Court decision in Young as a precedent in order to meet and answer the threshold requirement of applications to strike out. It is common ground that before the Court can strike out proceedings the claim must be so clearly untenable that the proceedings cannot possibly succeed. Once the jurisdiction point is arguable it seems to me that that test is not met.
[28] I turn then to the other two independent limbs of the applicant’s application for strike out.
[29] It may turn out to be impossible for the Court to grant declarations because of issues of contested fact. But after a day and a half of argument I am persuaded, at best, that this is only a possibility. I am comforted by the fact that that does not appear to be the judgment of counsel for the Crown, and by a consideration of how these issues were dealt with by Judge Jackson in Decision 125 and by the Hearing Committee in Gray Hills. It does seem to me that the stance that Meridian has taken has raised what are essentially questions of law, questions which need to be answered within a factual matrix, but a factual matrix which could be loosely
described as within the big picture. For this reason I do not think that ground is made out.
[30] I turn then to the argument that the High Court would never exercise its residual discretion to grant declarations in the face of the scheme of the RMA which provides for a specialist Court to give declarations and in the face of the impending enactment of the Resource Management Waitaki Catchment Amendment Bill which proposes to put in place a board and planning commissioners, each headed by a person with knowledge, skill and experience in relation to judicial processes. It is always going to be difficult for an applicant in an application to strike out to persuade a Court that there was no prospect that the Court would ever exercise its discretion not to grant declarations, assuming for the purposes of this part of the argument that the applications are within the scope of s3 or otherwise somehow within the inherent power of the Court. I agree and it is a matter that has concerned me throughout the argument that for very good reasons this Court prefers to have the benefit of decisions by the expert Courts before it expresses its own view on questions of law or questions of mixed fact and law. Therefore I have approached the subject on the basis that there would be have to be special reasons why the Court would entertain these applications for declarations, which on the face of it bypass the Environment Court and possibly pre-empt the goal of Parliament that the issues be decided in the first instance by the intended Waitaki Catchment Water Allocation Board (the Board). In that respect I refer to the Bill as reported from the Local Government and Environment Committee clauses 17(1)(f) and clauses 18(1)(e) and (f).
[31] There are, however, arguments for special reasons which the plaintiffs can put forward which are sufficient in my view to again meet the first defendant’s proposition that the plaintiffs could not possibly persuade the Court to exercise the discretion. I hesitate to try to summarise all these arguments. But what has struck me is that the character of the issues raise very difficult questions as to the construction of the RMA, in respect of which, upon my reading, the authorities are uncertain. I will explain that to the extent necessary to justify this decision but endeavouring so far as possible only to sketch the point anticipating that it may be yet argued before a full Court.
[32] As I understood the argument of Mr Kos, the position of the first defendant is that it contends that by reason of being the holders of a pretty comprehensive bundle of resource consents, the first defendant has a priority of enjoying of the Waitaki catchment waters ahead of any applicants who might seek further consent (albeit subject to his four qualifications). In this respect he sought to rely upon the decision of the Court of Appeal in Fleetwing Farms Limited v Marlborough District Council [1997] 3 NZLR 257, 265 where the Court, in a unanimous judgment delivered by Richardson P said:-
… By contrast with a comparative process under the [Marine Farming] 1971 Act [resource consent applications under the RMA] are to be determined on a first come first served basis.
He then relies on Panckhurst J in the Dart River case (supra). The Dart River case issues track back to Fleetwing type issues at the Environment Court level (before Judge Jackson) and in a natural way the dictum of Panckhurst J can be seen to flow from the logic of the Fleetwing decision.
[33] There are two problems here. Firstly, the Fleetwing decision was deciding only the priority of hearing of applications for consents. Although, it has to be acknowledged that within its reasoning there is dicta that says that when considering an application the application is considered on its merits without regard to competing applications. The extension of the principle as I understand it, as being advanced by the first defendant, is that when considering an application for resource consent, existing consents are treated as having a “priority”. They are not to be subject to any comparative analysis and the applicant for resource consent can only succeed if the later application does not in any way erode or derogate from the existing consent. As I understand it, that logic was adopted as good law by the Hearing Committee in the Gray Hills case to which I have already referred. The point here is that this is an extension of Fleetwing.
[34] The second problem is that on the basis of the Bill as referred back yesterday by the Local Government and Environment Committee, it would appear that Parliament intends, at least for the purposes of the Waitaki catchment, to legislate away the Fleetwing principle. I refer to clauses 41(b) and 42 of the Bill. Clause 41(b) provides:-
When considering applications the Panel has the following additional powers:
…
(b) an application does not have priority over any other application considered and decided by the Panel, except to the extent decided by the Panel:
…
and clause 42:-
42 Comparative consideration of applications
(1) The applications considered under this section must be compared by –
(a) first applying the purpose and principles of Part II of the principal Act; and
(b) then having regard to the economic and social benefits and costs of each use of the water from a national perspective.
…
[35] This may or may not be displacing the Fleetwing principle and if it is it may only be doing so in respect of the pending applications. But it may call in doubt whether the Fleetwing principle should be extended in the manner contended for by the first defendant.
[36] Thirdly, and this was not argued verbally by the first defendant but formulated by myself, there is a longstanding policy of the common law that persons who acquire rights should not have those rights removed except by a due process. It appeared to me that at bottom the first defendant’s argument may be appealing to that proposition and simply saying that: its rights are statutory rights; that there is no provision in the Act for them to be taken away other than for their conditions to be reviewed under special circumstances; and, therefore they must be respected by consent authorities when dealing with new applications.
[37] On top of the special character of these questions there is what I might call the ordinary character. By the ordinary character I refer to an ordinary problem of deciding just exactly what each resource consent confers on the holder. This is a
task done frequently by the Environment Court, to which it is well suited. I have heard some argument as to the sort of factual material that is taken into account by the Court and whether or not the Court follows a method of statutory interpretation or a method of interpretation of contracts. I do not propose to get into that. The point I wish to make at this stage is that were the issues raised between these parties simply of an ordinary character there would be a much stronger argument available to the applicant on strikeout for the ordinary question to be left with the expert Court equipped to dealing with the ordinary question. By ordinary I do not mean to suggest for a moment that it is simple, I merely refer to the fact that it is a question typically considered by the Environment Court in respect of which it has expertise. But because the ordinary question is overlaid by the special character of the Fleetwing issues and the derogation of statutory right issues, it seems to me inevitable that the issues dividing these parties will come to this Court and very probably move on past this Court to the appellate Courts.
[38] For these reasons I think that the plaintiffs do have a serious argument in favour of the exercise of the Court’s residual discretion.
[39] Accordingly, the applicant in these proceedings, the first defendant, has not persuaded me that the plaintiff’s proceedings for declarations are so clearly untenable that they cannot possibly succeed and the application to strike out is dismissed.
Application for stay
[40]I now turn to the application for stay.
[41] There is no doubt in my mind that it would be quite inappropriate for this Court to entertain the substantive proceedings by the plaintiffs before Parliament has enacted the Resource Management (Waitaki Catchment) Amendment Bill. I am informed by counsel for the Crown, Ms Arthur, that the Bill is not likely to be enacted until late April or early May; after Easter in any event.
[42] I have considered whether it would be appropriate in this judgment to invite the legislature to introduce into the Bill a power to the proposed board to state a case or some equivalent procedure enabling this Court to have the views of the board on these issues before it proceeds with the application for a declaration. It seems to me at the present time that that may not be a practical suggestion. So far as is possible I think the Courts should try to deal with these proceedings for declarations, they not having been struck out, within a timeframe which is consistent with the objectives of Parliament. Based on the Bill before me it is Parliament’s intention that the board develop a water allocation framework within nine months from being set up and be there an extension, that extension be no more than three months. I am told from the bar that the process is likely to be that the board will develop a proposed framework which will be notified. It will then receive public submissions and have hearings and finally approve a framework. This is a summary only. There are a number of steps, see the Bill as reported back, subpart 2, clauses 24, 24A, 25 and 26.
[43] It is a major plank of the argument for the plaintiffs, presented principally by Mr Milne, that the issues that his and Mr Reid’s clients have brought to the Court should be decided before their respective clients are drawn into those processes of the board, involving quite naturally a significant commitment. He says that if the Court were to decide that the position taken by the first defendant is correct, and I refer to this position with the four qualifications of Mr Kos I have set out above, then it is likely that for all practical purposes the water of interest to the plaintiffs in these proceedings will be treated as fully allocated to Meridian and on that basis his clients would not be involved in a long and lengthy process. Indeed, he says, the work of the board would largely be confined to developing a framework for the allocation of consents for all water downstream of Lake Waitaki.
[44] It seems to me, in the face of these considerations, unrealistic to expect the board albeit with an experienced chairman, to develop, sufficiently early, an interim view on what I consider are quite difficult questions of law raised in these proceedings, being a view of assistance to the Court. On the other hand, for the reasons I have indicated, particularly what appears to be some form of legislative repeal of the effect of Fleetwing it is impossible for this Court to get to grips with these issues until the final form of the statute is known.
[45] It is, however, in my view, practical to invite counsel to proceed on the basis that the Bill as reported back to the House, it being conceptually consistent with the Bill reported to the committee from the House, is likely to be enacted in substantially the same form, at least for the purposes of the issues between the parties in these proceedings.
[46] This is an important case and although it is likely to go to the Court of Appeal, and possibly beyond, I think it is appropriate that the plaintiffs (as requested) be given a full Court, if that is possible. It is possible to assemble a full Court of two Judges of Chisholm J and myself on 13 and 14 May next. I propose accordingly to stay these proceedings, for a telephone conference with counsel to Monday, 19 April, at 9.30 am. If on that day the Bill is still in the House, another date will be selected based on an update as to the likely progress of the Bill. What I have in mind is a timetable whereby once the Bill is enacted the plaintiffs have five working days to make any amendments to the statement of claim and to produce a formulation of issues and then a very short time for the other parties to respond. These time limits are extremely short but are based on what I think is a working proposition that the parties can get on now, not wait for Parliament, to sort out and refine the issues, and sort out what factual materials should be before the Court.
[47] As I indicated in the course of argument, the list of materials set out by Mr Kos can be put before the Court de bene esse and his list is: the original Environment Court decision granting the consents in 1991; the application for those consents; supplementary information that was before the Council when it granted the consents; relevant plans; and possibly relevant material that was placed in front of the Hearing Committee itself. It will then be up to counsel and the Court to decide to what extent as a matter of law or on the merits that material is admissible and/or helpful in construing and answering the question of what exactly are the consents that the first defendant has.
Summary
[48] In summary then, the application to strike out is dismissed. The application for stay is granted until Monday, 19 April, and to be reviewed thereafter until the
Bill before the House is enacted. In case it should turn out the Bill is marooned in the House for some reason and will not be enacted this Court will then consider whether to proceed anyway; as having dismissed the application to strike out the plaintiffs are entitled to a hearing. Upon the enactment of the Bill this Court will hear the plaintiff’s applications on an urgent basis and the indicative goal at this stage is to commence that hearing on 13 May for two days. There may have to be timetabling directions to ensure that submissions are circulated well in advance and the Court may well have to find extra days after 13 and 14 May. Those are all problems and issues that will have to be faced from time to time as this case is managed from Monday, 19 April.
[49]Costs are reserved.
[50] I am grateful to Ms Appleyard for drawing to my attention the impending appeal on the Gray Hills decision, to which I have already referred. Nothing that is said in this judgment should be taken as any intimation to the Environment Court that it should not hear that appeal. On the contrary, the early hearing of that appeal and decision may well be of considerable assistance to this Court. One of the reasons why this Court has decided to proceed urgently (together with the tight timetable of the Board) is that some doubt was raised before me as to whether Gray Hills could be heard by the Environment Court in May, because of the Rangitata Conservation Order hearing.
Fogarty J
Solicitors:
Goodman Steven Tavendale, Christchurch, (Star Holdings Ltd & Pukaki Farms Ltd)
Simpson Grierson, Wellington, (Aoraki Water Trust, Timaru District Council & Mackenzie District Council)
Chapman Tripp, Christchurch, (Meridian Energy) Crown Law Office, Wellington (Attorney-General )
Wynn Williams, Christchurch, (Canterbury Regional Council)
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