Sutton v Canterbury Regional Council - [2015] NZHC 313

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2014-409-000573 [2015] NZHC 313

BETWEEN
ROBERT WILLIAM SUTTON,

MEGHAN ELIZABETH SUTTON AND LONE STAR FARMS LIMITED Applicants

AND

CANTERBURY REGIONAL COUNCIL First Respondent

INFINITY INVESTMENT GROUP LIMITED AND ROBERT HAY ROBERTSON

(Second Respondents)

Hearing: 25 February 2015

Appearances:

P A Steven QC and M F Joyce for Applicants
PAC Maw and J A McKeown for First Respondent
R J Somerville QC and H G Marks for Second Respondents

Judgment:

27 February 2015

JUDGMENT OF GENDALL J

Introduction

[1] The applicants, Robert and Meghan Sutton (“the Suttons”) and Lone Star Farms Limited (“Lone Star”), are the holders of several resource consents to take and use water from the main stem and/or tributaries of the Hakataramea River for irrigation of farmland in Kurow. Both applicants’ consents are subject to the same low flow conditions on the taking of water. The first respondent (“the Council”) is a regional council under the Local Government Act 2002, with additional powers and duties pursuant to the Environment Canterbury (Temporary Commissioners and
Improved Water Management) Act 2010.

SUTTON v CANTERBURY REGIONAL COUNCIL [2015] NZHC 313 [27 February 2015]

[2] Foveran Station (“Foveran”) is a farm located in the Hakataramea Valley containing 560 ha of irrigated land using water from the Hakataramea River and from a tributary, the Brothers Stream. Resource consents for Foveran are held by the R H and J Robertson Family Trust. Mr R H Robertson died on 1 November 2014 and his executor, Pamela Roberta Higgins, has been substituted as the second-named second respondent.

[3] The first-named second respondent, Infinity Investment Group Limited (“Infinity”), is a company based in Dunedin owned essentially by Robertson Family interests as I understand it. Infinity is involved in the ownership of Foveran. For present purposes it is appropriate to refer to both the second respondents together as “Infinity” and I will now do so.

[4] Foveran has been on the market for sale for some time and I am told Infinity has an immediate issue regarding urgent refinancing of debt obligations over the farm. Counsel for Infinity states that any potential sale of Foveran is being delayed because of these judicial review proceedings brought by the applicants who also farm in the Hakataramea Valley. He also advises that refinancing of Infinity’s debt obligations is due today, 27 February 2015 (only some two days after this Court heard the present application as a matter of urgency), and therefore a decision on the applicants’ judicial review application is required without delay. As a result this decision and judgment is given on an extremely urgent basis.

[5] The applicants seek judicial review of a decision of the Council that it was not required to notify them of an application by Infinity for resource consent. They also seek judicial review of the Council’s substantive decision, which granted to Infinity and its interests consent as a discretionary activity rather than as a non- complying activity.

[6] The applicants seek an order setting aside each…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] NZHC 313
Decision Date: 27 February 2015

CaseChat Overview and Summary

Sutton v Canterbury Regional Council [2015] NZHC 313 is a case brought by the applicants, Robert and Meghan Sutton and Lone Star Farms Limited, against the Canterbury Regional Council. The applicants sought judicial review of two decisions made by the Council regarding resource consent applications made by Infinity Investment Group Limited and Robert Hay Robertson. The applicants sought to challenge the Council’s decision not to notify them of an application by Infinity for resource consent and the substantive decision, which granted to Infinity and its interests consent as a discretionary activity rather than as a non-complying activity. The applicants sought an order setting aside each of the Council’s decisions. The main legal issues in this case were whether the Council’s decision on notification and its substantive decision were in accordance with the Resource Management Act 1991 (RMA). The applicants argued that the Council’s decisions were based on incorrect information and therefore flawed. The court found that the Council’s decision on notification and its substantive decision were both flawed due to errors in the information relied upon by the Council. The court found that the Council had inadequate information to make its decisions and failed to consider the actual and potential effects of granting the water permit on existing consent holders. The court also found that the Council erroneously processed the resource consent application as a discretionary activity when it ought to have been processed as a non-complying activity. As a result, the court set aside the Council’s decisions and remitted Infinity’s application back to the Council for reconsideration. The court found that the applicants were adversely affected to a “more than minor” extent by the activity for which the Council granted consent. The court concluded that the relief sought by the applicants would have real practical value and enable Infinity’s application to be decided according to correct statutory standards.

Orders