Zindia Limited v Marlborough District Council
[2020] NZCA 229
•11 June 2020 at 2.30 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA615/2019 [2020] NZCA 229 |
| BETWEEN | ZINDIA LIMITED |
| AND | MARLBOROUGH DISTRICT COUNCIL |
| Court: | Brown and Collins JJ |
Counsel: | Q A M Davies and J S Marshall for Applicant |
Judgment: | 11 June 2020 at 2.30 pm |
JUDGMENT OF THE COURT
The application for leave to appeal is granted on the following question of law:
Did the High Court Judge err when she construed the meaning and scope of Consents U120345.1 and U120345.6?
____________________________________________________________________
REASONS OF THE COURT
(Given by Collins J)
Zindia Ltd (Zindia) seeks leave to appeal a High Court decision overturning the Environment Court’s cancellation of an abatement notice.[1] The Marlborough District Council (the Council) issued the notice, alleging that Zindia was in breach of the Resource Management Act 1991 (the Act). The abatement notice was issued on the basis that Zindia’s commercial harvesting of a forest in Queen Charlotte Sound did not comply with the relevant regional rule and s 9 of the Act.
[1]Zindia Ltd v Marlborough District Council [2019] NZEnvC 30 [Environment Court judgment]; and Marlborough District Council v Zindia Ltd [2019] NZHC 2765, (2019) 21 ELRNZ 364 [High Court judgment].
A second appeal from a decision of the Environment Court requires leave of this Court, and can only be granted if the appeal engages a question of law and:[2]
(a)where the appeal involves a matter of general or public importance; or
(b)where a miscarriage of justice may have occurred or may occur unless the appeal is heard.
Background
[2]Resource Management Act 1991, s 308; and Criminal Procedure Act 2011, s 303.
Zindia operates a forestry block in Queen Charlotte Sound pursuant to resource consents issued by the Council. Believing that commercial harvesting of forestry was not permitted by the resource consents it had granted, the Council issued an abatement notice directing Zindia to cease harvesting the forest and not recommence its operations.
The Environment Court found that the resource consents did encompass harvesting and cancelled the abatement notice.[3] The Council appealed to the High Court.[4] Doogue J considered seven questions of law raised by the Council and concluded that the Environment Court had erred in its interpretation of the scope of the resource consents. In allowing the appeal, she reinstated the abatement notice.
The application for leave
[3]Environment Court judgment, above n 1, at [71].
[4]Resource Management Act, s 299.
In its application for leave to appeal to this Court, Zindia has proposed the appeal proceed in relation to the following questions of law:
(a)Is the interpretation of a resource consent a question of law?
(b)Is a resource consent, when expressed as an exemption from a particular rule, properly viewed as permission to undertake an activity?
(c)Did the High Court err in not referring the case back to the Environment Court to address outstanding questions not addressed in the Environment Court?
(d)Did the High Court err in not referring the case back to the Environment Court in order to give effect to concessions made by the Council in the High Court?
Zindia submits that the first and second questions of law are matters of general and public importance and that, the third and fourth questions of law relate to procedural errors made by the High Court Judge that have caused, or will cause, a miscarriage of justice to occur. Zindia argues it was not appropriate for the High Court to reinstate the abatement notice. Rather, it is maintained the High Court should have referred the case back to the Environment Court for further consideration.
The Council submits that the questions of law posed do not warrant leave being granted. The law on the interpretation of resource consents is settled and does not require further attention from this Court. The High Court was correct in its assessment of the scope of the application for the resource consent and there was no basis for a referral back to the Environment Court. The “outstanding” questions were not even raised in the High Court and any concessions made are now reflected in amendments to the abatement notice.
Analysis
The second, third and fourth questions of law (above at [5(b)–(d)]) do not raise matters of sufficient general or public importance or point to a miscarriage of justice. The second question of law posed is too abstract and of little material importance. The High Court was not obligated to refer the matter back to the Environment Court in the way proposed by the third and fourth questions of law.
The first question posed by Zindia requires more detailed consideration.
There are two consents that are relevant to the proposed appeal:
(a) Consent U120345.1
The description of the activities for which consent was sought was the formation of a ramp, skid sites and culverts for the purpose of forest harvesting. A forest harvesting plan was attached to the application.
(b) Consent U120345.6
The description of the activities referred to in the application included construction of an access way “to transport logs harvested from the adjacent property”.
The consent decision issued by the Council made several references to forestry harvesting.
Consent U120345.1 also contained a number of references to forestry harvesting.
The High Court Judge said properly understood, the consents were for works that were to be undertaken for the purpose of preparing for forestry harvesting, but the consents themselves did not authorise forestry harvesting.[5]
[5]High Court judgment, above n 1, at [119]–[122].
As currently expressed, the first proposed question of law is too abstract. There is, however, a legitimate question of law raised by the proposed appeal. That question of law is whether the High Court Judge misconstrued the meaning and scope of the two consents we have referred to at [10]. That question involves an interpretation of the consents in the context of the applications and supporting material. This involves a quintessential question of law, as recognised by the fact the High Court Judge reached her conclusions when answering three questions of law that arose from the Environment Court decision.
As we have foreshadowed at [2] it is, however, not sufficient for Zindia to identify a question of law. It must also pass one of the two high thresholds we have summarised at [2(a) and (b)].
In the present case, we are not satisfied the proposed appeal involves a matter of general or public importance. This is because the issue raised is likely to be confined to the interests of the parties.
There is, however, a genuine risk that a miscarriage of justice may occur unless the appeal is heard. This is because if the High Court Judge erred in her approach to the interpretation of the resource consents this would have deprived Zindia of its appeal on the correct understanding of the consents.
Result
The application for leave to appeal is granted on the following question of law:
Did the High Court Judge err when she construed the meaning and scope of Consents U120345.1 and U120345.6?
Solicitors:
Gascoigne Wicks, Blenheim for Applicant
Tasman Law Ltd, Nelson for Respondent
0