SPEARGRASS HOLDINGS LTD v VAN BRANDENBURG & ORS [2019] NZCA 684

SPEARGRASS HOLDINGS LTD v VAN BRANDENBURG & ORS [2019] NZCA 684 [20 December 2019]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA296/2018[2019] NZCA 684BETWEEN SPEARGRASS HOLDINGS LIMITEDFirst AppellantCHRISTOPHER SCOTT MEEHAN ANDMICHAELA WARD MEEHANSecond AppellantsAND FREDERIKUS PETRUS MARIA VANBRANDENBURG AND DIANNE MARYJACQUELINE VAN BRANDENBURGFirst RespondentsQUEENSTOWN LAKES DISTRICTCOUNCILSecond RespondentCourt: Cooper and Gilbert JJCounsel: R A Rose for First and Second AppellantsP J Page for First RespondentsJudgment:(On the papers)20 December 2019 at 10.30 amJUDGMENT OF THE COURTThe applications for a stay of execution and other interim orders are declined.____________________________________________________________________REASONS OF THE COURT(Given by Cooper J)Introduction[1] On 18 November 2019, this Court dismissed the appellants' appeal against adecision of Dunningham J.1 The appellants now seek a stay and/or interim reliefpending an application for leave to appeal to the Supreme Court. This application isopposed by the first respondents.[2] The underlying dispute concerns the construction of an earth mound onthe first respondents' property in the Wakatipu Basin. Judge Jackson inthe Environment Court granted a variation to the earthworks consent required forthe mound.2 The appellants, who own property adjacent to the first respondents' land,appealed that decision to the High Court. In addition, they applied for judicial reviewof the second respondent's decision not to notify a resource consent application forthe construction of the mound, and for an order under s 333 of the Property Law Act2007 (the PLA) requiring removal of the mound.3 These "three discrete proceedings"were heard together.4[3] In relation to the appeal from the Environment Court's decision,Dunningham J decided that the Environment Court Judge erred in several materialways.5 Consequently, that appeal was allowed, and the Environment Court's decisiongranting a variation of the resource consent was set aside.6 In relation to the judicialreview application, the Judge held that the second respondent had erred in makingthe non-notification decision,7 but declined relief both in respect of that applicationand the PLA application.81 Speargrass Holdings Ltd v van Brandenburg [2019] NZCA 564.2 Flax Trust v Queenstown Lakes District Council [2016] NZEnvC 202 at [178].3 Speargrass Holdings Ltd v Queenstown Lakes District Council [2018] NZHC 1009 at [4].The volume and area of the mound as built exceeded the mound that was originally grantedconsent by the second respondent. The larger mound was the subject of a further consentapplication (essentially an application to vary a condition of the original consent), rejected bythe second respondent but then allowed by the Environment Court on appeal.4 At [5].5 At [115].6 At [116].7 At [172].8 At [274]–[275].[4] The appellants appealed from the decision of the High Court in respect ofthe judicial review and PLA proceedings. The decision on the appeal fromthe Environment Court decision was not appealed to this Court.The stay application[5] The appellants seek a stay and/or interim orders, "preventing/halting anyfurther progression of all outstanding aspects of the Environment Courtreconsideration proceeding until release of the Supreme Court's decision regardingthis Court's decision" and staying execution of this Court's judgment. Counsel forthe appellants, Ms Rose, advised that an application for leave to appeal tothe Supreme Court would be filed and that has now occurred. Ms Rose submitted thatthe proposed appeal will be rendered nugatory if the orders sought are not granted.She relies on r 30 of the Supreme Court Rules 2004, which, it is argued, allowsthis Court to order a stay, even in circumstances where a judgment is "non-executory".Counsel indicated that in the meantime, a hearing to reconsider the relevant resourceconsent has been scheduled in the Environment Court in February 2020.[6] The application is opposed by the first respondents, on the following grounds:(a) The proceedings relating to the Environment Court's decision was notbefore the Court of Appeal, as the High Court's decision setting asidethat decision was not appealed. Accordingly, this Court does not havejurisdiction to grant the relief sought.(b) The motive behind the stay application is to delay the proceedingsbefore the Environment Court until after the retirement ofJudge Jackson, who will not be sitting after March 2020.(c) It is appropriate for Judge Jackson, who made the decision that was setaside on appeal to the High Court, to rehear the matter.[7] Rule 30(2) of the Supreme Court Rules provides that:Pending the determination of the application or the appeal, the court appealedfrom or the Supreme Court may, on application,—(a) order a stay of the proceeding in which the decision was given or a stayof the execution of the decision; or(b) grant any interim relief.[8] Rule 30(3) further provides that a determination under r 30(2) may "relate toexecution of the whole or part of the decision or to a particular form of execution".[9] The decision of the High Court setting aside the Environment Court's decisionwas not the subject of the appeal to this Court. That being the case it is unclear howthis Court would have jurisdiction to make the order for a stay now sought. It is notthis Court's decision that is being "executed"9 but that of the High Court, on an appealthat never reached this Court. Nor will any further proceedings beforethe Supreme Court be rendered nugatory. Assuming for present purposes that Courtwere to grant leave and allow the appellant's appeal, the result would be a judgmentoverturning this Court's decision upholding the High Court's decision onthe application for review and/or overturning our decision declining to make ordersunder the PLA. The former might result in the original resource consent granted bythe Council being set aside. Any variation of that consent granted by the EnvironmentCourt would be subject to the same flaw as the Council's decision: that is, notionally,that the application for the consent had not been notified. Success on the PLA appealwould have the normal consequences. Any decision by the Environment Court madein the meantime could not affect implementation of the Supreme Court's judgment.[10] We also observe that although Ms Rose is right that a stay can be granted inrespect of a "non-executory" judgment (this is the effect of r 30(2)(b) ofthe Supreme Court Rules), the rule contemplates interim relief, as does r 12(3)(b) ofthe Court of Appeal (Civil) Rules 2005. Here, any interim relief could only be inrespect of a proceeding (the Environment Court appeal) not before the Supreme Court9 We resort to inverted commas here because of the inherent tension in the concept thatthe Environment Court could be said to be executing a judgment when it is fulfilling its statutoryduty of determining an appeal.or this Court, and the relief would prevent the Environment Court commencing ahearing on which it is lawfully entitled to embark: there is an unresolved appealawaiting hearing in that Court which it is bound to determine. If the appellants wishto prevent that occurring, the appropriate course would be for an application for anadjournment of those proceedings to be made to that Court, relying (to the extent itcan) on the new circumstance that the appellant has sought leave to appeal tothe Supreme Court. If that application were rejected, the High Court could beapproached, in its supervisory jurisdiction, on an application for review. We make nocomment on what that Court might do if such an application were made. But in ourview that would be a preferable approach to the course that has been followed, and itwould have the advantage of preserving this Court's appellate role if the High Court'sdecision were thought to be affected by error.[11] Another alternative would be for an application for a stay to be made tothe High Court. That Court was at least once seized of the proceeding concerningthe Environment Court decision which, as already noted, this Court never was. And ifthere is a decision being implemented it is that Court's decision rejecting the appealagainst the Environment Court's decision.[12] For these reasons the applications for a stay of execution and other interimorders are declined.Solicitors:Bell Gully, Auckland for First and Second AppellantsGallaway Cook Allan, Dunedin for First RespondentsMeredith Connell, Wellington for Second Respondent