CABLE BAY WINE LIMITED v AUCKLAND COUNCIL [2022] NZCA 189

CABLE BAY WINE LIMITED v AUCKLAND COUNCIL [2022] NZCA 189 [17 May 2022]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA637/2021[2022] NZCA 189BETWEEN CABLE BAY WINE LIMITEDApplicantAND AUCKLAND COUNCILRespondentCourt: Cooper and Dobson JJCounsel: A G W Webb for ApplicantS F Quinn and K H Rogers for RespondentJudgment:(On the papers)17 May 2022 at 9 amJUDGMENT OF THE COURTThe application for leave to appeal is declined.____________________________________________________________________REASONS OF THE COURT(Given by Cooper J)Introduction[1] The applicant, Cable Bay Wine Ltd (Cable Bay), challenges a decision of theEnvironment Court regarding resource consents. Cable Bay unsuccessfully appealedthe Environment Court's decision to the High Court, and now seeks leave to appeal tothis Court.11 Cable Bay Wine Ltd v Auckland Council [2021] NZHC 2596 [High Court judgment].[2] The Environment Court decision was made on an appeal filed afterAuckland Council had refused an application by Cable Bay in 2017 for resourceconsent for certain activities that were being carried out on Cable Bay's property onWaiheke Island, where it operates a winery and hospitality business.2 The effect ofthe Environment Court decision was to grant consent for some of the activities subjectto conditions.3 Cable Bay's appeal to the High Court challenged the lawfulness ofsome of the conditions imposed by the Environment Court.[3] It was argued in the High Court that some of the conditions were unlawfulbecause they purported to control activities which Cable Bay was already authorisedto undertake under an earlier consent, granted in 2006. It was said that in thecircumstances the Environment Court had no jurisdiction to impose conditionspurporting to control those activities. It was also argued that, even if there werejurisdiction, the conditions were substantively unreasonable.[4] Campbell J rejected both contentions.4 The present application for leave tobring a second appeal seeks to pursue both issues.Second appeal principles[5] The Resource Management Act 1991 (RMA) provides for second appeals tothis Court in s 308(1). It does so by adopting sub-pt 8 of pt 6 of the Criminal ProcedureAct 2011. That includes s 303 which provides:303 Right of appeal against determination of first appeal court(1) A party to a first appeal under this subpart may, with the leave of thesecond appeal court, appeal under this subpart to that court against thedetermination of the first appeal.(2) The High Court or the Court of Appeal must not give leave for asecond appeal under this subpart unless satisfied that—2 The Environment Court issued four interim decisions before delivering its final decision: CableBay Wines Ltd v Auckland Council [2018] NZEnvC 226; Cable Bay Wines Ltd v Auckland Council[2019] NZEnvC 29; Cable Bay Wines Ltd v Auckland Council [2019] NZEnvC 170; Cable BayWine Ltd v Auckland Council [2020] NZEnvC 75; and Cable Bay Wine Ltd v Auckland Council[2020] NZEnvC 154 [Final Environment Court decision].3 Final Environment Court decision, above n 2.4 High Court judgment, above n 1.(a) the appeal involves a matter of general or public importance;or(b) a miscarriage of justice may have occurred, or may occurunless the appeal is heard.[6] As can be seen, this Court must not give leave for a second appeal unlesssatisfied that the appeal involves a matter of general or public importance, or amiscarriage of justice may have occurred or may occur unless the appeal is heard.As will generally be the case, the miscarriage ground has no relevance here where thecontext is not criminal.5 Because the appeal is a second appeal, and an appeal to theHigh Court from the Environment Court is limited to questions of law,6 it is axiomaticthat any subsequent appeal to this Court must also be on a question of law.[7] But it is not sufficient simply to state a question of law. The question must beone which is capable of bona fide and serious argument. That was confirmed in thecontext of resource management appeals by this Court in Te Whare O Te KaitiakaNgahere Inc Society v West Coast Regional Council.7 So the controlling qualificationsfor a second appeal are that it involves a question of law capable of bona fide andserious argument, and that it is of general or public importance.8The disputed conditions[8] The conditions imposed by the Environment Court that remain in dispute werenumbered 12 to 15 in that Court's decision.9 It is not necessary for present purposesto set them out. In broad terms they required provision of a designated alfresco diningarea adjacent to the restaurant, a designated area for weddings on a defined part of thesite (subject to various limitations) and a designated short-term viewing area wherepatrons could take photographs or "take in the view".5 SKP Inc v Auckland Council [2020] NZCA 610, (2020) 22 ELRNZ 268 at [25], citing Tan v ChiefExecutive of the Ministry of Social Development [2017] NZCA 369 at [8]–[10].6 Resource Management Act 1991, s 299(1).7 Te Whare O Te Kaitiaka Ngahere Inc Society v West Coast Regional Council [2015] NZCA 356 at[23].8 Gertrude's Saddlery Ltd v Arthurs Point Outstanding Natural Landscape Society Inc[2021] NZCA 398 at [20].9 See, for example, Final Environment Court decision, above n 2, at [19]. In the High Court a moreextensive challenge was mounted: of the 71 conditions imposed, 41 were said to be unlawful orunreasonable.[9] The principal argument raised in the High Court was that the EnvironmentCourt had exceeded its jurisdiction by imposing conditions that sought to controlactivities for which Cable Bay had obtained consent in 2006 and for which it was notseeking consent in its subsequent application made in 2017. It was contended that theconsent issued in 2006 had authorised, amongst other things, the operation of arestaurant, and patrons using the adjacent lawn to walk and take in the views. It wassaid the Environment Court had failed to appreciate that the use of the lawn wasauthorised by the 2006 consent.[10] Campbell J held that the Environment Court had correctly proceeded on thebasis that the 2006 consent had not authorised the use of the lawn to walk and take inthe views.10 Essentially this was because although the plans that had accompanied theresource consent application in 2006 had shown that patrons would be using the lawn,that activity was permitted under the relevant provisions of the operative district planat the time. Consequently, no consent was required and the permitted activity of usingthe lawn did not form part of the activities authorised by the 2006 consent.11[11] The Judge rejected an argument advanced by Mr Webb for Cable Bay basedon Marlborough District Council v Zindia Ltd and Arapata Trust Ltd v AucklandCouncil that Cable Bay's authority to use the lawn was derived from the 2006 consenteven though resource consent had not been required for it.12 The Judge said:13[105] In those circumstances the permitted activity of using the lawn did notform part of the activities authorised by the 2006 Consent. The authorities onwhich Mr Webb relied do not support his submission. Arapata is authority forthe proposition that a resource consent authorises an activity rather than abreach of a rule. That is not on point because, in this case, the question is whatactivity the 2006 Consent authorised. Zindia, a judgment of Doogue J,includes a discussion of the concept of "bundling", which provides that wherea particular land use comprises multiple activities each of which requiresresource consent, the least favourable activity classification applies to all ofthe activities. The concept of bundling is used for the purposes of notificationdecisions and effects assessments. The concept does not mean that, whereresource consent is granted for a proposal that includes both permitted andnon-permitted activities, consent is granted for the permitted activities. 10 High Court judgment, above n 1, at [104].11 At [104]–[105].12 At [103]–[104], citing Marlborough District Council v Zindia Ltd [2019] NZHC 2765, [2020]NZRMA 216; and Arapata Trust Ltd v Auckland Council [2016] NZEnvC 236.13 High Court judgment, above n 1 (footnotes omitted), citing Housing New Zealand Corporation vAuckland City Council (2007) 14 ELRNZ 52 (EnvC) at [8].[106] For those reasons, which reflect the submissions of Mr Quinn, theEnvironment Court did not err in finding that patrons using the lawn to walkand take in the views was not authorised by the 2006 Consent.[12] In the circumstances, the Judge considered that the conditions had beenlawfully imposed, because they fairly and reasonably related to the activitiesauthorised by the Environment Court consent.14The application for leave[13] The application for leave to appeal proffers two questions.First question[14] The first question, said to address the "jurisdictional issue", would ask:When does a resource consent protect permitted aspects of a proposal fromchanges to planning provisions which change the status of that use?[15] We observe first that the question is couched in terms which are too general forthe purposes of a second appeal on a question of law. The question would essentiallyrequire this Court to give an advisory judgment rather than focus on a specific issuerelevant to the High Court judgment.[16] The question is based on the same authorities relied on in the High Court,the application of which was rejected by the Judge in the passage quoted at [11] above.Mr Webb contends that the High Court judgment is inconsistent with that Court'sjudgment in Marlborough District Council v Zindia Ltd. However, we do not considerthat is a seriously arguable proposition. The Judge determined that the use of the lawnhad not been permitted by the 2006 consent. And we agree with his assessment thatthe judgment in Zindia does not imply that where resource consent is granted for aproposal which includes both permitted activities and those that require a resourceconsent, the consent grants consent for the permitted activities. We regard the case ascontemplating that all activities proposed in an application will be assessedholistically, to assess the effects of granting consent to the proposal. But the consent14 At [117], [119(a)] and [122].granted to the whole does not mean that those elements that are permitted activitiesare also granted consent.15[17] If a district or regional plan does not expressly allow an activity, a resourceconsent will be required to carry it out: otherwise there would be a breach of s 9(1)or (2) of the RMA. However, it is axiomatic that a resource consent cannot be grantedfor an activity which does not contravene the prohibition in s 9. This is why s 87(a)gives as one of the relevant meanings of the term "resource consent" that it is"a consent to do something that otherwise would contravene section 9". And that isalso why s 87A(1) states that if an activity is described in the Act, regulations, or aplan or a proposed plan as a permitted activity, "a resource consent is not required forthe activity".[18] In the present case there is no doubt that the Judge properly concluded that thedistrict plan permitted the use of the lawn at the time of the 2006 consent. It is cleartherefore that consent was not granted for that use. It took place as of right. Theseconsiderations mean that the question proposed by Cable Bay is predicated on anincorrect proposition that the 2006 resource consent permitted the activity.[19] Where resource consent is granted for an activity which includes as part of itactivities which do not require a resource consent, the latter may acquire protectionagainst subsequent changes to the plan as existing uses under s 10 of the RMA. Unders 10(1), land may be used in a manner that contravenes a rule in a district plan orproposed district plan if the use was lawfully established before the rule becameoperative or the proposed plan was notified, and the effects are of the same or similarcharacter, intensity and scale to those which existed before the change to the rule orplan. But in such a case the protection arises from the terms of s 10 and not becausethe activity is to be treated as having been the subject of a previously granted resourceconsent.[20] That, of course, is not the argument which Mr Webb seeks to advance here.In fact, as the Judge noted, in the Environment Court Cable Bay "explicitly eschewed15 Marlborough District Council v Zindia Ltd, above n 12, at [67].reliance on existing use rights", and in the High Court counsel again did not suggestCable Bay had any existing use rights for the lawn activity.16[21] For these reasons we do not consider the first question raises a question of lawcapable of bona fide and serious argument and we will not grant leave in respect of it.Second question[22] The proposed second question would ask:Did the High Court err in law in failing to consider whether a conditionimposing restrictions on the use of land to control the effects of an activity thatoccurs on a small portion of the site, on limited days each year, was sounreasonable that no reasonable consent authority would impose it?[23] This question does not involve a matter of general or public importance.Although it is couched in terms which imply it is a question of law, really it is simplyasking whether a condition (presumably one or all of conditions 12 to 15) wasunreasonably imposed. That is not an appropriate question of law for a second appeal.Result[24] The application for leave to appeal is declined.Solicitors:Russell McVeagh, Auckland for ApplicantDLA Piper, Auckland for Respondent16 High Court judgment, above n 1, at [101], n 76.