FALOON v PALMERSTON NORTH AIRPORT LIMITED [2013] NZHC 3325

FALOON v PALMERSTON NORTH AIRPORT LIMITED [2013] NZHC 3325 [11 December 2013]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYCIV-2012-485-2265[2013] NZHC 3325UNDER the Resource Management Act 1991IN THE MATTER OF an appeal on a question of law under s 299of the Act againt the decision of HisHonour Environment Judge D P Dwyer,dated 17 October 2012BETWEEN CLARENCE JOHN FALOONApplicantAND PALMERSTON NORTH AIRPORTLIMITEDRespondentHearing: 6 December 2013Counsel: C J Faloon (in person)J W Maassen for RespondentJudgment: 11 December 2013JUDGMENT OF WILLIAMS JIntroduction[1] Mr Faloon applies for leave to appeal to the Court of Appeal against my dismissal of his appeal from the Environment Court on 21 August 2013.1 He also applies for leave to appeal against my refusal to recall the judgment on 28 August 2013.2[2] The decisions relate to an appeal against a decision by Judge Dwyer in theEnvironment Court striking out Mr Faloon's application for a declaration under s 311 of the Resource Management Act 1991 (RMA). The respondent is Palmerston North1 Faloon v Palmerston North Airport Ltd [2013] NZHC 2124.2 Faloon v Palmerston North Airport Ltd [2013] NZHC 2205.Airport Limited (PNAL). Mr Faloon lost the appeal. His subsequent application for recall of the judgment was dismissed.Background[3] Some brief background is necessary to understand this litigation.[4] Mr Faloon sought a declaration that the respondent was undertaking the diversion of water without the benefit of the required resource consent allowing that diversion. Initially it was thought that Mr Faloon was challenging the lawfulness of a diversion of the Kawau Stream built by himself and his father in 1977 (the Faloon diversion). During the hearing, it was discovered that Mr Faloon was instead challenging the lawfulness of an upstream diversion of the Kawau Stream, built in 1958 (the runway diversion). That diversion travels underneath a runway at Palmerston North airport and spills into the Faloon diversion. I concluded, for reasons that it is not necessary to detail, that the runway diversion was lawfully constructed.The threshold[5] The threshold to be met in allowing a second appeal is high.3 Section 144 ofthe Summary Proceedings Act 1957 provides that the court "may grant leave if in theopinion of that court the question of law involved in the appeal is one which, by reason of its general or public importance, or for any other reason, ought to besubmitted to the Court of Appeal for decision".4[6] Relevant considerations in the RMA context are as follows:5(a) The applicant must show good cause why leave should be granted.3 Jefferies v Wellington Regional Council [2013] NZHC 2341 at [2].4 Summary Proceedings Act 1957 (now repealed), s 144. Before it was amended by s 413 of the Criminal Procedure Act 2011, s 308 of the RMA provided that s 144 of the Summary Proceedings Act 1857 applies in respect of a decision of the High Court under s 299 of the RMA as if the decision had been made under s 107 of the Summary Proceedings Act 1957. Section 144 applies to this proceeding because it was commenced before the 1 July 2013 commencement date of the Criminal Procedure Act 2011 and was not finally determined before the commencement date (Criminal Procedure Act 2011, s 397).5 Genesis Power Limited v Manawatu-Wanganui Regional Council HC Wellington CIV-2004-485- 1139 at [6].(b) The application must raise a seriously arguable question of law.(c) If the Court has difficulty in identifying a clear and relevant question of law, leave to appeal should be declined.(d) It is necessary to consider dispassionately whether the disputed matter contains the requisite element of sufficient importance. The scarce time and resources of both the High Court and Court of Appeal are not to be wasted. The Court of Appeal is not engaged in the general correction of error. Its primary function is to clarify the law and determine whether it has been properly construed and applied by the court below. Not every alleged error of law is of such importance as to justify further pursuit of litigation which has already been considered and ruled upon by a court.(e) It is not sufficient that issues as a whole are of general public importance or interest. It is the question identified as the matter for appeal which must be a matter of general or public interest.(f) Questions or issues of law which are fact specific or limited to the particular facts and findings of the case at hand are not generally matters of general and public importance.[7] As noted in Dome Valley District Residence Society Inc v Rodney District Council:6Of particular relevance is the policy of the legislation which does not provide an automatic second appeal right. Finality of litigation is a desirable outcome except in those few cases where a legal issue can be identified which transcends mere partisan interests of the parties.Grounds of appeal[8] Mr Faloon applies for leave to appeal on four grounds, namely:6 Dome Valley District Residence Society Inc v Rodney District Council HC Auckland CIV-2008- 404-587, 8 December 2008 at [4].(a) that the court failed to resolve the 11 questions of law identified by Mr Faloon in his notice of appeal;(b) that the finding of the court that the runway diversion was lawfully constructed is inconsistent with legislation;(c) that the statement "[i]n 1993, the portion of the TLL land containing the Faloon diversion was acquired by PNAL under the Public WorksAct 1981" is incorrect in law; and(d) that Mr Faloon's interlocutory applications dated 31 July 2013 and15 August 2013 were determined without hearing.[9] Mr Maassen submits that Mr Faloon's application raises no seriouslyarguable point and that none of the matters that Mr Faloon intends to present to the Court of Appeal are of general or public importance.First ground of appeal[10] In his original appeal, Mr Faloon raised 11 alleged questions of law and fouralleged errors of law. I commented that they "do not make a great deal of sense".7On Mr Faloon's behalf, I re-crafted Mr Faloon's case into three more focussed anduseful propositions:(a) the Environment Court should have heard Mr Faloon before reaching its decision to strike out his claims;(b) Mr Faloon had an arguable case because the Faloon diversion is not a permitted activity but a controlled activity; and(c) Mr Faloon had no ulterior motive beyond ensuring compliance with the RMA.7 Faloon v Palmerston North Airport Ltd, above n 1, at [16].[11] As noted above, it was subsequently discovered that Mr Faloon was actually challenging the lawfulness of the runway diversion, not the Faloon diversion. Further correspondence between the parties and the court occurred after the hearing and the case was narrowed down to just two issues, namely:(a) whether the Environment Court should have heard Mr Faloon before reaching its decision to strike out his claims; and(b) whether the runway diversion was lawfully constructed.[12] Mr Faloon lost on both points. He now argues that the original "questions of law", as formulated by him, have not been answered. He says they raise questionswhich, by reason of their general or public importance, ought to be submitted to the Court of Appeal for decision.[13] Mr Maassen responds that the 11 questions of law were narrowed down to two questions in the High Court judgment, on the basis they were the only two questions that had any substance.[14] Mr Maassen is correct. The questions put forward by Mr Faloon were not formulated in a way that enabled them to be determined by the court. In order to ensure a just determination, those questions had reformulated. Mr Faloon participated in that process both during and after the hearing. It is too late now to return to the old discarded questions. In any event, the questions were so poorly formulated that they could not assist Mr Faloon at this juncture. Leave to appeal on this ground is refused.Second ground of appeal[15] Mr Faloon submits that my finding that the power to divert a stream was an incident of private ownership at the time the runway diversion was built is inconsistent with s 73(1) of the River Boards Act 1908 and ss 3, 7(c) and 10(2) of the Manawatu-Oroua River District Act 1923.[16] Section 73(1) of the River Boards Act 1908 provides:All rivers, streams, watercourses within any river district constituted under this Act, whether or not the same are navigable or are altered by the ebb and flow of the tide, shall be to all intents and purposes within and subject to the jurisdiction of the Board, so far as may be requisite for the construction or maintenance of any works necessary to prevent or lessen any damage which may be occasioned by the overflow or the breaking of the banks of the same.[17] This provision empowers a River Board to construct and maintain any works necessary to prevent or lessen any damage caused by the overflow or breaking of the banks of any river, stream or watercourse. But it does not purport to control what landowners may do with watercourses running through their land.[18] Sections 3, 7(c) and 10(2) provide:3 Constitution of district(1) The area described in Schedule 1 hereto is hereby constituted and declared to be a special river district, to be called the Manawatu- Oroua River District (hereinafter referred to as the district)....7 Special powersIn particular, and without restricting the general powers hereby given, the Board shall, subject to the provisions in respect to local authorities and Harbour Boards herein contained, have and possess the following powers, that is to say:—...(c) It may out of any special loan raised for that purpose purchase from any local authority or ratepayer within the district any portion of the protection-works erected by such local authority or ratepayer, without purchasing the land on which such protection-work is erected, and with or without any easement over the land on which such protection-works are erected, or any machinery or other assets of such local authority or ratepayer which in the opinion of the Board are or are likely to be required for the efficient carrying out of the River Board's operations under this Act. In such case the following provisions shall apply:—(i.) If the River Board and such local authority or ratepayer cannot agree as to the price to be paid for such protection-works, machinery, or assets, which price shall be such part of the sum actually paid by such local authority or ratepayer for such protection- works, machinery, or assets as represents the value to the River Board thereof as part of its undertaking, the dispute shall be referred to the determination and award of two arbitrators and their umpire, pursuantto and so as to have all the incidents and consequences of an arbitration under the Arbitration Act 1996.(ii.) In case such purchase is made from a local authority the River Board, in lieu of paying for such protection-works, machinery, or assets, may either take over and assume, as substitute for such local authority, the liability for a proportionate part or the whole, as the case may be, of the special loan out of which the protection-works, machinery, or assets were paid for by such local authority, but subject always to the consent of the lender; or may issue debentures to such local authority on the same terms as to redemption and rate of interest as such local authority has contracted for in respect of such special loan; and any such local authority is hereby authorized to accept any such debentures in payment for such protection-works, machinery, or assets.(iii.) In case such purchase is made from a ratepayer the River Board, in lieu of paying for such protection- works, machinery, or assets, may issue debentures to such ratepayer for such period, on such terms, and at such rate of interest as the River Board and such ratepayer shall agree.(iv.) Nothing herein contained shall authorize the River Board to issue any debentures, save in accordance with subsections two, three, and four of section twenty-six and subsections one and two of section twenty-seven of the Local Bodies' Loans Act 1913....10 River Board to approve of drains and other works...(2) In case any such local authority desires to make, erect, or maintain all or any of the matters in this section mentioned it shall not giveless than fourteen day's notice to the River Board, and therewithshall supply full particulars of the work to be made, erected or maintained.[19] The relevance of ss 3 and 7(c) is not apparent. In relation to s 10(2), again, Mr Faloon misses the critical point. Palmerston North City Council constructed the diversion as the owner of the land. It was not exercising public powers in so doing. The two sections referred to have no application. I am not therefore satisfied that the questions of law raised by Mr Faloon as to the interpretation of ss 3, 7(c), 10(2) and73(1) of the Manawatu-Oroua River District Act 1923 contain the requisite elements of importance and serious arguability.[20] At the hearing of his application for leave to appeal, Mr Faloon also cited s 10(1) of the Manawatu-Oroua River District Act 1923, which provides:No person and no local authority, save as herein provided, either within the district or within two miles beyond the up-stream boundary, shall cause, or shall in any case where the River Board shall have notified its intention in the manner provided by section eight permit, any drain or drains to empty into any river or stream or into any drain or drains under the control of the River Board, or shall make or erect in or adjoining such river or stream any lock, tide-gate, bridge, ferry, wharf, or other works, which drains, erections, or works might prejudicially affect the effective carrying-out of the Board's operations, unless and until the River Board shall have approved thereof.[21] There is no evidence that the runway diversion affected the effective carryingout of the Board's operations such that approval of the River Board was required. As Mr Maassen pointed out during the hearing, if the runway diversion had affectedthe carrying out of the Board's operations in 1958, one would expect that the RiverBoard would have taken some action at the time.[22] Mr Faloon did not produce any evidence during the hearing to support a finding that the runway diversion contravened s 10(1). Leave to appeal on this ground is also refused.Third ground of appeal[23] Mr Faloon submits that the following passage in my judgment: "[i]n 1993,the portion of the TLL land containing the Faloon diversion was acquired by PNALunder the Public Works Act 1981" is incorrect in law.[24] During the hearing of Mr Faloon's application for leave to appeal to the Courtof Appeal it became clear that Mr Faloon's argument was that the Faloon diversionwas never lawfully acquired by PNAL under the Public Works Act 1981.[25] That statement was included in the judgment as background only. Thelegality or otherwise of PNAL's compulsory acquisition is not at all relevant to thisproceeding. It did not and could not have influenced the result in any way. Leave to appeal on this ground is accordingly refused.Fourth ground of appeal[26] Mr Faloon submits that his interlocutory applications filed on 31 July 2013 and 15 August 2013 were determined without hearing.[27] The first interlocutory application was made pursuant to r 1.5 of the High Court Rules. Mr Faloon sought orders to set aside two documents filed by the respondent in response to the court's request for further information about therunway diversion. The first document is a memorandum from Mr Maassen. The second document is an affidavit from Mr Bodell for the respondent. The application was dismissed because both of those documents were in fact filed in accordance with the High Court Rules.[28] The second interlocutory application was made pursuant to r 7.9 of the High Court Rules. Mr Faloon sought a range of directions from the court under r 7.9, none of which were relevant to the appeal against the Environment Court's decision.Even if they had been relevant, r 7.9 simply provides that a Judge may cancel a case management or issues conference in certain circumstances.[29] The issue is whether a hearing was required to dismiss these applications. Rule 7.34 provides:(1) An interlocutory application for which a hearing is required must be heard in chambers unless a Judge otherwise directs....[30] McGechan on Procedure provides this commentary on when a hearing is required:8The rules do not expressly specify which interlocutory applications are thosefor which, in terms of subcl (1), "a hearing is required". Rule 7.37 provides that there need not be a hearing of an interlocutory application if every respondent has advised in writing that the application is consented to or is8 McGechan on Procedure (online looseleaf ed, Brookers) at [HR7.34.4].not opposed. In addition, even if the orders are opposed, it would be appropriate to dispense with a hearing if the parties consented. In every other case, a hearing will be required for an opposed interlocutory application under Part 7. In The Party Bus Company Limited v Attorney- General [2012] NZHC 445, the Court considered an application to recall theCourt's judgment dismissing an application for leave to appeal to the Courtof Appeal, which had been determined without any hearing, contrary to the expectation of counsel. Miller J accepted that he had erred in not having a hearing, but stated that on occasions the objective of the Rules could be met by a decision on the papers. A hearing was frequently unnecessary, His Honour thought, in relation to applications for leave to appeal, because the Judge is already familiar with the file and such applications are usually of narrow compass. While His Honour's views appear to have merit, if suchpractice is to become widespread then an amendment to the rules will be required.[31] I accept that ordinarily a hearing is required for an opposed interlocutory application under Part 7. But in this case, as outlined above, the applications made by Mr Faloon were both utterly without merit and completely misconceived. A hearing would serve only to increase costs for both parties and could not possibly have changed the result.[32] The interlocutory applications in question were two of a number of other misconceived and meritless applications filed by Mr Faloon in the course of this proceeding. A hearing on each one of those would have been impractical and of no value in terms of the ends of justice. Leave to appeal on this ground is refused.Conclusion[33] For the reasons above, Mr Faloon has failed to satisfy the questions involved in the appeal are ones which, by reason of their general or public importance or for any other reason, ought to be submitted to the Court of Appeal for decision.[34] The application for leave to appeal is dismissed.___________________________Williams J