COROMANDEL MARINE FARMERS ASSOCIATION INC V WAIKATO REGIONAL COUNCIL HC AK CIV 2006-404-007466

COROMANDEL MARINE FARMERS ASSOCIATION INC V WAIKATO REGIONAL COUNCIL HC AK CIV 2006-404-007466 15 August 2008IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV 2006-404-007466UNDER the Resource Management Act 1991 IN THE MATTER OF an appeal under s299 of the Act BETWEEN COROMANDEL MARINE FARMERS ASSOCIATION INC Appellant AND WAIKATO REGIONAL COUNCIL RespondentCIV 2006-404-007598AND UNDER the Resource management Act 1991 IN THE MATTER OF an additional appeal on points of law under s305 of the Act BETWEEN THE AUCKLAND YACHT AND BOATING ASSOCIATION INC Appellant AND WAIKATO REGIONAL COUNCIL First Respondent AND COROMANDEL MARINE FARMERS ASSOCIATION INC Second Respondent AND I AND M JAMES Third Respondent Hearing: 23 July 2008 Appearances: J K Mac Rae and A Buchanan for Appellant R B Brabant for Auckland Yacht and Boating Assocation Inc and I & M James2 Judgment: 15 August 2008JUDGMENT (No.3) OF COOPER J ON APPLICATION FOR LEAVE TO APPEALThis judgment was delivered by Justice Cooper on 15 August 2008 at 9.30 a.m., pursuant to r 540(4) of the High Court Rules Registrar/Deputy Registrar Date: Solicitors: DLA Phillips Fox, PO Box 160, Auckland Tompkins Wake, PO Box 258, Hamilton McVeagh Fleming, PO Box 4099, Auckland Copies to: P T Cavanagh QC, PO Box 4338, Shortland Street, Auckland RB Brabant, PO Box 106-215, Auckland[1] Coromandel marine Farmers Association Inc ("CMFA") seeks leave to appeal to the Court of Appeal from the judgment that I delivered on 7 March 2008. It has also filed an application for an order enlarging the time within which to file the application for leave to appeal. [2] The latter application was not opposed and I consider that it will be in the interests of justice to grant it. I make an order enlarging the time within which to file the application for leave to appeal to 7 April 2008 accordingly. [3] The application for leave to appeal itself is opposed by the Auckland Yacht and Boating Association Inc., ("AYBA") for whom Mr Brabant has acted throughout and by I & M James, for whom Mr Brabant has acted in respect of their opposition to the present application. The Waikato Regional Council abides the decision of the Court. [4] There were in fact three proceedings which were heard together and were the subject of my judgment of 7 March 2008. They were an application made by CMFA under the Declaratory Judgments Act 1908, an appeal by the same party against a decision of the Environment Court under s 299 of the Resource Management Act 1991 and an additional appeal under s 305 of that Act made by the AYBA. [5] The proceedings were heard together because they all related to the historic and future status of a marine farm situated in Coromandel Harbour. The issues raised in the Declaratory Judgments Act proceeding were very similar to those raised on the appeal by CMFA. So similar in fact that at the hearing counsel for the Waikato Regional Council and for the Auckland Yacht and Boating Association questioned whether it was appropriate for the application for Declaratory Judgment to proceed. Mr Parker, for the Regional Council, pointed out that the application to this Court under the Declaratory Judgments Act had predated the decision of the Environment Court and had been made at a time when there were possible jurisdictional issues concerning the Environment Court's ability itself to dispose of declaration applications that had been made in that Court under s 311 of the Resource Management Act. The Environment Court hearing had subsequently takenplace without any party raising jurisdictional issues. In the result, this Court had before it two sets of proceedings essentially raising the same issues. [6] Nevertheless, for reasons which I gave in the judgment, I did not consider that there was any "procedural impropriety" in dealing with both matters, especially in the absence of any application to stay or strike out the declaratory judgment proceeding. [7] The position now is that the CMFA has exercised its right of appeal against the decision under the Declaratory Judgments Act with the result that the Court of Appeal will be asked, in the context of that appeal, to deal with the principal legal issues in dispute arising both from the Declaratory Judgments Act application and the CMFA appeal, whether or not I now grant leave for the further appeal. [8] For CMFA Mr MacRae argues that the fact that the issues are before the Court of Appeal in any event means that there is no point in declining the present application. Mr Brabant, on the other hand, argues, relying on the same procedural history, that there is no justification for granting leave, because the issues will be before the Court of Appeal in any event. I consider the appropriate approach to adopt is to ignore the Declaratory Judgment Act appeal, essentially treating it as a neutral factor. The question I have to answer is whether leave should be granted for the further appeal under the Resource Management Act. Section 308 of that Act applies s 144 of the Summary Proceedings Act 1957 with the result that there may be an appeal by the Court of Appeal with leave of the High Court. [9] Under s 144(2), the High Court may grant leave to appeal if in its opinion: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 be submitted to the Court of Appeal for decision.[10] It seems to me that if that is the test that has to be addressed, the fact that there is already an appeal before the Court of Appeal under the Declaratory Judgments Act is a neutral factor.[11] As earlier indicated, the subject matter of the judgment was a marine farm situated in Coromandel Harbour. At [2] of the judgment, I noted that the issues between the parties concerned the validity of a marine farming permit issued by the Ministry of Fisheries under s 67J of the Fisheries Act 1983, the validity of a purported certificate of compliance issued by the Waikato Regional Council on 29 April 1998 and what provision should be made in the proposed Regional Coastal Plan for the marine farm. Having grappled with the various issues that arose in the litigation I have to say that many of them presented as difficult and complicated, involving as they did, complicated relationships between the Resource Management Act and other legislation, the effect of rules in the proposed Regional Coastal Plan which were in a different form at different relevant dates, and the implications of a decision previously made by the High Court (the judgment of Ellen France J delivered on 22 October 2002) as well as relevant decisions of the Environment Court. [12] Paragraph 5 of the application for leave to appeal sets out an extensive list of questions of law which it is sought to pursue on further appeal. I now set it out:5. The application for leave to appeal is made in respect of the following questions of law. 5.1 In respect of proceeding CIV 2006-404-007466 whether the High Court erred by: (a) Finding at paragraph [110] of its decision that CMFA's activities were not permitted by the transitional regional coastal plan. (b) finding at paragraph [111] of its decision that under section 12 of the Resource management Act CMFA's activities required a resource consent to be obtained. (c) Finding at paragraph [93] of its decision that CMFA could not rely on the latent nature of the invalidity of the Certificate of Compliance for the purposes of condition 2 of Marine Farming Permit 364. (d) Finding at paragraph [95] of its decision that the Certificate of Compliance was not effective as a resource consent for the purposes of condition 2 of Marine Farming Permit 364. (e) Finding at paragraph [112] of its decision that, as a consequence, Marine Farming Permit 364 never came into effect and was not in effect on 31 December 2004.5.2 In respect of proceeding CIV 2006-404-007598 whether the High court erred by: (a) Finding at paragraph [133] that the relief granted by the Environment Court was not within the scope of the reference to the Environment Court.[13] Those questions set out in paragraph 5.1 relate to issues that were determined in dealing with CMFA's appeal to the High Court. The question set out in paragraph 5.2(a) is a question arising from my determination of AYBA's appeal. All of the questions seem to me to raise valid questions of law, with the last being perhaps more correctly characterised as raising a question of mixed fact and law. However, even in that case, I consider that there are arguable issues of law which the appellant could raise in relation to my determination that the Environment Court erred in the way in which it purported to grant relief on the submission that had been made by Mr and Mrs James to the proposed Regional Coastal Plan. [14] Although I remain of the view that the other issues were correctly resolved in the judgment, it will be apparent from a reading of the judgment that the issues raised by CMFA are arguable. The question of whether they involve question of law of general or public importance is more difficult. Mr MacRae submitted that the questions were in that category. Mr Brabant submitted to the contrary. [15] Although the questions arose out of what could be described as an unusual statutory setting it may well be that there are other activities affected by Gazette Notices forming transitional regional coastal plans which could be affected by the approach taken in the judgment. What is said in the judgment about s 12, about certificates of compliance, and the effect of the Marine Farming Permit might also be of significance in other cases. [16] Mr Brabant contended, correctly, that the judgment turned on the correct interpretation of Condition 2 of the Marine Farming Permit rather than interpretation of legislation of more general significance. However, there was extensive discussion of the relevant statutory provisions in the judgment and as I understand it, CMFA would seek to argue that the reasoning that led to my conclusion about thesignificance of Condition 2, including the reasoning encapsulated in the proposed questions of law set out in paragraph 5.1, was incorrect. [17] As to the question arising out of AYBA's appeal, Mr Brabant submitted that I had simply made a factual determination that it was not possible to describe the new Regional Coastal Plan provisions inserted by the Environment Court as being within the scope of the relief sought by Mr and Mrs James. I agree that that is one way of characterising the judgment, but it overlooks arguments that arise, at least implicitly, as to the extent of the Environment Court's powers. [18] Section 144(2) of the Summary Proceedings Act refers not only to the general or public importance of questions of law, but also contemplates that questions of law may be referred to the Court "for any other reason". In respect of those words, Mr MacRae points to and relies on the implications of the judgment for the ability of CMFA and its members to continue to use the disputed area. He relied on evidence that had been given by CMFA's chairman, Mr Gilbert James in the Declaratory Judgments Act proceeding to the effect that every marine farm licence holder in the Hauraki Gulf is a member of CMFA and that, since the early 1980s, CMFA and its members have used aquaculture lines and other structures in the disputed area. In its decision, the Environment Court said at [106]:Being careful not to pre-empt or colour decision-making that will need to be undertaken in the future, it seems that there may be reasonably significant employment and other economic benefits being derived by the Coromandel community and perhaps others, from the operation of MFP 364. On the other hand opponents may to one degree or another present cogent material on other relevant factors such as visual, landscape, navigation and recreational boating.[19] Mr MacRae referred to the decision of Casey J in Centrepoint Community Growth Trust v Takapuna City Council (HC AK M596/83, 22 August 1984) as an example of cases where leave to appeal has been granted on the basis of a significant number of persons being affected by the decision in question. At p 3 of his judgment in that case Casey J observed:However, in turning to the second ground relating to "any other reason", I am satisfied that having regard to the numbers of people involved, the size of their investment in this property, and the effect that this decision could have on their lifestyle and the future growth and development of the community,it is proper in the exercise of my discretion, to allow this case to go to the Court of Appeal, and I will grant leave accordingly.[20] Mr MacRae was also able to refer to the recent decision of the Court of Appeal in the Friends of Pakari Beach v Auckland Regional Council and Others(CA 286/2008, 18 July 2008). There it was said that the overall subject-matter of the appeal and of the underlying dispute between the parties met the general and public interest requirements of s 144(3). The reference to s 144(3) was appropriate since in that case the high Court had refused leave, and the Court of Appeal granted special leave. However, the relevant considerations are the same under both ss 144(2) and (3). [21] The same reasoning applies here, not only with respect to CMFA and its members but also because of the other considerations mentioned by the Environment Court. I am satisfied that leave should be granted on this basis also. [22] For the reasons I have given, I grant leave to the appellant to appeal to the Court of Appeal. The questions of law in respect of which leave is given are those set out in paragraph [12] above. Questions of costs are reserved pending the outcome of the appeal to the Court of Appeal.