SCHMUCK v NORTHLAND REGIONAL COUNCIL [2020] NZHC 590

SCHMUCK v NORTHLAND REGIONAL COUNCIL [2020] NZHC 590 [20 March 2020]IN THE HIGH COURT OF NEW ZEALANDWHANGAREI REGISTRYI TE KŌTI MATUA O AOTEAROAWHANGĀREI-TERENGA-PARĀOA ROHECIV-2019-488-000075[2020] NZHC 590UNDER the Resource Management Act 1991IN THE MATTER of an appeal under ss 299, 300 of the ActBETWEEN DOUGLAS CRAIG SCHMUCKAppellantAND NORTHLAND REGIONAL COUNCILRespondentHearing: 24 February 2020Appearances: A Galbraith QC and M Prendergast for the AppellantG Mathias for the RespondentR Mark for the Opua Coastal Preservation IncJudgment: 20 March 2020JUDGMENT OF GORDON JThis judgment was delivered by me on Friday, 20 March 2020 at 4 pmpursuant to r 11.5 of the High Court Rules.Registrar/Deputy RegistrarSolicitors: Henderson Reeves, WhangareiThomson Wilson, WhangareiCounsel: A Galbraith QC, AucklandR Mark, Kerikeri[1] The appellant, Douglas Schmuck, owns and operates a small boat yard, Doug'sOpua Boat Yard, (the boat yard) which is situated in Walls Bay, Opua, in theBay of Islands. Part of the boat yard activity has occurred under various consents andpermits in the Esplanade Reserve (the Reserve), which is between the boat yard andforeshore, as well as on the boat yard land itself.1[2] In September 2017, in anticipation of the expiry on 30 March 2018 of dischargeconsents under which the boat yard operated, Mr Schmuck applied to the respondent,the Northland Regional Council (NRC), for their renewal. The following monthMr Schmuck made an unrelated application for structures and activities in theCoastal Marine Area (CMA). The NRC amalgamated the applications and notifiedthem together as one application in December 2017.[3] The NRC declined the amalgamated application. Mr Schmuck appealed to theEnvironment Court. During the pre-hearing procedures, Mr Schmuck withdrew theappeal relating to his application for structures and activities in the CMA andproceeded only on the appeal in relation to the discharge consents.[4] The Environment Court refused the renewal of the discharge consents as theyapplied to the Reserve on the basis that it lacked jurisdiction to grant renewals (forreasons that I will come to). The Court determined that consents could be granted buteffectively confined the operation of the boat yard under the discharge consents to theboat yard land.[5] Mr Schmuck appeals that decision alleging various errors of law.Historical context2[6] The boat yard has operated in Walls Bay since around 1966 with the slipwaymoving to its present location in 1976. Mr Schmuck and his parents bought the boatyard in 1994. At the time of purchase by Mr Schmuck and his parents, boat yard1 I will refer to the land owned by Mr Schmuck as the boat yard land.2 This section is largely drawn from the summary in the submissions of counsel for Mr Schmuck.Counsel for both the NRC and the s 274 party, Opua Coastal Preservation Inc (OPC), agree thatthe summary is accurate.activities extended onto what was the abutting unformed Crown Grant Road. At thetime, boats were cleaned and maintained on the foreshore. Planning consent allowedfor the slipway over the road to be used only to move boats to and from the sea.[7] Mr Schmuck sought and obtained the agreement of the Minister ofConservation (Minister) and the Far North District Council (FNDC) to allow theFNDC to follow the process required to close the unformed road. Once closed, theroad was to vest in the FNDC as a Local Purpose (Esplanade) Reserve. The FNDCwas then to notify its intention to grant an easement under s 48 of the Reserves Act1977 in favour of the boat yard over the reserve to be created, so as to formalise theexisting and proposed boat yard activities. The road was formally closed in June 1998and the record of title for the Local Purpose Reserve which had been created wasissued in October 1998.[8] Easements over the reserve, which replicated the activity authorised byresource consent, were registered in July 2015 after a process characterised by Heath Jas "tortuous".3 A challenge by Opua Coastal Preservation Inc (OCP), a s 274 party inthis proceeding, to those easements made its way to the Supreme Court. The SupremeCourt reinstated the FNDC decision, as the Minister's delegate, consenting to theeasement providing for wash down, repair and maintenance of boats on the Reserve.4The resource consents5[9] By a consent order of the Environment Court dated 31 January 2002Mr Schmuck has held land use and discharge consents and coastal permits authorisingboat yard activities on the boat yard land, on specified parts of the Reserve and intothe CMA.Land use consent[10] The land use consent issued by the FNDC is open-ended. It has no expiry date.Counsel for both the NRC and OCP accept there is no issue likely to lead to3 Schmuck v Director General, Department of Conservation [2015] NZHC 422 at [7].4 Schmuck v Opua Coastal Preservation Inc [2019] NZSC 118, [2019] 1 NZLR 750.5 This section is also largely drawn from the summary in the submissions of counsel forMr Schmuck. No issue is taken with that summary by counsel for the NRC or the OCP.cancellation or surrender of the land use consent. Both counsel further accept that theboat yard has a good compliance record and no enforcement issues arise from eitherthe NRC or the FNDC.[11] Of relevance to this appeal, the consent provides, subject to conditions, for acommercial marine slipway and associated boat yard facilities and activities on theboat yard land and on Sections 1-4, SO 68634, being all of the Reserve (the number68634 should be noted as it relevant to the key alleged error of law).[12] The activities permitted on the Reserve include:(a) A concrete wash-down area with an associated discharge containmentsystem, as shown on the plan attached to the consent and to be located10 metres above mean high water springs (MHWS);(b) To carry out the activity of washing down boats prior to the boats beingmoved to the boat yard for repairs or maintenance or being returned tothe water, provided however that repairs and maintenance may becarried out on the Reserve only in accordance with condition 8.[13] Condition 8 reads as follows:Except as provided herein any repair or maintenance work on vessels shall beundertaken within the Consent Holder's site. Vessels may be washed downwithin that area of the Esplanade Reserve marked "A" on the attached plan.Any vessel which by virtue of its length or configuration is unable to be movedso that it is entirely within the Consent Holder's site may be repaired ormaintained on that part of the Esplanade Reserve marked "A" on the attachedplan. That part of the Esplanade Reserve marked "B" on the attached planmay be used for the purposes of permitting the repair or maintenance of anyvessel standing on the southern branch of the slipway marked "C" on theattached plan.[14] For ease of understanding the areas of authorised activities in the abovecondition, a copy of the plan referred to as the "attached plan" is annexed to thisjudgment.[15] Other conditions of the consent which are relevant to issues on this appeal are:3. That the Discharge Containment System and the StormwaterContainment System shall be located as far as is practicable within theConsent Holder's site with these arrangements being to thesatisfaction of the District Council's Resource Consent Manager.4. Except as provided in condition 8 that no materials, tools or otheritems shall be placed or left on the Esplanade Reserve except as maybe necessary for the passage of boats on the slipway and only whilstthose activities are being carried out.9. Except as provided in this consent no vessel shall be left on theslipway within the Esplanade Reserve. All relevant safetyrequirements shall be adhered to at all times. The only permittedclosure of the Esplanade Reserve is for safety reasons during vesselhaulage. No more of the Esplanade Reserve shall be closed than isabsolutely necessary.13. During periods when that part of the slipway through the EsplanadeReserve area is being used for the washing down of boats, the ConsentHolder shall erect screens or implement similar measures toeffectively contain all contaminants within the washdown perimeter.Screening shall be arranged at the Consent Holder's expense and tobe to the satisfaction of the District Council's Resource ConsentManager.15. The Consent Holder shall submit a Management Plan to the Far NorthDistrict Council, for approval, within three months of the date ofcommencement of these consents. The Management Plan shall coverall aspects of :(a) The operation and maintenance of the boat washdown area.(b) Contingency measures for unforeseen or emergencysituations. The operation and maintenance of the abovesystems, for the boatyard operations shall be carried out inaccordance with the approved Management Plan.(c) The need to minimise effects on the public use of the walkingtrack and Esplanade Reserve.(Emphasis in original omitted).Coastal permits[16] The coastal permits issued by the NRC have an expiry date of 2036.Mr Schmuck is permitted to carry out activities associated with the operation of theboat yard including the following: a wharf, wharf abutment and access pontoon; aslipway with dinghy ramp; the parts of a timber and stone sea wall and associatedreclamation that are within the CMA; work boat mooring; maintenance dredging ofseabed material at the slipway; to use the structures referred to above for the purposesassociated with the boat yard; and to occupy an area of seabed associated with theslipway and wharf structures.Discharge consents[17] The discharge consents issued by the NRC, held by Mr Schmuck pursuant tothe 31 January 2002 consent order, were reviewed and replaced in 2008 for a 10 yearperiod expiring on 30 March 2018.6 The discharge consents, which by the time of thehearing of appeal, had expired were AUT.007914.10 – 13 and AUT.007914.15. Assummarised below, each was for a different activity:10. To discharge treated wash water to the CMA.11. To discharge contaminants to air from marine vessel construction,sale, repair, maintenance and associated activities on the boat yardland and Sections 1-4, SO 63634.712. To discharge contaminants to air in the CMA from marine vesselconstruction, sale, repair and maintenance and associated activities.13. To discharge contaminants to ground as a result of boat maintenanceactivities on the boat yard land and Sections 2 and 3, SO 63634.815. To discharge stormwater to the CMA.6 Except for AUT.007914.14 which expired on 30 March 2009.7 The number 63634 is relevant to the key alleged error of law.8 The number 63634 is again relevant to the key alleged error of law.[18] A copy of the discharge consents with the precise wording for each activity isattached to the decision of the Environment Court. A copy is also attached to thisjudgment.9[19] Mr Schmuck sought a renewal for a term of 18 years to coincide with the expirydate for the coastal permits.Approach to appeals from the Environment Court[20] Under s 299 of the Resource Management Act 1991 (RMA) an appeal from adecision of the Environment Court may only be brought on a question of law.Section 299(1) provides:299 Appeal to High Court on question of law(1) A party to a proceeding before the Environment Court under this Actor any other enactment may appeal on a question of law to the HighCourt against any decision, report, or recommendation of theEnvironment Court made in the proceeding.[21] The nature of a question of law was considered by the Supreme Court inBryson v Three Foot Six Ltd in the context of a similar provision in the EmploymentRelations Act 2000 as follows:10[25] An appeal cannot, however, be said to be on a question of law wherethe fact-finding Court has merely applied law which it has correctlyunderstood to the facts of an individual case. It is for the Court to weigh therelevant facts in the light of the applicable law. Provided that the Court hasnot overlooked any relevant matter or taken account of some matter which isirrelevant to the proper application of the law, the conclusion is a matter forthe fact-finding Court, unless it is clearly insupportable.[26] An ultimate conclusion of a fact-finding body can sometimes be soinsupportable – so clearly untenable – as to amount to an error of law: properapplication of the law requires a different answer. That will be the positiononly in the rare case in which there has been, in the well-known words of LordRadcliffe in Edwards v Bairstow, a state of affairs "in which there is noevidence to support the determination" or "one in which the evidence isinconsistent with and contradictory of the determination" or "one in which thetrue and only reasonable conclusion contradicts the determination". 9 The copy of the discharge consents as attached to the Environment Court decision (and now thisjudgment) was not complete as it did not include all the conditions.10 Bryson v Three Foot Six Ltd [2005] NZSC 34, [2005] 3 NZLR 721.[22] In an appeal under s 299, this Court has said that the Environment Court mayhave made an error of law if it:11(a) applied a wrong legal test; or(b) came to a conclusion without evidence or one to which, on theevidence, it could not reasonably have come; or(c) took into account matters which it should not have taken into account;or(d) failed to take into account matters which it should have taken intoaccount.[23] Any error of law found must materially affect the result of the EnvironmentCourt's decision before the High Court should grant relief.12[24] I proceed on the basis of the principles set out above.Errors of law alleged[25] Mr Schmuck acknowledges that several of his grounds of appeal overlap tosome extent. He also says that the Court's decision that it lacked jurisdiction toconsider activities on the Reserve materially affected the decision overall.[26] The alleged errors of law are expressed as follows:(a) The Environment Court erred in law when, after the hearing andwithout hearing from the parties on the issue, it declined jurisdiction toconsider discharges from the authorised boat yard activities located onthe Reserve due to what was obviously a typographical error, but thengranted consent limiting the area of the Reserve on which the activitiesand discharges could occur;11 Countdown Properties (Northlands Ltd) v Dunedin City Council [1994] NZRMA 145 (HC) at 153.12 At 153.(b) The Environment Court came to a conclusion which, on the evidence,it could not reasonably have come;(c) The Environment Court did not have jurisdiction to amend a valid landuse consent providing for activities on the Reserve without hearingfrom the issuing consent authority, FNDC;(d) The Environment Court focused on irrelevant matters and failed to takeinto account and/or consider relevant matters;(e) The Environment Court erred in law in interpreting s 105(1)(c) of theRMA as requiring consideration of alternative locations for thetreatment facilities and the repair and maintenance activities.First alleged error – Breach of natural justice[27] I consider this alleged error in two parts. First, was there a procedural error,which constituted an error of law, in the Court determining that it had no jurisdictionto renew the discharge consents in respect of the Reserve without first hearing fromthe parties on that issue?[28] Second, I will consider whether the Court was correct in law that it did nothave jurisdiction to consider the renewal applications as they related to the Reserve.This latter issue did not strictly form part of the errors alleged in the notice of appeal.However, Mr Galbraith QC, appearing for Mr Schmuck, submits it is important forthe Court to determine the issue so as to ensure that Mr Schmuck is able to continueoperating the boat yard under s 124 of the RMA. That section enables a consent holderto operate under an expired consent until all appeals are determined if the applicationfor renewal is for the same activity. Neither of the other parties took issue with theCourt proceeding in this way.Environment Court decision[29] The Reserve is comprised in Sections 1-4, SO 68634. As can be seen from[17] above and the copy of the discharge consents attached to this judgment, consents11 and 13 refer to SO 63634. The Court asked itself what areas were the subject ofthe application for renewal of consents. It said:[15] Given that this was an application for renewal of existing consents,one must assume that it cannot extend or increase the coverage of theseconsents.[16] As can be seen from the consent annexed as A, the areas involved areexplicitly described by their section numbers or DP numbers. The reason forthis is unclear and there is no reference in the consent itself to reliance on themaps attached. In its terms, condition 11 refers to Section 1-4 SO63634 Blk VRussell SD. Condition 13, discharge of contaminants to ground, refers toSections 2 and 3 SO 63634 Blk V Russell SD.[30] The Court went on to consider whether the GPS coordinates referred to in theconsents gave certainty about included areas. It said:[17] In both cases, all of the various sites are referred to by a generalreference to a location to coordinates east and north. The exact position ofthose coordinates varies slightly with some referring to a coordinate1701470E 6091840N, i.e., discharge to air, whereas discharge to air frommarine vessel construction, sale and repair is at or about locations 1701520E6091850N.[18] We were not provided with any documents which established the pointof these coordinates nor are they annexed to the consent itself. Nor do theseappear to be readily available as fixed points or areas with LINZ advising thatcoordinates cannot be regarded as reliable in terms of Geodetic Datum 2000New Zealand, given they were prepared in 2000. We conclude the GPScoordinates do not clarify the areas included in the consents. In addition, thereference to a general area does not assist in this case.[31] The Court then asked itself whether it could extend the applications to includethe Reserve. It said:[21] The legal question for this Court is that given that it was an applicationfor renewal for consent CON20060791410 (10-15), (now excluding 14 whichhas expired), are we able to extend the application to include the correctidentification of the SO number as 68634 rather than that shown in all theresource consents the subject of the renewal application.[23] We have concluded that this Court is limited to the application thathas been appealed before it. That application cannot be extended by an appealalthough it can be reduced in scope including area. There is clearly aninference that Sections 1-4 identified on the plan are intended to be a referenceto SO 68634. Yet there is no indication in the consent itself that the map isdeterminative for the purposes of the identity of the land in question. The mapdoes not delineate the areas covered by the consent. Nor can it be said that thewords "at or about the GPS coordinates" establish a different regime foridentifying the properties concerned. As we have pointed out, this informationdoes not appear to be readily available, nor can it be regarded as reliable givenLINZ's concerns as to land movement in the time since the coordinates wereset up in the 2000 data.[26] Having now expired, the application for renewal cannot be said toprovide any potential for amendment of the original consent. The applicantcan operate under the existing base consent, notwithstanding the expiry,because of the provisions of s124 only. To change the identification of theproperty would now be a relatively fundamental matter given the way in whichboth consent and the renewal application were framed.[27] We recognise that in this we are taking a technical approach, but weare left with little choice given the wording of the Regional Council resourceconsent and the wording of the application for renewal.[28] We conclude we are only able to consider the appeal as it relates tothe properties identified in the original consent. Given that the description ofthe land now known as the reserve is incorrect, we cannot properly consider aconsent in relation to the wrongly named block of land as it does not appearto be associated with this area at all.[29] This being the case, we are left to consider the application fordischarge consents in relation to the other blocks of land which could becumulatively described as the Opua Boatyard land. The conclusion is thatOpua Boatyard needs to apply for consents in respect of the esplanade reserveland which for whatever reason were not properly included within the originalconsents.Discussion[32] Mr Galbraith says that the discrepancy in the legal description of the Reservein the resource consents was not a matter referred to or discussed during the hearing.Nor was the issue of the reliability of the GPS co-ordinates. Mr Mathias for the NRCaccepts that at no stage in the process was it identified that there was an error with themisdescription of SO Plan 68634 as SO 63634 in the consents. He agrees that thiswas an issue seemingly only identified by the Court after the hearing.[33] The parties were therefore not given an opportunity by the Court to address theissue. I agree with Mr Galbraith that a minute to the parties noting the discrepancyand giving the parties the opportunity to address the Court would have enabled theparties, particularly Mr Schmuck, to provide some answers (which I refer to below).[34] The Court said it was taking a "technical" approach. In my view, it was muchmore than that. It was a fundamental jurisdictional point, as a result of which the Courtdid not consider the application for renewal relative to activities on the Reserve.[35] I refer to judgments of this Court which provide useful assistance on this issue.In Plain Sense (Taieri Plains Environmental Protection Society) Inc v Dunedin CityCouncil,13 Fogarty J considered a submission that the text of s 299 of the RMA shouldnot be read down and could include a procedural error of law. In that context, theJudge referred to his earlier judgment in Shearing v Southland District Council.14 Inthat case the Environment Court had viewed the site. As a result of doing so, the Courthad formed some conclusions on facts at variance with affidavit evidence lodged inthe Court which had not been challenged. In Shearing Fogarty J said:[25] where the view is relied upon to obtain evidence or to contradict orreject evidence given in Court, great care must be taken to ensure that theprocess is fair.[27] Inasmuch as the Court gathers information on a view, which isdifferent information from that presented in Court, the Court has to at the veryleast give serious consideration to reporting that information to the partiesbefore drawing inferences from it.[36] The High Court concluded in Shearing that, at the very least, the EnvironmentCourt had failed to take into account relevant factors and had thus fallen into an errorof law. While neither Shearing nor Plain Sense is on all fours with the issue I ampresently considering,15 they are of assistance on the point that the text in s 299(1),"on a question of law", includes a procedural question of law.[37] The judgment of Heath J in Te Whare o Te Kaitiaki Ngahere Inc v West CoastRegional Council16 is also of assistance. The primary ground of appeal in that casewas that the Principal Environment Court Judge erred in law in two ways. The firstwas by failing to notify the parties of an intention to strike out the proceeding and the13 Plain Sense (Taieri Plains Environmental Protection Society) Inc v Dunedin City Council HCDunedin CIV-2006-412-903, 15 May 2007.14 Shearing v Southland District Council HC Invercargill CIV-2005-485-694, 14 November 2005.15 I will also refer to Shearing in the context of a further submission by Mr Galbraith relating to theview of the site taken by the Court in this case.16 Te Whare o Te Kaitiaki Ngahere Inc v West Coast Regional Council [2015] NZHC 2769.second was by failing to hear from them before determining whether to do so. Theissue for the Court was whether the process by which the Judge reached the decisionbreached the principles of natural justice (as affirmed by s 27 of the New Zealand Billof Rights Act 1990 (NZBORA)).[38] After referring to s 299(1) of the RMA, Heath J was similarly satisfied that thenatural justice point qualifies as a question of law fit for appeal.17 Heath J referred tohis earlier judgment in Skelton v Family Court at Hamilton,18 where he held that theFamily Court Judge had erred in making a publication order without providing anopportunity for the parties to be heard. The Judge had acted in breach of the right tonatural justice conferred by s 27(1) of the NZBORA.19[39] In Te Whare o Te Kaitiaki Ngahere Inc Heath J observed that if notice had beengiven to the parties, the Judge would have been told about steps that were being takento seek special leave to appeal to the Court of Appeal. It was apparent that the Judgeregarded the existence or otherwise of an attempt to appeal further against a securityfor costs orders as an important factor to be considered in the exercise of his discretionto strike out. Heath J continued:[21] In those circumstances, it cannot be said that the strike out orderwould inevitably have been made. In my view, the failure to give notice tothe parties and to afford them the opportunity to be heard on the proposal tostrike out the declaration proceedings was a breach of the principles of naturaljustice and constitutes an error of law.[40] While in this case there was no Court order made, the Court's decision todecline jurisdiction meant that Mr Schmuck was deprived of his statutory right to havehis appeal fully considered and to do so under the protection afforded by s 124 of theRMA.[41] I record that neither Mr Mathias nor Mr Mark for the OPC sought to persuadethe Court otherwise. Mr Mathias simply takes the position that, whether the failure tocall for submissions on the issue was or was not an error of law, it was notdeterminative. He submits that if the other alleged errors of law should fail, such that17 At [18].18 Skelton v Family Court (No 2) [2007] 3 NZLR 368 (HC).19 At [91]-[94], [101] and [105].the decision given on the merits should stand, the appeal should be dismissed.Mr Mark, for OPC, in a similar vein, while acknowledging the natural justiceargument, submits that the Court nevertheless granted consents which permit theactivities to all be carried out on the boat yard land.[42] I do not accept those submissions. This is not simply a process issue. It is asubstantive issue. The Court confined its consideration to activities on the boat yardland. It excluded from its consideration activities on the Reserve. It said:[33] as further applications are in any event going to be necessary forthe range of additional activities for which consent was originally sought. Theuse of the reserve for discharge purposes might be revisited at that time. Forcurrent purposes we consider we are left with the discharge activities as theyrelate to the applicant's land itself and proceed to consider those.[43] Mr Schmuck was deprived of a fundamental right given to him under theNZBORA. The Court failed to hear from him before determining it did not havejurisdiction to consider his appeal as it related to the Reserve. For that reason alone Iwould allow the appeal. The error had a material effect on the decision.[44] I turn now to the second part of the first alleged error, namely whether theCourt was correct in law in determining that it did not have jurisdiction to consider theapplications for discharge consents in respect of the Reserve.[45] The Court stated:[15] Given that this was an application for renewal of existing consents,one must assume that it cannot extend or increase the coverage of theseconsents.[46] That is a correct statement of principle if put rather generally (but whichapplies after the discharge consents have been interpreted). More particularly, theCourt of Appeal said in Shell New Zealand Ltd v Porirua City Council:20[7] We think it plain that jurisdiction to consider an amendment to anapplication is reasonably constrained by the ambit of an application in thesense that there will be permissible amendments to detail which are reasonablyand fairly contemplatable as being within the ambit, but there may beproposed amendments which go beyond such scope. Whether details of an20 Shell New Zealand Ltd v Porirua City Council CA57/05, 19 May 2005.amendment fall within the ambit or outside it will depend on the facts of anyparticular case, including such environmental impacts as may be rationallyperceived by an authority.[47] In this case, the Court simply proceeded on the basis that because the numberread SO 63634 rather than SO 68634 (the Reserve), the Reserve was not the landidentified in the original consents and therefore Mr Schmuck was, as the Court put it,seeking to "extend or increase the coverage of these consents".[48] In my view, this was the wrong approach. The Court first needed to decidewhat the discharge consents meant. The proper approach would have been to firstinterpret the discharge consents objectively, just as a Court approaches theinterpretation of legislation, contracts and Court orders as well as other legaldocumentation. Had the Court done so, it would not have said, for example:[19] While the application did not contain any change of description, it isnotable that in the Notice of Appeal and in the amended appeal thereference is to SO 68634 (the reserve) and "being part of the reserve" Weare able to conclude by the time of filing the appeal it was recognised thereference in the original consent to SO 63634 was not a reference to thereserve.(emphasis in original)[49] In my view there was no basis for the Court to reach that conclusion withoutraising it with counsel for Mr Schmuck.[50] Had the Court proceeded to interpret the discharge consents on an objectivebasis, it would have taken into account the following:(a) A search of SO 63634 would have pointed to the strong likelihood of atypographical error. That plan is drawn by Electricorp and depictsTransmission Lines existing or under construction as at 31 December1987 in the Riverhead area, which is at a considerable distance fromOpua.(b) The discharge consents were first issued by the NRC as part of aconsent order of the Environment Court in 2002 which also includedthe FNDC land used consent. That land use consent referred to theapplication by D C Schmuck " for the following activities andstructures on the Esplanade Reserve (Sec 1, Sec 2, Sec 3 & Sec 4 asshown on SO 68634)." (I have already referred to the activitiesapproved and conditions imposed for that consent in [10] to [15]above).(c) The plan annexed to the 2002 FNDC land use consent was virtuallyidentical to the plan annexed to the 2002 discharge consents.21 Asalready noted they were part of the same consent order. Although theplan annexed to the FNDC consent does not include the SO number(SO 68634), but only identifies Sec 1, Sec 2, Sec 3 and Sec 4, the FNDCconsent itself (as noted above) refers to "Sec 1, Sec 2, Sec 3 & Sec 4 asshown on SO 68634" and the FNDC consent refers to "the attachedplan".(d) The discrepancy in the legal description as between the FNDC consentand the NRC discharge consents was not noted by the EnvironmentCourt at the time it issued the consent order in 2002.(e) The NRC notified and reviewed the discharge consents over the period2006 to 2008. There was no indication that the incorrect legaldescription was picked up either by the NRC or the submitters at thetime.(f) In February 2019, the FNDC and the NRC approved the most recentreview of the Operational Management Plan (the Management Plan)for the boat yard required by the conditions of the various consents heldby Mr Schmuck, including both the land use and discharge consents.The Management Plan is a detailed document which sets outrequirements for the sustainable management of the boat yard on theboat yard site, the Reserve and the CMA. It is apparent from thatdocument both Councils accepted the rights of Mr Schmuck to carryout his activity on the Reserve under their respective consents.21 Which was the same plan as annexed to the 2008 discharge consents.[51] The Court said at [20]:This led the Court to inspect in more detail the document prepared in2008 as it related to the land in question. It is notable that the diagramattached to the consent prepared by the Northland Regional CouncilNTS 3231c shows the SO numbers in respect of all of the sites but notthe SO numbers for Sections 1-4. Nor are these delineated in anydetail.[52] While that is the case, not only is that plan annexed to the Management Plan,there is also annexed to the Management Plan a plan prepared by Thomson SurveyLtd (showing more or less the same area) on which both sections 1 and 3 contain thereference SO 68634.[53] Finally, the OCP and its predecessor have taken a strong stance against the boatyard activities on the Reserve over a lengthy period. The opposition however has beenon compliance and enforcement issues. There has never been any doubt that thedischarge consents applied to the Reserve as well as to the boat yard land and indeedthe appeal in the Environment Court proceeded on that basis.[54] For his part, Mr Mathias did not take issue with the argument for Mr Schmuckregarding the interpretation of the legal description of the land which is subject to thedischarge consents. He accepts that it appears to have been an error on the part of theNRC in the way in which it recorded the legal description in the resource consents.He acknowledges that the correct number appears on the FNDC land use consent andalso in the Management Plan. He acknowledges that both Councils were effectivelya party to the Management Plan. Mr Mathias also acknowledges that as far as thehearing before the Environment Court was concerned, there was no doubt in theNRC's mind, nor in the approach of the other parties, as to what land was included inthe discharge consents. In short, for the NRC, Mr Mathias accepts there was a clearerror in the legal description referred to in the discharge consents and that the sectionnumbers were intended to refer to the Reserve.[55] I consider that the objective analysis I have carried out above establishes thatthe discharge consents applied to the Reserve. The Court erred in determiningotherwise. The error was material. It resulted in the Court approaching its analysisand decision-making by excluding the Reserve from its considerations.Second alleged breach of natural justice[56] Mr Galbraith submits that there was an additional fundamental breach ofnatural justice by the Court. As is apparent from the decision, the Court viewed thesubject site. This Court is told that the parties understood that would happen and therewas no objection to it. Mr Galbraith's submission was that there was a failure on thepart of the Court after viewing the site in developing its own solution, that is adischarge system, because it did not refer this proposal to the parties for comment orto hear from the expert witnesses and Mr Schmuck as to its feasibility. Mr Galbraithsays this was a breach of natural justice.[57] The Court said this:[70] When we looked more closely at the turntable area immediately infront of the building, it became clear that this had been modified so that theturntable could no longer move. It now consists of a large concrete dial withina circular hole with some outer concreting which directs water into this hole.[71] We were unable to see how this operated or filtered wastewater but itappears that it was connected by a pipe to a small sump slightly to the westwhich appears to have been in this position for many decades. It was coveredsimply by wooden planks. It did not appear to be large (less than 1 m3). Giventhat the turntable is no longer utilised, we were perplexed as to why thissystem had not been replaced with a more appropriate catchment pit gridsystem with associated sump storage to enable washdown to occur and theremoval of debris.[76] Mr Schmuck indicated that he wished to clean down the hull of thevessel closer to the water before moving the vessel up for more significantrepairs and maintenance. The reason for this was very unclear until weexamined more closely the circular sump area. Because the old turntable[which is almost completely on the boat yard land] has not been installed witha more relevant catchment grating system, it appears that if hull washdown issent to the turntable, then the barnacles, seaweed and other items get wedgedaround the edge of the circular dial with no clear way to clean them out. Thiscould be addressed simply by installing a crosshatch grill but this does notappear to have occurred. It would be completely solved by installing a propercatchment at the top of the slipway and ensuring the washdown was simplydirected into that catchment area.[81] The turntable area outside has been decommissioned from itsoriginal purpose and now serves no practical purpose at all except as amakeshift sump. For whatever reason, it has not been replaced with anappropriate sump and grid system which will enable removal of gross solidsand the treatment of other materials before distribution to a wastewatersystem.[185] We are satisfied that with a slight extension of say 1.5-2m beyond theapplicant's boundary, repairs, maintenance and washdown of vessels could becontained. To that extent, this would require a catch-sheet that would redirectany washdown materials, overspray and the like, back into the site to be caughtin the catch-pit and impermeable areas that would be required to beconstructed.[58] Mr Galbraith submits that in circumstances where the solution arrived at by theCourt, set out above, was not raised with Mr Schmuck or the expert witnesses duringthe hearing, natural justice required the Court to do so before making its decision. TheCourt needed to hear from the expert witnesses and Mr Schmuck as to whether thesolution was practicable and feasible.[59] Mr Mathias acknowledged that whether such a system was feasible was notdiscussed during the evidence. It was not put to any of the witnesses that a systemcould be worked from the turntable. Mr Mathias acknowledged that this was aconclusion which might have more properly gone back to the parties for consideration,especially as this was a methodology which confined the containment and dischargesystem effectively to the boat yard land. He also accepted that the Court's failure tocome back to the parties for comment arguably affected the whole decision. Therewas the issue of how spray would be collected; how particulate would be disposed of;and whether that activity would be feasible in the same area being used for paintingand grinding.[60] I have no doubt that the Court should have referred its "solution" to the partiesand their witnesses and to hear further from those witnesses on the workability of thesolution and to hear submissions on the issue. Shearing, already referred to above,22is directly relevant here. Mr Schmuck had conducted his operations over an extendedperiod utilising the Reserve. He called a number of expert witnesses at the hearing insupport. The Court needed to tell Mr Schmuck, as the party adversely affected, whatconclusion it had reached after its view of the site, to enable him to comment andproduce evidence.22 At [35] and [36].[61] The Court's failure to revert to the parties, especially as the Court wasoperating from a position that it did not have jurisdiction to renew the dischargeconsents as they applied to the Reserve, exacerbated the breach of natural justice. Thebreach arising from the failure to revert to the parties with its 'solution' was materialas it resulted, in combination with the first breach, in the Court granting consent onthe basis of a discharge system on which the Court had not heard evidence and whichconfined the boat yard operation to (effectively) the boat yard land.[62] I also observe there is something of an inconsistency in [185] set out in [57]above where the Court, having said it did not have jurisdiction to consider theapplication insofar as it applied to the Reserve, nevertheless allowed a protrusion of"say 1.5-2m beyond the applicant's boundary".[63] Mr Galbraith submits the two breaches of natural justice, namely the failure tohear from the parties on the jurisdictional point and the failure to revert to the partiesafter the view, are all encompassing. He was content for the appeal to be determinedon that basis. I agree with Mr Galbraith that the breaches of natural justice overtakeall the remaining alleged errors of law.Summary[64] In summary, the errors of law and resulting answers to the questions of law thatMr Schmuck accepted should be addressed are:(a) The Environment Court erred when, after the hearing and withouthearing from the parties on the issue, declined jurisdiction to considerdischarge activities located on the Reserve. This failure was a breachof the principles of natural justice;(b) The Environment Court erred when it determined that the dischargeconsents did not apply to activities on the Reserve;(c) The Environment Court further erred when it did not revert to theparties after its view of the site to enable the parties to comment by wayof evidence and/or submission on its solution for a discharge system.This was again a breach of the principles of natural justice.Result[65] The appeal is allowed. The decision of the Environment Court is set aside.The matter is remitted to the Environment Court for further consideration and with thefollowing directions:(a) The discharge consents applied to activities on the Reserve (as well ason the boat yard land);(b) The evidence will need to be further considered in light of (a); and(c) The discharge system proposed by the Court in its decision is one onwhich the parties may comment and/or produce evidence.Costs[66] Costs are reserved. If the parties are able to agree costs a joint memorandumshould be filed within 20 working days of the date of this judgment. In the eventagreement cannot be reached, Mr Schmuck is to file and serve his submissions withinfive working days of the date for the joint memorandum and NRC and OCP are to fileand serve their memoranda within a further five working days. Memoranda shouldnot exceed five pages (excluding any attachments). I will then determine costs on thepapers.___________________________________Gordon J