GERTRUDE’S SADDLERY LIMITED v ARTHURS POINT OUTSTANDING NATURAL LANDSCAPE SOCIETY INCORPORATED [2021] NZCA 398

GERTRUDE'S SADDLERY LIMITED v ARTHURS POINT OUTSTANDING NATURAL LANDSCAPESOCIETY INCORPORATED [2021] NZCA 398 [24 August 2021]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA120/2021[2021] NZCA 398BETWEEN GERTRUDE'S SADDLERY LIMITEDApplicantAND ARTHURS POINT OUTSTANDINGNATURAL LANDSCAPE SOCIETYINCORPORATEDFirst RespondentAND QUEENSTOWN LAKES DISTRICTCOUNCILSecond RespondentAND LARCHMONT DEVELOPMENTSLIMITEDThird RespondentCA121/2021BETWEEN ARTHURS POINT OUTSTANDINGNATURAL LANDSCAPE SOCIETYINCORPORATEDApplicantAND GERTRUDE'S SADDLERY LIMITEDFirst RespondentAND LARCHMONT DEVELOPMENTSLIMITEDSecond RespondentAND QUEENSTOWN LAKES DISTRICTCOUNCILThird RespondentCourt: Cooper and Brown JJCounsel: M E Casey QC and M A Baker-Galloway for Gertrude's SaddleryLimited and Larchmont Developments LimitedA C Limmer for Arthurs Point Outstanding Natural LandscapeSocietyJ G A Winchester and M G Wakefield for Queenstown LakesDistrict CouncilJudgment:(On the papers)24 August 2021 at 2 pmJUDGMENT OF THE COURTA We extend the time for making the application for leave to appeal byArthurs Point Outstanding Natural Landscape Society in CA121/2021.B The application for leave to appeal in CA120/2021 is declined.C The application for leave to appeal in CA121/2021 is declined.D We make no order as to costs.____________________________________________________________________REASONS OF THE COURT(Given by Cooper J)[1] These are two applications for leave to appeal to this Court under s 308 of theResource Management Act 1991 (the Act). The applications relate to two differentdecisions of the High Court1 and give rise to different issues, but they arise out ofprovisions of the proposed district plan of the Queenstown Lakes District Council(the Council) relating to the same locality. This common context makes it convenientto deal with both applications in one judgment.[2] In the discussion which follows we refer to the application by Gertrude'sSaddlery Limited (GSL) as the "GSL application" and to the application by ArthursPoint Outstanding Natural Landscape Society Incorporated (APS) as the "APSapplication".1 Gertrude's Saddlery Ltd v Queenstown Lakes District Council [2020] NZHC 3387 [Dunningham Jjudgment]; and Gertrude's Saddlery Ltd v Arthurs Point Outstanding Natural landscape SocietyIncorporated [2021] NZHC 147 [Clark J judgment].[3] The APS application was accompanied by an application for an extension oftime to file it. The application for leave to appeal was filed 34 working days late, butthe circumstances have been satisfactorily explained and an extension of time is notopposed. We therefore grant the application to extend the time for filing theapplication for leave to appeal.Queenstown Lakes proposed district plan proceedings[4] Both the APS and the GSL applications have to be assessed against areasonably complicated procedural background which has to be explained to place theissues we need to address in context.[5] The proposed district plan provisions relevant to the proposed appeals affectland in the Wakatipu Basin at Arthurs Point, and in particular an area known as theShotover Loop. It contains two properties owned by GSL and LarchmontDevelopments Limited. Those companies lodged submissions against proposeddistrict plan provisions notified by the Council in August 2015 zoning their land rural.They sought that it be zoned "low density residential" instead. They also soughtalteration of the provisions delineating the urban growth boundary (UGB) around theexisting settlement at Arthurs Point. Further, GSL sought removal of the classificationof the part of its property as Outstanding Natural Landscape (ONL).[6] In its decisions on submissions, the Council inserted a new boundary lineexcluding both the existing Arthurs Point settlement and a proposed extension to itfrom the ONL classification. The new ONL boundary also excludedthe Shotover Loop from the ONL classification. In addition, the Council altered thezoning of the land in the Shotover Loop from rural to "low density residential".The urban growth boundary at Arthurs Point was extended to include the ShotoverLoop. There was no appeal to the Environment Court directly challenging thosedecisions.[7] However, an appeal was filed against the proposed district plan by UpperClutha Environmental Society Incorporated (Upper Clutha).2 Upper Clutha had made2 Upper Clutha Environmental Society Inc v Queenstown Lakes District Council [2019] NZEnvC176 [Environment Court decision].a submission on the proposed district plan seeking that "landscape lines" in theproposed district plan be removed because they were not credible. The submissionalso sought retention of all provisions of the operative district plan that applied or inany way related to the ONL of the Wakatipu Basin in the same form as in the operativedistrict plan.3 In Dunningham J's judgment, she explained the Upper Cluthasubmission was broad enough to be regarded as opposed to incorporation of the newONL boundary lines in the proposed district plan for the purpose of excluding landfrom an existing ONL, as had happened in the case of the Shotover Loop.4[8] In its appeal to the Environment Court, Upper Clutha maintained the positionthat the landscape lines shown on the operative district plan maps should be repeatedin the proposed district plan. It sought that the proposed district plan should reflectthe fact that there was sufficient land already zoned for residential purposes to satisfypopulation growth until at least 2048, without the need to provide for any additionalresidential activity in the rural zone. However, the notice of appeal was narrower thanthe original submission and made no express reference to Arthurs Point or thedecisions made in respect of the Shotover Loop.5[9] APS, which had been formed after the closing date for submissions on theproposed district plan, lodged a notice under s 274(1)(d) of the Act, thereby becominga party to Upper Clutha's appeal despite there being no specific mention of ArthursPoint or the decisions that the Council had made in respect of the Shotover Loop.Further particulars of the relief sought were given in interlocutory processes in theEnvironment Court. The Environment Court noted that the particulars givenapparently eschewed any claim for relief in respect of the Arthurs Point area.6However the Court also held that the further particulars of relief were irrelevant toAPS's reliance on the original appeal because they were provided after APS had joinedthe appeal.73 At [16].4 Dunningham J judgment, above n 1, at [36].5 At [37]–[41]. Dunningham J discussing the scope of the appeal to the Environment Court.6 Environment Court decision, above n, 2, at [20].7 At [20].[10] The Environment Court held that Upper Clutha's notice of appeal had raisedthe issue of the proper location of the ONL boundary in the vicinity of Arthurs Pointand that APS was entitled to seek pursuant to its s 274 notice a different ONL boundaryincluding the Shotover Loop within it. The Court also considered thatthe Upper Clutha appeal was wide enough to enable the Court to consider whether theShotover Loop should be excluded from the area identified for urban growth andchanged back to rural.8[11] In summary, the Environment Court construed the Upper Clutha appeal ashaving raised the issue of the proper location of the ONL boundary in the vicinity ofArthurs Point, and as seeking the reversal of the rezoning of rural land as residential.This meant that APS could seek a different ONL boundary and zoning forthe Shotover Loop.[12] GSL then appealed to the High Court. Dunningham J held that theEnvironment Court erred in law when concluding that the Society could use its s 274notice to seek a different ONL and classification on the Shotover Loop.She summarised the errors as being:9(a) it relied on the breadth of the Upper Clutha submission, rather thanthe notice of appeal to find scope to seek removal of a new ONLboundary line;(b) it relied on the irrelevant consideration of perceived fairness to theparties to reach this decision; and(c) it incorrectly applied the test for whether the consequential reliefsought by the [APS] was available should the new ONL around theShotover Loop be deleted.[13] Rather than sending the matter back to the Environment Court for furtherconsideration, the Judge determined that the appropriate course to follow was reversalof the Environment Court's decision. She set aside that Court's decision and made thefollowing rulings:10(a) The notice of appeal by the Upper Clutha Environmental SocietyIncorporated does not raise the issue of the proper location of the8 Environment Court decision, at [48].9 Dunningham J judgment, above n 1, at [110].10 At [114].Outstanding Natural Landscape boundary in the vicinity of ArthursPoint generally;(b) The Upper Clutha Environmental Society Incorporated appeal doesnot seek, either directly or consequentially, that the rezoning bydecisions of the hearing committee of the land zoned rural in theProposed District Plan (Notified) be reversed and the zoning returnedto rural; and, accordingly(c) The Arthurs Point Outstanding Natural Landscape SocietyIncorporated may not use its s 274 notice on the Upper CluthaEnvironmental Society Incorporated's appeal to seek a differentoutstanding natural landscape boundary and classification on theproperties at 111 and 163 Atley Road.[14] In the other High Court judgment before us, Clark J determined appeals againsta different decision of the Environment Court, given in Arthurs Point OutstandingNatural Landscape Society Inc v Queenstown Lakes District Council.11 ThatEnvironment Court decision was given on an application by APS for an enforcementorder under s 314(1)(f) of the Act, based on a claim that the Council had not compliedwith its obligations arising under cl 7 of sch 1 of the Act in publishing a summary ofdecisions requested by persons making submissions on the proposed district plan. Thedispute in this case concerns the adequacy of the summary given by the Council of thesubmissions made by GSL and Larchmont as to the content of the proposed districtplan as publicly notified, for the Shotover Loop.[15] In its application to the Environment Court, APS sought orders requiring theCouncil to renotify the summary of the changes to the plan on the basis that it was notfair or accurate and was misleading. It was claimed that the summary did notsufficiently alert members of the public to what had been sought by GSL andLarchmont, and had not been organised in a way that enabled interested persons tounderstand what part of the plan or geographical location to which the submissionswere directed.[16] The Environment Court held that the Council's summary of the GSLsubmission, while accurate on its face, was in fact "very misleading".12 The summaryof the Larchmont submission was "insufficiently accurate", because it was not clear11 Arthurs Point Outstanding Natural Landscape Society Inc v Queenstown Lakes District Council[2019] NZEnvC 150.12 At [107].as to the area in Arthurs Point to which the submission referred.13 TheEnvironment Court concluded that the Council had not complied with cl 7 and orderedthe Council to renotify a summary of decisions requested by GSL and Larchmont.[17] There were three appeals from the Environment Court decision, by GSL,Larchmont and the Council. For reasons which she gave, Clark J dismissed theappeals. She gave this summary of the result:14[147] For the foregoing reasons, each of the parties' questions of law (setout below), is answered "no".Council's Question 1: Did the Court apply the wrong legal test in itsinterpretation of and approach to clause 7 of Schedule 1?Council's Question 2: Did the Court err in law by misconstruing therole and purpose of the clause 7 requirement to publicly notify aSDR?15Council's Question 3: Did the Court reach a conclusion that noreasonable decision-maker could have reached when determining thatthe Council's SDR was "unfair and misleading"?Council's Question 4: Did the Court err by taking into account a rangeof matters and considerations which were either immaterial, orirrelevant, to [APS's] application?GSL/Larchmont's Question 1: Did the Environment Court apply awrong test when determining whether the Council complied with therequirements under cl 7 of sch 1 of the RMA?GSL/Larchmont's Question 2: In reaching the conclusions identifiedat paragraphs 8(a) to 8(f) of the notice of appeal, did the EnvironmentCourt err in reaching conclusions no reasonable decision-maker couldhave reached?GSL/Larchmont's Question 3: Did the Environment Court err infinding that [the Council] did not comply with the requirements underclause 7 of [s]ch 1 of the RMA? Was the Environment Court'sdecision unreasonable in that, on the evidence, it was a decision noreasonable decision maker could have reached?GSL/Larchmont's Question 4: Was it an error of law for theEnvironment Court to take into consideration the matters identified inparagraphs 12(a) to 12(f) of the notice of appeal in determiningwhether the SDR was "fair, accurate and not misleading" and whether13 At [103].14 Gertrude's Saddlery Limited v Arthurs Point Outstanding Natural Landscape SocietyIncorporated [2021] NZHC 147 at [147].15 The Judge used the letters SDR as shorthand for the summary of decisions requested by personsmaking submissions on a proposed plan under cl 7 of sch 1 of the Act.the [the Council] complied with the requirements under clause 7[s]chedule 1 RMA?GSL/Larchmont's Question 5: Was it an error of law for theEnvironment Court to reach the conclusion that the online rezoningmap was not reasonably accessible on [the Council's] website duringthe further submission period in December 2015? In particular, did theEnvironment Court reach a conclusion which on the evidence it couldnot reasonably come to?(Footnote added.)Second appeals[18] The Act provides for second appeals to this Court at s 308(1). It does so byadopting subpt 8 of pt 6 of the Criminal Procedure Act 2011. That includes s 303which 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—(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.[19] 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.16 Because the appeal is a second appeal, and an appeal tothe High Court from the Environment Court is limited to questions of law,17 it isaxiomatic that any subsequent appeal to this Court must also be a on question of law.16 SKP INC v Kennedy Point Boatharbour Ltd [2020] NZCA 610 at [25] citing Tan v Chief Executive,Ministry of Social Development [2017] NZCA 369 at [8]–[10].17 Resource Management Act 1991, s 299(1).[20] 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's judgment in Te Whare O TeKaitiaka Ngahere Incorporated Society v West Coast Regional Council.18 So thecontrolling qualifications for a second appeal are that it involves a question of lawcapable of bona fide and serious argument, and that it must be of general or publicimportance.[21] For reasons which we will address we are not satisfied that leave should begranted for either of the applications.The APS application[22] The APS application seeks leave to appeal against Dunningham J's judgment.19APS proffers four questions of law:a. Did the High Court err in determining that the Notice of Appeal(Appeal) by the Upper Clutha Environmental Society Incorporated(Upper Clutha) had a narrower scope than the Environment Court haspreviously determined?b. Did the High Court err in determining the Environment Court cameto a conclusion, on scope, no reasonable decision-maker couldcome to?c. Did the High Court err in determining the case-managementmemoranda filed by Upper Clutha on 12 and 31 August 2018 wereboth relevant and confirmatory of its approach to determining thescope of the Appeal?d. Did the High Court err in deciding the Appeal did not provide scopefor a rezoning of the Shotover Loop land – either directly orconsequentially?[23] In support of the application for leave to appeal, Ms Limmer submits that theproposed appeal raises important questions of law of significance beyond thecircumstances of this case. The questions concern how the scope of an appeal underthe Act is properly determined; what contextual guides to interpretation are relevantwhen ascertaining the scope of such an appeal; "[h]ow the scope of permissible,18 Te Whare O Te Kaitiaka Ngahere Inc Society v West Coast Regional Council [2015] NZCA 356 at[23].19 Dunningham J judgment, above n 1.consequential amendments from (sic) an appeal should be determined" and "[w]hetheror to what degree a Court can take account of "fairness" when discerning the scope ofan appeal under the [Act]".[24] GSL opposes the APS application. It asserts that the APS application is notseriously arguable and raises no question of law of general or public importance.Mr Casey QC submits that the only question of law of potential importance is whetherrecourse should be had to a party's originating document when determining the scopeof that party's appeal. He submits that proposition is untenable. The other issuessought to be raised by APS are specific to the circumstances of the case and have noprecedent or other importance.[25] The questions proposed do not in our view raise issues of law of general orpublic importance nor are they seriously arguable. The proper ambit of a notice ofappeal is a matter to be ascertained by reference to what is sought in the notice ofappeal. Clause 14(4) of sch 1 requires that appeals against a decision made on asubmission to a proposed district plan be in a form that is prescribed by reg 5 of theResource Management (Forms, Fees, and Procedure) Regulations 2003. The form(form 7) requires the appellant to identify the decision appealed against, and state thereasons for the appeal and the relief sought. The form requires the appellant to "giveprecise details" of the latter. An examination of these elements of the notice of appealin combination should be sufficient to establish the proper scope of the appeal andwhat is sought by it.[26] The Environment Court's power in disposing of an appeal is set out in s 290 ofthe Act. The power given by s 290(2) is to "confirm, amend, or cancel a decision towhich an appeal relates". That requires a focus on the relief sought in the appeal, notsome other document. And if an appellant clarifies the extent of the relief it is seeking,as happened here when Upper Clutha confirmed that it was not seeking relief inrelation to the Arthur's Point area, that limits the scope of the appeal. A party whoseparticipation in the proceeding is derived from s 274 cannot seek to widen the ambitof the appeal. The notice required to be given by s 274(2) must state, among otherthings, "whether the person supports or opposes the proceedings" (s 274(3)(b)), andthe right of the s 274 party to appear and call evidence (s 274(4)), provided theevidence is "within the scope of the appeal" (s 274(4B)). In this case, the s 274 noticewas given before Upper Clutha made it clear that its appeal did not seek relief inrelation to the Arthur's Point area. Although its original submission was wider inscope it is the appeal that defines the possible outcomes in the Environment Court, notthe original submission. We are satisfied Dunningham J made no arguable error in herjudgment in this issue.[27] The various questions proffered by APS all turn on this issue, albeit couchedin different terms. To the extent they are couched with reference to the particularcircumstances of this case we do not consider that they are questions of general orpublic importance.The GSL application[28] The focus of GSL's intended appeal against the judgment of Clark J is on thetest to be applied in assessing the adequacy of the summary of decisions requested bysubmitters under cl 7 of sch 1 of the Act. GSL seeks to argue that the High Courtwrongly endorsed the approach taken by the Environment Court and in so doing failedto adopt the approach which should have been taken namely to ask whether thesummary of decisions requested was "fair, accurate and not misleading".[29] Mr Casey argued that the Courts below had wrongly conflated the test to beapplied under cl 7 with that which applies under cl 10 of sch 1, when the localauthority considers what may be "reasonably and fairly" raised by submissions indeciding whether to accept or reject them.20 He claimed the High Court had created anew obligation requiring councils under cl 7 to inquire into the "unarticulatedintention" of a submitter and the relief "implicitly" sought. He contended that theapproach upheld by the High Court would result in a significant and burdensomeextension of the established test applicable under cl 7, effectively requiring councilswhen publicly notifying submissions to anticipate the range of possible outcomes ofthem before consideration has been given to how the submissions should be resolved20 Countdown Properties (Northlands) Ltd v Dunedin City Council (1994) 1B ELRNZ 150 at 171;[1994] NZRMA 145 at 166.under cl 10. This would make it more difficult for councils to comply with theirobligations in preparing a summary under cl 7.[30] In opposing GSL's application for leave to appeal Ms Limmer for APS submitsthat the approach of the High Court was correct, and the outcome was the result of theapplication of an orthodox approach to the facts of the case. Nor did the High Courtwrongly conflate the approach required under cl 7 with that required under cl 10.[31] Section 73(1A) of the Act provides that a district plan may be changed in themanner set out in the relevant part of sch 1. Here, the relevant part is pt 1 of sch 1.Clause 5 of that part of the schedule provides for public notification of a proposed newplan or plan change. Clause 6 confers broad rights on persons to make a submissionon the proposed plan.[32] The prescribed form of a submission, form 5 of the Resource Management(Forms, Fees and Procedures) Regulations 2003 requires that a submission on aproposed plan refer to the specific provision to which the submission relates and mustexplain what decision is sought from the local authority on the submission, giving"precise details". It is these decisions sought that must then be summarised by theCouncil under cl 7 of sch 1.[33] Clause 7 relevantly provides:7 Public notice of submissions(1) A local authority must give public notice of—(a) the availability of a summary of decisions requested bypersons making submissions on a proposed policy statementor plan; and(b) where the summary of decisions and the submissions can beinspected; and(c) the fact that no later than 10 working days after the day onwhich this public notice is given, the persons described inclause 8(1) may make a further submission on the proposedpolicy statement or plan; and(d) the date of the last day for making further submissions (ascalculated under paragraph (c)); and(e) the limitations on the content and form of a furthersubmission.(2) The local authority must serve a copy of the public notice on allpersons who made submissions.[34] Clause 8 contemplates further submissions by persons representing a relevantaspect of the public interest, or persons who have an interest in the proposed policystatement or plan greater than the interest of the public generally. Mr Casey submits,that the purpose of publicly notifying the summary of decisions requested undercl 7(1)(a) is to give persons with a right to make a further submission notice of whathas been requested so that they may be alerted of a need to read a relevant submissionand ascertain whether it would be in their interests to make a further submission.[35] That submission was based on a passage on which Mr Casey relied in Re AnApplication by Christchurch City Council the Environment Court said:2115. In relation to the general requirements for notification we agree withthe definitions of "summary" given in Wellington City Council v Cowie thatit is "a concise statement of the main points". We hold that the summaryof decisions requested must be "fair and accurate and certainly notmisleading": to adopt the phrase in Hodge v Christchurch City Council. Itmust be sufficient to alert the reasonable non-expert reader of the summary tothe fact that they should go to the submissions in full and examine theproposed differences for themselves.(Footnotes omitted, emphasis in original.)[36] Mr Casey also referred to cl 10(1) of sch 1 of the Act which provides:10 Decisions on provisions and matters raised in submissions(1) A local authority must give a decision on the provisions and mattersraised in submissions, whether or not a hearing is held on the proposedpolicy statement or plan concerned.[37] Mr Casey seeks to argue that it is only when making a decision under cl 10(1)that a council needs to consider what may be considered as fairly and reasonably raisedby a submission. We are not persuaded that this is a reasonably arguable proposition.We consider the question of what is fairly and reasonably raised by a submission is21 Re An Application by Christchurch City Council (1999) 5 ELRNZ 227 at [15].inherent in the concept of the relief that the submission seeks: that is, the "precisedetails" of the decision the submitter wants the council to make, and it is notice of thatrelief that needs to be captured in the summary of decisions requested. The idea thatsomething less is required, that it will be sufficient if potential further submitters aremerely alerted to the possible need to examine the submissions themselves, is a glossnot set out in the statute. A proper summary will of course have that consequence, butthe statutory requirement can only be met if the summary describes accurately thedecisions requested by the persons making submissions.[38] Here, the question addressed by the Environment Court was expressed by it asfollows:22[100] I accept that in this case there is no evidence that any member of theSociety looked at the SDR in hardcopy. However, that is not the issue. Thequestion is whether the summary of the submission accurately, fairly and notmisleadingly, alerts a reasonably informed member of the public that there isa submission seeking that the ONL(B) be drawn around the Shotover Loop(or part of it).(Footnote omitted.)[39] After considering relevant aspects of the Environment Court's reasoningClark J held:23[78] The question for determination was whether a reasonable non-expertreader of the SDR would have been alerted to GSL's and Larchmont's intentwhich was to have an outstanding natural landscape boundary line drawn soas to exclude land from the outstanding natural landscape. The Judge'sultimate determination was reached as a result of his proper understanding andapplication of the correct legal test. He found the summaries were unfair andmisleading.(Footnote omitted.)[40] Essentially this was a determination that the Environment Court had appliedthe correct legal test and decided it had not been met by the summary in this case.Whether the correct test was applied is a question of law, but in our view theproposition that the correct test was not adopted is not seriously arguable. Whether the22 Arthurs Point Outstanding Natural Landscape Society Inc v Queenstown Lakes District Council,above n 11.23 Clark J judgment, above n 1.test was properly applied to the facts of this case is not a question of general or publicimportance.[41] For these reasons we decline the GSL application.Result[42] We extend the time for making the application for leave to appeal by ArthursPoint Outstanding Natural Landscape Society Incorporated in CA121/2021.[43] The application for leave to appeal in CA120/2021 is declined.[44] The application for leave to appeal in CA121/2021 is declined.[45] Since both applications have been unsuccessful we make no order for costs.Solicitors:Anderson Lloyd, Solicitors, QueenstownParker Cowan, Barristers & Solicitors, QueenstownSimpson Grierson, Barristers & Solicitors, Christchurch