MAN O WAR STATION LTD v AUCKLAND COUNCIL & ORS (No. 2) [2015] NZHC 1537

MAN O WAR STATION LTD v AUCKLAND COUNCIL & ORS (No. 2) [2015] NZHC 1537 [3 July 2015]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCIV-2014-404-002064[2015] NZHC 1537UNDER the Resource Management Act 1991IN THE MATTER of an appeal against a decision of theEnvironment Court under section 299 ofthe Resource Management Act 1991BETWEEN MAN O WAR STATION LIMITEDAppellantAND AUCKLAND COUNCILRespondentENVIRONMENTAL DEFENCESOCIETY INCORPORATEDFEDERATED FARMERS OF NEWZEALANDSection 301 PartiesHearing: 1 July 2015Appearances: M E Casey QC and M J E Williams for AppellantB O'Callahan and J Burns for RespondentR B Enright and M C Wright for Environmental DefenceSociety IncJudgment: 3 July 2015(RESERVED) JUDGMENT (No. 2) OF ANDREWS J[Application for leave to appeal to Court of Appeal]This judgment is delivered by me on 3 July 2015 at 11.30 ampursuant to r 11.5 of the High Court Rules......................................................Registrar / Deputy RegistrarHigh Court judgment[1] On 21 April 2015 I delivered a reserved judgment dismissing the appeal byMan O'War Station Limited (MWS) against a decision of the Environment Court,relating to mapping of Outstanding Natural Landscapes (ONLs) on Waiheke Island and on Ponui Island in Proposed Change 8 to the Auckland Regional Policy Statement.1Application for leave to appeal[2] On 11 May 2015 MWS filed an application for leave to appeal to the Court of Appeal, pursuant to s 308 of the Resource Management Act 1991 (RMA) and s 144 of the Summary Proceedings Act 1957.2 The application for leave is opposed by the Auckland Council (the Council). Federated Farmers of New Zealand and the Environmental Defence Society Inc. (EDS), which appeared in this Court pursuant to s 301 of the RMA, each gave notice of their intention to appear: Federated Farmers in support of the application and EDS in opposition to it.3[3] In its application, MWS set out five questions of law for determination on appeal (the proposed appeal questions):4(a) Is the identification (including mapping) of an [ONL] in a planning instrument prepared under the [RMA] for the purpose of section 6(b) of that Act, informed by (or dependent upon) the protection afforded to that landscape under the RMA and/or the planning instrument?(first question)(b) Has the test or threshold to be applied in deciding whether a landscape is outstanding for the purpose of section 6(b) of the RMA changed (being elevated) as a result of the degree of protection required for an ONL (particularly in the coastal environment) byreason of the Supreme Court's decision in Environmental Defence Society Inc v The New Zealand King Salmon Co Ltd [2014] NZSC 38 ("King Salmon")?1 Man O'War Station Ltd v Auckland Council [2015] NZHC 767.2 The Summary Proceedings Act 1957 has been repealed, but pursuant to transitional provisions (Criminal Procedure Act 2011, s 397), continues to apply to Environment Court proceedings commenced before 1 July 2013 (see Foodstuffs South Island Ltd v Queenstown Lakes District Council [2013] NZCA 458).3 Mr Gardner, counsel for Federated Farmers, was not able to attend the hearing , but filed a memorandum adopting the submissions made on behalf of MWS.4 Application for leave to appeal, at [1].(second question)(c) Where a landscape has been identified as ONL under a policy framework and an approach to ONL identification which were permissive of adverse effects and which are not now correct in law or need to be changed by reason of King Salmon, should that landscape be re-assessed in light of the required changes to the policy framework and approach?(third question)(d) Is it relevant to the identification as ONL of a landscape (particularly in the coastal environment) which is a working farm, that the applicable policy framework would prohibit or severely constrain its future use for farming, such that the determination of whether alandscape is ONL should take account of the "fourth dimension" –i.e. future changes over time by reason of that landscape's characteras a working farm?(fourth question)(e) Was the High Court correct to find that in assessing whether or not a landscape is an ONL there is no need to incorporate a comparator (i.e. a basis for comparison with other landscapes, nationally or in the relevant region or district)?(fifth question)[4] MWS referred five findings (in particular at [58] to [60] of the judgment) that were relevant to the proposed appeal questions:5(i) There is no justification for changing the manner in which ONLs are identified as a consequence of King Salmon.(ii) The identification of ONLs drives the policy framework, but the policy framework does not drive the identification of ONLs.(iii) The RMA delineates the task of identifying ONLs and the task of protecting them, and the finding that these tasks are conducted at different stages, by different bodies.(iv) It cannot be said that the RMA expects the identification of ONLs to depend on the protection that those areas will receive.[5] Further, MWS wishes to appeal in respect of:6 the failure by the High Court to address the question of the "fourth dimension" namely the likely changes over time by reason of the landscapes being a working farm and its finding at [47] that there is no5 At [2].6 At [3].comparator applicable to the consideration of outstandingness of a landscape.Test for granting leave to appeal[6] Section 144 of the Summary Proceedings Act 1957 provides that the High Court may give leave for a second appeal on a question of law: if in the opinion of that Court the question of law involved in the appealis 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.[7] The test for granting leave to appeal was summarised by the Court of Appeal in Huia Resorts Ltd v Ashburton District Council, as follows:7The combined effect of s 308 of the Resource Management Act 1991 and s 144 of the Summary Proceedings Act 1957 requires that the applicant meet a threshold before special leave to appeal may be granted by this Court. That is because the applicant is seeking to bring a second appeal against an Environment Court decision. It must show that the further appeal would raise questions of law which by reason of their general or public importance, or for any other reason, ought to be submitted to this Court for decision. It is well established that this threshold entails demonstrating that there is a question of law capable of serious argument in a case involving a public or private interest which is sufficient in its importance to outweigh the cost and delay to the parties of permitting another appeal.Submissions[8] Mr Casey QC submitted for MWS that the proposed appeal questions are questions of law that are seriously arguable, and that they are of sufficient public and private interest, as well as general importance, to outweigh the costs and delay of a second appeal. Mr Casey submitted that the degree of public interest extends beyond the particular circumstances of the present case. If leave to appeal is granted,the Court of Appeal's judgment will help inform the Hearings Panel in makingrecommendations to the Auckland Council regarding the proposed Auckland Unitary Plan, when hearings conclude in June 2016.[9] Mr Casey further submitted that the judgment in this proceeding will have implications across the Auckland Region, in particular for the large areas of land mapped as ONLs under the Proposed Unitary Plan. He submitted it will also have7 Huia Resorts Ltd v Ashburton District Council CA29/05, 28 April 2005 at [2].significance for all other regions and districts in deciding what areas to map as ONLs in planning instruments, and in the context of resource consent applications, where the existence or extent of an ONL is an issue.[10] Mr Casey submitted that each of the appeal questions is seriously arguable, and raises serious issues. These are, in particular, as to the relationship between identifying (mapping) landscapes as ONLs and the policy framework under whichprotection for ONLs is conferred, the impact of the Supreme Court's judgment inKing Salmon,8 on the previous approach to the identification of ONLs,9 the particular impact of King Salmon on rural (farmed) landscapes, and the use of "comparators"when assessing landscapes.[11] Mr O'Callahan (for the Auckland Council) and Mr Enright (for EDS) did notcontend that the proposed appeal questions were not "questions of law", or that the matters raised were not a general or public importance. The focus of counsel'ssubmissions was on whether the appeal questions were capable of serious argument.[12] Both Mr O'Callahan and Mr Enright submitted that there could be no bonafide serious argument on the first three questions (which, it was accepted, were inter-related). Mr O'Callahan also submitted that there was no utility in an appeal. He submitted that if the Court of Appeal were to accept MWS's argument as to theinter-relationship between identification of ONLs and the objectives, policies and methods of protection, there would be no material difference in the outcome in any particular case.[13] Counsel further submitted that the fourth and fifth proposed appeal questions were misconceived, and wrong.8 Environmental Defence Society Inc v The New Zealand King Salmon Co Ltd [2014] NZSC 38, [2014] 1 NZLR 593.9 As set out in, in particular, Wakatipu Environmental Society Inc v The Queenstown-Lakes District Council ("WESI") [2000] NZRMA 59 (EnvCt) and Maniatoto Environmental Society v Central Otago District Council EnvCt decision C103/2009.Discussion[14] While in my view there may well be merit in the arguments made by Mr O'Callahan and Mr Enright I accept, in relation to each of the proposed appeal questions, that the question is capable of serious argument. I also accept that the case involves public and private interests which are sufficient in their importance to outweigh the cost of permitting another appeal. There is no question of any prejudicial delay arising out of an appeal.[15] Accordingly, leave to appeal is given, on each of the proposed appeal questions.[16] Costs are reserved.__________________________Andrews J