PACIFIC INVESTMENT TRUST V CHRISTCHURCH CITY COUNCIL HC CHCH CIV 2008-409-002743

PACIFIC INVESTMENT TRUST V CHRISTCHURCH CITY COUNCIL HC CHCH CIV 2008-409-002743 19 February 2009IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY CIV 2008-409-002743BETWEEN PACIFIC INVESTMENT TRUST Appellant AND CHRISTCHURCH CITY COUNCIL Respondent Hearing: 19 February 2009 Counsel: N S Elsmore for Appellant A Prebble for Respondent Judgment: 19 February 2009JUDGMENT OF FOGARTY J[1] This is an application for leave to appeal out of time under s 306 of the Resource Management Act 1991 which provides:306 Extension of timeOn the application of a party to an appeal, the High Court may extend any period of time stated in sections 229 to 301, 303, and 305.[2] The applicant is a landowner in Banks Peninsula who was a submitter on proposed variations to the Banks Peninsula District Plan and was an appellant before the Environment Court. The Environment Court issued a decision of 24 April 2008 and in that decision it addressed the minimum lot size for discretionary activity in the Rural Amenity Landscape. It is sufficient to set out the following paragraphs to capture the Court's treatment of these issues:[183] The minimum lot size for subdivision or for building on existing lots as a discretionary activity in the RAL is currently four hectares or one hectare provided the balance to four hectares is covenanted below the 160 contour. This is a full discretionary activity. Mr Rackham for the CityCouncil, agreed that a higher minimum level of some ten hectares was desirable, as did a number of other witnesses. Lot size was described as a crude but effective mechanism to avoid adverse cumulative effects of intensity. In this regard some statistics provided give an indication of the level of this issue on Banks Peninsula. [185] Given the limited number of properties on Banks Peninsula and the resident population thereof (less than 5,000 and probably in the vicinity of 6,000-8,000 houses), such a level of development at four hectares minimum might create an adverse effect, particularly within the RAL. We conclude that this could be addressed by fixing ten hectares as the minimum lot size for subdivision and for the construction of a dwelling on an existing title as a discretionary activity. [196] We conclude this approach would also provide an incentive for parties to seek controlled activity status by being able to covenant the balance to 40 hectares in preference to a discretionary activity with a smaller covenanted area provided. In that sense we see some benefit from a ten hectare minimum lot (or one plus nine covenanted) in terms of achieving the general objectives for the Rural Zone, particularly as they relate to the high values of landscape and the threats of over-intensification. It will provide some real protection against multiple subdivision, which appears to be at the heart of many of the concerns of the witnesses and will limit the number of properties which are able to subdivide. [197] On the other hand, the amended provisions we propose would continue to provide flexibility for the farming community. We do not suggest final wording at this stage and leave it to the parties to see if that wording can be agreed. It seems that similar wording to that for controlled activities but with a provision for at least 10 hectares average per lot on subdivision and for a minimum covenanted area of nine hectares plus a minimum of one hectare for a dwelling would achieve the overall outcome sought.[3] The Court concluded its decision under the heading "Conclusions and Directions":[259] We are satisfied that the delineation maps attached as annexure"1:E" are correct subject to minor corrections set out in Ms Pflüger's on- site evaluation reports and this decision, which makes one potential change on the Takamatua Headland Ridge. [260] Amended maps "1:E" and amended provisions "1:D"incorporating the suggested changes should be prepared and circulated by the Council within 20 working days. The other parties must identify any dispute within a further ten working days. The Council is then to file a memorandum attaching the maps and correcting any remaining errors withina further ten days. The Court will then determine whether it can finalise the map or make further directions. [261] Any application for costs is to be filed within 40 working days, replies ten working days thereafter and final submissions five working days thereafter. Such applications should clearly distinguish any costs related to the Study/mediation process and those related to this hearing and include relevant invoices.[4] Mr Cleary, counsel for the applicant, has filed an affidavit in which he deposes that he received this decision on about 5 May and he discussed the decision with his client on 19 May and received instructions on that day to consider whether any aspects could be challenged on appeal, that he undertook that analysis and formed the opinion that the form of the threshold rule had not been finalised, referring particularly to paragraph [197]. [5] He also undertook research on a number of decisions relevant to the issue of the appropriate time at which to file an appeal under s 299 re-reading the decisions of Peninsula Watchdog Group (Inc) v Coeur Gold New Zealand Ltd [1997] 3 NZLR 463 and Queenstown Lakes District Council v JF Investments Limited CIV 2004- 485-0078. Having regard to these decisions he considered it would be premature to appeal a rule that had not been finalised and he so advised his client on 21 May. He was treating the decision as having been made on 5 May. [6] On 11 September the Court delivered an oral decision which finalised this proposed rule. This was a decision of some ten pages. It addressed proposed amendments which were then attached. That decision was not issued until 22 October 2008, which was the date Mr Cleary worked off for timing an appeal. [7] Counsel before me agreed that there were two issues: is leave to appeal outside the timeframe needed; and, if leave is required whether leave should be granted to the applicant? It is my view it is not necessary to decide whether leave to appeal outside the statutory timeframe is needed. There is a considerable argument that the Environment Court had clearly decided to move away from the four hectare minimum to a standard of at least ten hectares, the precise definition of that standard being in doubt as to how it would be achieved as a minimum. But to my mind the most significant thing about this application is that the language used by the Court inits first decision does not resonate finality. In paragraph [185] for example the judgment uses the phrase: this could be addressed In paragraph [197] the Court left the final wording to the parties. In paragraph [260] the Court refers to the: suggest changes should be prepared and circulated And allows parties to identify a dispute within a further ten working days and more significantly than that Mr Cleary, rightly or wrongly, having read the case law and considered the point, came to the view that time was not running against his client and advised his client accordingly. [8] There are many authorities dealing with the problem of delay in appeals due to decisions or errors of legal advisers. Frequently these are cases where the legal adviser has neglected to file an appeal and in those cases Courts are reluctant to visit the error of the legal adviser on the client. [9] In this case I am not faced with any neglect on the part of the legal adviser. Rather, at best, the legal adviser made an error of law. I do not find it necessary to decide whether he did make an error of law. There was certainly material on the record, which I have referred to in this judgment, raising a serious question as to whether or not the time for appealing was running or not. I distinguish the recent decision of this Court in Fox and Anor v Christchurch City Council and Anor High Court Christchurch CIV 2008-409-000898 5 December 2008 French J. That case is in a different context. It does not raise the problem focussed here of consideration of the issue by the Council concerned and a judgment that time was not running. [10] There is undoubtedly prejudice to the Council and other parties if this appeal is allowed to be lodged, the prejudice being that the Council has spent a lot of time giving effect to the final decision of the Court which is the second decision. It has spent something in the order of $50,000. I do not think it is an argument as to prejudice that if the Environment Court did fall into error of law it would have toreconsider matters for it is in the public interest that all decisions by the Courts be made according to law. [11] The additional work done by the Council is regrettable. The possibility of an appeal was flagged very vaguely in June, but it is no criticism of the Council that the work continued. I have considered whether or not it should be a condition of leave that the lawyers for the appellant should reimburse the Council for the wasted cost but in the circumstances I have decided that the examination by Mr Cleary of the decisions he had to make on behalf of his client, as he has explained in his affidavit, were undertaken professionally. Sometimes a decision can be made to appeal out of caution after an interim decision; sometimes solicitors can be confident enough to wait until the final decision. But there are numerous tactical decisions as to the timing of disclosing intention to appeal. [12] Regrettably wasted effort is relatively common place in the administration of the Resource Management Act. So, although I have taken the wasted effort of the City Council into account, if this application were granted I do not find it is a determining point. I continue to be impressed by the fact that Mr Cleary examined the matter, read the relevant cases and came to a judgment that time was not running and I am further impressed that there was material on the record in the first decision which allowed him to come to that view, be it right or wrong. [13] For these reasons I think justice is done by allowing the application for leave to appeal and as a precaution allowing it under s 306, there, in my view, being no need to decide finally whether or not it has been filed out of time. It is simply allowed under s 306 as an abundance of caution. [14] This appeal will continue. [15] I will just hear counsel as to an estimate of time. [Discussion with counsel][16] This is an appeal in a relatively small compass. The estimates of time are half to one day. This case will be set down, I hope with some urgency, and I would ask the Registry to liaise with Mr Prebble and Mr Elsmore (although he indicates he will not be the then counsel) as to available dates and to set the case down accordingly as soon as there is time available and counsel are also available. If there is any concern by either counsel as to delays setting the case down leave is reserved to seek a telephone conference with the Duty Judge in a particular week in order that a fixture can be set. [Discussion with counsel] [17] Costs are reserved to be considered when the outcome of this appeal is known.Solicitors: Cavell Leitch Pringle & Boyle, Christchurch, for Appellant (Counsel: A Prebble) Buddle Findlay, Christchurch, for Christchurch City Council Wynn Williams, Christchurch, for Canterbury Regional Council