MAWHINNEY AND Others V WAITAKERE CITY COUNCIL And Anor CA CA109/04

MAWHINNEY AND Others V WAITAKERE CITY COUNCIL And Anor CA CA109/04 23 September 2004IN THE COURT OF APPEAL OF NEW ZEALAND CA109/04BETWEEN PETER WILLIAM MAWHINNEY AND OTHERS Applicant AND WAITAKERE CITY COUNCIL First Respondent AND AUCKLAND REGIONAL COUNCIL Second Respondent Hearing: 16 August 2004 Coram: McGrath J Hammond J Chambers J Appearances: Applicant in person P H Mulligan for First and Second Respondent Judgment: 23 September 2004JUDGMENT OF THE COURT DELIVERED BY McGRATH J Introduction[1] Mr Mawhinney and companies with which he is associated own land at Bethells, within the jurisdiction of the Waitakere City Council. They applied for special leave, under s144(2) of the Summary Proceedings Act 1957, to appeal to this Court against a judgment of the High Court delivered by Randerson J on 3 March 2004. In that judgment Randerson J allowed in part an appeal by the Council against aspects of a decision of the Environment Court. In the same judgment Randerson J dismissed a cross-appeal brought by Mr Mawhinney and his companies.Background facts[2] The applicants sought to subdivide their land, which is split across numerous Certificates of Title. They lodged four applications with the Waitakere City Council which is the intended first respondent to the appeal. The applications were described as a "minor household unit application", "a glasshouse application", "a freehold unit title application" and "a leasehold unit title application". A number of different plans supported the applications and in both the Environment Court and the High Court the appellants declined to nominate any particular one as the preferred basis for their intended subdivision. Instead they sought declarations in relation to each plan as to the basis on what it showed might go ahead. [3] The plans concerned were not definitive of the applicants' intentions. In those circumstances the City Council took the view that it should exercise its powers under s91 of the Resource Management Act to defer consideration of the applications. A further reason for that decision was because additional resource consents would first be required from the Auckland Regional Council, which is the second respondent to the application, before the developments proceeded. The resource consents were required for the discharge of stormwater in the subdivisions proposed in two of the applications. The Regional Council itself has refused to grant the consents in relation to stormwater discharge, taking the view that further information is required from the applicants before it can determine that matter. [4] The applications to the Environment Court sought declarations under s311 of the Act concerning the status of the properties concerned under the City Council transitional and proposed district plans. The applicants also sought declarations that the City Council had acted inappropriately in applying s91 in the manner it did. The applicants also sought orders requiring the City Council to process the applications.Preliminary matters[5] The applicants have encountered financial difficulties in relation to the proposals for development in part because of the litigation, and in part because oftheir inability to proceed with the sale of the land that is the subject of subdivision applications. Indeed one of the applications made to the Court was to adjourn the hearing of the application for special leave to appeal for a period of three to nine months within which, according to Mr Mawhinney who appeared for himself and other applicants, he would raise the money needed to obtain legal advice and representation in respect of both the application for special leave and, if leave were granted, the substantive appeal. [6] This Court indicated to Mr Mawhinney that it would prefer to deal with his concerns over financial difficulties first by hearing the application for leave to appeal and then, if that were granted, addressing the request as one for an extension of time for filing the case on appeal and seeking a fixture pending the taking of the necessary steps to fund legal representation. We proceed accordingly. [7] The principles on which the Court will grant leave to appeal under s144(2) from the determination of the High Court on an appeal are set out in s144 itself. There must be a question of law involved in the appeal which by reason of its general or public importance or for any other reason is one which ought to be submitted to the Court for a second appellate determination. As the Court has often said, the general policy of the law is that litigation should conclude on determination of an appeal against the first instance decision. This reflects the public interest in bringing litigation to an end once an appellate court has reviewed the initial decision. The policy is based on not only the public interest in finality, but also the additional cost to both parties if a further appeal proceeds. We approach the matter on this basis. We also focus on the judgment of Randerson J rather than that of the Environment Court, although it is necessary to say something of that judgment to provide context.The Environment Court decision[8] In an interim decision of the Environment Court, Judge Treadwell observed that the proceedings before him had been tortuous because of the nature of the information that had been put before the Court, and the lack of focus in the submissions that had been presented to him by Mr Mawhinney at the hearing. TheJudge indicated that the unwillingness of the applicants to settle upon a preferred subdivision plan made it difficult for him to assess the evidence in relation to the declarations that were sought. He described the proceeding as perilously close to an abuse of the Environment Court process, as "the subdivider is endeavouring to place the Court in the position of being a legal advisor by seeking answers to a series of largely hypothetical questions on embryonic subdivision formats". Nonetheless, in his decision he discussed each of the subdivision plans submitted, briefly commenting on aspects of them. [9] The Judge then commented critically on the City Council's use of s91 to defer consideration of the consent applications. He said that s91 was subservient to the requirement that decisions under the Resource Management Act be issued with expedition. It followed that s91 should not have been used to put the process on hold. Furthermore, where the applicant disputed the necessity of obtaining another consent, he considered it inappropriate to rely upon s91. So the Council should either have refused the consent summarily or granted it, and itself imposed conditions as to stormwater discharge. The Judge concluded the interim judgment by asking the parties to indicate whether any of the declarations or enforcement orders sought survived the Court's findings in the interim decision. He expressly stated that he would receive no further submissions or amendments to the proceedings and would not grant any declarations in relation to hypothetical facts. [10] Contrary to the direction in the interim judgment, Mr Mawhinney did file further submissions and maintained his request for wide-reaching declarations. In those circumstances, the Judge considered that the applicant's handling of the matter had become an abuse of process and struck out all issues other than those relating to s91. He declined however to grant any declarations relating to that issue, on the basis that his judgment had clarified the position in respect to the proper use by the Council of that power. [11] The City Council appealed against the Environment Court's findings in relation to s91 and the applicants cross-appealed in relation to the findings concerning abuse of process.High Court decisions[12] Randerson J first considered the City Council's appeal in relation to its application of s91 to the consent applications. He held that the first two applications, dealing with the minor household unit and glasshouse, had already been dealt with in other litigation and finally resolved and he did not address them further. In relation to the remaining applications the real issue before him was the construction of s91. Randerson J disagreed with the approach of the Environment Court and held that s91 could properly be applied by a consent authority even where an applicant disputed the need to obtain another consent. It was not necessary that the Council summarily refuse consent in that circumstance and it could exercise the s91 powers to defer addressing the application. [13] The High Court Judge doubted whether it was possible, as Judge Treadwell had earlier suggested, for the City Council to impose conditions as to storm water consents and in any event considered it open for the City Council to leave that to the Regional Council. Section 91 might result in delays in the process but where that consequence was reasonable it was permitted by the legislation. The Judge set aside the Environment Court's decision but, as he considered that the appeal was now moot there being a new District Plan and significant alterations to Mr Mawhinney's subdivisional plans, he did not remit the point back to the Environment Court. [14] Randerson J then considered the Environment Court Judge's conclusions in relation to abuse of process. He agreed that the processes were being abused because there had been a plethora of applications made to the Environment Court, a number of alternative subdivision plans had been placed before it, Mr Mawhinney had been unable to specify which of the plans were likely to proceed and the form it would take, and he had failed generally to comply with the Court's directions. The matter had been compounded by the large amount of evidence and argument which he had put forward. [15] The Judge said that in reality the Court was improperly being asked to give advisory opinions on a range of possible subdivision scenarios. He saw the application as "a wide ranging fishing expedition in an attempt to establish the mostadvantageous basis for its subdivisional aspirations". The Judge concluded by addressing other incidental matters including questions raised by Mr Mawhinney's arguments concerning s11 of the Act. These included whether application could properly have been made for consent to subdivision as a controlled activity, and whether a subdivision was a use of the land or mere "lines on paper" with no effect on the environment. Justice Randerson rejected Mr Mawhinney's arguments on each of these points. [16] The Judge accordingly dismissed the appeal. On 14 May 2004 he refused leave to appeal to this Court under s144 of the Summary Proceedings Act.Consideration of application for special leave[17] Section 91 of the Resource Management Act provides as follows:91 Deferral pending application for additional costs(1) A consent authority may determine not to proceed with the notification or hearing of an application for a resource consent if it considers on reasonable grounds that- (a) Other resource consents under this Act will also be required in respect of the proposal to which the application relates; and (b) It is appropriate, for the purpose of better understanding the nature of the proposal, that applications for any one or more of those other resource consents be made before proceeding further. (2) Where a consent authority makes a determination under subsection (1), it shall forthwith notify the applicant of the determination. (3) The applicant may apply to the Environment Court for an order directing that any determination under this section be revoked.[18] In reaching his decision on s91 the Judge adopted an analysis of its terms that had been articulated by the Environment Court in Waitakere Forest Park Limited v Waitakere City Council [1997] NZRMA 231, a decision involving the land in question. This analysis closely follows the language of s91 and the Judge took the view that any departure from it along the lines followed by the Environment Court Judge would destroy the utility of s91 by requiring the applicant's consent to its use. He found that s91 was a specific provision giving the consent authority discretion to determine not to proceed with an application if it considered on reasonable grounds the provisions were met. He concluded that the general requirement for prompt action by consent authorities under s21 of the Act did not preclude the application ofs91 where the territorial authority was satisfied on reasonable grounds that the requirements of the section were made out. [19] As this analysis of s91 simply reflects the ordinary meaning of provisions of the section read in its context a challenge to its terms is not capable of serious argument. Nor does its application to correct the different view expressed by the Environment Court give rise to any point of appeal capable of serious argument. Accordingly we reject this aspect of the application for special leave to appeal against the High Court judgment. [20] We turn to the abuse of process questions. Although the Judge was in agreement with the Environment Court that the matters that were raised under this head were appropriately treated as an abuse of process, in our view they are more appropriately categorised as findings of failure by applicants to the Environment Court to comply with the statutory requirements of particularity set out in ss269 to 288 of the Resource Management Act. Where an applicant fails to comply with requirements of a statute or regulation in relation to a prescribed process it will generally be open to a statutory body, subject to any specific applicable statutory requirements, to adjourn the matter concerned until there is proper compliance. It is unhelpful to categorise that situation as an abuse of process. Ultimately what the Environment Court found was that the applicant was proceeding in a way that the statute did not countenance because of the lack of particularity in what was proposed. We are satisfied that question is predominantly one of fact and judgment for the specialist court concerned, which the High Court has in effect upheld. It does not give rise to any question of law which warrants a second appeal. [21] The third of the proposed grounds for the application concerns the requirements of s11 of the Act. Our impression of Randerson J's judgment on this point is that it states orthodox views in relation to what is required under the statute for a subdivision to receive a resource consent. This part of the judgment is obiter and no doubt included to assist the parties as to how both should proceed in relation to future applications concerning the land.[22] It may be that in an appropriate case it will be possible for at least some of the theories of Mr Mawhinney, which he seeks to advance by way of a second appeal, to challenge the prevailing views of what the Act requires. In the present case however the underlying basis for the applicants to challenge the construction of s11 is absent. The applicants cannot continue with the proceedings the subject of the appeal in any event because they have not observed the statutory requirements. In those circumstances there is no proper basis for them to bring a second appeal. [23] Mr Mawhinney sought to advance numerous other arguments in the appeal on the scheme of the Resource Management Act as it relates to subdivisions and resource consents. He sought first to attack the City Council's conclusion that a resource consent for the discharge of stormwater was necessary in the circumstances. The arguments included: (a) Natural rainfall did not fall within the scope of s15 of the Resource Management Act, which requires express consent to discharge water into water. (b) There would be no discharge by the intending appellant because he intended to sell the land to a developer, so he did not require a discharge permit; (c) The applicable District Plan did not require a permit to be obtained in the circumstances, but the Environment Court was misled by an out-of-date version; (d) On the facts, the Environment Court incorrectly concluded that the area was "floodprone", and consequently that a consent was required; [24] He also undertook a detailed analysis of the particular subdivision plans, and the Judge's discussion of them. [25] Alternatively, the applicant contended that his request for a certificate of compliance from the Regional Council in relation to discharge satisfied therequirement, under s91, that he apply for a consent, with the consequence that the deferral by the City Council could not continue. [26] Mr Mawhinney also sought declarations concerning his responsibilities to supply information to the Regional Council for the purposes of determining his application. [27] Finally, the applicant complained of failures of natural justice in the hearing of his applications. [28] Again, our view that the applicant cannot continue with the proceedings makes it inappropriate to consider the substance of these arguments in a second appeal. [29] For these reasons the application for special leave to appeal is dismissed. The respondents are awarded costs of $3000 together with reasonable disbursements, including the travelling and accommodation costs of counsel where appropriate, to be agreed by counsel or failing agreement to be fixed by the Registrar.Solicitors: Kensington Swan, Auckland for Respondents