MAWHINNEY V AUCKLAND COUNCIL HC AK CIV-2011-404-002143

MAWHINNEY V AUCKLAND COUNCIL HC AK CIV-2011-404-002143 [3 August 2012]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCIV-2011-404-002143[2012] NZHC 1943BETWEEN PETER WILLIAM MAWHINNEY (ASTRUSTEE OF THE WAITAKEREFOREST LAND TRUST) ANDSUCCESSORSAppellantAND AUCKLAND COUNCILRespondentHearing: 1 August 2012Appearances: The Appellant in personG Hewison and NJ Amos for RespondentJudgment: 3 August 2012JUDGMENT OF TOOGOOD JThis judgment was delivered by me on 3 August 2012 at 5:00 pmPursuant to Rule 11.5 High Court RulesRegistrar/Deputy RegistrarG Hewison, Kensington Swan, Auckland: grant.hewison@kensingtonswan.comP Mawhinney: waitakereforest@xtra.co.nz[1] The trustees of the Waitakere Forest Land Trust ("the trustees"), of which Peter William Mawhinney ("Mr Mawhinney") is a one, wish to subdivide some landso they applied to the applicable local authority, then the Waitakere City Council("the WCC"), for consent under the Resource Management Act 1991 ("the RMA"). 1The WCC determined not to proceed with consideration of the two applications on the grounds that they were incomplete and/or incorrect because other resource consents would also be required and the other applications should be made for the purpose of enabling the WCC to better understand the nature of the proposal.2 The Trust applied to the Environment Court under s 91(3) of the RMA for an orderrevoking the WCC's determination to defer the subdivision applications. The application for revocation was declined and the WCC's determination upheld in adecision issued on 16 March 2011.3[2] In his capacity as trustee, Mr Mawhinney appealed to this Court under s 299of the RMA against the Environment Court's decision, seeking an order revoking the determination not to proceed with the notification or hearing of the subdivision consent application. By the time the notice of appeal was filed, the Waitakere City Council had been disestablished. The Auckland Council ("the Council") is now therelevant local authority and is the respondent in the proceeding.[3] On 6 December 2011, Woodhouse J adjourned an application by the respondent to strike out the appeal so that it would be heard with the substantive appeal. The Judge made timetabling directions which included the following:[4] Following discussions with Mr Mawhinney and Mr Hewison the following directions are made:...(b) The appellant is to pay security for costs in a sum of $3,500. This is in excess of the standard security which Mr Mawhinney accepted would have to be paid. The reasons for directing security in this sum are essentially as set out in the memorandum for the respondent dated 27 April 2011 at paragraph 3(e).1 Resource Management Act 1991, ss 87(b) and 88(1).2 Ibid, 91(1).3 Alex Simpson Ltd v Auckland Council [2011] NZEnvC 58.(c) The sum of $3,500 for security is to be paid into Court, on or before Wednesday, 29 February 2012. This extended date for payment was sought by Mr Mawhinney and, in the end, was not opposed by the respondent.(d) If the security is not paid by 29 February 2012 the proceeding will be stayed.(e) If the proceeding is stayed because of failure to pay the security by 29 February 2012, the following directions will not apply and if the appellant wishes to proceed he must pay the security into Court and at the same time apply for further directions. The application for further directions is to be made by memorandum with a copy to be served on the respondent.[4] Mr Mawhinney did not pay security for costs into Court by the due date. It is common ground that the effect of the order made by Woodhouse J in paragraph [4](d) is that this proceeding is currently stayed.[5] On 5 March 2012, the Council applied for an order under r 20.13(5) of the High Court Rules dismissing the appeal or, alternatively, an "unless order" directingthat the proceeding be automatically dismissed unless, within 15 working days of the order, Mr Mawhinney pays the security for costs of $3,500 in accordance with the Minute of Woodhouse J dated 6 December 2011, plus the costs of the application.[6] An alternative ground advanced is that the appeal should be dismissed because the appellant had failed to comply with directions of the Court under r 7.5.[7] Mr Mawhinney opposed the dismissal application, arguing:(a) the proceeding having been stayed by operation of the order of Woodhouse J on 6 December 2011, it was not open to the Court to dismiss the appeal; and(b) genuine progress had been made in respect of other matters to provide him with the ability to meet the order for security for costs, but payment had been delayed despite best endeavours and –(i) the Council was not prejudiced by the stay remaining in force indefinitely; or(ii) alternatively, further time to pay security should be extended to him before the appeal was dismissed for non-payment of security.[8] Before I turn to address the arguments advanced by the parties in relation to the application to dismiss the proceeding, it is necessary to refer to steps taken by Mr Mawhinney in respect of the subdivision consent application before the Council which have implications for the parties and which go some way to explaining theCouncil's position.[9] The essential issue raised made by Mr Mawhinney before the Environment Court, and the one he wishes to argue in this appeal, is whether the Council was right to require the Trust as an applicant for subdivision consent to seek other resource consents in circumstances where there was not, or may not be, any immediateintention to implement subdivision plans. I apprehend it to be the Trust's position that it would endeavour to sell the land as having potential for subdivision, consent having been obtained, without carrying out any subdivision work itself.[10] Without in any way intending to prejudice his rights to pursue the appeal, Mr Mawhinney (on 27 February 2012 – two days before expiry of the time for paying security into this Court) lodged a resource consent application with the Council, seeking a land use consent, a water permit and a discharge permit in relation to the subdivision consents which are the subject of the appeal ("the firstsubsequent application"). That application was rejected by the Council on 2 March 2012 on the grounds that it was incomplete and was returned to Mr Mawhinney in accordance with s 88(3) of the RMA.[11] Mr Mawhinney objected to the return of the applications in accordance with s 357 of the RMA.[12] On 4 March 2012 Mr Mawhinney filed a second subsequent application in respect of the subdivision consents, seeking the same type of consent and permits as in the first subsequent application but in different terms. While the merits of the application are not relevant to any matters arising on the present application, Iobserve that the consents sought in the second application included consents to remove a gorse bush six inches high; to carry out earth works involving one spoonful of soil and to deposit it one millimetre away from where it is excavated; and to divert one cubic centimetre of rainwater falling in the subject land on one occasion one millimetre away from its natural water course. The nature of the consents sought appears to have been cast in such a way as to highlight Mr Mawhinney's principalargument that such consents should not be required in order to grant the subdivision consent, and to increase the prospect that the consents would be granted without more.[13] The ironic tone of the second application may have been lost on the Council'sofficers who rejected them as being incomplete and who sought, among other things,"a detailed and accurate description of the proposed activities".[14] The extent of the Council's statutory obligation to deal with objections made under s 357(3) of the RMA in a timely manner is relevant to the question of prejudice which it is said the Council will suffer if the appeal is not dismissed but is instead left in a dormant condition, subject to the stay, indefinitely.[15] I was greatly assisted in considering this application by the constructive approach taken both by counsel for the Council and Mr Mawhinney.[16] Mr Mawhinney's first argument in respect of the application for dismissal under r 20.13(5) was founded on an argument that Woodhouse J had made comprehensive orders for the future conduct of the proceeding which precluded an order for dismissal. He argued that the order in paragraph [4](e) of the timetabling order was to the effect that if the proceeding was stayed (as is now the case) he had a right to revive the proceeding by paying the security into Court and applying for further directions. That right should not be taken away, Mr Mawhinney submitted, by dismissal under r 20.13(5).[17] Mr Mawhinney recognised in argument, however, that it would be inconsistent with the Court's management of its own processes to hold that anappellant in his situation would have an irrevocable right to have proceedings stayed indefinitely.[18] He acknowledged that the Court would, at an appropriate time, want to have the proceeding "off its books" after a period of inactivity.[19] There is nothing in r 20.13(5) which limits the general discretion provided by reason of the proceeding being stayed. Undue delay in finally resolving the appeal would be an obvious ground upon which a Court might exercise its power of dismissal under that rule. Mr Mawhinney accepted that prejudice to the respondent would be a basis upon which the Court could exercise its discretion. In the end, he accepted that the issue for determination was whether the Council would suffer undue prejudice if the appeal was allowed to remain on foot but stayed for a further period. Mr Mawhinney said that his principal argument was that the Council would suffer no prejudice through the status quo being maintained, at least at the moment, but that, in any event, he was confident he would be in a position to pay security of costs by the end of this year. In fact, he said, he believed funds would be available to him within two months.[20] Mr Hewison acknowledged that no third party interests were affected by the stay and that it appeared to be in Mr Mawhinney's interests to pursue the appeal promptly once he met his obligation to pay security. But, he said, the Council was under a statutory obligation "under s 357C(4)(a)" to set the objections down for a hearing "as soon as reasonably practicable". He said that, although it might beconceded that the expression "as soon as reasonably practicable" involved a degree of elasticity which could accommodate the impracticality of pursuing the objections hearing while the present appeal remained unresolved, councils were under pressure to deal with Resource Management Act matters promptly. He also submitted that if the objections hearing and any subsequent appeal to the Environment Court were pursued, the resources applied by the Council to that work would be wasted if, subsequently, Mr Mawhinney resurrected this appeal and won, with the result that the proceedings related to the subsequent resource consent applications would be rendered unnecessary.[21] I am not persuaded that the obligation on the Council to continue to deal with Mr Mawhinney's objections to the rejection of the first and second subsequent resource consent applications in a timely manner provides any basis for an argument that the Council will be prejudiced by the appeal remaining on foot but stayed pending Mr Mawhinney's continued attempts to find the means to pay the securityfor costs.[22] The objection having been made under s 88(5) of the RMA, the Council'sobligation was to consider the objection within 20 working days.4 It has done that. It appears that, upon expressing a view that the objection should not be sustained, the Council allows an objector to apply for a hearing of the objection by an independent commissioner. Although it might be regarded as fitting within a broad interpretation of s 357C, that procedure is not mandated by the Act which simply requires the Council to provide the objector with not less than five days' notice of the date andtime of the hearing of the objection.5 The reference to the Council dealing with an objection "as soon as reasonably practicable" appears in sub-section (4) of s 357C, but that provision does not apply because Mr Mawhinney's objection was not made under s 357B. In any event, the obligation is to "consider the objection", notnecessarily to determine it.[23] Put at its highest, the continuing existence of the appeal in a suspended state is no more than an administrative irritation to the Council. Mr Mawhinney is not pressing the Council to deal with his objections; his primary focus is to find the money to pay the security for costs and get the appeal heard. That is clear because his principal purpose in bringing the appeal is to overturn the Council's requirement that he should make the additional resource consent applications which are the subject of the objection procedures. I do not consider the Council to be under any obligation to press on with a hearing of the objections until after this appeal is determined, either on the merits or by being struck out.[24] The effect of the stay is to relieve the Council of any burden of continuing expenditure of resources in opposing the appeal, until such time as Mr Mawhinney is4 Section 357C(3)(a).5 Section 357C(3)(b).able to revive it. Striking out an appeal altogether because the appellant has limited resources to pursue it is not a step to be taken lightly; the prejudice of denying Mr Mawhinney the opportunity to argue the issues raised in the appeal weighs far more heavily in the balance than the inconvenience the Council claims it will suffer through maintenance of the status quo.[25] Nevertheless, proceedings in this Court should be determined in a just, speedy and inexpensive manner,6 as was recognised by Mr Mawhinney during argument. He sought an effective extension of time to arrange the payment of security for costs of two months; Mr Hewison indicated that although that was longer than the Council would consider appropriate he could not, in the end, offer any serious objection to it. However, I raised the prospect that greater inconvenience was likely to be caused to the parties and the Court if, close to the expiry of a further two month period of grace, Mr Mawhinney considered a further extension should be sought.[26] In the circumstances, after discussion with counsel and Mr Mawhinney at the hearing, I propose to make an unless order which will give Mr Mawhinney until mid-November to pay the security and file a memorandum for timetable orders. That means that by the end of the year the parties will know whether the appeal has been dismissed, or if it is to continue, the basis upon which they should approach it.[27] I vary the timetable orders made by Woodhouse J on 6 December 2011 by deleting paragraphs [4](c) to (j) inclusive and replacing them with the following:(a) The sum of $3,500 for security is to be paid into Court, on or beforeFriday, 16 November 2012.(b) If the security is not paid by 16 November 2012, the appeal will be dismissed subject to the reservation of costs if the respondent wishes to apply.6 High Court Rules, r 1.2.(c) Upon payment of the security for costs on or before 16 November 2012 –(i) the proceeding is to be set down for a one-day hearing to hear the application to strike out and the substantive appeal;(ii) the proceeding is to be placed in a Duty Judge List on a date and at a time convenient to the parties and the Court beforeFriday, 14 December 2012;(iii) Not less than five working days before the call of the proceeding in the Duty Judge List, Mr Mawhinney is to serveon the respondent's solicitors a draft timetable for the steps referred to in paragraph [4](g) of Woodhouse J's Minute of6 December 2011;(iv) the parties shall file either a joint memorandum or separate memoranda dealing with timetabling issues no later than the day before the proceeding is called.[28] The Council asked that any unless order should be conditional upon not only the payment of the amount of security for costs but also costs on the dismissal application. I am disinclined to award costs on this application since, to a degree, each party has been successful and I have found that, in the end, the primary basisfor the Council's application, namely prejudice, is not tenable but I make no decision on the point now. Notwithstanding the usual rule that costs on interlocutory applications should be fixed at the time the application is determined,7 I direct that costs on the application be costs in the cause and reserved for further consideration, if necessary, in conjunction with any application for costs on the substantive appeal................................................... Toogood J7 Rule 14.8(1)(a).