QUEENSTOWN LAKES DISTRICT COUNCIL V HAWTHORN ESTATE LIMITED AND ANOR CA CA45/05

QUEENSTOWN LAKES DISTRICT COUNCIL V HAWTHORN ESTATE LIMITED AND ANOR CA CA45/05 20 May 2005IN THE COURT OF APPEAL OF NEW ZEALAND CA45/05BETWEEN QUEENSTOWN LAKES DISTRICT COUNCIL Applicant AND HAWTHORN ESTATE LIMITED First Respondent AND T BAILEY AND OTHERS Second Respondent Hearing: 16 May 2005 Court: Anderson P, O'Regan and Robertson JJ Counsel: E D Wylie QC and N S Marquet for Appellant N H Soper and J R Castiglione for First Respondent No appearance for Second Respondent Judgment: 20 May 2005JUDGMENT OF THE COURT A. Special leave to appeal is granted in relation to Questions B,C and D in the applicant's application for special leave. B. Special leave to appeal is declined in relation to Question A in the applicant's application. C. The Council is entitled to costs of $1500 plus usual disbursements.REASONS(Given by O'Regan J)Introduction[1] The applicant, Queenstown Lakes District Council, seeks special leave to appeal to this Court from a judgment of Fogarty J (HC CHCH CIV 2004-485- 001445 17 December 2004). In that judgment, Fogarty J had dismissed an appeal by the Council and another by 13 other parties against a decision of the Environment Court setting aside a decision of the Council declining a resource consent application made by the first respondent Hawthorn Estate Limited (Hawthorn). The effect of the Environment Court decision was that Hawthorn was granted consent to undertake a subdivision of a 33 hectare property near Queenstown into 32 residential lots. One of the features of the proposed subdivision is the undertaking of earthworks to create a number of ponds and mounds on the property. [2] The Council sought leave from Fogarty J to appeal to this Court and he granted leave in relation to one question of law, namely "whether the consent authority when applying s 104(1)(a) (pre-amendment 2003) could take into account the prospect of houses being built upon approved building platforms, as part of the 'receiving' environment?" The Council had sought leave to appeal in relation to five issues, none of which was in the form of the question in respect of which leave was granted. [3] The application for special leave, although in slightly different terms from the application for leave made in the High Court, effectively renews the Council's application to bring four out of the five questions to this Court on appeal. It no longer pursues the fifth question. The four questions on which special leave is now sought are as follows:A. Earthworks1. Whether His Honour Justice Fogarty erred in law when he determined:(i) that there was no substance to the argument that the application made by the first respondent for resource consent was deficient, because it did not specifically separate out as an application for a separate resource consent undertaking the earthworks to create the ponds and mounds which formed part of the first respondent's proposal; (ii) that any inadequacy in the appellant's notification of the application could not be visited upon the first respondent; (iii) that the authorities relied on by the appellant only applied where an application had been varied; (iv) that there was no prejudice.B. The Receiving Environment – Baseline AnalysisWhether His Honour Justice Fogarty erred in law when he determined (either expressly or by implication): (i) that the receiving environment should be understood as including not only the environment as it exists but also the reasonably foreseeable environment; (ii) that it was not speculation for the Environment Court to take into account approved building platforms in the triangle and on the outside of the roads that formed it; (iii) that the Environment Court had given adequate and appropriate consideration to the application of the permitted baseline.C. Landscape Category "Other Rural Landscape"Whether His Honour Justice Fogarty erred in law when he determined that the Environment Court had not erred in law in concluding that the landscape category it was required to consider was an "Other Rural Landscape".D. Reliance on Minimum Subdivision Standards in the Rural Residential ZoneWhether His Honour Justice Fogarty erred in law when he held that the Environment Court had not erred in law when it considered the minimum subdivision standards in the Rural Residential zone in addressing the first respondent's proposal which is in a Rural General zone.[4] It was common ground that Questions B, C and D were inter-related, in that the answers to Questions C and D depend on the answer to Question B. We will therefore consider Question A separately, and then consider Questions B, C and D together.Statutory test[5] The application for special leave is made under s 144 of the Summary Proceedings Act 1957, which applies in the present circumstances: s 308 of the Resource Management Act. Under s 144(3), this Court may grant special leave to appeal "if in the opinion of [this Court] the question of law involved in the appeal is 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". As this Court said in R v Slater [1997] 1 NZLR 211 at 215, there must be: (i) A question of law; (ii) The question must be one which, by reason of its general and public importance or for any other reason, ought to be submitted to the Court of Appeal; and (iii) The Court must be of the opinion that it ought to be so submitted.Question A[6] This question arises because the Application for Resource Consent filed by Hawthorn with the Council did not expressly seek consent to undertake earthworks on the site. In fact, extensive earthworks will be needed to create the ponds and mounds which are part of Hawthorn's proposal. This point was raised in the Environment Court, which determined that no reasonable person reading the application could have been unaware that considerable earthworks would be required to achieve the features of the proposed development. The Environment Court therefore consented to the application in terms which included the undertaking of earthworks (as long as no fill was brought onto the site). That finding was upheld in the High Court. Fogarty J rejected the argument that the application was deficient because it did not specifically separate out as an application for separate resource consent the undertaking of the earthworks required to create the ponds and mounds.[7] The Council wishes to renew the argument in this Court. It says that a question of law is involved because it is a matter of interpreting the application, which is essentially a legal question. It says that if the lower Courts were wrong in their interpretation, and the application did not extend to earthworks, then neither Court had jurisdiction to consider the proposed earthworks. It says this also affects the notification requirement, because the proposal was notified in a way which also did not specifically mention earthworks. It argues that the jurisdiction and notification issues make the issue a matter of general and public importance justifying a further appeal to this Court. [8] Hawthorn argues that the Environment Court applied the test for deciding the scope of an application set out in AFFCO NZ Limited v Far North District Council (No 2) [1994] NZRMA 224 at 234 and Epsom Normal Primary School Board of Trustees v Auckland City Council Planning Tribunal A11/95 22 February 1995 at 3- 5, and reached a conclusion which was open to it. It said that the matter was essentially a factual issue and that none of the points referred to in Question A raised any matter which could be said to be of general and public importance. [9] We are not persuaded that the questions outlined in Question A are questions of law. Even if they are, they are fact specific and are not matters of general and public importance. We agree with Fogarty J that there is nothing in this issue upon which this Court can give guidance. In those circumstances, we decline special leave in relation to Question A.Questions B, C and D[10] As noted earlier, Fogarty J has already given leave in relation to a question of law relating to the way in which approved building platforms are to be taken into account in assessing the receiving environment. So Question B is effectively already before this Court, albeit in a different form from that suggested by the Council in its application for special leave. We think it is also clear that if the appeal was heard on the basis of the leave granted in the High Court, and the Council were successful, it would become necessary for the matter to be remitted to the Environment Court for the consideration of the issues raised by Questions C and D.[11] In those circumstances, the application for special leave is unusual in that the argument centres on the form of the questions of law coming before this Court, rather than on the question of whether there should be an appeal at all. We must say we find the form of the questions rather convoluted and infelicitously expressed. It is not helpful to have a so called question of law posited as whether one Court erred in law in finding that another Court had or had not erred in law. The question engaged by C, for example, is whether the landscape category in issue was or was not as a matter of law within the scope of "Other Rural Landscape". When so put the real question may in reality be entirely factual or a mixed question of law and fact, and the issue of general or public importance may be harder for the applicant to carry. [12] However, the Council submits that if the High Court was wrong in its conclusion that the receiving environment is not an environment as it exists, but as it may be if potential use and development occurs, then the High Court findings in relation to Questions C and D will be wrong. We accept that submission. In those circumstances, it seems to us that it is preferable that the issues come before this Court in a way which allows this Court to address the potential impact of the issues raised in Questions C and D if this Court allows the appeal on Question B. If the matter comes before this Court on the basis of the leave granted in the High Court, this Court would effectively be required to send the matter back to the Environment Court to deal with Questions C and D again, if it allowed the appeal on Question B. While that may be an appropriate course, we think that it is preferable that this Court has the option of dealing with Questions C and D itself, to obviate any further prolonging of this already protracted litigation. [13] On balance, we accept the Council's submission that it is preferable that Questions B, C and D be brought to this Court together. We are also satisfied that the wording of Question B as proposed by the Council provides a better basis for consideration of the issue than the formulation proposed by Fogarty J. Fogarty J's formulation is expressed as being limited to consideration of the receiving environment under s 104(1)(a), which may be unduly limiting.Result[14] We therefore grant special leave to the Council to appeal to this Court on Questions B, C and D above. We decline special leave in relation to Question A.Costs[15] We award costs to the Council of $1500, plus usual disbursements.Solicitors: Ross Dowling Marquet Griffin, Dunedin for Applicant Anderson Lloyd Caudwell, Dunedin for First Respondent