REMARKABLES PARK LTD v QUEENSTOWN AIRPORT CORPORATION LTD [2018] NZHC 269

REMARKABLES PARK LTD v QUEENSTOWN AIRPORT CORPORATION LTD [2018] NZHC 269 [1March 2018]IN THE HIGH COURT OF NEW ZEALANDINVERCARGILL REGISTRYI TE KŌTI MATUA O AOTEAROAWAIHŌPAI ROHECIV-2017-425-000035[2018] NZHC 269BETWEEN REMARKABLES PARK LIMITEDAppellantAND QUEENSTOWN AIRPORTCORPORATION LIMITEDRespondentHearing: 4 December 2017Appearances: R J Somerville QC and B P Milo for the AppellantM E Casey QC and C J Somerville-Frost for the RespondentJudgment: 1 March 2018JUDGMENT OF NATION JContentsBackground .............................................................................................................. 1The legislative and legal context in which the Environment Court made itsdecisions ..................................................................................................................11The first interim decision - 25 September 2012 ..................................................... 18First final decision of Environment Court – 8 May 2013 ...................................... 26High Court judgment - 12 September 2013 ........................................................... 29The Environment Court's legitimate expectation decision - 26 November 2014 .. 36The separation distance decision – 22 December 2015 ......................................... 44The final decision of the Environment Court - 31 March 2017 ............................. 55Issues on appeal...................................................................................................... 61Were there errors of law in the way the Environment Court consideredthe criteria in s 171(1)(b) RMA could be satisfied and whether satisfyingthose criteria allowed the Environment Court to confirm the designation? 74Were there errors of law in the way the Environment Court consideredwhether the requirements of s 171(1)(c) RMA had been satisfied? 101Were there errors of law in the way the Environment Court addressed orfailed to address Part 2 matters? 114Were there errors of law in the way the Environment Court had regardto RPL's legitimate expectations in considering the issues which it hadto decide? 125Separate from the above issues, were there other respects in which, ina way that was material to the decision it reached, the EnvironmentCourt failed to consider relevant evidence? 139Other matters 147Application to admit new evidence ...................................................................... 148Conclusion............................................................................................................ 167Background[1] In October 1997, the appellant, Remarkables Park Limited (RPL), and therespondent, Queenstown Airport Corporation Limited (QAC), entered into land useand transfer agreements. QAC acquired from RPL some land north of its existingairport. RPL acquired land to the south of the airport (Lot 6). It agreed QAC wouldnot make any claim or requirement regarding Lot 6 other than as an air noiseboundary, airport approach or land use controls, and any air purposes designationthat QAC needed to maintain for the continuing operation of the airport inaccordance with agreed present and future layouts. RPL agreed to use Lot 6 only forrural and/or recreational uses, and infrastructural utilities not of a noise-sensitivenature.[2] QAC's airport land and a small area of land it owns to the north of the airportare subject to an existing airport designation in the Queenstown Lakes District Plan(District Plan). It provides for and protects QAC's right to use the area of thisdesignation for current airport purposes. The airport is one of the busiest airports inNew Zealand and the largest regional airport.[3] QAC wanted to provide for the expansion of Queenstown airport to meetprojected growth while achieving, as far as possible, the maximum operationefficiency. It issued a notice of requirement (NOR) seeking a designation over anadditional 19 hectares within Lot 6 to achieve this objective. With this additionalland, it was proposing to build a precision approach runway and a parallel taxiway,and provide additional space for other aviation activity including the relocation ofsmaller and private aviation operations (GA – General Aviation) and helicopters.The NOR was lodged with the Environment Court for consideration on 21 December2010.[4] The airport land (which is subject to an existing airport designation), thefurther land in respect of which QAC was seeking the new designation in the NOR,and RPL's land to the south is usefully shown in a plan of the area which wasproduced earlier by RPL in the proceedings and which was attached to an earlierjudgment of the High Court. This is attached to this judgment as Annexure A.[5] Mr Somerville QC, counsel for RPL, told me that RPL's fundamentalobjection and concern to the designation was the way in which the planned extensionof airport facilities into Lot 6 would detract from the amenities enjoyed or able to beenjoyed by users of RPL land further to the south of Lot 6, the area shown in theDistrict Plan as the Remarkables Park zone.[6] The Environment Court considered the effects of the NOR designation onRPL's land in its decisions of 25 September 2012 (the first interim decision) and 8May 2013 (the first final decision). In short, the Court found that, provided certainmitigation measures were put in place, the noise effects on RPL's land would notpreclude future development on that land or create any annoyance over and abovewhat would be expected by ordinary growth in aircraft movements.[7] The Court also found the effects to landscape and visual amenities, and theeffects arising out of roading and traffic issues, could be satisfactorily managed. Inthe first final decision, it approved conditions relating to these issues, some based onagreements previously reached between the parties and others arising from theCourt's decision on matters in dispute.[8] The adequacy of those conditions to meet the identified environmental issueshas not been the subject of any further disagreement between the parties,notwithstanding the fact the extent of the NOR designation over Lot 6 hassubsequently increased. However, the designation itself has given rise to numeroushearings and decisions in the Environment Court and one earlier appeal to the HighCourt. These are discussed below. In its final decision of February 2017, the subjectof the present appeal, the Environment Court confirmed the designation over Lot 6.[9] In summary, RPL now asserts the Environment Court should not haveconfirmed the designation to the extent it did over Lot 6 because QAC land to thenorth of the airport is available for the purposes for which the designation isrequired. The Court's decisions can however be appealed only on the basis of errorsof law.[10] In its amended notice of appeal, RPL referred to 18 errors and 13 questions oflaw for this Court to consider. Before I refer to those, I summarise:(a) the legislative and common law framework in which they are said tohave arisen; and(b) the decisions of the Environment Court and High Court out of whichthey have arisen.The legislative and legal context in which the Environment Court made itsdecisions[11] The NOR was referred to the Environment Court by the Minister for theEnvironment pursuant to s 147(1)(b) Resource Management Act 1991 (RMA).Section 149U required the Environment Court to consider certain matters, being:(a) The Minister's reasons for making the direction; and(b) The information provided by the Environmental Protection Authority.[12] Because the matter referred to the Environment Court involved a designation,s 149U(4) applied, meaning the Court:(a) must have regard to the matters set out in section 171(1) and complywith section 171(1A) as if it were a territorial authority; and(b) may—(i) cancel the requirement; or(ii) confirm the requirement; or(iii) confirm the requirement, but modify it or impose conditions on itas the court thinks fit; and(c) may waive the requirement for an outline plan to be submitted undersection 176A.[13] Section 171(1A) and (1) provides:171 Recommendation by territorial authority(1A) When considering a requirement and any submissions received, aterritorial authority must not have regard to trade competition or theeffects of trade competition.(1) When considering a requirement and any submissions received, aterritorial authority must, subject to Part 2, consider the effects on theenvironment of allowing the requirement, having particular regardto—(a) any relevant provisions of—(i) a national policy statement:(ii) a New Zealand coastal policy statement:(iii) a regional policy statement or proposed regional policystatement:(iv) a plan or proposed plan; and(b) whether adequate consideration has been given to alternativesites, routes, or methods of undertaking the work if—(i) the requiring authority does not have an interest in the landsufficient for undertaking the work; or(ii) it is likely that the work will have a significant adverse effecton the environment; and(c) whether the work and designation are reasonably necessary forachieving the objectives of the requiring authority for which thedesignation is sought; and(d) any other matter the territorial authority considers reasonablynecessary in order to make a recommendation on therequirement.[14] The relevant Part 2 provisions are s 5:(1) The purpose of this Act is to promote the sustainable management ofnatural and physical resources.(2) In this Act, sustainable management means managing the use,development, and protection of natural and physical resources in a way,or at a rate, which enables people and communities to provide for theirsocial, economic, and cultural well-being and for their health and safetywhile—(a) sustaining the potential of natural and physical resources(excluding minerals) to meet the reasonably foreseeable needs offuture generations; and(b) safeguarding the life-supporting capacity of air, water, soil, andecosystems; and(c) avoiding, remedying, or mitigating any adverse effects of activitieson the environment.And ss 7(b), (c) and (f):In achieving the purpose of this Act, all persons exercising functions andpowers under it, in relation to managing the use, development, andprotection of natural and physical resources, shall have particular regard to—(b) the efficient use and development of natural and physical resources:(c) the maintenance and enhancement of amenity values:(f) maintenance and enhancement of the quality of the environment.[15] On its earlier appeal to the High Court, RPL contended the EnvironmentCourt, in its first interim decision, had erred in not considering fairness as a relevantconsideration in designation proceedings. Specifically, RPL claimed theEnvironment Court had erred in not considering whether previous dealings betweenRPL and QAC involving land transfer, and other agreements concerning the use ofthe land, gave rise to a legitimate expectation on the part of RPL that QAC and theEnvironment Court would give due consideration to alternatives that did not involvethe taking of RPL's land acquired from QAC as part of the transfer agreement.[16] Whata J in the High Court held, consistent with earlier authority, that thedoctrine of legitimate expectation might be applied in the RMA context but theapplication of the doctrine would depend entirely on the facts of the particular case.1On the facts, Whata J held that the Environment Court had never correctly assessedthe designation claim based on legitimate expectation to the extent that might berelevant to the s 171 evaluation. Allowing the appeals in part, he referred theapplication back to the Environment Court to reconsider:2 the assessment of the adequacy of alternatives and reasonable necessityunder s 171(1)(b) and (c) after it has provided the parties with an opportunityto be heard in relation to RPL's legitimate expectation claims and thescarcity of industrial land.[17] In its decision of 26 November 2014 (the legitimate expectation decision),the Environment Court held that RPL had a legitimate expectation that QAC woulduse its own land for airport purposes and not RPL's land for undertaking the work.3The Environment Court's conclusion in this regard was not appealed by QAC. It isthus part of the legal context in which the Environment Court reached its subsequentdecisions.1 Queenstown Airport Corporation Ltd v Queenstown Lakes District Council [2013] NZHC 2347.2 At [148].3 Re Queenstown Airport Corporation Ltd [2014] NZEnvC 244.The first interim decision - 25 September 20124[18] In its first interim decision, the Environment Court recorded that, through theNOR, QAC sought to alter the designation in the District Plan to extend the area ofthe Queenstown Aerodrome by 19.1 hectares so that it could cope with the growth inaircraft movements and passenger numbers. To accommodate growth, the existingpassenger terminal and associated facilities would be expanded. That could occurwithin the existing designation but only if GA works were displaced from theirpresent location. The NOR was thus sought on the basis it would facilitate therelocation of GA to enable the expansion of the passenger terminal and its associatedfacilities. The requirement for the designation was a strip of Lot 6 approximately160 metres in depth, lying parallel to the entire one kilometre length of the commonboundary of the airport and Lot 6.[19] The Court noted that key elements of the works contemplated with the NORincluded a Code B parallel taxiway adjacent to the cross-wind runway, a Code D5parallel taxiway adjacent to the main runway and a precision approach runway witha 300 metre width runway strip.[20] RPL accepted that GA would need to move from its present location, acondition established by uncontested expert evidence, and remaining in situ was notan alternative.[21] The Court noted that, because of s 171(1)(b)(i) RMA, a central issue in thecase was whether QAC gave adequate consideration to alternative sites, routes ormethods. It adopted the summary of principles applied as to this from the finalreport and the decision of the Board of Inquiry into the upper North Island upgradeproject.6 It thus noted the focus was on process, not the outcome. Section 171B didnot give the Court the authority to substitute its own choice amongst alternative sitesor to enter into an adjudication of the merits determining the best use of alternatives.4 Re Queenstown Airport Corporation Ltd [2012] NZEnvC 206.5 Code D aircraft are larger planes that require a precision approach runway. Jet aircraft operatingat Queenstown Airport fall into the Code C category, that is, they have a wingspan of between 24and 36 metres. Code D fall into two categories, those with smaller or larger wingspan between36 and 52 metres.6 Final Report and Decision of the Board of Inquiry into the Upper North Island Grid UpgradeProject Ministry for the Environment, Board of Inquiry, 4 September 2009 at [117] and [186].[22] The Environment Court found that within the planning horizon underconsideration there was no nexus between the NOR objective and enablement ofCode D aircraft operating at Queenstown airport. It found the predicted growth intourist numbers and need for more flights in and out of the airport could be metusing Code C aircraft. For that reason, it also found there was no nexus between theNOR's objective and the provisioning for an instrument precision approach runway.It said the consequence of this was that the lateral extent of the land required for thedesignation was reduced by 97.5 metres along the approximate 1,000 metre length ofthe common boundary with Lot 6, a total land area of 9.75 hectares. It also said thatit was not required to approve the Code C parallel taxiway because land within theexisting designation was available for that purpose.7[23] The Court then considered and discussed, as required by ss 171(1)(a)-(d),issues as to noise, landscape, amenities, traffic and transportation as alreadymentioned.8[24] The Environment Court then evaluated the NOR in terms of Part 2 of the Act.[25] The outcome of this first interim decision was that, pursuant to s149U(4)(b)(iii), the NOR was cancelled in respect of the land required for aprecision approach runway and Code D parallel taxiway. The decision on thebalance of the land required for designation was reserved pending the addressing ofCourt's concerns as to management of traffic, approval of an integrated design andmanagement plan, and revised designation conditions for an outline plan of theworks. Any decision to extend the aerodrome was to be for the sole purpose ofestablishing a GA/helicopter precinct. Other works enabled by the existingdesignation were not considered by the Court.First final decision of Environment Court – 8 May 2013[26] The Environment Court decided the designation would lapse within fiveyears after the date on which it is included in the District Plan, rather than the 10years which QAC had sought. The Court decided on appropriate conditions of the7 Re Queenstown Airport Corporation Ltd, above n 4, at [141].8 At [7].designation in the NOR regarding the purpose of the designation and the activitiesthat would be permitted within the aerodrome designation. It approved theconditions for traffic/access and other environmental matters, as already discussed.9[27] As part of its decision, the Court attached a plan prepared by QAC's airportplanner, Mr Munro, based on the reduced area approved by the Court in its firstinterim decision of 8.07 hectares. The plan was titled "Aviation Precinct ConceptPlan (optimised) Code C taxiway separation 93 metres", dated 9 November 2012.That plan is annexed to this judgment as Annexure B.[28] RPL and QAC both appealed the interim decision and the first final decisionof 8 May 2013. QAC identified five errors of law while RPL identified 12 errors oflaw.High Court judgment - 12 September 2013[29] Whata J recorded that, in the Environment Court, based on then acceptedexpert evidence, the parties had proceeded on the basis 93 metres was a sufficientseparation distance between the main runway and the parallel taxiway under thestandards for Code C aircraft. It had emerged after the interim decision that the CivilAviation Authority (CAA) might insist on a greater separation distance, potentiallyas much as 168 metres. The Environment Court had been advised accordingly.Whata J held that the efficacy of the separation distance of 93 metres was dependenton the approval of the Director of the CAA. If he required a greater separationdistance, a key component of the designation works could not then be enabledbecause QAC would not have sufficient land to make a parallel taxiway. A conditionwith that disenabling effect could not be lawful unless it was the product of athorough evaluation in terms of s 171. Whata J held the Environment Court haderred in not turning its mind to the potentially disenabling consequences of a 93metre limitation.[30] As already referred to, Whata J held the Environment Court had erred in notconsidering whether RPL had a legitimate expectation arising out of previous land9 At [9].transfer dealings with QAC, and that Lot 6 would not be used for aerodromedesignation purposes or, if it were so used, all alternatives not using RPL land wouldbe thoroughly explored.[31] With regard to RPL's submissions as to errors of law and questions regardingthe Environment Court's assessment of alternatives, Whata J recorded that thearguments advanced included that:10(a) the Court erroneously rejected an alternative site involving QAC ownedland to the north of the existing designation on the basis that it wassuppositious; and(b) the Court should have given weight to the absence of an assessment ofthis alternative by QAC.[32] It was in relation to those submissions that Whata J held the EnvironmentCourt had erred in referring to the scarcity of industrial land when that had not beenmentioned in submissions or evidence. Whata J held that an issue of proceduraljustice arose when the Environment Court resolved a substantive issue relying on itsown knowledge, without notice to the parties.[33] Whata J identified errors as to:11(a) the Court not having regard to the potential disenabling effect of amaximum separation distance of 93 metres between the main runwaystrip and the taxiway;(b) incorrectly excluding fairness as an irrelevant consideration;(c) not correctly assessing RPL's claims based on legitimate expectation; and(d) not providing RPL with an opportunity to address the issue of scarcity ofindustrial land and its relevance or otherwise to adequacy of theassessment of alternatives under s 171(b).10 At [116].11 At [144].He decided these errors were material to the decisions the Court had reached.[34] Whata J thus allowed the appeals in part and referred the application back tothe Environment Court to reconsider:12(a) Whether the requirement should be cancelled or modified after it hasprovided the parties with an opportunity to be heard in relation to theseparation requirements for a Code C taxiway and the process forconfirming those requirements.(b) The assessment of the adequacy of alternatives and reasonable necessityunder s 171(1) (b) and (c) after it has provided the parties with anopportunity to be heard in relation to RPL's legitimate expectationclaims and the scarcity of industrial land.[35] He said it would be for the Environment Court to determine how it proceededto reconsider the above matters and any consequential relief that might follow, if any,including but not limited to further modification or cancellation of the designation.13The Environment Court's legitimate expectation decision - 26 November 2014[36] The Environment Court, for reasons detailed in its judgment of 26 November2014, dealt with the matters remitted back to it by the High Court in stages. The firsthearing in March 2014 was in relation to RPL's legitimate expectation claims, theissue over the scarcity of industrial land and reconsideration of the Court'sassessment of the adequacy of consideration given to alternative sites, and thereasonable necessity for the works and designation under s 171(1B) and (1C) in lightof those issues. It gave its decision in relation to those matters on 26 November2014. There was a further hearing in June and August 2015 for reconsideration ofthe separation distance requirements for a Code C taxiway and of the NOR in thecontext of those requirements.[37] The Environment Court held that RPL could not legitimately have expectedQAC to develop the airport layout in accordance with a plan associated with a deedwhich the parties entered into in 1997 nor that QAC would first have to obtainapproval from RPL for a layout that was different from that shown in that plan.1412 At [148].13 At [149].14 Re Queenstown Airport Corporation Ltd, above n 3, at [116].[38] The Environment Court recorded the agreement between QAC, RPL and AirNew Zealand (who were then also a party to the proceedings) that:15If the deeds and/or the course of dealings did give rise to a legitimateexpectation held by RPL, this would not be determinative of the NOR.Rather, the Court is to take into account RPL's expectations whenconsidering s 171 and part two of the Act and, ultimately, when exercising itsdiscretion whether to confirm the NOR (with or without modification) orcancel the notice.[39] The Environment Court found that RPL had a legitimate expectation thatQAC would use its own land for airport purposes and not RPL's land. Provided theuse of QAC's land met the statutory criteria and achieved the statutory purpose, itsaid fairness would implore this outcome.16[40] The Court then addressed the scarcity of industrial land issue in accordancewith the High Court's direction. It discussed the evidence relating to that andrecorded its findings on the issue.17[41] Having done that, it returned to consider s 171(1)(b), bringing into accountRPL's legitimate expectation as it had found it to be. It decided again that QAC hadgiven adequate consideration to alternative sites as required.[42] The Court said RPL's legitimate expectation that QAC use its own land,rather than RPL's, when undertaking this work was essential to the question ofwhether the work and designation was reasonably necessary under s 171(1)(c). Thatwas so, notwithstanding a finding that QAC had given adequate consideration to thealternative site and that the site would not achieve the purpose of the Act.18[43] The Court noted that QAC had not sought approval from the director of thethe CAA for the proposed extension to the aerodrome. The Court said the director'sdecision would affect the extent of the land required and whether the work anddesignation was reasonably necessary to meet the objective of its requirement.Without his decision, it could thus not finally determine s 171(1)(c) issues as to15 At [60].16 At [69].17 At [49].18 At [111].whether and to what extent the designation was reasonably necessary. The Courtindicated it would proceed with that consideration at the same time as it heard fromthe parties "in relation to the Code C taxiway separation distance and the process forconfirming those requirements".19The separation distance decision – 22 December 201520[44] The resumed hearing took place on 15-19 June and 20-21 August 2015. TheCourt recorded that during the hearing QAC led considerable new evidence insupport of a dual taxiway at Queenstown airport comprising the existing Code Bchip-seal taxiway and a new Code C taxiway.[45] In discussing the background to the further hearing, the Court said that the2012 evidence focused on whether the Code C taxiway should be located at adistance of 93 metres or 168 metres from the centre line of the main runway but thatscant attention was given to a dual taxiway either in the notice of requirement or inthe evidence. It said it was self-evident that a new dual taxiway could not beaccommodated within 93 metres of the main runway.[46] The Court found the purpose of the runway-taxiway separation distance wasto avoid or minimise the risk of aircraft colliding in the event one veers off the mainrunway.[47] Code C planes had to use the main runway to taxi for take offs and afterlandings. This limited the time the runway could be available for thearrival/departure of other aircraft. Because of separation distance requirements, theexisting taxiway suitable for Code B aircraft could not be used by helicopters orCode B aircraft if and when Code C aircraft were scheduled to be on the mainrunway. The risk experts for RPL and QAC advised their risk assessments for thetaxiway options had been undertaken on the same basis, that is that the Code Btaxiway would not be used when regular passenger transport aircraft were operatingon the main runway.19 At [112].20 Re Queenstown Airport Corporation Ltd [2015] NZEnvC 222.[48] The Court held that compliance with CAA criteria required a separationdistance of 168 metres. This was the minimum required separation distance from arisk perspective.[49] The Court said that, while a 93 metre separation distance was not anacceptable means of compliance with CAA rules, it had considered RPL'sproposition that the NOR objective would be achieved with a single taxiway locatedat a separation distance of 93 metres. The Court held that, to satisfy the relevantCAA safety criteria, a Code C taxiway at 93 metres would require operationalconstraints to be imposed which would " significantly affect the regularity ofoperations by aeroplanes" on the runway.21[50] The Court said it had kept in mind that the objective for the NOR was toprovide for the expansion of Queenstown airport to meet projected growth whileachieving the maximum operational efficiency as far as practicable. It decided thathaving a single Code C taxiway at 93 metres would not enhance the main runway'scapacity or provide QAC with the increase in the capacity that would be required.Operational controls would prevent simultaneous regular passenger transportoperations on the main runway and this taxiway. It thus found the objective for theNOR would not be met with a single Code C taxiway located at a separation distanceof 93 metres.[51] The Court also considered the possibility of a single taxiway located at aseparation distance of 168 metres. The Court concluded that, to achieve theoperational efficiency which was an objective of the NOR as well as having a CodeC taxiway at 168 metre separation from the main runway, there would also need tobe a dual taxiway system.[52] The consequence of the increase in separation distance was that, instead ofQAC requiring just over 8 hectares of RPL land for its designation, an area of around16 hectares would be required. The Court found that, even with the requirement forthis additional area of land, with a Code C taxiway located at a separation distance of21 At [158].168 metres, locating both Code C corporate jet, GA and helicopter facilities south ofthe main runway on Lot 6, would be an efficient use of the land.[53] The Court said it was satisfied that, subject to certain operational restrictions,a dual taxiway could operate safely. However, the Court said it was not yet satisfieda dual taxiway south of the main runway, together with the GA precinct andhelicopter final approach and take offs (FATO's), could be operationalised.[54] The Court adjourned the proceedings further because it considered QAC'sresponse to an approval given by the director of the CAA in respect of a dualtaxiway or, more generally, any operational restrictions that might be recommendedfollowing an aeronautical study, would be material to the Court's consideration of s171(1)(c), that is, whether the works and designation were reasonably necessary, andthe ultimate determination of the proceedings under Part 2 of the Act. It also said,"given the Court's uncertainty, at this junction, fairness would also implore thisoutcome in recognition of RPL's legitimate expectation".22The final decision of the Environment Court - 31 March 201723[55] In accordance with the directions of the Environment Court, QAC submittedan aeronautical study, including proposed changes to its exposition,24 to the directorof the CAA. The study addressed how the airport would be operated with theplanned dual taxiway, FATO helicopter area establishment and the new GA precinctin place.[56] Without considering a report prepared for RPL, which reviewed that obtainedby QAC, the CAA said QAC's proposal was deemed acceptable in that it compliedwith various CAA rules but noted: a task specific case will be submitted to provide more detailed mitigationfor the risk associated with each phase of the introduction to service of thenew aerodrome layout. Specifically the risks associated with the dualtaxiway, the new FATO and the GAP (General Aviation Precinct).22 At [270].23 Re Queenstown Airport Corporation Ltd [2017] NZEnvC 46.24 New General Aviation Precinct Proposed dual taxiway and FATO Operation (Astral Ltd,Aeronautical Study, 20 August 2016).[57] QAC asked the Court to release a final determination of the proceedings onthe papers. RPL opposed this and sought to call evidence as to whether theaeronautical study satisfactorily addressed the operational issues identified by theCourt and whether it demonstrated that the proposed arrangements could supportacceptable safe airport operations. After a pre-hearing conference, the EnvironmentCourt said it would allow a hearing with evidence limited to the assertion by QACthat it could not progress the intended works or establish any physical work until thedesignation was approved by the Court.[58] The Court accepted that the safety of the new aerodrome layout and how itwas to be operationalised by QAC had been assessed through the aeronautical studywhich QAC had engaged and the CAA had deemed acceptable. The Court noted thattask-specific safety cases would ensure that development of the airport wasimplemented and made operational in a safe way. The Court was satisfied that, withthe director of CAA's confirmation, QAC would remain compliant with itsaerodrome operating certificate. The proposal in the NOR could be operationalised.How that was to be achieved, in micro-terms, would appropriately be the subjectmatter of the task-specific safety cases in accordance with the Civil Aviation Act andits rules. The Court did not require QAC to furnish the Court with the task-specificsafety cases. Pursuant to s 171(1)(c), it found the works and designation werereasonably necessary to achieve the requiring authority's objective.[59] After further consideration as to Part 2 issues, the Court, pursuant to s149U(4) RMA, confirmed the notice of requirement to extend Designation 2, subjectto the conditions attached to its decision and approved by the Court in its first finaldecision.[60] It recorded the extent of the designation was shown in a plan attached to itsdecision entitled "Proposed additional land for designation area Code C taxiwayseparation 168 metres". This is attached as Annexure C. It confirmed thedesignation was to have a lapse period of five years from when it was included in theDistrict Plan. Attached as Annexure D is an indicative layout plan showing how thedesignation area on Lot 6 was to be used. This was included in the aeronauticalstudy which was considered at the final decision hearing.Issues on appeal[61] At the hearing, RPL asked the Court to consider 13 questions of law set outwith its amended notice of appeal. I deal with the grounds of appeal and posedquestions of law as advanced by RPL at the hearing under five headings:1. Were there errors of law in the way the Environment Court consideredthe criteria in s 171(1)(b) RMA could be satisfied and whether satisfyingthose criteria allowed the Environment Court to confirm the designation?2. Were there errors of law in the way the Environment Court consideredwhether the requirements of s 171(1)(c) RMA had been satisfied?3. Were there errors of law in the way the Environment Court addressed orfailed to address Part 2 matters?4. Were there errors of law in the way the Environment Court had regard toRPL's legitimate expectation in considering the issues which it had todecide?5. Separate from the above issues, were there other respects in which, in away that was material to the decisions it reached, the Environment Courtfailed to consider relevant evidence?[62] Under each heading, I set out the relevant grounds of appeal, the questionsput to the Court and my answers, followed by the reasons for those answers.[63] QAC argued that a number of the suggested questions of law that arose underthese different headings were not questions of law at all but are challenges to theEnvironment Court's evaluative process and findings of fact which cannot be thesubject of an appeal to the High Court.[64] Appeal rights are provided by ss 149V and 299 RMA and are only on"questions of law".[65] Mr Casey submitted this meant the High Court is not permitted to undertake amerit review of the Environment Court's conclusions. He said the only exception tothis principle was where the conclusions of the fact-finding court are clearlyinsupportable.25 That is, that there is "a state of affairs – in which the true and onlyreasonable conclusion contradicts the determination".26[66] Like Mr Casey, Mr Somerville referred to the statements of the SupremeCourt in Bryson v Three Foot Six Ltd and of the High Court in New ZealandTransport Agency v Architectural Centre Inc.27[67] Mr Somerville also referred to Countdown Properties (Northlands) Ltd vDunedin City Council, where the High Court said a question of law arises where theEnvironment Court:28(a) applied a wrong legal test; or(b) came to a conclusion without legal evidence or one to which, on theevidence, it could not reasonably have come; or(c) took into account matters which it should not have taken into account; or(d) failed to take into account matters which it should have taken intoaccount.The Court also noted that, for such an error to require the allowing of an appeal, ithad to have been material to the decision reached.[68] That summary is consistent with the way the Supreme Court summarised theposition in Bryson v Three Foot Six. Whata J considered matters in terms of thesummary above from Countdown Properties in his earlier High Court judgment. Ido the same.[69] QAC also contended that, in a number of respects, RPL were seeking toappeal decisions where the time for appeal had long passed or, alternatively, where,25 Bryson v Three Foot Six Limited [2005] NZSC 34, [2005] 3 NZLR 721 at [26].26 Edwards v Bairstow [1956] AC 14 at 36.27 Bryson v Three Foot Six Limited, above n 25; New Zealand Transport Agency v ArchitecturalCentre Inc [2015] NZHC 1991, (2015) ELRNZ 163.28 Countdown Properties (Northlands) Ltd v Dunedin City Council (1994) 1B ELRNZ 150 (HC).because issues had been determined as between the parties in earlier proceedings,RPL were estopped from appealing the Environment Court's decisions on thoseissues.[70] The time to appeal commences once a final decision has been made or anissue in the proceeding is finally determined.29 Determining whether a decision is"final" is a substantive enquiry and the labelling of a decision is not, in itself,determinative.30 The test is whether, in substance, the decision:31(a) decides the whole proceedings or, at least, one or more particular issueconclusively, (in which case the Court is functus officio on each suchissue); or(b) leaves the matter open for parties to return to the court with furthersubmissions and/or evidence notwithstanding the views expressed at theinterim stage.[71] Mr Somerville, for RPL, argued that, in this case, new issues had arisen withthe evidence as to the need for the dual taxiway system in 2015 and, on that basis,issue estoppel should not apply.32 He also referred to statements from the SupremeCourt cautioning against an over rigorous application of the issue estoppel doctrinein ways that could produce unfairness disproportionate to the object of achievingfinality in litigation.33[72] Mr Somerville suggested that, when considering issues under the RMA, theEnvironment Court, when appropriate, had to be able to revisit decisions it mighthave reached earlier because it was always required to assess what would be thefuture effects of proposals that it was considering, rather than what had alreadyhappened. He suggested the Court's consideration of issues involved an iterative29 Fox v Christchurch City Council HC Christchurch CIV-2008-409-898, 5 December 2008 at [49];Peninsula Watchdog Group (Inc) v Coeur Gold New Zealand Limited [1997] 3 NZLR 463 (HC)at 467.30 Gardez Investments Limited v Queenstown Lakes District Council EnvC Christchurch C95/05,July 2005 at [40], approved in Federated Farmers Inc v Mackenzie District Council [2013]NZHC 518.31 Gardez Investments Ltd v Queenstown Lakes District Council, above n 30, at [40].32 Link Technology 2000 Ltd v Attorney-General [2006] 1 NZLR 1 (CA).33 Arbuthnot v Chief Executive of the Department of Work and Income [2007] NZSC 55, [2008] 1NZLR 13 at [29].process. He referred to statements from judgments that the concept of issue estoppelwould have limited application in RMA cases.34[73] Appeals against Environment Court decisions had to be brought within 15days of the time such decisions had been made.35 Except to the extent theEnvironment Court had deferred making decisions on issues between the parties inits earlier decisions, the only decisions in respect of which RPL's appeals werewithin time were in the Environment Court's final decision of 31 March 2017.Were there errors of law in the way the Environment Court considered the criteria ins 171(1)(b) RMA could be satisfied and whether satisfying those criteria allowed theEnvironment Court to confirm the designation?[74] In its amended notice of appeal, RPL contended that:4.1 The Environment Court erred in finding that in accordance with s171(1)(b) of the Act, the QAC had given adequate consideration toalternative sites. That finding was made without undertaking a furtherevaluation in light of evidence concerning:a) The QAC's advice that a dual taxiway would form part of theNOR;b) New safety issues concerning the dual taxiway; and4.17 The Court wrongly exercised its discretion when it failed to take intoaccount evidence called on behalf of RPL concerning alternative sites.[75] As to those submitted errors, the questions of law and my answers are asfollows:5.1 Did the Court err in determining that the QAC had given adequateconsideration to relevant alternatives under s 171(1)(b) of the RMA?Answer: No, and because that issue had been decided between the partiesand was not subject to appeal, the issue could not be pursued further on thisappeal.34 Guardians of Paku Bay Association Inc v Waikato Regional Council [2012] 1 NZLR 271, (HC)at [61]; Man O' War Station Ltd v Auckland Council [2012] NZEnvC 84; Mawhinney v AucklandCouncil [2017] NZEnvC 145.35 Resource Management Act, s 300(1).5.14 Did the Court wrongly exercise its discretion when it:a) Failed to take into account evidence called on behalf of RPLconcerning alternative sites;Answer: No.[76] Section 171(1)(b) required the Environment Court to be satisfied thatadequate consideration had been given to alternative sites for undertaking the workinvolved in the designation because QAC did not own that part of Lot 6 which itneeded for undertaking the work involved with the extension of airport facilities.[77] No issue was taken with the Environment Court's statements in the interimdecision that s 171(1)(b) was concerned with process and whether, in the particularcircumstances of the case, there had been an adequate investigation of alternatives.If there had been, it was not for the Court to involve itself in considering the meritsof the various alternatives in comparison to the option in the designation.36[78] I am satisfied that, in its first interim decision, in applying s 171(1)(b), theEnvironment Court carefully assessed, on the evidence, whether QAC hadadequately considered alternatives to the NOR designation and the extension of theGA/helicopter precinct to the south over Lot 6. In particular, it had adequatelyconsidered the alternatives of the potential use of QAC land or other land to thenorth of the airport.[79] The Court referred to the evidence it had received in relation to this issue.The Court's overall conclusion, as to ss 171(1)(b) and 171(1)(c), was:[112] We conclude that there is an array of factors, including safety, whichmilitate against a northern location for a helicopter facility. Of these cost (tothe helicopter operator and other users of the Airport) is an importantconsideration, but it is not determinative. Section 171(1)(b) is satisfied aswe find that adequate consideration was given to alternative location of thehelicopter facility.36 See also: Queenstown Airport Corporation Ltd v Queenstown Lakes District Council, above n 1,at [61].[113] Likewise we are also satisfied that adequate consideration was givenby QAC to alternative locations for corporate jets and that it is operationallyefficient to locate these adjacent to the proposed Code C taxiway south ofthe main runway.[114] Apart from the April 2007 study, none of the studies looked at theoption of splitting the various aeronautical businesses north or south of themain runway within the existing aerodrome designation. But in the absenceof any contrary evidence we conclude, like corporate jets, it is operationallyefficient to locate fixed wing operators adjacent to a proposed Code Ctaxiway.[115] We are also satisfied that under s 171(1)(c) that a generalaviation/helicopter precinct south of the main runway is reasonablynecessary for achieving the NOR's objective.[80] In the High Court judgment, Whata J observed that RPL faced a major hurdlein seeking to revisit issues before the Environment Court, given what he consideredto be the Environment Court's earlier careful consideration of s 171(1)(b) issues. Hesaid that, arguably, consideration had remedied its failure to take account oflegitimate expectation with regard to s 171(1)(b). What tipped the balance in hisdeciding to remit the issue back to the Environment Court was the way that Courthad taken the shortage of industrial land into account.37[81] In its legitimate expectation decision, the Environment Court explained, afterfurther evidence and submissions, why its conclusions as to the availability ofindustrial land did not affect the determination it had made in its first interimdecision on whether there had been an adequate consideration of alternatives.[82] With those findings in mind, the Court then returned to RPL's expectation inthe context of QAC's consideration of alternative sites. It said:[90] The overarching question is whether giving effect to the expectationthat QAC use its own land and not RPL's land for undertaking the workwould meet the statutory criteria and ultimately the sustainable purpose ofthe Act? The alternative site in contention is QAC's land to the north of themain runway, some of which is subject to an existing designation and thebalance 4.52ha zoned for industrial activities.[91] The enquiries under s 171(1)(b) and s 191(1)(c) are inter-related. Ifthere is an alternative site for undertaking the work owned by the requiringauthority, this begs the question whether the requirement for RPL's land isreasonably necessary. This question was alluded to in the interim decision37 At [129].when the court said "The suitability or otherwise of existing designated landis a question of fact and degree and where suitable designated land existsthere will be less tolerance around the issue whether the land or work isreasonably necessary to achieve the objective of the requiring authority".However, in the interim decision the court had not considered whether theparties' dealings gave rise to a legitimate expectation on the part of RPL.[92] Returning again to the High Court's decision at paragraph [106], theoutcome which fairness implores is RPL's legitimate expectation that QACwould use its own land, and not RPL's land (which would remain a bufferzone). We consider fairness requires the NOR be cancelled if undertakingthe work on QAC's land would meet the statutory criteria and achieve thestatute's purpose.[83] The Court referred back to the evidence it had heard in the 2012 hearing,including the evidence of Mr Haines, Mr Munro and Mr Sachmann. The Courtreferred to its interim decision and its findings on the consideration given by QAC toalternative sites, noting:[96] The court found an array of factors, including safety, militateagainst a northern aviation precinct. Importantly – these findings applied toQAC land both within and outside of its existing designation, including landzoned for industrial activities.[84] The Court concluded:[99] We are satisfied that QAC's consideration of the alternative northernlocation was more than adequate and in the circumstances QAC cannot becriticised for not considering its industrial land as an alternative site to theNOR.[85] I am thus satisfied that, through the legitimate expectation hearing and itsdecision, the Environment Court reconsidered whether the requirements of s171(1)(b) had been satisfied, taking into account RPL's legitimate expectation, as theHigh Court directed it had to do.[86] I accept QAC's submission that it is not open to RPL to challenge the interimdecision or the legitimate expectation decision as they relate to QAC's adequateexamination of alternatives. During those proceedings, relevant conclusive decisionswere made as between the parties on particular issues. The parties proceeded on thebasis that, once those determinations had been made, they could not be revisited insubsequent hearings.[87] In his judgment, Whata J was most particular as to the issues which he wasremitting back to the Environment Court for further consideration. The EnvironmentCourt and the parties proceeded on the basis that it would be only those issues onwhich the Court was hearing further evidence and reconsidering matters.[88] The Environment Court issued a minute after a conference on 29 January2015 where it referred to an indication from RPL that it may wish to lead evidenceon a certain matter. Judge Borthwick said the relevance of the matter was not thenclear and noted "the introduction of this evidence may be with a view to relitigatematters that are not referred to the Court for reconsideration". She directed thematter was to be pursued only at the direction of the Court. The minute recordedthat the parties had agreed the issues for determination were as follows:(a) the separation requirements of a Code C taxiway and the process forconfirming those requirements;(b) to reconsider our earlier decision in light of s 171(1)(c) of the Act and inparticular the spatial extent of the NOR;(c) in light of the findings of the Environment Court on the matters referredback by the High Court, then to reconsider our decision under Part 2 ofthe Act.[89] After the proceedings were remitted back to the Environment Court, thatCourt was clear it would not be revisiting issues it had already considered anddecided.[90] Consistent with the parties' acceptance that the Environment Court would notbe revisiting decisions it had earlier made, except to the extent the High Court haddirected, RPL submitted, in relation to the separation distance hearing, that it was notthen open to QAC to ask the Court to confirm the NOR so as to allow for a runway-taxiway separation distance of 168 metres.[91] Perhaps Mr Somerville recognised RPL could not, through the appeal,challenge the Environment Court's decision as to the adequacy of QAC'sinvestigation of alternatives in the legitimate expectation decision. In hissubmissions for RPL, Mr Somerville addressed these claimed errors and questionswith regard to the Court's final decision.[92] As Mr Somerville put it, the nub of RPL's case was that, in terms of thefairness test under s 171(1)(b) as Whata J had held was relevant, there should havebeen an aeronautical study and safety assessment as to what QAC would have beenable to do with a GA/helicopter precinct, or at least a helicopter area, on its own landbefore the Court could finally determine that there had been adequate considerationof alternatives.[93] He argued this was necessary and RPL were entitled to make an issue of itbecause of the way QAC had introduced evidence as to the need for a dual taxiway.RPL submitted this was a "game changer" as far as the designation proposal wasconcerned.[94] It is not correct to say that the issue of a dual taxiway surfaced only aftermatters had been remitted back to the Environment Court from the High Court and itwas considering the 93 metre separation distance issue. With the originaldesignation, QAC had proposed a dual taxiway that would have been suitable forboth Code C and Code D aircraft. This would have required an additional taxiway.It was commented on by the airport planning experts for both QAC and RPL.[95] In the initial hearings, however, the focus of disagreement was over whetherthe designation was needed to provide an additional taxiway for Code D aircraft touse, not whether a dual taxiway was needed, even if it was for just Code B and CodeC aircraft.[96] In its first interim decision, the Environment Court decided the airport did notneed to be extended to cater for Code D aircraft but did not expressly consider if andto what extent a dual taxiway system might be necessary to achieve the objectives ofthe designation. It did not decide what or where taxiways ought to be built withinthe modified designation because the Court assumed that, with the requiredseparation distance of 93 metres between the runway and the taxiway, any newtaxiway could be built on QAC's land within its existing designation. I notehowever that, on the plan which was part of the Court's first final decision, there wasonly one taxiway shown. The Environment Court was thus right to say in itsseparation decision that it was only with the separation distance hearing that thefocus shifted to whether or not there needed to be dual taxiways.[97] The Court however decided QAC's investigation of northern options hadbeen adequate in considering s 171(1)(b) issues with its first interim decision andwith due regard to legitimate expectation issues in its legitimate expectationdecision. In both contexts, it was satisfied that safety and efficiency issues ruled outthe northern option as a viable alternative. In its final decision, the Court recordedRPL's acceptance of the Court's findings that QAC had given adequate considerationto the use of alternative sites, including the use of its own land.38[98] In making submissions before me in relation to the application of s 171(1)(c),Mr Somerville for RPL said "we submit that simply because the Court had foundthat QAC had given adequate consideration to alternative sites, it does not followthat the enquiry under s 171(1)(c) only extends to Lot 6 land". In making thatsubmission, he of course acknowledged that QAC had given adequate considerationto alternative sites. He also said that RPL did not appeal the Environment Court'sfinding on alternatives in its first interim decision "as it accepted that QAC had notacted arbitrarily".[99] In its final decision, the Environment Court said that in its legitimateexpectation decision it found QAC had given adequate consideration under s171(1)(b) RMA to the alternative of locating the taxiway, together with the GAprecinct, on the north side of the runway. It noted the submission RPL had made thata safety and risk assessment should have been made as to the potential alternative ofa northern location for a GA precinct. The Court rejected that submission on thebasis the work already undertaken by QAC's advisors was sufficiently robust for theassessment that had to be made as to that alternative. That evidence came from thetwo helicopter pilots, one of whom was particularly concerned about safety, and alsothe evidence of Mr Haines, the manager of the Aeronautical Services Unit from theCAA.3938 Re Queenstown Airport Corporation Ltd, above n 23, at [20].39 At [29]-[33].[100] This was an evaluative decision on the facts and is thus not amenable toappeal. For reasons which it had articulated and on the basis of evidence which ithad heard, the Environment Court, with due regard to s 171(1)(b) and legitimateexpectation principles, decided that QAC had adequately considered alternatives tothe designation expansion over Lot 6.Were there errors of law in the way the Environment Court considered whether therequirements of s 171(1)(c) RMA had been satisfied?[101] RPL asserted:4.9 The Court erred in finding that the enquiry under s 171(1)(c) of theRMA, having regard to RPL's substantive legitimate expectation, doesnot require the QAC to conduct a sufficient and robust evaluation ofthe efficiency and safety effects of GA activities being located on itsown land. This is contrary to the evidence given. The emergence of adual taxiway ought to have given rise to an evaluation of north sideoptions.4.10 The Court erred in finding, if it did so find, that the QAC cannotprogress the proposed works, or establish physical works (and actuallyamend its exposition), until the NOR is confirmed by the Court.4.11 The Court erred in finding that the QAC is not required to furnish theCourt (or the Director of Civil Aviation) with task specific safety casesbefore a decision on the NOR is made.4.14 The Court made a finding, namely that the works and designation arereasonably necessary to achieve the QAC's objective, when thefinding was not supported by evidence on all relevant airport layoutsafety issues, including evidence on how potential risks are to bemanaged on Lot 6 land.4.15 The Court erred in finding that there is no conflict between ss171(1)(b) and (c) of the RMA.[102] Relating to those claimed errors, RPL raised the following claimed questionsof law, my answers to which are as follows:5.8 Is the case one in which the only reasonable conclusion contradicts thedeterminations that:a) The QAC is able to use the designated land for the proposedworks;Answer: No.b) The enquiry under s 171(1)(c) of the RMA, having regard toRPL's legitimate expectation, does not require QAC to conduct asufficient and robust evaluation of the efficiency and safetyeffects of GA activities being located within QAC land;Answer: The Environment Court explained, with regard to its enquiryunder ss 171(1)(b) and 171(1)(c), and Part 2 RMA considerations andRPL's legitimate expectations, why it did not require QAC to obtain anaeronautical study and assessment of the efficiency and safety effects ofGA activities being located within QAC land and why, on the evidenceit had heard, it was able to consider whether that had been an adequateinvestigation as to whether there was a viable alternative to the NORdesignation. The decision it reached in that regard was a factualevaluation not amenable to appeal. There was no error of law in thedecision which the Environment Court reached in this regard.c) The works and designation are reasonably necessary to achieveQAC's objective;Answer: No.5.9 Is the case one in which the only reasonable conclusion contradicts thedetermination that QAC cannot progress the proposed works, orestablish physical work, until the NOR is confirmed?Answer: No.5.10 Is the case one in which the only reasonable conclusion contradicts thedetermination that QAC is not required to furnish the Court (orDirector of Civil Aviation) with task specific safety cases before adecision on the NOR is made?Answer: No.5.13 Did the Court err in determining that there is no conflict between ss171(1)(b) and (c) of the RMA?Answer: No.[103] RPL submitted, under s 171(1)(c), the issue was whether the proposed worksand designation for Lot 6 were reasonably necessary for achieving QAC's objective.RPL submitted the focus here is on outcome and its position is that "there wasinsufficient evidence before the Court for it to be satisfied that designating Lot 6 wasreasonably necessary for achieving QAC's objective".[104] RPL said its position was that there should have been a full evaluation of ahybrid approach with various aeronautical businesses split north or south of the mainrunway within the existing aerodrome designation. RPL submitted that, inconsidering whether the proposed works and designation for the subject site werereasonably necessary for achieving QAC's objective, the Environment Court, in itsfinal decision, had said its enquiry did not extend to an examination of the existingaerodrome, including land owned by QAC.[105] In its final decision, the Environment Court said that, for the purposes of s171(1)(c) RMA, it had to be satisfied the work and designation were reasonablynecessary. It set out the essential elements that had to be established for it to be sosatisfied.40[106] Nowhere in its final decision did the Environment Court say it did not have tobe concerned with the efficiency and safety effects of GA activities being located onQAC land. What it said was that issues as to that had already been determined to theextent required.[107] In its final decision, the Court said its enquiry into whether QAC could usepart of Lot 6 arose out of certain key findings in its separation distance decision. Itincluded that an array of factors – including safety – militated against a northernlocation of GA and/or helicopter facilities. In relation to that, it also referred to itsfinding that QAC had given adequate consideration under s 171(1)(b) RMA tolocating the Code C taxiway together with a proposed new GA precinct to the northof the main runway. Another finding from that decision was that the designation wasrequired to ensure the continued safe and efficient functioning of the airport by theexpansion of its aerodrome to meet projected growth.[108] It was with reference to that background and its earlier decisions that theEnvironment Court said in its final decision that its enquiry did not extend to an40 At [9].examination of the existing aerodrome, including land owned by QAC, and said itdid not require QAC to conduct a further aeronautical study examining the use of itsland for QAC and other services.41[109] RPL did not develop submissions during the appeal as to how there had beenan error in the Environment Court not recognising a claimed conflict between ss171(1)(b) and (c).42[110] The Environment Court carefully considered the evidence as to whether QACwould be able to operationalise the proposed works. It had refused to make a finaldetermination on the designation until QAC had obtained the aeronautical study andan approval from the CAA showing the proposed works could be put into operation.I agree the Court's conclusion in this regard was a finding of fact that cannot be thesubject of an appeal.[111] The Court accepted that it was open to a prudent airport operator not to goany further in progressing the intended works pending the Court's finaldetermination. I agree that was a finding of fact by the Court that cannot bechallenged on appeal. I also agree with QAC's submission that an operator'sdecision as to when it would progress the intended works was of no relevance indeciding whether the designation was reasonably necessary to achieve the objectivesof the designation.[112] The Court noted that the purpose of the aeronautical study was not to addressthe micro level management of risk but to have the safety of the new aerodromelayout and how it could be operationalised [sic] assessed, ultimately by the CAA. Indue course, task-specific safety cases would ensure that the development of theairport was implemented and made operational in a safe way. The task-specificsafety case was the mechanism the CAA used to ensure compliance with theaeronautical study and to ensure there was CAA progressive overview of QAC'smanagement of risk. The Court accepted the evidence of QAC's expert that themanagement of risk inherently needs to be progressive, with continual assessment,41 At [34].42 At [26].review and feedback, especially as elements of the proposal were sequenced andconstructed.43[113] The Court concluded that it did not require QAC to furnish the Court with thetask-specific safety cases for the Court to determine that the proposal in thedesignation could be operationalised. It was satisfied this could be achieved throughthe aeronautical study that had been obtained and the way it had been approved bythe CAA. This was another finding of fact and not open to challenge on appeal.Were there errors of law in the way the Environment Court addressed or failed toaddress Part 2 matters?[114] As to this, in its notice of appeal, RPL asserted:4.7 The Court failed to have regard to, and apply, Part 2 matters whenaddressing RPL's substantive legitimate expectation.[115] The questions and my answers as to these are:5.7 Did the Court fail to have regard to, and apply, Part 2 matters whenaddressing RPL's substantive legitimate expectation?Answer: No.5.2 Is the case one in which the only reasonable conclusion contradicts thedetermination that undertaking the work on QAC land for GA purposeswould not promote the sustainable management of natural and physicalresources?Answer: No. There was a reasonable evidential basis for the Court'sconclusion. In any event, its determination as to this in the legitimateexpectation decision had not been appealed and could not be pursued furtheron this appeal.5.8 Is the case one in which the only reasonable conclusion contradicts thedetermination that:(d) The NOR will promote the sustainable management of natural andphysical resources.Answer: No.43 At [55].[116] In his submissions for RPL, Mr Somerville acknowledged that, in its finaldecision, the Environment Court confirmed its earlier finding in the legitimateexpectation decision of 2014 that the use of QAC land would not promote thesustainable management of natural and physical resources. He acknowledged theCourt also stated that designating Lot 6 would promote the sustainable managementof natural and physical resources.[117] In its amended notice of appeal, RPL submitted the Environment Court hadmade an error of law in making a finding:4.16 namely that the NOR will provide the sustainable management ofnatural and physical resources, when that finding was not supported by anyevidence on how potential risks are to be managed on Lot 6 land.In the way it described that error, RPL acknowledged the Court had made a findingas to Part 2 matters.[118] In his submissions as to this question, Mr Somerville's argument was not thatthe Environment Court had failed to consider Part 2 matters but that, in consideringthem, it should also have brought into account legitimate expectation principles in aparticular way.[119] In the legitimate expectation decision, the Court referred to the conclusion ithad reached earlier with regard to Part 2 RMA and s 7(b) that:A general aviation/helicopter precinct including air and landside buildings,infrastructure and landscaping was an efficient use of lot 6 and that it wasefficient also to co-locate these with facilities for Code C corporate jets.And that:A hybrid alternative (ie splitting facilities north and south of the mainrunway) would be inefficient because it would compromise the benefitswhich would accrue from the colocation of all operations on one site.[120] It concluded:Having given the matter further consideration we confirm that the safety andoperational constraints on the airfield are such that we are satisfied for thepurposes of s 7(b) that the use and development of the alternative site wouldnot be efficient.[121] The Court referred to s 7(c) the maintenance and enhancement of amenityvalues, and s 7(f) the maintenance and enhancement of the quality of theenvironment. It was of the view that the measures which could be taken to addressnoise, landscape and traffic management conditions for the southern NOR could alsobe taken if the same work was undertaken on QAC land but concluded:[103] The purpose of the Act is to promote the sustainable management ofnatural and physical resources, this includes the Airport as a physicalresource. An important finding in the interim decision is the array of factors– including safety – militating against a northern location for a helicopterfacility. The operation of general aviation and helicopters from a northernprecinct would constrain the use of the main runway. The splitting offacilities north and south of the main runway is inefficient and would reducethe benefits which would otherwise accrue from the collation of alloperations. We are satisfied that undertaking work on QAC's land would notpromote the sustainable management of natural and physical resources.[104] We conclude that for the works required under the designation toachieve the sustainable management purposes of the Act, the generalaviation and helicopter precinct needs to be collocated with other facilities tothe south of the main runway.[122] The Court referred to that conclusion again in its separation distancedecision, as part of its reason for not requiring an aeronautical study and safetyassessment in respect of a possible GA and helicopter precinct on QAC's existingland and thus for a northern option.[123] In the legitimate expectation decision, the Court ultimately found that,overall: the significant benefits to QAC and the wider community of developingand using the affected resources in the manner proposed, subject to themodifications and the conditions we have identified to avoid, remedy ormitigate adverse effects on the environment, to be consistent with thesustainable management purpose of the Act.[124] In its final judgment, the Environment Court said:[69] Ultimately the exercise of any decision-making discretion under s149U(4) RMA is to be undertaken in a principled manner. The discretion isto be exercised for the purpose that it was conferred and unless the contextclearly indicates otherwise, under the RMA this will be for the purpose ofpromoting the sustainable management of natural and physical resources.[70] QAC's objective is to "provide for the expansion of Queenstownairport to meet projected growth while achieving the maximum operationalefficiency as far as possible." In order to achieve that objective, operationsat the aerodrome must, as "far as possible", be both safe and efficient.[71] We conclude with the words of Whata J. The court, like QAC,cannot be bound to give effect to RPL's expectations where to do so isinconsistent with the requirements of s 171. Regrettably for RPL we havefound the use of QAC land would not achieve the statutory criteria andachieve the statutory purpose.[72] The matter does not end there. We have reconsidered our findings inlight of the directions in Part 2, including the further planning evidenceproduced during the Separation Distance hearing (which we said we wouldreturn to in the final decision). Having done so we are satisfied that theNOR, subject to the conditions we approved earlier, will promote thesustainable management of natural and physical resources.Were there errors of law in the way the Environment Court had regard to RPL'slegitimate expectations in considering the issues which it had to decide?[125] In its notice of appeal, RPL contended:4.1 The Environment Court erred in finding that, in accordance with s171(1)(b) of the Act, QAC had given adequate consideration toalternative sites. That finding was made without undertaking a furtherevaluation in light of evidence concerning:c) RPL's substantive legitimate expectation that the QAC would useits own land and not RPL's land, and that the Lot 6 land it ownedwould remain as a buffer zone.4.2 The Environment Court erred in finding that undertaking the work onthe QAC's land for general aviation ("GA") purposes would notpromote the sustainable management of natural and physical resources.That finding was made without having regard to evidence concerning:a) New safety issues concerning the dual taxiway; andb) RPL's substantive legitimate expectation that the QAC would useits own land and not RPL's land, and that the Lot 6 land it ownedwould remain as a buffer zone.4.3 The Court erred in finding that its jurisdiction is founded in the relevantsections of the RMA. Compliance with the RMA does not remove theneed to comply with the common law, which exists independently of theRMA.4.4 The Court applied an incorrect test when it stated in The Decision thatRPL may legitimately expect compliance with the assurance given bythe QAC subject only to an express statutory duty or power to dootherwise. The correct legal test is that RPL may legitimately expectcompliance with the QAC's assurance subject to satisfaction of thecriteria stated in s 171(1) of the RMA, having regard to its substantivelegitimate expectation that the QAC would use its own land and notRPL's land, and that the Lot 6 land it owned would remain as a bufferzone.4.5 Having accepted that RPL has a substantive legitimate expectation thatthe QAC would use its own land and not RPL's land, and that the Lot 6land it owned would remain as a buffer zone, the Court failed to givereasons for its decision that confirming the NOR is a proportionateresponse in the circumstances of the case.4.6 The Court failed to have regard to the following relevant considerationswhen considering whether confirming the NOR is a proportionateresponse under s 171(1)(c) of the RMA:a) The level of public interest required to override a substantivelegitimate expectation should be compelling;b) The onus is on the QAC to show compelling evidence as to whyRPL's private property rights, which are protected in law, should beoverridden to meet its objective; andc) The need for the QAC to fully assess the operational safety andefficiency of Queenstown Airport in order to show that confirmingLot 6 for GA activities in breach of RPL's substantive legitimateexpectation, is justified in the public interest.[126] Arising out of those submitted errors, RPL raised these questions on appealwhich I answer as follows:5.3 Did the Court err in determining that its jurisdiction is founded solely inthe relevant sections of the RMA?Answer: No.5.4 Did the Court apply the correct test as stated by the High Court namelythat RPL may legitimately expect compliance with the assurance givenby QAC subject only to an express statutory duty or power to dootherwise?Answer: Yes.5.5: Did the Court fail to give reasons for its decision that confirming theNOR is a proportionate response in the circumstances?Answer: No.5.6: Did the Court fail to take into account the following relevant matters?(a) The level of public interest required to override a substantive legitimateexpectation should be compelling;Answer: No.(b) The onus is on the QAC to show compelling evidence as to why RPL'sprivate property rights that are protected in law should be overridden tomeet its objectives;Answer: No.(c) The need for the QAC to fully assess the operational safety andefficiency of the Queenstown Airport in order to show that confirmingLot 6 for GA activities in breach of RPL's substantive legitimateexpectation is justified in the public interest.Answer: In its separation distance and final decisions, the Environment Courtexplained why, on its assessment of all the evidence, it did not require anaeronautical study and CAA assessment of the operational safety andefficiency of that alternative. In doing so, it had regard to the public interest.The decision it reached in this regard involved a factual evaluation anddetermination and is not amenable to appeal. There was no error of law in thedecision it reached on this issue.[127] In his submissions, Mr Somerville did not point to any passages in theEnvironment Court's legitimate expectation decision, its 93 metre separationdistance decision or its final decision consistent with it having determined the issuesbefore it in any of those decisions solely with regard to the relevant sections of theRMA and ignoring legitimate expectation principles. Rather, he argued that theconclusions it ultimately came to were inconsistent with what QAC had to establishfor the purpose of the NOR to override RPL's legitimate expectation entitlements.[128] The Environment Court had jurisdiction to consider and to confirm or modifythe designation pursuant to s 149U(4) RMA. As Mr Casey submitted, the RMA willoverride common law rights. In Falkner v Gisborne District Council, the HighCourt said:44The whole thrust of the [RMA] regime is the regulation and control of theuse of the land, sea and air It is a necessary implication of such a regimethat common law property rights pertaining to the use of land or sea are to besubject to it. 44 Falkner v Gisborne District Council [1995] 3 NZLR 622 (HC).[129] This reasoning was followed in the High Court judgment where Whata Jconcluded that:[45] The application of the doctrine will however depend entirely on thefacts of the particular case. But a key ingredient is whether there has beenreliance on an assurance given by a public authority, made in the lawfulexercise of the authority's powers. If so, the affected person maylegitimately expect compliance with that assurance subject only to anexpress statutory duty or power to do otherwise. In the present case, thatmust mean satisfaction of the criteria expressed at s 171 and in particular atsubs (1)(b) and (c), having regard to any relevant legitimate expectations,properly established. Fairness would then implore an outcome which isconsistent with those expectations provided that the outcome met thestatutory criteria and achieved the statutory purpose. Conversely, the Court,like QAC, cannot be bound to give effect to those expectations where to doso is inconsistent with the requirements of s 171. In short the Court'sjurisdiction, thought wide, is framed by the scheme and purpose of theRMA.(citations omitted)[130] In its legitimate expectation decision, the Environment Court, after recordingits findings on the industrial land issue, said it was returning again to the HighCourt's decision and specifically that part of Whata J's judgment just cited.[131] The Environment Court considered that the enquiries under 171(1)(b) and (c)were inter-related, as if there was an alternative site for undertaking the work ownedby the requiring authority, this begged the question whether the requirements forRPL's land were reasonably necessary. With reference to the expert evidence beforethe Court, it concluded that the consideration of the alternative northern location was"more than adequate". Revisiting the submission raised in the interim decision, thatit was an inefficient use of resources to designate land owned by a third party whereQAC owns land already designated for the purpose, it concluded that the safety andoperational constraints on the airfield are such that the use and development of thealternative site would not be efficient. It found that splitting the facilities north andsouth of the main runway would reduce the benefits which would otherwise accruefrom the collation of all operations, and that such splitting "would not promote thesustainable management of natural and physical resources". As a result, 'fairness',in the terms of Whata J's test, did not require the NOR to be cancelled.[132] It was also in terms of the test as stated by Whata J that, in its legitimateexpectation decision, the Court considered Part 2 RMA principles and s 171(1)(c).As already mentioned, it was not satisfied as a result of the legitimate expectationhearings that the works and designation were reasonably necessary in terms of s171(1)(c), but it considered this again in the separation distance hearing. It notedRPL's submission that it was incumbent on QAC to produce sufficient evidence onsafety and operational efficiency to objectively justify the denial of RPL's legitimateexpectation. It referred to RPL's argument that, in the absence of an aeronauticalstudy, QAC had failed to establish there was an overriding public interest justifyingthe breach of its legitimate expectations. In relation to that submission, it againreferred to Whata J's direction as to how legitimate expectation should beconsidered, as quoted above.[133] It was with regard to those submissions and observations that the Courtdeclined to confirm the designation and adjourned the proceedings for QAC toobtain an aeronautical study and the CAA's response as to whether, and on whatterms, the works and designation, as then modified, could be put into operation. TheCourt said the adjournment of the proceedings for that purpose was justified, andthat, "given the Court's uncertainty, at this juncture, fairness would also employ thisoutcome in recognition of RPL's legitimate expectation".45 In adopting that courseand in ultimately confirming the modified designation in its final decision, theEnvironment Court considered issues with regard to legitimate expectation againstthe provisions of the RMA as it had been directed to by Whata J.[134] RPL submitted "the correct legal test is that RPL may legitimately expectcompliance with QAC's assurance subject to satisfaction of the criteria stated in s171(1) having regard to its substantive legitimate expectation". That is the testwhich the Environment Court applied.[135] In its final decision, the Environment Court said:[29] RPL is right to say the outcome in these proceedings must be a fairand proportionate response. The law of legitimate expectation is based onfairness, the broad principle being that good administration requires that45 At [270].public bodies deal straightforwardly and consistently with the public.Fairness implores an outcome which is consistent with those expectationsprovided, however, that the outcome meets the statutory criteria and achievesthe statutory purpose.[136] It referred to the way the term "proportionate response" had been used by theEnglish Court of Appeal in Nadarajah v The Secretary of State for the HomeDepartment and then said "when expressed in the language of the RMA, thequestion of whether the NOR is a "proportionate response under s 171(1)(c) is to beconsidered relative to QAC's objectives".46[137] In summarising matters that way, the Environment Court made it clear that itwas concerned as to whether the outcome in the proceedings would be a fair andproportionate response to issues arising out of RPL's legitimate expectation. It alsomade it clear that its reasons for reaching the conclusion it did were to be found inthe consideration it had given earlier as to possible alternative sites, whether theworks and designation were reasonably necessary to achieve the objective for thedesignation, whether there was a nexus between the works proposed and theachievement of QAC's objectives, the extent of the land required and whether QACwould actually be able to use RPL's land for the proposed works.[138] The Court carefully considered the threshold QAC had to meet regardingwhether the evidence was sufficiently compelling that, in the public interest, RPL'slegitimate expectation permitted approval of the NOR. The Court had howeverconsidered the public interest in the context of the Court's jurisdiction being framedby the scheme and purpose of the RMA. In broad terms, what the Court had toconsider, in the public interest, were the Part 2 matters set out in ss 5 and 7 RMA.Those matters were considered and the Court's ultimate evaluation of these issueswas a decision on the facts not amenable to appeal.46 At [31]-[32], referring to Nadarajah v The Secretary of State for the Home Department [2005]EWCA Civ 1363.Separate from the above issues, were there other respects in which, in a way that wasmaterial to the decision it reached, the Environment Court failed to consider relevantevidence?[139] RPL said in the notice of appeal that the Environment Court had made errorsof law through failing to consider relevant evidence. The claimed errors, to theextent they have not already been discussed, were:4.13 The Court erred in finding that a Code C taxiway located at 168metres as part of a dual taxiway, could operate safely.4.18 The Court wrongly exercised its discretion when it failed to haveproper regard to the evidence called on behalf of RPL concerning thesufficiency of the Aeronautical Study.[140] The suggested questions of law and the answers arising out of those claimederrors for me to consider and my answers are:5.12 Is the case one in which the only reasonable conclusion contradicts thedetermination that a Code C taxiway located at 168 metres as part of adual taxiway system could operate safely?Answer: No.5.14 Did the Court wrongly exercise its discretion when it:a) Failed to take into account evidence called on behalf of RPLconcerning alternative sites;Answer: The Environment Court considered the evidence called onbehalf of RPL concerning alternative sites when it gave its first interimdecision. It considered that evidence again when having regard tolegitimate expectation issues in its legitimate expectation decision.Evidence which RPL had attempted to put before it as to alternativesites was ruled as irrelevant at the hearing leading to its final decision.At that point, the Environment Court had already made substantivedecisions with regard to the adequacy of QAC's investigation as topotential alternative sites, s 171(1)(c), Part 2 and legitimate expectationissues. Its decisions have not been appealed.The evidence which the Environment Court refused to consider withregard to alternative sites was irrelevant to the issues which it hadreserved to be determined in the hearing of 31 March 2017 and its finaldecision. There was thus no error in the Environment Court refusing tohave regard to that evidence.b) Failed to have proper regard to the evidence called on behalf ofRPL concerning the sufficiency of the Aeronautical Study?Answer: There was no error of law on this basis. The Court did, infact, consider the evidence called on behalf of RPL as to the sufficiencyof the aeronautical study. The assessment which the EnvironmentCourt made as to this evidence involved an evaluation anddetermination on the facts and is not amenable to appeal.[141] In its separation distance decision, the Environment Court considered theexpert evidence as to what separation distance was required for the airport to operatesafely with a dual taxiway. The dispute between the experts was not over whether adual taxiway could be operated safely but whether a dual taxiway was necessary and,if so, the separation distance required. As already noted, the Court was satisfied that,subject to certain operational restrictions, a dual taxiway could operate safely.47 TheCourt's final decision was however reached only after the director of the CAA hadconfirmed QAC's plan for the expansion, including the Code C taxiway located at168 metres as part of a dual taxiway system, could be operated safely.[142] The decisions which the Environment Court came to in both the separationdistance decision and the final decision on this issue were factual determinations.There was evidence on which the Court could reasonably come to the decision itreached. There was no error of law in this regard and the determination which theCourt came to in both decisions was not amenable to appeal.[143] In its final decision, the Environment Court noted that the aeronautical studyobtained by QAC was reviewed by The Ambidji Group Pty Ltd for RPL and that itwas highly critical of the aeronautical study. The Court recorded that RPL47 Para [53] above.subsequently filed extensive evidence challenging the aeronautical study. Theadmissibility of most of that evidence was challenged by QAC but was admittedprovisionally.[144] The Court said it had carefully considered the evidence of Mr Sachmann, MrMorgan and Ms Selwyn, called on behalf of RPL. To the extent that the evidenceresponded to evidence given by the General Manager, Operations and Safety forQAC, the evidence was relevant and admitted. The Court reiterated that its enquirydid not necessitate an examination of alternative sites, having found in earlierdecisions that QAC had given adequate consideration under s 171(1)(b) RMA tolocating the Code C taxiway together with a proposed new GA precinct to the northof the main runway. Evidence on that issue was regarded as not relevant to any issuebefore the Court.[145] The Court summarised its conclusion as to the rest of the evidence asfollows:48Having had regard to the evidence, we place little weight on the opinionsexpressed by RPL's witnesses criticising the Aeronautical Study. The Studyhas been accepted by the Director of CAA, and RPL has not sought ajudicial review of his decision. Second, and notwithstanding the witnesses'criticism, any residual safety risk is able to be addressed in the task specificsafety cases.[146] The Court's decision in this regard was as to a question of fact. It was anevaluative exercise. It is not amenable to appeal.Other matters[147] In its amended notice of appeal, RPL had referred to claimed errors andquestions of law relating to the Environment Court's separation decision conclusionsin finding that the minimum separation distance required between the Code Ctaxiway and the runway was 168 metres. It did not pursue those grounds of appeal atthe hearing.48 Re Queenstown Airport Corporation Ltd, above n 23, at [77].Application to admit new evidence[148] On 23 November 2017, just prior to the appeal hearing scheduled for 4December 2017, RPL filed an application for leave to adduce further evidence andan application that the proceedings be adjourned. Both applications were made as aresult of QAC on 29 August 2017 publicly announcing and releasing a master planoptions document titled "Master Plan Options – Let's start talking about tomorrow"(future options document). The document purports to be an "open mind and a cleansheet approach" as to various options that could be considered to cope with demandsover the next 30 years. It is a document for discussion on which QAC invitedfeedback. One of the three options for discussion included a helicopter precinctlocated to the north of the current runway.[149] RPL sought an adjournment of the appeal on the ground that it had lodged anapplication for rehearing in the Environment Court on 22 November 2017. Itsuggested it would be in the interests of justice for the hearing of the appeal to beadjourned until the Environment Court had determined whether it needs to rehear thecase. It also wanted the future options document to be before the High Court asevidence on the appeal.[150] I refused to adjourn the appeal but reserved my decision in relation to theadmission of the future options document as evidence for reasons discussed in ajudgment of 30 November 2017.49 I said I would make a final determination as tothe application for leave to adduce evidence after the appeal hearing.[151] At the commencement of the hearing, Mr Somerville made furthersubmissions as to the relevance of the future options document but did not ask me torevisit the decision I had made as to the requested adjournment and accepted that myruling as to the admission of the document as evidence would be dealt with in myjudgment.[152] RPL says this document was not available at the time the proceedings werebefore the Environment Court. It says it is particularly relevant because it includes49 Remarkables Park Limited v Queenstown Airport Corporation Limited [2017] NZHC 2962.information as to forecasted demands (7.1 passenger movements from bothinternational and domestic flights in 2045 and 55,000 forecasted aircraft movementsin 2045) which are significantly in excess of the forecasted demands which the NORwas designed to meet.[153] The document sets out three viable options for Queenstown Airport. Optiontwo is shown as including a terminal area, main terminal transport/parking area,private jet precinct and fixed wing GA precinct all on Lot 6, but with a helicopterprecinct largely on existing airport land to the north of the runway.[154] Mr Somerville said the Environment Court had confirmed the NOR with afinding that QAC had adequately investigated the option of having all or some of theworks north of the runway and had been justified in dismissing that as a viableoption. He said option 2 in the future options document shows that, contrary to theexpert evidence QAC called in the Environment Court and the findings of that Court,QAC does see a helicopter precinct to the north of the runway as a viable option.[155] RPL also suggests the document is relevant in that it indicates the way inwhich Lot 6 would be used, in accordance with the NOR as approved, will be neithersustainable nor efficient in the long term because, with that development, the airportwill still not be able to cater for the demands that might be made on it over the next30 years.[156] Mr Somerville submitted that this future options document is relevant inassessing the integrity of the reasons for the designation. He submitted that, inessence, there is information in it which means that the whole process by which theEnvironment Court has approved the modified designation has been potentiallyunfair.[157] I have benefited from full submissions as to the issues that had to beconsidered on this appeal, with reference to evidence which the Environment Courthad considered in reaching its decisions. I have decided that the future optionsdocument is not sufficiently relevant to the issues which I had to consider on thisappeal for it to be admitted as evidence. For such evidence to be admitted, when theappeal can be as to questions of law only, there would have to be, at the very least,exceptional circumstances or very special reasons for admitting the evidence.50 Thisis not such a situation.[158] The Environment Court was concerned with whether the works ordesignation were reasonably necessary for achieving the objective of QAC withinthe planning horizon then under consideration. QAC's evidence was that thedesignation was needed to provide new facilities "in the near future".[159] In all three options referred to in the future options document, QAC wouldstill be using that part of Lot 6 in the NOR designation as confirmed by theEnvironment Court for airport facilities. Although it would involve having ahelicopter GA precinct to the north of the runway, option 2 would actually requirethe airport to extend over a significantly greater proportion of Lot 6 than would bepermitted with the NOR designation.[160] The summary in the future options document confirms that QAC iscommitted to progressing plans to build a parallel taxiway, it will remain a narrowbody aircraft airport, and GA and private jet operations will continue to be keycomponents. The plan associated with option 2 shows that there would still be a GAand private jet precinct on Lot 6 to the south of the runway.[161] There is thus nothing in the future options document to indicate that the useof part of Lot 6, as confirmed with the NOR designation for airport purposes, wouldnot be sustainable or efficient in the long term.[162] The future options document does not, on its face, suggest that it would besafe or more efficient to have a helicopter precinct to the north of the airport. Thedocument is simply a basis for discussion. The document states that any of theoptions for discussion "would require further aeronautical, operational and safetyassessments".50 High Court Rules 2016, r 20.16; Chamberlain v Scott [2012] NZHC 2596, (2012) 21 PRNZ 176.[163] The future options document is obviously very much a platform fordiscussion. With the way any long term future development and expansion of theairport would have to be approved under the RMA, mention in the document of anoption involving a helicopter precinct to the north of the runway could be seensimply as evidence that, in its long term planning, this option has been adequatelyconsidered by QAC, as would be required by s 171(1)(b) RMA. Given the tenaciousway in which RPL has, with regard to the current NOR designation, maintained thatQAC did not adequately investigate that option, and the delays, costs anduncertainties that have resulted from that, there would be good reason for QAC tomention this as a possibility it intends to consider as part of more extensive longterm planning. Mention of it as a possibility is not inconsistent with the evidence itsexperts gave as to the safety or efficiency of such a possibility or the findings of theEnvironment Court in this regard.[164] In any event, the current appeal is over whether or not there were errors oflaw in the way the Environment Court dealt with relevant issues before it on theevidence which was then available. I do not consider the future options documentdemonstrates there was a factual error in the Environment Court. Even if it did, thiswould not constitute special reason to admit it on an appeal limited to a question oflaw.[165] In Chamberlain v Scott, Fogarty J explained why there needed to be sparinguse of the power in r 20.16 High Court Rules to admit new evidence, particularly incases where appeals were limited by Parliament to issues of law.51 As he said, insuch situations, Parliament has taken the view "that there will be one hearing or trialon the facts and therefore review is confined to issues of law, akin to judicial review.This is particularly the case with the Environment Court." He held that, arguing thatnew evidence totally undermines the weight that should have been given to existingevidence or even that it showed the earlier decision was plainly wrong, would notjustify the admission of the new evidence.[166] For all these reasons, the application to admit the future options document asevidence on the appeal is denied.51 Chamberlain v Scott, above n 50, at [15].Conclusion[167] RPL has failed to establish that there was any error of law in the finaldecision of the Environment Court. That has been reflected in my answer to all thequestions of law which it argued arose with this appeal. The appeal is accordinglydismissed.[168] QAC are entitled to costs. If costs issues cannot be resolved by agreement,QAC's memorandum as to costs is to be filed by 30 March 2018. RPL'smemorandum in reply is to be filed by 20 April 2018. Any reply for QAC is to befiled by 4 May 2018. The memoranda are to be no longer than six pages. I will dealwith costs on the basis of those memoranda.Solicitors:R J Somerville QC, Barrister, DunedinBrookfields Lawyers, AucklandChapman Tripp, Auckland.