REMARKABLES PARK LTD v QUEENSTOWN AIRPORT CORPORATION LTD [2017] NZHC 2962

REMARKABLES PARK LTD v QUEENSTOWN AIRPORT CORPORATION LTD [2017] NZHC 2962 [30November 2017]IN THE HIGH COURT OF NEW ZEALANDINVERCARGILL REGISTRYI TE KŌTI MATUA O AOTEAROAWAIHŌPAI ROHECIV-2017-425-000035[2017] NZHC 2962BETWEEN REMARKABLES PARK LIMITEDAppellantAND QUEENSTOWN AIRPORTCORPORATION LIMITEDRespondentHearing: 29 November 2017Appearances: R J Somerville QC and B Milo for the AppellantM Casey QC and C Somerville-Frost for the RespondentJudgment: 30 November 2017JUDGMENT OF NATION J[1] On 5 May 2017, the appellant (RPL) filed a notice of appeal against a decisionof the Environment Court dated 31 March 2017. On 12 June 2017, the appeal was setdown for hearing over two days beginning 30 October 2017. Submissions were filedfor RPL on 28 August 2017 and for the respondent (QAC) on 29 September 2017.That hearing had to be adjourned due to the illness of counsel for QAC. On 6November 2017, the matter was set down for hearing in Christchurch on 4 December2017.[2] On 23 November 2017, RPL filed an application for an adjournment of thehearing and an application for leave to adduce further evidence.[3] RPL says that both applications are necessary because of a recent developmentwhich may impact on the correctness of the Environment Court decision, which is thesubject of the appeal.[4] RPL says the Environment Court decision effectively authorised QAC toacquire part of RPL's land known as Lot 6 to the south of the airport for thedevelopment of general aviation and helicopter facilities that are required to meetfurther demands on the airport. RPL says that, in reaching that decision, theEnvironment Court accepted the case presented by QAC, partly through expertevidence, that such facilities, for reasons of safety and otherwise, could not bedeveloped on land which QAC owned to the north.[5] On 29 August 2017, QAC published a document titled "Master Plan Options –Let's start talking about tomorrow". The document, on its face, purports to be an"open mind and a clean sheet approach" as to various options that could be consideredto cope with demands over the next 30 years. It is a document for discussion on whichQAC invites feedback. One of the three options for discussion would include ahelicopter precinct located to the north of the airport.[6] RPL sought an adjournment of the appeal on the grounds that it had lodged anapplication for rehearing in the Environment Court on 22 November 2017 and it wouldbe in the interests of justice for the hearing of the appeal to be adjourned until theEnvironment Court had determined whether it needs to rehear the case. RPL also filedthe application for leave to adduce evidence, essentially to put before the High Courtthe future options document recently published by QAC. Both applications wereopposed by QAC.[7] Counsel for both parties filed submissions and memoranda for the Court.Because of the closeness of the scheduled hearing, I convened a telephone conferencewith counsel on 29 November 2017.[8] For RPL, Mr Somerville submitted that an adjournment of the appeal wouldbe in the interests of justice, both for the parties and with regard to the public interest.He argued it would be a more efficient use of Court resources for the appeal to awaitthe Environment Court's decision as to whether this new document justifies itrevisiting the decision which is now subject to appeal.[9] For QAC, Mr Casey QC submitted that, on its face, the various options forfuture development are advanced in ways, and subject to qualifications, that mean theyare unlikely to impact on the determinations which the Environment Court reached onthe factual issues before it. He indicated that QAC would be opposing the applicationin the Environment Court by RPL for a rehearing. He also argued that the currentappeal can only address the alleged errors of law that have been raised on the appeal.He submitted it would be in the interests of efficiency for the Environment Court tohave the High Court's judgment on the issues of law raised on the appeal whenconsidering the application for a rehearing, and if the application succeeds and thereis such a rehearing.[10] After hearing from counsel, I decided I would not adjourn the hearing of theappeal. I indicated that I would reserve the application for leave to adduce furtherevidence for final determination when the appeal is heard. I now set out briefly thereasons for those decisions.[11] It is in the interest of the parties and also with regard to the public interest forthere to be certainty over whether or not QAC can expand to the south throughacquisition of part Lot 6. It is thus in the public interest that the litigation, which hasbeen before the Environment Court and the High Court over that, be concludedwithout unnecessary delay.[12] The appeal relates to QAC's notice of requirement (NoR) to extend adesignation for general aviation purposes.[13] That NoR was lodged with the Environment Protection Agency on 21December 2010. It was the subject of an Environment Court hearing in July 2012, aninterim decision of 25 September 2012 and a final decision of 8 May 2013. That finaldecision was the subject of an appeal to the High Court and its of 12 September 2013.There were further hearings in the Environment Court in March 2014, June 2015,August 2015, December 2015 and February 2016, and a final decision of theEnvironment Court of 31 March 2017. It is that final decision which is the subject ofthe present appeal.[14] The future options document, if material, is relevant to the factualdeterminations made by the Environment Court. If there is to be a rehearing in theEnvironment Court, it will be because the Environment Court decides the informationin the future options document materially impacts on the correctness of the factualdeterminations it came to earlier. The appeal relates to claimed errors of law. MrSomerville accepted that the High Court will not be entitled to review evaluativedecisions which were reached by the Environment Court as to factual issues. QAC'sissuing of the future options document is unlikely to be relevant in the High Court'sjudgment as to whether errors of law did occur.[15] If the High Court decides there were errors of law in the way the EnvironmentCourt reached its decision which is the subject of the appeal, it is likely the proceedingswould be remitted back to the Environment Court for further consideration. If thatwere to happen, it would be of benefit to the parties, and reduce the prospect of furtherdelays, if the Environment Court has the benefit of the High Court's judgment on thelegal issues which are the subject of its judgment.[16] With the hearing scheduled to begin on 4 December 2017, those benefitsshould be realised without there being any undue delay in the hearing of RPL'sapplication for a rehearing if RPL wished to continue with that application.[17] In that sense, the situation here can be distinguished from that in MakaraGuardians Incorporated v Wellington City Council.1 There, but only by a fine margin,the High Court did agree not to immediately set an appeal down for hearing andadjourned the appeal for two six weeks to await and monitor progress on theapplication which had been made to the Environment Court. It appears the appeal andthe application for a rehearing had been made at about the same time. The appeal hadnot yet been set down for hearing.1 Makara Guardians Incorporated v Wellington City Council HC Wellington CIV-2007-485-1742,28 August 2007.[18] Here, the appeal was filed on 5 May 2017. At the first case managementconference on 2 June 2017, the parties agreed the appeal would proceed to hearing andagreed on the timetable for steps to be taken.[19] The Environment Court will be best placed to determine whether the issuingof the future options document could materially impact on the factual determinationsit made in the judgment which is the subject of the appeal. It is being asked to do thatthrough the application that has been made for a rehearing. Mr Somerville did notsuggest the hearing of the appeal will, of itself, prejudice RPL on its application for arehearing. In his judgment in the Makara Gardians case, Associate Judge Gendall, ashe then was, referred to Meadow Mushrooms Ltd v Paparua County Council, wherethe Planning Tribunal had said, under the then legislation, the Planning Tribunal couldconsider an application for a rehearing even after an appeal had been heard anddetermined.2[20] In summary, I consider that the parties and the public are likely to benefit fromthe hearing of this appeal proceeding as scheduled on 4 December 2017 and there isunlikely to be any prejudice if it does. It is thus in the interests of justice for the appealto proceed and for the adjournment to be denied.[21] I have reserved my decision on the application for leave to adduce the furtherevidence so that I can consider it in the context of all the submissions I hear on theappeal with the more detailed understanding of the factual findings which are thecontext for the appeal. Reserving my decision in this way is unlikely to prejudice anyparty. If the application were to be granted, I would be considering the future optionsdocument as it stands without further evidence or cross-examination as to thebackground to it. Mr Casey accepted that QAC would be relying on the form andcontent of that document as it stands in answering whatever points RPL might wish tomake as to how it could affect the issues which the Court can properly consider on theappeal.[22] The application for an adjournment is thus denied. The application for leaveto adduce further evidence is adjourned for determination on the hearing of the appeal.2 Meadow Mushrooms Ltd v Paparua County Council [1987] NZTPA 1.Solicitors:R J Somerville QC, Barrister, DunedinBrookfields Lawyers, AucklandChapman Tripp, Auckland.