ROYAL FOREST AND BIRD PROTECTION SOCIETY OF NEW ZEALAND INC. V BULLER DISTRICT COUNCIL AND ANOR HC CHCH CIV-2005-485-001240

ROYAL FOREST AND BIRD PROTECTION SOCIETY OF NEW ZEALAND INC. V BULLER DISTRICT COUNCIL AND ANOR HC CHCH CIV-2005-485-001240 21 December 2005IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY CIV-2005-485-001240UNDER Resource Management Act 1991 IN THE MATTER OF an Appeal under section 299 of the Act BETWEEN ROYAL FOREST AND BIRD PROTECTION SOCIETY OF NEW ZEALAND INC. Appellant AND BULLER DISTRICT COUNCIL First Respondent AND WEST COAST REGIONAL COUNCIL Second Respondent AND SOLID ENERGY NEW ZEALAND LIMITED Third Respondent Hearing: 26 September 2005 Counsel: K G Reid, P A Stevens and T Crossen for Appellant C E Robinson and S J Thornton for First and Second Respondents M R G Christiansen and M A Thomas for Third Respondent Judgment: 21 December 2005JUDGMENT OF PANCKHURST JIndexParagraph NumberIntroduction [1]The mining proposal [8]Parties in the Environment Court [18]The hearing and the Environment Court decision [22]Approach on appeal [31]Question 1 : Was there evidence to support the direct transfer of red tussock wetland? [33]The course of the hearing [36]The Environment Court's reasoning [44]The respective arguments [50]Discussion [54]Question 2 : Did the Environment Court apply an incorrect Standard of proof in assessing the mitigation plans for Spotted Kiwi and Powelliphanta patrickensis snails? [60]The context of the argument [62]The Court's analysis of the mitigation plans [66]Discussion [70]Question 3 : Did the Court appropriately distinguish between measures for "avoiding, remedying or mitigating any adverse effects" (in terms of s 5(2)(c)), as opposed to measures intended to compensate for harm to the kiwi and patrickensis habitats? [78]The approach of the Court [80]Discussion [84]Conclusion [94]Introduction[1] The Environment Court in a decision dated 24 May 2005 confirmed the grant of a resource consent to Solid Energy New Zealand Limited (Solid Energy) enabling it to develop and operate an open cast coalmine on the Stockton Plateau to the north- west of Westport. Both the West Coast Regional Council and the Buller District Council had considered, and granted, the consent, which was made subject to very detailed conditions. [2] Solid Energy, and other parties appealed to the Environment Court in relation to various aspects of the decision of the Councils. In the event, however, the principal protagonists before the Environment Court became Solid Energy, the Forest and Bird Protection Society (the Society) and the Buller Protection Group. The former sought changes to the conditions upon which the consent was granted, while the Society and the Protection Group challenged its grant. [3] When the Environment Court upheld the decision granting of the resource consent, albeit subject to amended conditions, the Society appealed to this Court in relation to three questions of law. Each pertained to the rehabilitation plan which in terms of the consent Solid Energy is required to implement. [4] It is common ground that the mine footprint includes red tussock wetland which comprises "significant indigenous vegetation" : s6(c) of the Resource Management Act 1991 (the Act). Solid Energy is required to direct transfer a 12 hectare area of red tussock wetland to an intermediate site and then relocate it back in the mined area after coal extraction is finished. In broad terms the Society contends that there was no evidence before the Court to demonstrate that the direct transfer and relocation of 12 hectares of wetland was feasible. [5] Similarly, it is common ground that the mine area encompasses "significant habitats of indigenous fauna" (s6(c)), being habitats of the spotted kiwi and of an endangered snail, the Powelliphanta "patrickensis" (the patrickensis). In this context two errors of law are alleged. The first is that the Environment Court erred in its assessment of the fauna mitigation plans in that, despite the national significance of the values at stake, it approached the assessment of potential adverse effects on abalance of probabilities basis. It is said that in light of the scientific uncertainty "a much higher standard of proof", should have been adopted. [6] The second alleged error in this context is that in assessing the adverse effects on the habitat of kiwi and patrickensis the Court failed to distinguish between measures for "avoiding, remedying or mitigating any adverse effects" (s5(2)(c)) and instead focused on measures intended to compensate for the harm which the mining development would cause to the habitats. [7] These errors of law, individually and collectively, were said to have so influenced the decision of the Environment Court as to require that its decision be quashed, with the matter then to be remitted back to the Court for reconsideration.The mining proposal[8] The judgment under appeal contains a detailed description of the mining proposal (under the headings "The coal resource", "The geological setting", "The proposal", "Acid rock drainage" and "Mining sequence"). For present purposes it is not necessary to duplicate anything approaching that discussion. [9] The proposed Cypress mine is to be situated on the Stockton Plateau in the Waimangaroa Valley, which lies a little inland of and between the mining areas of Denniston and Stockton. The area is situated about 20 kilometres north-east of Westport. The main area varies from 620 to 820 metres above sea level. The coal resource is estimated to comprise about 4.86 million tonnes. This is high quality bituminous (coking) coal with low ash and sulphur content, which in New Zealand is only found on the West Coast of the South Island. The characteristics of the coal are such that it is ideal for use as a source of carbon for carbon-based chemical products. Hence, the coal is suitable for export to niche markets and has a high export value. The coal is also well suited for use in the production of coke for blast furnace steel- making operations. The value of the coal reserve is estimated to be at least $850m.[10] The proposal is to extract the coal using open cast techniques. It will then be trucked by road to the existing Stockton mine area and then by rail to Lyttelton for export or for such other usage as may transpire. [11] The Cypress mine will have a footprint of approximately 260 hectares comprising two open cast pits, an overburden disposal area, roading, water treatment facilities and an area for associated infrastructure. [12] In order to expose the coal removal of about 29 million cubic metres of overburden will be necessary. This represents a stripping ratio of approximately 5.9 cubic metres of overburden to 1 tonne of coal, which is an acceptable ratio (given that some mines have a ratio of 12 : 1). The estimated life of the mine is 10 years following which there will be an extended period required for closure, mitigation, rehabilitation and monitoring of the site. Evidence was adduced in the Environment Court which demonstrated that underground mining of the Cypress reserve is neither technically nor economically feasible. Recovery of about 20% of the coal reserve would result, whereas using open cast extraction there will be 100% recovery of that coal within the mine footprint. [13] The general layout of the mining operation is to be as follows. There will be two pits, the north and south pits, covering approximately 85 hectares in total with up to 60 hectares open at any one time. Around most of the border of the pits there will be a 30 metre wide buffer zone, from which vegetation will be removed, in part to facilitate the construction of diversion drains. Including the buffer zone the total pit area will be approximately 105 hectares. [14] An over-burden placement area of approximately 65 hectares and three top soil storage areas totalling about nine hectares will also be required. The haulage road will be about 3.5 kilometres in length, of which one-third will be within the Cypress mine permit area and the balance in the Stockton licence area. [15] It is planned that mining will start in the north pit and progress over time to the south pit. Vegetation and topsoil is to be removed, stored and reused on site upon completion of the mining phase, whenever possible. This, it is estimated, willtake up to 15 years, but more probably about 10 years. Upon extraction the coal will be transported to the existing Stockton mine transport system. It is intended that the mining operation will proceed in sequence. That is, commencing in the north pit overburden will be removed to the designated overburden area, and as soon as space becomes available the overburden will be back-filled to that part of the pit where extraction has occurred. [16] When mining is completed Solid Energy will be required to undertake post- closure work including rehabilitation of the area, ongoing predator control and monitoring maintenance activities including in relation to weeds, water quality and geotechnical stability. [17] In order to secure performance of these post-closure obligations the resource consent conditions include bonding arrangements whereby Solid Energy is required to provide a variable bond which is presently estimated will peak at about $15m in year 10 and progressively reduce to zero after 30 years.Parties in the Environment Court[18] As noted earlier there were a number of appellants in the Environment Court. Solid Energy challenged aspects of the consent conditions imposed by the regional and district councils. The Director-General of Conservation, Ngakawau Riverwatch Incorporated, Royal Forest and Bird Protection Society and Te Runanga O Ngati Waewae were also appellants against aspects of the initial consent decision. In addition the Buller Conservation Group was a s274 party at the appeals hearing. [19] By the commencement of the hearing in the Environment Court the Director- General and Ngakawau Riverwatch had secured from Solid Energy agreed changes to the conditions of consent as a result of which they withdrew from the hearing. Their withdrawal was expressed to be on the basis that the final conditions to be imposed would be no less stringent than those contained in a then proposed set of conditions which were produced at the commencement of the hearing. Te Runanga O Ngati Waewae seemingly played a limited role at the hearing, and principallyevinced a wish to be consulted and involved in the consent process, rather than taking an active adversarial role. [20] The Society and the Buller Conservation Group, however, were separately represented and advocated that the consent should be declined because the mitigation measures which were proposed were insufficient having regard to the impact of the mining proposal on the very significant natural values of the area which were genuinely of national importance. [21] The regional and district councils were jointly represented by counsel whose role, however, was secondary to that of the main protagonist. As in this Court counsel advanced submissions which were generally supportive of the grant of the resource consent to Solid Energy.The hearing and the Environment Court decision[22] The hearing before Judge J A Smith, sitting with two Commissioners, occupied 12 hearing days in March 2005. Most of the hearing was conducted at Christchurch, but there was a site visit and a hearing at Westport over one day. [23] In light of the errors of law alleged by the appellant Society, it is pertinent to note that the bulk of the hearing time was taken up with the evidence of expert witnesses called by Solid Energy, the Society itself and the Buller Conservation Group. The experts called by Solid Energy generally gave both evidence-in-chief and rebuttal evidence, as well as being cross-examined by other counsel. As will become apparent, I regard the extent and nature of the hearing as of direct relevance with reference to the first ground of appeal, in particular. [24] Again, it is not necessary for present purposes to describe the substance of the decision under appeal in any detail. The Court recognised at the outset that the case was one which raised "matters of fundamental importance to the New Zealand economy and for the West Coast region and the Buller district in particular" on the one hand, and equally issues of national importance with reference to the natural environment and significant examples of indigenous flora and fauna on the other.Undoubtedly, it was the balancing of these two broad competing interests which was at the heart of the case. [25] At the commencement of the hearing there was disagreement between counsel as to the required approach to the case. The dispute was as to whether the application should be considered globally as a discretionary activity or, alternatively, whether different parts of the activity should be considered separately on either a discretionary or restricted discretionary basis. The Court concluded that a global approach was appropriate, with all elements of the consent to be viewed as discretionary activities. This method of approach is not the subject of challenge. [26] Next, the Court under the heading "The general approach" noted that it was common ground that the case raised matters of national importance, at least in terms of s6(a), 6(c) and 6(e) of the Act. Further, there was also agreement that the Stockton plateau landscape included features of "very high value", if not of "outstanding" value in terms of s6(b). It followed that the parties, Solid Energy included, recognised that approval of the mining activity would necessarily require the imposition of comprehensive conditions designed to protect values recognised in s6 of the Act, in particular. [27] In this context the Court said this:[63] This Court is also satisfied that from the very outset the applicant has recognised the importance of Part II issues in relation to the site and has obtained appropriate advice and designed its project, as far as possible, to avoid, remedy and mitigate adverse effects, particularly where matters the Court is required to consider under sections 6 and 7 of the Act are involved. [64] Whether the applicant has achieved their objective is the purpose of this hearing. With the refinements to the conditions that were proposed during the course of this hearing (most of which are contained in AnnexureA), witnesses of all parties agreed that there was no more that could be done by Solid Energy short of not removing the coal resource. We acknowledge that the applicant has already reduced its recovery of the coal resource to increase the ecological values retained particularly in Happy Valley. [65] Both parties made end game statements in relation to their position. For Solid Energy it was said that if these conditions are not sufficient then there is no more that could be done by the company and effectively it is the end of open-cast mining, at least on the West Coast. It should be noted that this is the first application under the 1991 Act at such a scale. For the various appellants, particularly Forest and Bird and Buller Conservation,they question whether, if this project gains consent, any flora and fauna in New Zealand are safe.Hence, the scene was set. [28] The balance of the decision represents the Court's endeavour to balance the competing interests. What might be termed the social and economic well-being of the people of the Buller area was the subject of evidence from Mr R N Robson, a geologist in the Crown Minerals Group of the Ministry of Economic Development. He gave unchallenged evidence to the effect that the thrust of the Buller District Plan was towards the utilisation of natural and physical resources, which was in contrast to the plans of other regions and districts. The Court considered that this "local response" to the Resource Management Act was one which "ought to carry some significance in the final outcome". [29] A consulting economist, Mr Geoffrey Butcher, gave evidence concerning the economic benefits to both the Buller District and the West Coast region from development of the Cypress Mine. He considered that the mine would generate employment for 50 persons at the mine itself and for up to 100 people in the Buller District during the first nine years of set-up and operation, with those figures likely to increase significantly (to 350 and 460 jobs, respectively) in the final two years of operation. Mr Butcher further calculated the benefits to the district and the region in capital terms. He considered that the mine would generate $151m of "value added in the district" and similarly $184m to the region. This evidence was admitted by consent. [30] I do not propose to detail or analyse the rest of the decision, which was essentially devoted to the identification of a range of environmental values, consideration of the likely impact of the mining operation upon them, and an assessment of the extent to which the proposed conditions would mitigate the adverse effects of the mining activity. Instead, I shall turn to the questions of law, which isolate specific environmental values and challenge the Environment Court's approach and analysis of the mitigation plans proposed by Solid Energy and, in the end result, the conclusion that such plans were appropriate and adequate.Approach on appeal[31] The principles which apply in the context of appeals pursuant to s229 of the Act are familiar and were not the subject of challenge in this case. It is sufficient to refer to the decision of this Court in Countdown Properties (Northlands) Ltd v Dunedin City Council [1994] NZRMA 145 and, indeed, to restrict the analysis to the first grounds of appeal recognised in this case. These are that the High Court may interfere with a decision of the Environment Court where the latter has applied an incorrect legal test or reached a conclusion which is unsupported by evidence. These two fundamental principles are relied upon by the appellant in this case. [32] Predictably enough Mr Christiansen, as counsel for Solid Energy, stressed the inability of this Court to intervene in the present appellate context in relation to what are in reality findings of fact. I was also reminded that the sufficiency of evidence, as opposed to its absence, does not raise a question of law : Terrace Tower (NZ) Pty Ltd v Queenstown Lakes District Council [2001] NZRMA 193 (HC).Question 1 : Was there evidence to support the direct transfer of red tussock wetland?[33] This question of law was formulated as follows:The Environment Court erred in its conclusion that the offer from Solid Energy New Zealand Limited at the close of the hearing to direct transfer 12ha of red tussock wetland would adequately satisfy Part II issues in particular section 6 in circumstances where there was no evidence before the Court: i) That it was possible to move 12ha of wetlands by direct transfer methods to an intermediary site and then replaced at Happy Valley; ii) That it was possible to create the hydrological conditions necessary to maintain red tussock wetland communities; iii) That the result of that transfer would in any way protect areas of significant indigenous vegetation in terms of s 6(c) of the Act; and iv) That the result of that transfer would in any way preserve the natural character of wetlands in terms of section 6(a) of the Act.[34] As can be seen the appellant asserts that there is an absence of evidence in two respects, namely whether it was possible to direct transfer 12 ha of wetland to an intermediate site and then replace it back in the rehabilitated pit area, and whether it was possible to recreate the hydrological conditions in the pit area necessary for the survival of a red tussock wetland. Parts iii and iv of the question assert the alleged adverse effect, namely that significant indigenous vegetation and the "natural character of wetlands" will not be protected or preserved. [35] In order to appreciate the argument it is necessary to pay regard to the course of the hearing and, in particular, to appreciate how it was that the requirement to direct transfer 12 hectares of wetland arose.The course of the hearing[36] Three witnesses called by Solid Energy introduced evidence of relevance to the wetland issue. Dr Ruth Bartlett, a botanist, gave evidence of the ecology of the Stockton plateau area. Commencing in 1996 she made a preliminary survey of the area and subsequently, in consultation with Dr Robyn Simcock, another Solid Energy witness, she participated in the development of the rehabilitation management plan for the mine proposal. Her evidence included a description of the vegetation types to be found in the area of the mine footprint and immediately beyond. She then assessed the likely effects of the mining proposal on the vegetation in the area and recommended mitigation and management measures designed to minimise these effects. Finally, her evidence dealt with the need for ongoing monitoring of the area. [37] Of present relevance Dr Bartlett described red tussock wetland communities which exist on the floor of an area called Happy Valley. Part of the floor is situated within the north mining pit. Although red tussock is found elsewhere within the general area, the wetland communities on the Happy Valley floor were recognised by the Environment Court as "the best example of these communities on the Plateau". The Court also concluded that in terms of extent about 40% of the Happy Valley wetland was within the mine footprint.[38] Dr Robyn Simcock, an ecologist and soil scientist, gave evidence directed to rehabilitation issues. In describing rehabilitation methods Dr Simcock indicated that there was scope for raising plants in nursery conditions, for the direct transfer of individual plants and for the "direct transfer of vegetation clumps". As to the latter she said:Direct transfer of vegetation clumps involves the precise excavation by machine such as a backacter or face shovel of 2m2 x 4.5m2 "clumps" or "slices" of vegetation together with 0.3 or 0.5m of attached soil, and their careful placement in a single layer on the deck of a dump truck or other vehicle. Clumps are then slid or dumped onto the rehabilitated site. Underlying subsoils are excavated separately and, once dumped, are pushed around and between clumps to stabilise them, reduce moisture loss and create smoother ground and a favourable substrate for seedling germination.Direct transfer was characterised as the preferred method which, in terms of the draft rehabilitation management plan, would be used wherever possible. However, with reference to red tussock Dr Simcock did not initially propose the use of the direct transfer technique. [39] Instead, as she explained in evidence in rebuttal:In consultation with the Department of Conservation, the rehabilitation team decided that the low-stature tussock vegetation with cushion/herbfields would not be deliberately re-created (in order) to increase the resistance of rehabilitated vegetation to weeds, particularly Juncus squarrosus. The low tussock-cushion/herbfield vegetation is more vulnerable to invasion and replacement by this species due to short stature and probably slower growth rate. Taller tussock (>0.5m height) is preferred. The decision to avoid rehabilitating herbfield/bog vegetation can be revisited during mine life as results of rehabilitation and weed management are assessed because these plants can be relocated and maintained in the short term in stockpiles or nursery areas.Hence, the plan was to stockpile plants in nursery conditions to be used for rehabilitation purposes and, at the same time, to prefer taller tussock because it is more weed resistant. [40] Solid Energy also called Mr J H Rekker a hydrogeologist, who gave expert evidence concerning rainfall in the area, its geology and an assessment of hydrology issues affecting the pits before and after their closure and rehabilitation. He was notcross-examined. Nor did he give rebuttal evidence. His was the only evidence from an expert in this field. [41] Certain matters arising from Mr Rekker's evidence are of present relevance. The plateau has what he termed an extreme rainfall. In broad terms the relevant geology is that the coal seams are overlaid by predominantly Kaiata mudstone, which will of course be removed in the creation of the mining pits. Beneath the coal is a significant impermeable rock structure, in relation to which Mr Rekker said this:The rock structure is such that there is no significant connection between the (mine) pits and the surrounding rock. Therefore, water in the pits, during mining operations and once backfilled, will not get into the streams. Because the permeability of the rock is so low the pit will act as a "bathtub" that, once backfilled, will re-saturate and will not "leak".Nonetheless, at another point in his evidence and while describing the backfill hydrogeology Mr Rekker said:The principal effects of these changes on the post-mining groundwater hydrology of the backfilled areas are to increase groundwater flow rates and flatten the hydraulic gradient. This will result in resaturation of the ground to a lower level than occurred in the intact parent rock (that is, the water table would be lower than the pre mining level). (emphasis added).This piece of evidence was subsequently highlighted by Dr K M Lloyd who was called by the Buller Conservation Group. [42] Dr Lloyd is an ecologist and botanist of considerable experience. In preparation for giving evidence before the Environment Court he made a two day field trip to the site of the proposed mine on 11-13 January 2005. I note that at para [68] of its decision the Environment Court recorded a criticism made by Mr Christiansen for Solid Energy, namely:That the late circulation of evidence for Dr K M Lloyd meant that a number of matters raised by him were not able to be considered properly until just before and during the hearing.In any event, Dr Lloyd's evidence (which ran to 80 pages before annexures) included these assessments: areas of wetland vegetation, including red tussock wetland associations, will not be restored. Red tussock grassland may establish in the short term but will be overtopped by scrub and forest in the medium to long term. The closure targets set out in the conditions of consent do not adequately reflect the rehabilitation goals.And later at para 7.30 in discussing rehabilitation techniques and after agreeing that direct transfer of plants was the preferred method, Dr Lloyd said:The use of direct transfer of vegetation will be heavily constrained by the mining schedule. Direct transfer of vegetation clumps will only be used in years 2, 3 and 6. This means that direct transfer of vegetation will not be used for rehabilitation of red tussock wetlands or other wetland vegetation. There are also practical difficulties with direct transfer of wetland vegetation, because of the wetland soil structure tends to "porridge" during transport and the material has to be contained in bunds at the transfer site. Disturbance of soil structure also creates habitat for weeds.[43] Hence, with reference to red tussock wetlands, the evidence of the various experts was in conflict to some degree. The existence and significance of the wetland areas was common ground, but Dr Lloyd considered that Solid Energy's rehabilitation plan for red tussock wetlands would not work, at least in the long term. He maintained that the only way to preserve the wetland characteristics of the area was through direct transfer, which Dr Lloyd considered was not feasible.The Environment Court's reasoning[44] It is somewhat difficult to capture the essence of the Environment Court's concerns and conclusions at least upon a first reading of the judgment, since the issue of the red tussock wetlands is discussed at different points and under different headings, rather than as a discrete issue. [45] I have already referred to paras [63] to [65] of the Environment Court decision (see para [27] of this decision) in which, under the heading "The Applicant's Proposed Conditions", the Environment Court expressed itself satisfied that Solid Energy had acted responsibly in relation to Part II issues and, indeed, had gone as far as it could in an endeavour to meet the various environmental concerns.[46] Then the Court recorded "several major concessions made at the hearing by Solid Energy in an endeavour to meet concerns raised by Dr Lloyd. These included at para [68]:(a) Hydrological conditions under the current wetland areaDr Lloyd assumed that the rehabilitated area would be more free draining than currently. It appears other ecologists intended the drainage to be the same as currently. Now the applicant intends that there be a condition to that effect (see B9.8B). (b) Direct transfer of red tussock wetlandAll ecologists, including Dr Lloyd, are agreed that the best way to maintain the values of the red tussock wetland is to provide for direct transfer of that to a place where the communities can be maintained. Essentially this involves lifting an entire area of wetland, transporting it to another area then carefully placing it back on similar topography with similar hydrological underground conditions. Although all ecologists were agreed that this was the best approach, there were concerns that there were operational constraints which meant that while the area in the north pit with the red tussock wetland on it was being cleared, there was no other area ready to be rehabilitated. By the end of the hearing Mr Christiansen had obtained instructions and was able to suggest a further condition be imposed (not included in Annexure A) to provide for a minimum of twelve hectares of red tussock communities to be directly transferred from Happy Valley to an intermediate site. The red tussock communities are to be maintained on that intermediate site and then later resited in the north pit by direct transfer on similar ground with similar hydrological conditions. This is a substantial (and costly) concession by the applicant and addresses in a very substantial way one of Dr Lloyd's prime concerns. Dr Lloyd indicated that he considered that if 75% of the Happy Valley could be direct transferred this would overcome his concern in respect of the red tussock wetland. Although this provision falls somewhat short of that aim (at around 50%), it is a significant improvement over alternative planting methods.[47] Next, under the heading "The effects of the activity and the mitigation measures", the Court said this:[122] As we have already discussed, there is no doubt that the mining will remove significant vegetation from this site, at least for a period. There was some argument as to the extent to which this could be rehabilitated but it is nonetheless the subject of extensive conditions, the aim of which is to reinstate functioning ecological communities similar to that which pre- existed. Replication cannot be achieved practically. Dr Bartlett described it as impractical if not impossible. [123] However in light of the proposal now to replace by direct transfer some twelve hectares of the Happy Valley wetland, we have a greater degree of confidence that similar communities may be produced. There are still uncertainties as to the survival of the wetland communities from theintermediate transfer and re-transfer to the site. From examples we have seen at Stockton, we are relatively satisfied that with proper care and supervision by a person such as Dr R C Simcock, transfer might be achieved with minimal disruption to the wetland communities. Because of the high rainfall, we doubt that the species are likely to die through dry-out if timing of the shifts is carefully planned. [141] . . In respect of the wetlands we accept that there will be some lowering of values in the short to medium term. However with the direct transfer of up to half of the Happy Valley area and other portions of vegetation and with the extensive planting and weed control, we are satisfied that the values of these areas will be largely maintained. We accept that there will be a lowering of the values of the wetlands overall but not at a significant level.[48] Finally, in setting out its "Conclusions" the Court said:[197] In respect of indigenous vegetation we have been particularly convinced by the concession of Solid Energy at the conclusion of the case requiring the direct transfer of 12 hectares of red tussock wetlands to an intermediate site and then back onto the rehabilitation sites. That concession is of considerable moment to this Court and convinces us that the values on the rehabilitated site will in due course not be significantly devalued. We conclude the life-supporting capacity of the ecosystem will be safeguarded in the long term.[49] To give effect to the red tussock direct transfer requirement the Court imposed comprehensive conditions which include a requirement that Solid Energy establish the baseline soil moisture conditions present in the Happy Valley floor area before the commencement of mining in the north pit. Further conditions deal with the issue of direct transfer and maintenance of the wetland at the intermediate site. After the north pit is back filled Solid Energy must relocate the 12 hectares of red tussock wetland and ensure that the backfilled soil will retain a hydrological regime suitable for wetland. Hence, there are conditions requiring testing of the soil and for immediate remedial steps to be taken to achieve appropriate soil moisture conditions, if necessary.The respective arguments[50] As Mr Reid stressed in the course of his argument directed to this aspect it is self-evident that the Environment Court placed considerable store upon the direct transfer of 12 hectares of red tussock wetlands, and its movement back to the Happy Valley floor area in due course, as pivotal to the preservation of the natural characterof the wetland. But, Mr Reid continued, the Court's confidence that preservation would be achieved was misplaced because the evidence did not demonstrate that direct transfer, and subsequent relocation, of the 12 hectare area was feasible. [51] To the contrary he argued by reference to both Dr Loyd's evidence and the evidence of Solid Energy's own witnesses, that the strong indications were that retransfer of the wetlands was not realistically attainable. Further, Mr Reid submitted, recreation at the mine site of the hydrological conditions necessary to support wetland herb field associations was not possible. In the first place, Dr Lloyd expressed the view that initial removal of segments of the wetland would cause the plant soil to turn to "porridge", which would place the survival of the vegetation at risk, let alone indicate that retransfer of the sections back to the pit area in due course would be possible. With reference to hydrological conditions Mr Reid contended that Drs Lloyd, Bartlett and Simcock expressed a consistent view to the effect that it would not be possible to re-establish moisture regimes in the rehabilitated pit areas which would enable the re-establishment of wetland herb field associations. Particular answers given by each of these witnesses were highlighted. [52] Hence, in the end result it was Mr Reid's submission that there was no evidence upon which the Environment Court could have any confidence that either retransfer of the 12 hectares of red tussock wetland or the re-establishment of suitable hydrological conditions in the pit areas, was attainable. It followed that the imposition of detailed conditions which required Solid Energy to re-establish the 12 hectare area, was illusory. Attainment of that end result was demonstrated by the evidence to be impossible, or at least there was no evidence upon which the Court could confidently conclude it was appropriate to grant the resource consent subject to the relevant conditions. [53] By contrast, Mr Christiansen went so far as to characterise this ground of appeal as misconceived. He contended that there was evidence upon which the Environment Court could be satisfied that relocation and retransfer of 12 hectares of red tussock wetland was possible and, likewise, that the hydrological conditions in the pit areas following their rehabilitation would be suitable for the re-establishment of wetland herb field associations. Counsel argued that once the evidence as a wholewas properly evaluated, rather than a focus placed upon certain specific answers, it was clear that this was not a situation where there is an absence of evidence. Rather, there were conflicts in the evidence, but at the end of the day there was an evidentiary basis upon which the Court was able to conclude on balance that re- establishment of the red tussock wetland was likely to be attainable and, hence, it was competent for the Court to impose conditions to that end. In short, Mr Christiansen submitted, this ground did not raise a question of law based on an absence of evidence, but in reality was an endeavour to contest the sufficiency of the evidence when that is not the function of this Court.Discussion[54] As both the evidence of the experts and the decision itself demonstrate, the direct transfer proposal was in response to Dr Lloyd's evidence and became a condition proposed by Solid Energy in the course of final submissions. It is also clear that this significant development emerged at such a late stage, at least in part because Dr Lloyd's evidence became available only just before, or at, the hearing. To my mind both the evidence of the various expert witnesses and the Court's findings need to be assessed with this background in mind. [55] Counsel on both sides drew attention to particular answers of witnesses, often given in the course of cross-examination, which were said to demonstrate that there was an absence of evidence as to the direct transfer of red tussock wetland, or were supportive of the opposite view that transfer was attainable. I do not consider it is appropriate, or necessary, in the context of a question of law of the present kind to subject the evidence to a meticulous examination in order to assess the merits of the rival contentions as to its adequacy. Rather, it seems to me, it is sufficient to refer to the evidence of Dr Simcock and Mr Rekker as it bears upon the transfer issue and to the Court's appreciation of that evidence. I accept it is also important to recognise the function of the Environment Court when it is faced with a need to reconcile competing values in order to reach a conclusion whether a proposal meets the end goal of sustainable management.[56] Mr Rekker's evidence concerning the hydrological conditions in the pit areas before and after mining was not the subject of challenge. He was not cross- examined as to his conclusions, yet Dr Lloyd subsequently seized upon aspects of that evidence in order to support his thesis that it would not be possible to re- establish hydrological conditions suitable for red tussock in the pit areas following their rehabilitation. This does not impress me as a satisfactory approach. It is evident from the submissions that I heard that important distinctions exist between, for example, ground water and surface water conditions. This distinction was not explored by cross-examination, in anticipation of Dr Lloyd's evidence. [57] My appreciation of Dr Simcock's evidence, read as a whole, is that she did consider the direct transfer method was able to be used at the mine site, regardless that she did not initially advocate that approach for red tussock on account of logistical difficulties. Importantly, the Court found at para [123] of its decision that it was "relatively satisfied" that with the supervision of someone of Dr Simcock's standing direct transfer was achievable "with minimal disruption to the wetland communities" (see para [47] of this decision). That said, the Court also qualified such conclusion by drawing a distinction between replication of the former community (which is not achievable) and rehabilitation of these plant communities. Hence, the Court found that the values of the wetlands would be affected to a degree, but not to a significant level (para [141] of the decision). [58] When the somewhat guarded and careful terms of the Court's findings are brought to account, I am unpersuaded it is appropriate to say that it assumed the attainability of the direct transfer of red tussock, when there was not evidence to support that approach. In this regard I accept Mr Christiansen's submission that the findings must be viewed from the perspective that they were made by a specialist court, which is frequently confronted with conflicting scientific evidence as to future events. Using a phrase which enjoys currency in the judicial review context, I see the judgments which the Court was called upon to make in relation to the present issues as involving a margin of appreciation which it is impossible for this Court to match. Importantly the three members of the Court listened to the expert evidence over many days and also questioned the witnesses, sometimes at considerable length (as the record confirms).[59] In these circumstances, and by a margin, I am not persuaded that the Court erred by imposing the conditions relating to the direct transfer of red tussock wetland, when there was an absence of evidence to support their imposition. Accordingly, I reject this ground of appeal.Question 2 : Did the Environment Court apply an incorrect standard of proof in assessing the mitigation plans for Spotted Kiwi and Powelliphanta patrickensis snails?[60] The question as posed by the appellant was:The Environment Court erred in that it applied the wrong legal test, in assessing the evidence of the proposed mitigation measures for adverse effects impinging on matters of national importance under s 6 of the Act, namely significant habitat for fauna.[61] The argument for the appellant was that the Court adopted the normal civil standard of proof, on the balance of probabilities, when deciding that the fauna mitigation plans would be successful. This, it was submitted, was wrong given the uncertainty as to the outcome of such plans, the significance of the national values involved and the potential impact on those values if the mitigation plans were unsuccessful. Hence, it was said the Court ought to have adopted "a much higher standard of proof". The approach was criticised as inconsistent with that adopted by the Environment Court in other cases where "the risk of potential adverse effects in the face of scientific uncertainty" fell to be considered. In a related submission counsel also contended that the Court, by proceeding on the basis that the fauna mitigation plans would be successful, failed to address and consider the potential impact of the failure of those plans.The context of the argument[62] The Court, after noting at para [95] that a range of indigenous fauna would be affected by the mining, focused on the spotted kiwi and the patrickensis snail as the fauna of greatest significance. With reference to kiwi the Court referred to the evidence of Dr J McLennan, an ecologist called by Solid Energy, whose evidence was uncontradicted on many aspects. First, the witness noted that the mine area waspart of a significantly greater area which is occupied by the spotted kiwi. The birds are very territorial in nature. Within the Waimangaroa Valley Dr McLennan estimated there were between 75 to 145 adult Kiwi, of which 10 lived entirely or partially within the proposed site of the mine. Finally, Dr McLennan explained that spotted kiwi live for approximately 20 years, although the young (to a weight of 800 grams) are vulnerable to predators. As a consequence of predation, the witness considered that the species was in "gradual decline". [63] With regard to mitigation proposals, Dr McLennan expressed the view that the kiwi in the mined site would need to be relocated, since they are so territorial that mining activity in itself would not cause them to migrate to adjacent areas. But, following relocation and on account of their strong territorial instinct, the kiwi may be unable to adapt and establish a new territorial presence. Hence, at para [98] the Court observed: Dr McLennan says that because of the lack of knowledge as to how such birds fare when relocated, these ten birds may be lost (the worst case scenario).[64] Turning to patrickensis snails, the Court referred to the evidence of Mr R P Buckingham (a wildlife ecologist) and Ms K G Walker (a scientist with the Department of Conservation), both of whom are experts in relation to the species. Patrickensis were first discovered in 1949 and the species is listed as nationally endangered. It occurs only on the Stockton Plateau. The experts were in agreement that the snails would have to be physically removed before mining excavation began, or they would be lost. [65] At para [103] the Court summarised the evidence concerning the snails' habitat and numbers:Within their habitat area we accept that the Powelliphanta have relatively specific habitat requirements. They are particularly found on stream and scrub margins, particularly in low manuka and mountain beech forest. We accept Ms Walker's evidence therefore that the mine footprint contains around 10% of the species' remaining habitat within the Upper Waimangaroa Valley and around 10% of the estimated snail population.The Court's analysis of the mitigation plans[66] At paragraphs [126] to [135] of the judgment the Court assessed the mitigation plans relevant to kiwi and patrickensis. First it referred to the "key elements" of the plans as set out in proposed conditions of the resource consent:(a) the creation of a predator-proof reserve of some 17 hectares within which patrickensis and kiwi will be free from predators; (b) an extensive predator control programme in a much wider area shown on attachments 3 and 4 for the kiwi and patrickensis; (c) control of the site to prevent pets or pests invading surrounding land; (d) ongoing monitoring and management to enhance the indigenous species; (e) the re-introduction of these indigenous species to the rehabilitated mine site areas after revegetation and prior to closure; (f) ongoing work to identify habitat and feeding requirements ofpatrickensis; (g) ongoing work in respect of location, breeding and re-introduction of kiwi to rehabilitated sites, which may have application throughout New Zealand. The overall objectives of these conditions is to enhance the kiwi population and arrest what appears to be an existing gradual decline in both species in the Ngakawau Ecological District.[67] The Court then noted the concerns expressed by some witnesses, namely that the mitigation plans may not reverse the gradual decline of the species, so that the situation was one of "unarguable loss in the short term" to be "set against a possible outcome in the future which is unproven and speculative". However, the Court rejected this view and found (para [128]) on the basis of the evidence called by Solid Energy that the management plans would enhance the populations of both species. It was accepted that deer, possum and stoat were, through predation, causing decline in the species numbers. The Court then found on the basis of the expert evidence that it was satisfied the development of a predator-proof area, coupled with a larger predator control area, would reverse the decline in both kiwi and patrickensis, as well as achieve other benefits in relation to the understanding of patrickensis in particular. [68] The upshot of the analysis was contained in paragraphs [132]-[135] which, in view of their importance, I set out in full:[132] We acknowledge that there is a risk of failure, and thus we accept that the conditions require close monitoring and allow for regular review of the conditions of consent. We use an analogy from the reasoning in the decision in Jackson Bay Mussels Limited and Ors v West Coast Regional Council in relation to Hector's dolphins. In the event that it is found that there is an adverse impact on the kiwi or the patrickensis snails beyond that contemplated in this decision, then that is a matter which may give rise to a review of the consent as a whole. The concern of the opponents in this regard is that by the time the adverse consequences of the plan are known, the excavation of the site will have already occurred and the loss ofpatrickensis and their habitat will be a foregone conclusion. [133] In respect of both the kiwi and the patrickensis habitat, the losses may be up to the full number of snails and kiwi occupying the area, (i.e. up to 200 snails and up to ten kiwi) but may be less. On the other hand, the gains are long-term gains, and we are not likely to see any significant trend for at least ten years and probably 20 years. [134] However at least in respect of the hatching and rearing of chicks, we are satisfied that the predator-proof area will serve to increase the population of kiwi chicks surviving to 800 grams in the short term. [135] We have also concluded that the lowering of predators generally within the area and the predator-proof area will bring about an overall reduction in the predation of both kiwi and patrickensis in the short to long term. Combined with the other management plan steps, including identifying preferable habitats and food sources for patrickensis, we have concluded on the balance of probabilities that these programmes will be successful. In other words, that they will achieve both enhancement of the numbers and habitats of those particular indigenous species. (emphasis added).[69] The reference in the final paragraph to the civil standard of proof assumed central importance in Mr Reid's submission that the Court had erred in its approach to this aspect. Given that the values at stake were recognised to be of national importance, and given the finely balanced nature of the assessment as to whether the mitigation plans would succeed (as evidenced by para [132]), the adoption of a conventional civil standard of proof was characterised as wrong in principle. Moreover, the Court was said to have placed such reliance on its finding that the mitigation plans would succeed, that it was deflected from a consideration of the adverse effects which would flow from failure of the plans.Discussion[70] In essence Mr Reid's argument is one about risk assessment. He contended that the risk posed to the two species by the mining activity was so significant as torequire a good deal more than satisfaction on the balance of probabilities that the mitigation programmes would succeed. [71] It is an argument which I think owes a good deal to s 3 of the Act by which the term "effect" is defined, a distinction is drawn between potential effects of high, and low, probability, and the need to assess the potential impact of a probability is also recognised. The argument was also based on a number of decisions of the Environment Court concerning risk assessment, of which Clifford Bay Marine Farms Limited v Marlborough District Council C131/2003, 23 September 2003 is a good example. At para [68]-[69] the Court summarised its approach to risk assessment as follows:In our view the approach the Act requires is that under section 104(1)(a) and (i) of the Act each potential effect raised in the evidence should be assessed qualitatively, or preferably quantitatively, in the light of the principles of the RMA, and the objectives and policies of the relevant instruments as to: (a) probability of occurrence; and (b) force of impact. [69] Whilst facts must be proved on the balance of probabilities, there is no single standard of proof for most of the judgments involved in those two steps, nor does the same standard have to be used for each risk. The standard varies according to the weighing of the potential impact of the effect.[72] In Francks v Canterbury Regional Council [2005] NZRMA 97 I considered a number of cases of the Environment Court concerning risk analysis, and concluded that I could see no reason to doubt the correctness of these decisions. That said, it is the case that the thinking in at least some of these cases is quite elaborate and, it seems to me, of a nature likely to excite grounds of appeal such as the present one. [73] As the House of Lords said In Re H (Minors) [1996] AC 563 in a markedly different context, there are only two standards of proof, being beyond reasonable doubt and on the balance of probabilities, but:Built into the preponderance of probability standard is a generous degree of flexibility in respect of the seriousness of the allegation. : (Lord Nicholls at 586).This speech, and others in the case, discuss the need in relation to proof to have regard to the particular context, and where risk assessment is involved to consider in particular the seriousness of the consequence (or impact) in deciding whether a matter is proved. But, so long as these considerations are observed, the standard of proof is unaltered. There is no separate and special standard of proof which falls somewhere between the criminal and civil standards. [74] I am unpersuaded that the Court erred in its analysis of the mitigation plans in this instance. While the values at stake were of national importance, the Court made factual findings that about 10 kiwi and up to 200 snails (10% of the population) were at risk from the mining activity. Without in any way diminishing the value at stake, it was not, therefore, a situation where entire populations were at risk from the proposed activity. [75] Nonetheless the Court did, I consider, pay proper regard to the risk posed to each species. It considered the loss of all the kiwi from the mine site following relocation as the "worst case scenario" and averted to the need to locate and remove patrickensis from the mine footprint, which would "not be possible" in the sense that not all snails would be located and successfully moved. Having regard to the numbers involved, I am unpersuaded that a more elaborate evaluation of the potential impact upon the species was required. [76] There can be no question that the Court was entitled to find, as it did, that the mitigation plans were comprehensive and likely to be successful in reducing predation, and therefore that their implementation should lead to an enhancement of the respective populations. I do not read the reference in para [132] to "a risk of failure" as having the significance which Mr Reid ascribed to it. That paragraph does not indicate to me that the Court doubted its earlier conclusion as to the likely successful outcome of the plans, nor does it indicate that the assessment was finely balanced, but rather in it the Court recognised that there may be consequences not "contemplated in this decision" which in turn emphasised the need for monitoring and review of the conditions over a period of time.[77] Nor do I regard the reference to balance of probabilities in para [135] as signifying as inappropriate dilution of the standard of proof. Read in the context of the analysis as a whole, I am confident that the Court did appropriately assess the potential effects and impacts which the proposed mining activity entailed. In the result, therefore, I conclude that the analysis was appropriate to the circumstances of this case. Accordingly, I do not accept this ground of appeal.Question 3 : Did the Court appropriately distinguish between measures for "avoiding, remedying or mitigating any adverse effects" (in terms of s 5(2)(c)), as opposed to measures intended to compensate for harm to the kiwi and patrickensis habitats?[78] This question, which is closely associated to the previous one, was formulated by the appellant as follows:The Environment Court erred in that it applied the wrong legal test in assessing the adverse effects on the habitat of patrickensis and kiwi, having found that such habitat to be significant habitat of indigenous fauna for the purposes of section 6 of the Act, in that it considered whether such adverse effects could be compensated, rather than avoided, remedied or mitigated.[79] Mr Reid submitted that this error compounded the previous one in relation to the standard of proof, that is, not only did the Court approach the issue of proof incorrectly, but it also failed to distinguish between measures which provided only compensation, as opposed to mitigation of the potential effects. The gist of the argument was that Solid Energy's proposals did not mitigate the loss of habitat, in the sense that it was minimised. Instead, the mitigation plans were in essence an "off-site" environmental benefit by way of a trade-off to compensate for the loss and, therefore, not within the terms of s 5(2)(c) of the Act. At best, the Court was entitled to view the plans as compensation to be weighed in the mix when making the final assessment pursuant to s 104 as to whether the purposes of the Act would be served by granting consent to the mining activity.The approach of the Court[80] The factual aspects which are relevant to this ground of appeal are sufficiently set out in the preceding section dealing with the second alleged error of law. [81] The impact of the mining proposal was succinctly summarised in these terms:[160] We recognise that the proposal will potentially remove the whole or part of the habitat of ten great spotted kiwi and will remove completely the habitat of around 10% of the population of Powelliphanta "patrickensis". There is no certainty that populations of either of these species will be restored to the area of the mine site. Nevertheless we consider that the proposed predator-proof areas will improve the quality of the habitat that remains; thus the proposal is not inconsistent with policies to protect the significant habitats of indigenous fauna.[82] Under the heading "The discretionary criteria" the Court commenced a s104 analysis at para [181] of its decision. This was necessarily wide-ranging and I need not refer to all the details of the discussion. With specific reference to kiwi and patrickensis the Court said this at para [190]:Earlier in this decision we have considered effects on the habitat of the great spotted kiwi and Powelliphanta "patrickensis". We accept that habitat will be lost, but we found that the protection from predation in other areas offered by the applicant will afford benefits to these species whichcompensate for the loss of habitat. (emphasis added)[83] Finally, in setting out its conclusions the Court said this:[198] In respect of the patrickensis and kiwi we consider that the management plans will achieve their object. We conclude the areas of indigenous flora and habitats of indigenous fauna will be protected in the long term and possibly enhanced.With reference to the s 104 assessment Mr Reid naturally drew attention to the word "compensate" used to describe the predator control programmes as an offset for the loss of habitat caused by the mine. Counsel also argued that the Court's decision suffered from the deficiency that no consideration was given to refusal of the consent application as an available option. Thereby, of course, the loss of habitat would have been averted and this, Mr Reid said, should have been an option which was seriously considered by the Court.Discussion[84] At the forefront of his submission on this aspect Mr Christiansen referred to an inquiry made by the Court of counsel and to their response as recorded in the decision:[61] The parties accepted that the fact that there were section 6 matters was not determinative of the application. In respect of matters under section 6(a), 6(c) and 6(e), there was no disagreement that these matters of national, regional and local importance were directly relevant to the application before the Court. Further, there was no argument that the landscape and features, if not outstanding under section 6(b), had very high value. Nor was there any dispute that the coal resource had national, regional and district importance. The parties all focussed on identifying the values associated with each of these issues, the effect of the proposed mining activities on them and the minimisation, mitigation and compensatory measures proposed. Similarly, the parties did not engage in extensive discussion of the various comparisons to be made between minimisation, mitigation and compensation. In general terms this Court intends to use the word mitigation to cover all these possibilities.Hence, Mr Christiansen suggested, the point now sought to be taken on appeal did not sit comfortably with the stance which was adopted at the hearing itself. [85] But in any event counsel also submitted that the predator exclusion and control areas were so physically connected to the land to be mined that they could not, realistically, be described as "off-site". This, it seems to me, is correct and is necessarily fatal to the appellant's argument in relation to this ground of appeal. Put another way, if there is a close inter-connectedness between the areas which are the subject of the mitigation plans, and the area to be mined, there is limited scope to characterise the plans as being in the nature of compensation, rather than mitigation. [86] The context for this conclusion is supplied by references taken from the judgment. The Court reached a reasoned conclusion that both populations were in decline on account of the actions of predators. Having referred to the detail of the predator control programmes proposed in relation to the respective species, the Court reached a further conclusion that the successful implementation of the programmes would lead in the long term to enhancement in the numbers of each species in the locality. To my mind the major aspect which supported this last conclusion was therequirement for Solid Energy to establish both a predator exclusion, and predator control, areas for the two species. [87] These are depicted in maps which form part of the schedule of conditions attaching to the consent. The predator exclusion area is adjacent to the mine footprint and within the mining permit area. [88] The predator control areas are both much more extensive in size and cover, as I understand it, the area of the mine footprint as well as an extensive area beyond it. Although, as Mr Reid argued, the exclusion and control areas are either wholly or partially beyond the mined area itself, it seems to me artificial to characterise them as "offsite" proposals. The exclusion area must necessarily be offsite, but nearby, so that the populations of kiwi and partrickensis can be transferred to it. The much larger control areas are also necessarily "offsite" to a major degree, since in terms of size they significantly exceed the area of the proposed mining activity. But, thereby, it does not seem to me that these measures are properly characterised as offsite compensation. [89] It is not as if the proposed mine comprises a defined environmental area. It does not. Its area and location reflects the existence of an extensive coal reserve beneath the surface. The evidence indicates that the area of the proposed mining activity is but part of a much larger environmental area. Once this is recognised it seems to me the contention that the predator exclusion and control areas are off-site is barely tenable. Within the greater Waimangaroa Valley environment they are to be seen as situated in the immediate context of the proposed mining activity, although not co-extensive with it. [90] Even if I am wrong in relation to that observation, in the end it is the s 104 overview which is determinative. Standing back and assessing the proposals in the round with reference to their potential effects on kiwi and patrickensis, the Court's findings are to the effect that the populations in theWaimangaroa area will probably be enhanced in the long term. Regardless that this outcome may be described as one achieved by compensatory measures, it is nonetheless a valid and significant consideration which the Court was entitled to bring to account.[91] In relation to Mr Reid's further submission that the Court failed to give consideration to possible refusal of the consent and the advantages that this would have for these species, I am similarly unpersuaded. [92] A submission of this kind must be assessed in the context of the scheme of the judgment. I have already explained that the Court did in my view have regard to the worst case scenario for kiwi and patrickensis. It then carried out an evaluation of the mitigation plans and concluded they were likely to be successful. This produced the further conclusion that the respective populations would be enhanced in the long term. In this context it was logical that the Court did not carry out an assessment of the advantages of refusal. Its conclusions pointed in another direction. The need for an assessment of the kind suggested is at odds with the Court's thinking. [93] For these reasons I do not accept that the third ground of appeal is made out.Conclusion[94] Each ground of appeal having failed, the appeal is dismissed. [95] Costs are reserved. If sought, Solid Energy and the Councils may file memoranda in support, to which the appellant will have 15 working days within which to reply._________________________________________________________________________________ Solicitors: Goodman Steven Tavendale & Reid, Christchurch for Appellant Duncan Cotterill, Christchurch for First and Second Respondents Anderson Lloyd Caudwell, Christchurch for Third Respondent