SADDLE VIEWS ESTATE LIMITED v DUNEDIN CITY COUNCIL [2018] NZCA 115

SADDLE VIEWS ESTATE LIMITED v DUNEDIN CITY COUNCIL [2018] NZCA 115 [23 April 2018]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA472/2017[2018] NZCA 115BETWEEN SADDLE VIEWS ESTATE LIMITEDApplicantAND DUNEDIN CITY COUNCILRespondentHearing: 20 November 2017Court: Miller, Cooper and Asher JJCounsel: T J Shiels QC for ApplicantM R Garbett for RespondentJudgment: 23 April 2018 at 2.15 pmJUDGMENT OF THE COURTA The application for leave to appeal is declined.B The applicant must pay the respondent costs for a standard application on aBand A basis and usual disbursements.____________________________________________________________________REASONS OF THE COURT(Given by Cooper J)[1] Saddle Views Estate Ltd (SVEL) seeks leave to appeal from a decision of theHigh Court which allowed in part and dismissed in part SVEL's appeals from twoEnvironment Court decisions. The combination of s 308 of the Resource ManagementAct 1991 (the RMA) and s 303 of the Criminal Procedure Act 2011 means that anappeal to this Court may only be made with leave, and the Court must not give leaveunless satisfied that the appeal involves a question of law of general or publicimportance.[2] The case is of some procedural and factual complexity, but we have not beensatisfied that it raises any issue justifying a second appeal.[3] The history of this litigation includes four Environment Court decisions andtwo High Court judgments. It is necessary, albeit briefly, to summarise the history toexplain the issues that now arise.Background[4] SVEL is the current owner of a quarry on Saddle Hill near Dunedin which hasbeen operated since about 1959 or 1960. There were issues as to the lawful authorityfor the activity, whether it was authorised historically by a Council consent and/orwhether it had and could assert existing use rights for its continued operation.[5] In 2011, the Dunedin City Council sought declarations under s 310 of the RMAas to whether there was a lawful right for the quarry to operate on the site and, if so,the extent of that right. The Environment Court declared that there had been noconsent for the activity and that there were no rights to carry out the quarrying activityunder any deemed resource consent pursuant to s 383 of the RMA.1[6] Section 38A of the Town and Country Planning Act 1953 (the TCPA) providedthat except with the consent of the Council, no use of any land not of the samecharacter as that which immediately preceded it could be commenced, after the dateof the commencement of the section and before the date when a relevant districtscheme became operative. The question of whether there was a consent for thosepurposes was a factual inquiry which engaged the Environment Court in a closescrutiny of the available evidence about what had taken place when the quarry activitycommenced and subsequently in the 1960s and the 1970s (later events beingconsidered for what light they could shed on what the parties must have consideredthe position to be when quarrying commenced).1 Dunedin City Council v Saddle Views Estate Ltd [2013] NZEnvC 196 at [97].[7] SVEL appealed from the Environment Court's decision to the High Court.Whata J delivered a comprehensive judgment on 20 November 2014.2 Although hedismissed many of the grounds of appeal, he held the Environment Court had erred.He considered that the Council as the applicant had a persuasive burden to show thatno consent had been granted.3 SVEL, on the other hand, had an evidential burden ofshowing that there was a reasonable possibility there had been a consent. He agreedwith the Environment Court that the absence of any contemporaneous record of thegranting of consent raised a serious issue about whether that was the case.4Nevertheless, having regard to a particular letter written by a planning consultant fromwhom the Council sought advice in April 1966, the Judge said that he was "notsatisfied on the balance of probabilities that consent was not granted for a quarry atSaddle Hill".5[8] As a consequence, he allowed the appeal and set aside the Environment Court'sdeclaration.6 The judgment included the following, under the heading, "Cautionarynote–need for consensus on scope":[137] While I have declined to grant the negative declaration sought bythe Council, I do not thereby affirm that the quarry is "expressly allowed by aresource consent" for the purposes of the removal of the entire hill. In theabsence of a written record of the consent, it will be difficult for any Court todefinitively find that this outcome is expressly allowed by consent. Thisplaces the activity in an unusual category. It is authorised by a consent, butthe precise terms for which cannot be accurately defined. It seems to me thatthe next task for the parties is to seek to reach consensus on the proper scopeof the activity, having regard to the full legal and factual matrix as at the timeof the grant, including the likely scope of any grant given the implicitrequirement at s 38A(2) to notify the public for activity that mightsignificantly affect neighbourhood amenities.[9] The Judge's reference to the expression "expressly allowed by a resourceconsent" was clearly a reference to the rule in s 9(3) of the RMA that no person mayuse land in a manner contravening a district rule unless the use is expressly allowedby a resource consent.2 Saddle Views Estate Ltd v Dunedin City Council [2014] NZHC 2897.3 At [134].4 At [135].5 At [135].6 At [136].[10] The Council made a new application for a declaration to theEnvironment Court on 6 March 2015. On this occasion, the Council sought adeclaration that SVEL had a resource consent to operate the quarry, restricted to anarea identified on a survey plan attached to the application, and subject to the conditionthat earthworks carried out would not visibly change the profile of the ridge line. Inan interim decision, the Environment Court declined to make the declaration soughtby the Council but gave the parties "one final opportunity" to make submissions inrelation to a possible "more accurate declaration as to the extent of the 1960 consent."7It set out on an indicative basis what the submissions of the parties should cover, theseincluding limits as to the intensity of the activity.8 It reserved leave for the Council toapply when lodging its submissions for an alternative declaration.[11] The Environment Court's final decision was issued on 13 October 2016 afterthe receipt of the further submissions.9 The Court declared that:(a) Consent had been granted in 1960 to Downer and Co to commencequarrying of Jaffray Hill to supply approximately 50,000 cubic yardsof rock for the construction of a new airport at Momona.(b) However, consent to commence an activity under s 38A of the TCPAwas not, as a matter of law, still "in force" within the meaning of s383(b) of the RMA. The Court reasoned that since s 38A of the TCPArelated to the commencement of activities prior to a district schemebecoming operative the consent was spent once the activity had beencommenced. When the district scheme became operative the activityin question, if in existence, was authorised by existing use rights.(c) Whether and to what extent quarrying on Jaffray Hill was authorisedunder a deemed consent under s 383 of the RMA depended, amongstother things, on "whether as a matter of fact quarrying was an existing7 Dunedin City Council v Saddle Views Estate Ltd [2016] NZEnvC 107 at [147]–[148].8 At [148].9 Dunedin City Council v Saddle Views Estate Ltd [2016] NZEnvC 199.use under the TCPA 1953 on 2 November 1970" (when the relevantdistrict scheme came into operation).[12] SVEL appealed to the High Court. Dunningham J's decision resolving thatappeal is the subject of the present application. In her judgment, she described theeffect of the Environment Court's decision as meaning in practical terms that while aconsent had been granted in 1960 under s 38A of the TCPA, there was no longer anyright to quarry in reliance on that consent.10[13] A number of issues were canvassed in the High Court, but it is not necessaryto mention them all. Dunningham J upheld SVEL's argument that theEnvironment Court had exceeded its jurisdiction by making the declarations describedat [10] (b) and (c) above, given the limited scope of the declaration that had beensought by the Council.11 She considered the Environment Court should have givencloser consideration to whether those declarations were necessary or desirable in termsof s 313 of the RMA. She reached a different conclusion in respect of the declarationdescribed in [10] (a), which she considered dealt with an issue that properly arose onthe Council's application. She held that it was open to the Environment Court toenquire into what rights there presently were to quarry the site and make suchdeclarations as it saw fit on that issue.12[14] The Judge rejected SVEL's contention that the declaration was inconsistentwith the judgment of Whata J. SVEL had argued that Whata J held that SVEL'sconsent under s 38A of the TCPA was a deemed resource consent under s 383 ofthe RMA, and "the Environment Court could not make any finding which underminedor contradicted that finding."13 SVEL sought to rely on cause of action or alternativelyissue estoppel. Dunningham J however concluded that Whata J had not squarelyaddressed the issue, nor decided it in SVEL'S favour.14 Rather, he had simply foundon the evidence as a whole that the Council had not shown that consent was not10 Saddle Views Estate Ltd v Dunedin City Council [2017] NZHC 1727, [2017] NZRMA 505[High Court judgment] at [4].11 We are not called on to express any view on that aspect of the High Court judgment, and refrainfrom doing so.12 High Court judgment, above n 10, at [43].13 At [62].14 At [65].granted. Since Whata J had not purported to go beyond the position as it was in 1960,the judgment could not be taken as concluding under the RMA that the activity wasauthorised by a consent.15 In a passage now focused on by Mr Shiels QC for SVEL,she observed that Whata J had not made findings on "the legal, or the factual, routefrom the grant of the consent in 1960 to the recognition of a resource consent unders 383" of the RMA.16[15] In other parts of the judgment the Judge rejected an argument advanced bySVEL that the Environment Court erred in law by concluding and declaring that the1960 consent was limited by quantity and purpose. The particular issues advancedwere described by the Judge as challenges to findings of fact made by the EnvironmentCourt.17 She noted a contention advanced for SVEL that the matters raised were legalissues on the basis that "the existence of a consent is a question of law."18 She thensaid:19 I do not consider that the assessment of the relevant facts that precedes thatdetermination engages a question of law unless it is tainted by some error inthe reasoning process.The application for leave[16] There is no doubt about the basis on which this Court must deal withapplications for leave to bring a second appeal. As noted earlier, we must be satisfiedthat the appeal involves a question of law of general or public importance.[17] The applicant seeks to advance three grounds of appeal. The first is acontention that the Judge erred in finding that the Environment Court had jurisdictionto enquire into and make declarations as it did, and was not bound by the applicationfor directions. The second is that the Judge erred in failing to find there was anestoppel (or abuse of process) precluding the respondent from contending there wasnot a deemed land use consent under the RMA. The third is a claim that the Judgeerred in finding that the assessment of relevant facts preceding a determination as to15 At [67]–[68].16 At [68].17 At [94]. The issues were discussed at [82]–[88].18 At [94].19 At [94].the existence and terms of a statutory consent does not engage a question of law unlesstainted by some error in the reasoning process.[18] We are satisfied that none of the grounds referred to satisfies the statutorycriteria for a grant of leave to bring a second appeal. Addressed generally they raiseissues that very much arise out of the circumstances of this case and lack any qualityof general importance that would justify a second appeal. Nor could they be advancedwith any real prospects of success.First issue[19] The first issue essentially asks this Court to give a kind of advisory opinion onthe extent of the power conveyed by s 313(b) of the RMA. Section 313 provides asfollows:313 Decision on applicationAfter hearing the applicant, and any person served with notice of theapplication, and any other person who has the right to be represented atproceedings under section 274, who wishes to be heard, the court may—(a) make the declaration sought by an application under section 311, withor without modification; or(b) make any other declaration that it considers necessary or desirable; or(c) decline to make a declaration.[20] Consequently, in disposing of an application for a declarationthe Environment Court may make the declaration sought "with or withoutmodification", or it may decline to make a declaration. Importantly, however, it maymake any other declaration it considers necessary or desirable. This is a very broadconferral of power. No doubt there are limits on the power to make "any other"declaration, but it would not be appropriate to attempt to define those limits except inthe broadest terms suggested by such concepts as rationality, relevance and naturaljustice.[21] Here, the council's application was for an order that SVEL had a resourceconsent to operate the quarry, restricted to a specified area and subject to the conditionthat earthworks carried out would not visibly change the profile of the ridge line. Theonly issue that could be considered on a second appeal is whetherthe Environment Court had power to declare that consent was granted to commencequarrying subject to a limitation as to volume. We think it is clear it did, unders 313(b), if not (a). We can see no arguable question of law arising.Second issue[22] As to the second issue, Mr Shiels QC seeks to advance for a second time theargument based on cause of action estoppel or issue estoppel, submitting that the termsof Whata J's judgment on the first application for declaration meant that theEnvironment Court was precluded from making findings that were inconsistent withSVEL having at least some lawful right to quarry in reliance on a resource consent.Alternatively, Mr Shiels argued there had been abuse of process by re-litigation.[23] The issues addressed in argument were all related to the circumstances of thiscase. There was no general legal issue affecting either kind of estoppel or abuse ofprocess such as might be said to be of general importance. The argument was basedon a close focus on the true implications of Whata J's judgment when properlyanalysed. This is not the kind of issue contemplated for a second appeal.[24] But even if it were, we see no prospect of a successful argument thatDunningham J had misunderstood or misconstrued Whata J's judgment. Whata J wasnot able to be satisfied that there had not been a consent for the commencement of thequarry. So he declined to make the declaration sought. Some of the language he usedmight be construed as having reference to a wider kind of resource consent, but thatdoes not affect the fact that he did not determine there was a deemed permissionauthorising ongoing activity for the purposes of s 383 of the RMA. Indeed, he couldnot have done so, without further information about any limits on what had beenconsented to beyond "commencement". We see his "cautionary note", set out above,as an express recognition of the limited effect of his judgment.[25] In other words there was no positive finding that there was a resource consentof the kind that might be necessary to provide ongoing permission for quarrying of thehill under s 383 of the RMA. Whether that was the case could only be determined insubsequent processes. It was those processes that led to the second declarationapplication and the Environment Court decision giving rise to the judgment ofDunningham J.[26] It follows that there could be no prospect of this ground succeeding on asecond appeal.Third issue[27] The third ground, as has been seen, is expressed in very general terms. Itsfocus is on the issues discussed by Dunningham J preceding her conclusion at [94],quoted in [14] above. SVEL essentially sought to challenge the Environment Court'sfindings that the 1960 consent was limited by quantity and purpose, arguing on variousgrounds that the finding was inconsistent with other findings of that Court, or notsupported by evidence, and unreasonable. We agree with the Judge that the issues wereessentially factual in nature.[28] Mr Shiels argues that construction of the 1960 consent was a matter of law, butin the particular circumstances of this case that required factual findings, and thedrawing of inferences. This is essentially the task the Environment Court carried out.We do not consider there is a legitimate question of law in this ground, still less oneof general importance.Result[29] The application for leave to appeal is declined.[30] The applicant must pay the respondent costs for a standard application on aBand A basis and usual disbursements.Solicitors:O'Neill Devereux, Dunedin for ApplicantAnderson Lloyd, Dunedin for Respondent