SUSTAINABLE OTAKIRI INCORPORATED v WHAKATĀNE DISTRICT COUNCIL [2023] NZSC 35 [17 April 2023]

SUSTAINABLE OTAKIRI INCORPORATED v WHAKATĀNE DISTRICT COUNCIL [2023] NZSC 35[17 April 2023]IN THE SUPREME COURT OF NEW ZEALANDI TE KŌTI MANA NUI O AOTEAROASC 1/2023[2023] NZSC 35BETWEEN SUSTAINABLE OTAKIRIINCORPORATEDApplicantAND WHAKATĀNE DISTRICT COUNCILFirst RespondentCRESWELL NZ LIMITEDSecond RespondentSC 2/2023BETWEEN TE RŪNANGA O NGĀTI AWAApplicantAND BAY OF PLENTY REGIONAL COUNCILFirst RespondentCRESWELL NZ LIMITEDSecond RespondentCourt: Glazebrook and O'Regan JJCounsel: D M Salmon KC, D A C Bullock and E J Mills for ApplicantSC 1/2023H K Irwin-Easthope and K J Tarawhiti for Applicant SC 2/2023A M B Green for First Respondent SC 1/2023J B M Smith KC and D G Randal for Second RespondentSC 1/2023 and SC 2/2023M H Hill for First Respondent SC 2/2023Judgment: 17 April 2023JUDGMENT OF THE COURTA Subject to C, the applications for leave to appeal are granted(Te Rūnanga o Ngāti Awa v Bay of Plenty Regional Council[2022] NZCA 598).B The approved question is whether the Court of Appeal wascorrect to dismiss the appeals.C The application for leave to appeal on costs is dismissed (TeRūnanga o Ngāti Awa v Bay of Plenty Regional Council[2022] NZCA 598).D An extension of time to apply for leave to appeal is granted(Te Rūnanga o Ngāti Awa v Bay of Plenty Regional Council[2020] NZHC 3388).E The application for leave to appeal is granted (Te Rūnangao Ngāti Awa v Bay of Plenty Regional Council [2020] NZHC3388).F The approved question is whether the High Court erred inupholding the Environment Court's decision in relation tothe negative tikanga effects.____________________________________________________________________REASONSBackground[1] The applications in this case stem from a dispute relating to the proposedexpansion of a water bottling plant in the Bay of Plenty.1 In 2016, Creswell NZ Ltd(Creswell), the second respondent in both applications, entered into a sale andpurchase agreement for the land and water distribution/bottling business.2 Creswellsought consents from the Bay of Plenty Regional Council to take water for the bottlingoperation, amongst other activities.3 Creswell also sought consent fromWhakatāne District Council to vary conditions which applied to the existing land use1 Te Rūnanga o Ngāti Awa v Bay of Plenty Regional Council [2022] NZCA 598 (Cooper, Goddardand Dobson JJ) [CA judgment] at [7].2 At [9].3 At [17].consent to allow the expansion of the water bottling plant and the construction of newfacilities.4[2] The consents were granted and subsequently upheld in the Environment Courtby majority (subject to conditions).5[3] On appeal to the High Court, amongst other issues, the High Court consideredwhether the "end use" of the bottles could be considered; whether the majority erredin declining to have recourse to Part 2 of the Resource Management Act 1991; whetherthe majority erred in determining that the activity status under the Whakatāne DistrictPlan was a discretionary "rural processing activity" rather than a non-complying"industrial activity"; whether negative effects on te mauri o te wai and the ability ofTe Rūnanga o Ngāti Awa to exercise kaitiakitanga (the negative tikanga effects) couldbe considered; and whether it erred in determining that the activity was the expansionof an existing activity rather than a new activity.6 The High Court dismissed theappeals.7[4] The Court of Appeal largely considered the same questions as those which hadbeen considered in the High Court.8 Relevantly, the Court of Appeal refused to grantleave on the issue of whether the High Court erred in its finding that theEnvironment Court was correct to exclude consideration of the negative tikangaeffects.9 The Court of Appeal affirmed the High Court decision on all issues, with theexception of the Court of Appeal's holding that the Whakatāne District Council shouldhave dealt with the proposal as a new activity (although it held that this was irrelevantto the outcome).104 At [20].5 Te Rūnanga o Ngāti Awa v Bay of Plenty Regional Council [2019] NZEnvC 196, (2019) 21ELRNZ 539 (Judge Kirkpatrick and Commissioner Buchanan. Commissioner Kernohandissenting).6 Te Rūnanga o Ngāti Awa v Bay of Plenty Regional Council [2020] NZHC 3388 (Gault J) at [36]and [106].7 At [266].8 See [3] of this judgment; and CA judgment, above n 1, at [3].9 Te Rūnanga o Ngāti Awa v Bay of Plenty Regional Council [2021] NZCA 452 (Clifford andCourtney JJ).10 CA judgment, above n 1, at [192].[5] Sustainable Otakiri Inc and Te Rūnanga o Ngāti Awa (the applicants) seekleave to argue that the Court of Appeal erred in dismissing the appeal.[6] Sustainable Otakiri also seeks leave to appeal on costs, arguing that theCourt of Appeal erred in awarding costs against it (the costs issue).[7] Te Rūnanga o Ngāti Awa also seeks leave to appeal directly to this Courtagainst the High Court's findings on the negative tikanga effects. It seeks an extensionof time to bring this application.Decision[8] Leave is granted to both applicants to appeal against the Court of Appealdecision.[9] Leave is also granted to Te Rūnanga o Ngāti Awa to appeal against theHigh Court decision on the negative tikanga effects. Te Rūnanga o Ngāti Awa'sapplication for an extension of time is granted.[10] It is not the Court's practice to give reasons for the granting of applications forleave to appeal. With regard to the application for an extension of time, we considerthat the respondents will not be disadvantaged by any delay because leave is alreadybeing granted to appeal against the Court of Appeal decision, and the arguments aboutthe negative tikanga effects will be heard at the same time as that appeal. As areminder, leave is granted with regard to points of law only.11[11] The application for leave to appeal is declined on the costs issue. We acceptthat the issue of costs for those acting in the public, as against a private, interest mayraise questions of public or general importance, but we do not consider that thejurisprudence, including in this Court, has reached a stage where it may be useful forthis Court to hear an appeal of this nature.Solicitors:11 See Resource Management Act 1991, s 299.LeeSalmonLong, Auckland for Applicant SC 1/2023Whāia Legal, Wellington for Applicant SC 2/2023Brookfields Lawyers, Auckland for First Respondent SC 1/2023Buddle Findlay, Wellington for Second Respondent SC 1/2023 and SC 2/2023Cooney Lees Morgan, Tauranga for First Respondent SC 2/2023