THE CANYON VINEYARD LIMITED v CENTRAL OTAGO DISTRICT COUNCIL [2023] NZSC 108 [17 August 2023]

THE CANYON VINEYARD LIMITED v CENTRAL OTAGO DISTRICT COUNCIL [2023] NZSC 108[17 August 2023]IN THE SUPREME COURT OF NEW ZEALANDI TE KŌTI MANA NUI O AOTEAROASC 46/2023[2023] NZSC 108BETWEEN THE CANYON VINEYARD LIMITEDApplicantAND CENTRAL OTAGO DISTRICT COUNCILFirst RespondentBENDIGO STATION LIMITEDSecond RespondentCourt: Glazebrook, O'Regan and Ellen France JJCounsel: L A Andersen KC for ApplicantD J Anderson for First RespondentP J Page and S R Peirce for Second RespondentJudgment: 17 August 2023JUDGMENT OF THE COURTA The application for an extension of time to apply for leaveto appeal is dismissed.B The applicant must pay both the respondents costs of$2,500.____________________________________________________________________REASONSIntroduction[1] Bendigo Station Ltd (Bendigo) owns a large farming property inCentral Otago. It sought resource consent to subdivide an area of its land.The Canyon Vineyard Ltd (Canyon) owns land to the west of Bendigo's land where itoperates, among other things, a vineyard, restaurant and function centre. It opposedBendigo's application for the subdivision consent.[2] The Central Otago District Council (the Council) granted consent to thecreation of 12 lots, with consents for residential building platforms on eight of them.Canyon appealed against that decision to the Environment Court. That Court upheldthe Council's decision but for a slightly amended proposal.1 Canyon's appeal to theHigh Court against the Environment Court's decision was dismissed.2[3] Canyon's application for leave to appeal against the High Court decision wasdeclined by the Court of Appeal on 23 March 2023.3 Canyon now seeks leave toappeal directly to this Court against the High Court decision.[4] Canyon's grounds of appeal are broadly similar to those raised in theCourts below, although now narrowed to two alleged errors of law:(a) the alleged failure by the Environment Court to consider evidence onkaitiakitanga presented by Mr Johnston, the sole director andshareholder of Canyon; and(b) an alleged error by the Environment Court and the High Court in theirassessments of effects in light of Objective 4.3.3 of the Central OtagoDistrict Council Plan (the Plan) to "maintain and where practicalenhance rural amenity values".Jurisdiction[5] The Council submits that this Court has no jurisdiction to entertain thisapplication. That is because appeals of High Court decisions under s 299 of theResource Management Act 1991 (RMA) are governed by Subpart 8 of Part 6 of theCriminal Procedure Act 2011 (CPA), with necessary modifications.4 Pursuant to1 The interim decision granted the resource consents: The Canyon Vineyard Ltd v Central OtagoDistrict Council [2021] NZEnvC 136 (Judge Steven and Commissioner Mabin) [PreliminaryEnvC judgment]. The subsequent decision was in response to a direction to the parties to conferon the amended conditions of the subdivisions: The Canyon Vineyard Ltd v Central Otago DistrictCouncil [2021] NZEnvC 187 (Judge Steven and Commissioner Mabin).2 The Canyon Vineyard Ltd v Central Otago District Council [2022] NZHC 2458 (Doogue J)[HC judgment].3 The Canyon Vineyard Ltd v Central Otago District Council [2023] NZCA 74 (French andMallon JJ) [CA judgment].4 Resource Management Act 1991, s 308.ss 303 and 304 of the CPA a party to a High Court decision under s 299 of the RMAis able to instigate a second appeal in either the Court of Appeal or the Supreme Court.In this case, Canyon chose to appeal to the Court of Appeal. The exception to s 69(a)of the Senior Courts Act 2016 is, therefore, in the Council's submission, engaged. TheCouncil submits that another enactment provides, in the circumstances of this case,that there is no right of appeal against the High Court decision.[6] Even if there were jurisdiction, the Council submits that there must, under s75 of the Senior Courts Act, be exceptional circumstances that justify taking aproposed appeal directly from the High Court to this Court.5 As pointed out byBendigo, this is a very difficult barrier to overcome where the Court of Appeal hasalready declined leave in a fully reasoned judgment.6Kaitiakitanga[7] In its decision declining the application for leave to appeal on this point, theCourt of Appeal pointed out the Environment Court had determined in its interimdecision that the appeal was limited to the visual impacts of certain of the proposedlots and the implications of the effects of the proposal within the framework of thePlan. In that context, Mr Johnston was entitled to express his personal views of therural amenities but these were necessarily subjective. They needed to be objectivelytested for reasonableness. The expert evidence about visual effects was that these wereno more than minor.7[8] The Court of Appeal noted that the High Court held that, on the facts,independent evidence was needed that kaitiakitanga required the land to remainunspoilt. This was because Mr Johnston's evidence conflicted with his earlier actions.Mr Johnson had agreed, when purchasing the Canyon land, that he would not opposedevelopment on the Bendigo land. In any event, the High Court said that, even if therehad been an error in the Environment Court's approach to Mr Johnston's evidence, it5 The criteria for leave to appeal under s 74 of the Senior Courts Act 2016 must also be met.6 Burke v Western Bay of Plenty District Council [2005] NZSC 46 at [4]; and Te Whānau a KaiTrust v Gisborne District Council [2023] NZSC 77 at [9].7 CA judgment, above n 3, at [9], citing Preliminary EnvC judgment, above n 1, at [29], [44],[171]–[172] and [179].had not been demonstrated that this would have been material to the ultimateoutcome.8[9] The Court of Appeal held that in this case the evidence had been consideredand rejected in the Courts below for reasons that were explained and that did not giverise to an error of law.9Rural amenity values[10] The Court of Appeal in its leave decision said that the Environment Court inits interim decision held that the word "maintain" allowed a Council to protect ratherthan to preserve or enhance and that to protect means to keep safe from harm orinjury.10 What the policy did not say was that adverse effects should simply beavoided.11[11] The Environment Court noted that Objective 4.3.3 stated that rural amenityvalues are created by the "open space, landscape, natural character and builtenvironment values of the rural environment". It was relevant to the assessment ofamenity values that this land was in the category of Other Rural Landscape (ORL) andwas not an Outstanding Natural Landscape, Significant Amenity Landscape orSignificant Natural Area.12 The Environment Court accepted the evidence of twoexperts that the rural amenity values of Canyon's function centre would be maintainedand that the development on Bendigo's land would be compatible with the surroundingenvironment.13[12] The Court of Appeal noted that the High Court upheld the Environment Court'sview that the "rural amenity values" in an ORL included the built environment andthat the proposal was compatible with the surrounding environment, including thevisual amenity value at Canyon's Function Centre.148 CA judgment, above n 3, at [10], citing HC judgment, above n 2, at [174]–[176].9 CA judgment, above n 3, at [12].10 At [19], citing HC judgment, above n 2, at [147] and Port Otago Ltd v Dunedin City Council EnvCChristchurch C004/02, 22 January 2002 at [41].11 CA judgment, above n 3, at [19], citing HC judgment, above n 2, at [148] and Harris v CentralOtago District Council [2016] NZEnvC 52 at [32].12 CA judgment, above n 3, at [20], citing Preliminary EnvC judgment, above n 1, at [152].13 CA judgment, above n 3, at [24], citing Preliminary EnvC judgment, above n 1, at [178]–[181].14 CA judgment, above n 3, at [27]; and HC judgment, above n 2, at [134]–[135].[13] The Court of Appeal held it was not arguable that the incorrect test was appliedby the Courts below. Canyon's view that the rural amenity values were negativelyimpacted by any visible building on the site reflected a misunderstanding of the Plan.15Our assessment[14] We do not need to deal with the RMA jurisdiction point, given that Canyonclearly fails the test in s 75 of the Senior Courts Act. There are no exceptionalcircumstances justifying the application for leave to appeal to this Court, particularlyin light of a full and detailed leave judgment from the Court of Appeal.[15] In any event, we do not consider that the application would meet the test ins 74 of the Senior Courts Act. While the issue of the approach to kaitiakitanga and theproper interpretation of Plans could be matters of general or public importance, thiscase rests purely on the particular circumstances of the case. Further, nothing raisedby Canyon suggests a risk of a miscarriage of justice.16[16] Canyon's application is out of time.17 An extension of time for filing thatapplication would therefore be required. We assume that Canyon, by filing theapplication, is also applying for an extension of time. As leave would not be granted,there is no point in granting such an extension.Result and costs[17] The application for an extension of time to apply for leave to appeal isdismissed.[18] As both respondents filed full submissions on this application, they are eachentitled to costs.15 CA judgment, above n 3, at [30].16 For what is required for miscarriages in civil cases see: Junior Farms Ltd v Hampton SecuritiesLtd (in liq) [2006] NZSC 60, (2006) 18 PRNZ 369 at [5].17 Because Canyon's application for leave to appeal was declined, technically the time for leave toappeal should be taken from the date of the High Court's judgment: 27 September 2022. However,even if calculated from the Court of Appeal's refusal of leave, Canyon's application was still outof time, although it is noted that counsel gave reasons for the three-week delay in its Notice ofApplication for Leave to Appeal.[19] The applicant must pay both the respondents costs of $2,500.Solicitors:Antony Hamel Solicitors, Dunedin for ApplicantMactodd Lawyers, Queenstown for First RespondentGallaway Cook Allan Lawyers, Dunedin for Second Respondent