ZINDIA LTD v MARLBOROUGH DISTRICT COUNCIL [2020] NZCA 229

ZINDIA LTD v MARLBOROUGH DISTRICT COUNCIL [2020] NZCA 229 [11 June 2020]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA615/2019[2020] NZCA 229BETWEEN ZINDIA LIMITEDApplicantAND MARLBOROUGH DISTRICT COUNCILRespondentCourt: Brown and Collins JJCounsel: Q A M Davies and J S Marshall for ApplicantJ W Maassen and A C Besier for RespondentJudgment:(On the papers)11 June 2020 at 2.30 pmJUDGMENT OF THE COURTThe application for leave to appeal is granted on the following question of law:Did the High Court Judge err when she construed the meaning and scope ofConsents U120345.1 and U120345.6?____________________________________________________________________REASONS OF THE COURT(Given by Collins J)[1] Zindia Ltd (Zindia) seeks leave to appeal a High Court decision overturningthe Environment Court's cancellation of an abatement notice.1 The MarlboroughDistrict Council (the Council) issued the notice, alleging that Zindia was in breach ofthe Resource Management Act 1991 (the Act). The abatement notice was issued on1 Zindia Ltd v Marlborough District Council [2019] NZEnvC 30 [Environment Court judgment];and Marlborough District Council v Zindia Ltd [2019] NZHC 2765, (2019) 21 ELRNZ 364 [HighCourt judgment].the basis that Zindia's commercial harvesting of a forest in Queen Charlotte Sound didnot comply with the relevant regional rule and s 9 of the Act.[2] A second appeal from a decision of the Environment Court requires leave ofthis Court, and can only be granted if the appeal engages a question of law and:2(a) where the appeal involves a matter of general or public importance; or(b) where a miscarriage of justice may have occurred or may occur unlessthe appeal is heard.Background[3] Zindia operates a forestry block in Queen Charlotte Sound pursuant to resourceconsents issued by the Council. Believing that commercial harvesting of forestry wasnot permitted by the resource consents it had granted, the Council issued an abatementnotice directing Zindia to cease harvesting the forest and not recommence itsoperations.[4] The Environment Court found that the resource consents did encompassharvesting and cancelled the abatement notice.3 The Council appealed tothe High Court.4 Doogue J considered seven questions of law raised by the Counciland concluded that the Environment Court had erred in its interpretation of the scopeof the resource consents. In allowing the appeal, she reinstated the abatement notice.The application for leave[5] In its application for leave to appeal to this Court, Zindia has proposedthe appeal proceed in relation to the following questions of law:(a) Is the interpretation of a resource consent a question of law?2 Resource Management Act 1991, s 308; and Criminal Procedure Act 2011, s 303.3 Environment Court judgment, above n 1, at [71].4 Resource Management Act, s 299.(b) Is a resource consent, when expressed as an exemption from a particularrule, properly viewed as permission to undertake an activity?(c) Did the High Court err in not referring the case back to theEnvironment Court to address outstanding questions not addressed inthe Environment Court?(d) Did the High Court err in not referring the case back tothe Environment Court in order to give effect to concessions made bythe Council in the High Court?[6] Zindia submits that the first and second questions of law are matters of generaland public importance and that, the third and fourth questions of law relate toprocedural errors made by the High Court Judge that have caused, or will cause, amiscarriage of justice to occur. Zindia argues it was not appropriate for the High Courtto reinstate the abatement notice. Rather, it is maintained the High Court should havereferred the case back to the Environment Court for further consideration.[7] The Council submits that the questions of law posed do not warrant leave beinggranted. The law on the interpretation of resource consents is settled and does notrequire further attention from this Court. The High Court was correct in its assessmentof the scope of the application for the resource consent and there was no basis for areferral back to the Environment Court. The "outstanding" questions were not evenraised in the High Court and any concessions made are now reflected in amendmentsto the abatement notice.Analysis[8] The second, third and fourth questions of law (above at [5(b)–(d)]) do not raisematters of sufficient general or public importance or point to a miscarriage of justice.The second question of law posed is too abstract and of little material importance.The High Court was not obligated to refer the matter back to the Environment Courtin the way proposed by the third and fourth questions of law.[9] The first question posed by Zindia requires more detailed consideration.[10] There are two consents that are relevant to the proposed appeal:(a) Consent U120345.1The description of the activities for which consent was sought was theformation of a ramp, skid sites and culverts for the purpose of forestharvesting. A forest harvesting plan was attached to the application.(b) Consent U120345.6The description of the activities referred to in the application includedconstruction of an access way "to transport logs harvested from theadjacent property".[11] The consent decision issued by the Council made several references to forestryharvesting.[12] Consent U120345.1 also contained a number of references to forestryharvesting.[13] The High Court Judge said properly understood, the consents were for worksthat were to be undertaken for the purpose of preparing for forestry harvesting, but theconsents themselves did not authorise forestry harvesting.5[14] As currently expressed, the first proposed question of law is too abstract. Thereis, however, a legitimate question of law raised by the proposed appeal. That questionof law is whether the High Court Judge misconstrued the meaning and scope of thetwo consents we have referred to at [10]. That question involves an interpretation ofthe consents in the context of the applications and supporting material. This involvesa quintessential question of law, as recognised by the fact the High Court Judgereached her conclusions when answering three questions of law that arose fromthe Environment Court decision.5 High Court judgment, above n 1, at [119]–[122].[15] As we have foreshadowed at [2] it is, however, not sufficient for Zindia toidentify a question of law. It must also pass one of the two high thresholds we havesummarised at [2(a) and (b)].[16] In the present case, we are not satisfied the proposed appeal involves a matterof general or public importance. This is because the issue raised is likely to beconfined to the interests of the parties.[17] There is, however, a genuine risk that a miscarriage of justice may occur unlessthe appeal is heard. This is because if the High Court Judge erred in her approach tothe interpretation of the resource consents this would have deprived Zindia of itsappeal on the correct understanding of the consents.Result[18] The application for leave to appeal is granted on the following question of law:Did the High Court Judge err when she construed the meaning andscope of Consents U120345.1 and U120345.6?Solicitors:Gascoigne Wicks, Blenheim for ApplicantTasman Law Ltd, Nelson for Respondent