RMLA Awards Report 2003

By Jim Milne, President, RMLA

At the Blenheim conference I had the pleasure of presenting His Honour Justice Salmon with the Association’s special award recognising an outstanding contribution by an individual to resource management practice. In His Honour’s case that contribution has been a multi-faceted one.

That we have the RMLA today, is due to the foresight and enthusiasm of the small founding group in 1992, including the then Peter Salmon QC. As the respected leader of the Planning Bar, he was invited by the group to become the Association’s inaugural president. He continued in that position until his appointment as a Judge of the High Court, the first of our members to attain that distinction. The leadership that he provided over that period firmly established the Association as a credible voice on resource management matters.

His Honour is well known to practitioners as the General Editor of the eponymous Salmon The Resource Management Act, which many of us use as our professional bible. His contributions to RMLA annual conferences include the lead address at Wellington in 2001 and the closing review at Blenheim.

In practice His Honour was renowned for his sharp intellect and cross-examination. The evasive witness was pursued until finally a definite, affirmative answer was extracted. This was followed up with: ‘So the answer to the question I first asked you was ‘Yes’?’ The unfortunate witness would have no alternative but to agree, only to be met with: ‘Well, why didn’t you say so in the first place?’ to which question there is, of course, no sensible answer.

Thankfully for evasive witnesses and opposing counsel alike, His Honour was appointed to the High Court bench. There his contributions to the RMA jurisprudence include:

Freeman v Savage – a consideration of jurisdictional issues relating to the foreshore, currently very topical.

Cavanagh v Auckland City Council – application for judicial review granted on the basis that the building was not an “accessory building” in terms of the District Plan definition.

Green and McCahill v ARC – upholding the Environment Court’s decision as to the validity of the Metropolitan Urban Limits imposed by the proposed Auckland RPS.

Minhinnick v Watercare Services – holding that section 8 did not provide tangata whenua with a veto, addressing consultation, and the objectivity of the test for ‘offensive or objectionable’ under section 314.

Murphy v Whangarei DC – a judicial review of a non-notified application in which the technical breach established did not justify granting relief.

Olsen v Auckland CC – in which the Court determined that Turner v Allison applied and that the conditions in question fell within the certifier as opposed to arbitrator category.

Peninsula Watchdog v Coeur Gold NZ Ltd – holding that where a decision determines that a party has a liability to pay costs then that decision should be appealed in terms of section 300 notwithstanding that the decision on quantum may not yet have been received.

ACC v Long – holding that where an officer who did not have appropriate delegated authority signed a certificate of compliance, the validation of that certificate by the counter-signature of a duly delegated officer did not amount to a fresh exercise of the power and recording an obvious reluctance to set aside a particular decision or course of conduct on the basis of a technical breach which has no material effect.

Aley v North Shore CC – one of the first decisions on the permitted baseline holding that a consideration of effects on the environment required an assessment of the effects on the environment as it exists.

Bayley v Manukau City Council – an important contribution on the issue of challenges to non-notified decisions.

Parkbrook Holdings v ACC – holding that leave was not required to withdraw an appeal and addressing the status of one who had given notice under section 274.

Juken Nissho v Northland RC – holding that the proviso in section 15(1) ‘unless the discharge is expressly allowed by a resource consent’ is not part of the description of an offence but is an exception which falls within the ambit of section 67(8) of the Summary Proceedings Act (ie a positive defence for the defendant to prove).

Varnier v Vector Energy Ltd –a consent under the RMA is not intended to remove the common law right to claim in nuisance or negligence in relation to effects arising from the implementation of the consent at least in so far as those effects affect the health of persons exposed to them.

Panela Corporation v District Court Whangarei – holding that a prosecution to which section 339(1) applies is to be commenced in the summary jurisdiction subject to the right to elect trial by jury.

Smith Chilcott Ltd v Martinez – another of the important baseline decisions holding that regardless of whether the density rule is or is not a bulk and location requirement it is a provision of the plan which people are entitled to rely upon even although its purpose may not be to protect amenity consideration such as view or outlook. It is still relevant to consider whether in a particular case it could have an effect on such amenities. Secondly, it would not be appropriate to accept as a permitted development a proposal that is simply not credible. The Court must be wary of getting into issues of financial viability. Credible was the test, rather than likely.

Martinez v ACC – the second round. Leaving aside issues of whether the Environment Court would have jurisdiction to reinstate an earlier decision where the decision was referred back to it for reconsideration, it would be inappropriate for it to do so. In its second decision the Environment Court held the hypothetical development met the non-fanciful test. The High Court held that this decision included an error of law holding that the proposed 8 unit apartment development had the same effects as those of a 3 unit but not fanciful complex as permitted by the plan.

Skinner v Tauranga DC – striking out an appeal on the basis of the grounds were clearly untenable.

Geotherm Group v WRC – determining that the priority of applications for competing geothermal extractions was to be determined in accordance with the date of public notification.

And while sitting as a Judge of the Court of Appeal:

Yoshimoto v Canterbury Gulf International –interpretation of a term in a contract conditional on the obtaining of the necessary planning authorisations and resource consents within 12 months.

Earlier this year His Honour reached the mandatory retirement age for High Court Judges and was re-appointed as a temporary Judge for 12 months. Although his distinguished judicial career is now drawing to a close, His Honour’s considerable RMA experience will no doubt continue to be available to practitioners in the role of mediator or arbitrator. Members will join with me in congratulating His Honour for his achievements and wishing him well for the future.