Case Law

High Court dismisses judicial review of decision to refuse waiver


In June 2010 Auckland Council publicly notified Proposed Plan Change 123 (“PC 123“) (a change to the Rodney section of the district plan).  Its decision on submissions followed in June 2013.

In the time between notification of PC123 and the decision, Highgate Business Park Limited (“Highgate“) purchased 56 hectares of land to the north of the area affected by PC123. 

On 18 July 2013 Runwild Trust (“Runwild“) (who was an original submitter in opposition to PC123) appealed the decision to the Environment Court. 

On 4 November 2013 Highgate filed a section 274 notice with the Environment Court giving notice that it wished to be a party to the Runwild appeal.  As the time limit for filing section 274 notices as of right had expired on 8 August 2013 (three months prior), Highgate also filed an application for a waiver of that time limit under section 281 of the Act. 

On 4 February 2014 Judge Smith refused the application for waiver.  The appeal period expired on 5 March 2014.

On 13 March 2014 Highgate filed judicial review proceedings in the High Court in respect of Judge Smith’s decision. 


The first question addressed by the High Court was whether it had jurisdiction to judicially review the decision. 

Runwild argued that the Environment Court is not a person for the purposes of the Judicature Amendment Act 1972 (“JAA“) and that its decisions could not be judicially reviewed.  While there have been a number of cases where the High Court has heard applications for review of Environment Court decisions, Mr Casey QC submitted that none had squarely addressed the question of jurisdiction. 

The High Court held that there was no reason to exclude decisions of the Environment Court from judicial review as a matter of principle and that it would be inconsistent with the common law to do so.  The decision to decline the application for waiver was an exercise of a statutory power of decision within s4(1) of the Judicature Amendment Act 1972.  It was a decision that had the ability to affect Highgate’s rights.  The High Court found that the Environment Court’s decision was susceptible to judicial review. 

Mr Casey also took issue with Highgate’s failure to exercise its right of appeal under the RMA (against the waiver decision) in preference for bringing the application for judicial review.  This was challenged by Highgate who submitted that it was not a party to the proceeding (the Environment Court appeals) as the Environment Court had declined its waiver application.  Therefore, it had no ability to appeal, as rights of appeal are limited to “a party to a proceeding” under section 299(1) of the RMA. 

The High Court found that the application for waiver was brought in the form of another proceeding under section 291 of the RMA.  Highgate was a party to that proceeding as the applicant. The Environment Court made a decision on that application and reserved the issue of costs (which can only be awarded against a party).  Highgate was therefore a party and could have appealed the decision under section 299.

Environment Court decision

The Environment Court found that granting the waiver would not cause undue prejudice to any existing party to the Runwild appeal.

It then went on to exercise its residual discretion to determine whether to grant the application or not.  Judge Smith noted that the Court was required to weigh the need to progress matters in a timely and predictable way against the RMA’s emphasis on public participation. 

Judge Smith found that there was no clear reason why the notice could not have been filed earlier.  Highgate should have known of the matter when it acquired its interest in the land.  Further, after becoming aware of the notice of appeal in late September 2013 it took too long to file its section 274 notice and waiver application (4 November 2013). 

Although stating that the delay in filing the wavier was not determinative and that no directions had been made at that point for evidence exchange or a hearing allocated for the appeal, Judge Smith found that there was no compelling reason to grant the waiver and declined the application. 

In reaching his conclusion, Judge Smith also took into account Parliament’s intention to limit the time period within which a party can give notice to join an appeal and that an existing party to the appeal would adequately address Highgate’s interests. 

High Court decision

Highgate argued that the Judge had failed to take into account relevant factors and had taken into account irrelevant factors.  It was also argued that the Judge had erred in the exercise of his discretion. 

One of the factors that the Judge had considered to be relevant was the submission that Highgate ought to have been aware of the proposed plan change.  The High Court found that the Environment Court was entitled to consider that Highgate ought to have known about the plan change as part of its due diligence of purchasing the land.  The High Court observed that to do so was not placing an unreasonable standard of conduct on an applicant for waiver but that, in the circumstances of the case, it was relevant to consider and test Highgate’s explanation for the delay in lodgement of the section 274 notice.  Further, the High Court considered that the fact that Highgate was a major developer and had bought significant landholdings without giving any evidence of inquiries it might have made about the District Plan, was a relevant factor.   

The High Court stated that Highgate should have acted more expeditiously given it was already well outside the time for filing a section 274 notice when it became aware of the appeal.  A better explanation was required for the four to five week delay in filing since it had become aware of the appeal. 

The High Court found that the Judge’s factual findings were open to him.  The relevant considerations were identified (and counsel was not able to point to any relevant consideration that was not considered).  The High Court considered that the application for judicial review was an attempt to revisit the merits of the decision.  The weight given to the various factors is not a matter for consideration on an application for judicial review of a discretionary power. 

The Court also noted that Highgate could have appealed the Environment Court’s decision under section 299 of the Act.  That appeal would have been due to be lodged by 5 March 2014.  The judicial review application was not lodged until after that date, on 13 March 2014.  Resort ought not to be had to judicial review to avoid the statutory time periods for appeal.  While this alone was not determinative, it was another factor that counted against the exercise of discretion in this case. 

Concluding comment

It is clear that there are two distinct parts to the Court’s consideration under s281.  The first part, the test of “unduly prejudiced”, is quite different to the general consideration of delay in the context of the residual discretion.  Justice Venning explained that “the effect of the delay and the reasons for it are separate matters.”  Even where the delay can be accommodated without unduly prejudicing the existing parties, good reason will be required to explain the length of the delay.  These reasons should be clearly explained in the supporting documentation filed with the waiver application, and the s299 appeal right should be exercised in preference to judicial review.