Scope of appeals to the Environment Court against resource consent decisions
Simons Hill Station Limited v Royal Forest and Bird Protection Society of New Zealand Incorporated  NZHC 1362, 17 June 2014
Simons Hill Station Limited and Simons Pass Station Limited (“Simons“) were granted resource consent by Commissioners appointed by the Canterbury Regional Council to take and use water for irrigation from Lake Pukaki or the Pukaki Canal for their farm properties.
Royal Forest and Bird appealed the Commissioners’ decision under section 120 of the RMA to the Environment Court. It cited adverse effects on landscape, terrestrial ecology and water quality as the basis for its appeal.
Simons, before the Environment Court, sought to strike out Royal Forest and Bird’s appeal to the extent that the appeal raised issues which were outside the scope of Royal Forest and Bird’s submission on the consent application. The strike out application was based on two claims:
(a) an appeal against the grant of a resource consent is constrained as to scope by the appealing party’s original submission lodged with the consenting authority; and
(b) the matters raised by Royal Forest and Bird on its appeal to the Environment Court were not, as a matter of interpretation, within the scope of its 2007 submission to the consent authority.
The Environment Court found in favour of Simons on the first point and agreed that the contents of the original submission limited the scope of an appeal under section 120. However, the Environment Court considered that the appeal fell within the scope of Royal Forest and Bird’s original submission and therefore the partial strike out failed.
Simons appealed the Environment Court’s decision on the partial strike out to the High Court. Royal Forest and Bird cross appealed on the Environment Court’s findings in respect of the scope of an appeal generally under section 120. Those appeals are the subject of this summary.
Questions of law
Although multiple points of law had been claimed, the High Court determined that it was required to resolve the following questions:
(a) Did the Environment Court err in law in finding that Royal Forest and Bird’s original 2007 submission was sufficiently wide to encompass the grounds on which it appealed the granting of the resource consent to the Environment Court?
(b) Was the Environment Court wrong to interpret section 120 of the RMA as meaning that an appeal to the Environment Court is constrained in scope by the original submission of the appellant to the consenting authority?
We address the second question first as that is the order in which the High Court considered the matters.
Scope of section 120
In Royal Forest and Bird Protection Society of New Zealand Incorporated v Canterbury Regional Council  NZEnvC 301, the Environment Court, in concluding that the scope of section 120 was limited by a party’s original submission, observed at paragraphs 59 and 60 that:
If a submitter is able to appeal on grounds not raised in his or her submission on the application, then the appeal would not be against the decision of the consent authority. That is because in accordance with s 104 and s 104B the consent authority makes its decision having considered both the application and any submissions received.
On Forest & Bird’s interpretation s 290 would be rendered ineffective as the court would be deciding the application on a different basis to that considered by the consent authority. Thus the court would not be in a position to confirm, amend or cancel the consent authority’s decision as it is required to do under s 290. …
The High court considered a range of Environment Court and Planning Tribunal cases which had previously addressed the scope of section 120. This included Morris v Marlborough District Council (1993) NZRMA 396 where Judge Skelton stated:
…it also has to be noticed that section 120 provides for a right of appeal “against the whole or any part of a decision of a consent authority…” and that seems to me to indicate an intention on the part of the Legislature to allow a person who has made a submission to advance matters by way of appeal that arise out of the decision, even though they may not arise directly out of that persons’ original submission.
The High Court considered that all that must be satisfied on an appeal under section 120 is that the issue in question was before the original decision maker. It does not matter whether it was put at issue by the person now appealing the decision, or by some other party provided that it was before the original decision maker:
The words are clear on their face. An appellant, which itself must have standing, is able to appeal “against the whole or any part of a decision of a consent authority on an application for a resource consent”. This does not mean “the whole or any part of a decision of a consent authority [on which the appellant made a submission]”.
The High Court summarised the position regarding section 120 as follows at paragraph 33:
(a) An appealing party must have made submissions to the consenting authority if it is to have standing to appeal that decision.
(b) The Court’s jurisdiction on appeal is limited by:
(i) Part 2 of the RMA;
(ii) the resource consent itself (the Court cannot give more than was applied for);
(iii) the whole of the decision of the consenting authority which includes all relevant submissions put before it, and not just those submissions advanced initially by the appellant; and
(iv) the notice of appeal.
(c) Successive documents can limit the preceding ones, but are unable to widen them.
(d) On appeal, arguments not raised in submissions to the originating tribunal may, with leave of the Court, be advanced by the appellant where there is no prejudice to the other party.
The Court found that Royal Forest and Bird is not constrained by the subject matter of its original submission and is able to appeal the whole or any part of that original decision. The cross appeal was allowed.
In considering the Simons appeal against the Environment Court’s decision refusing to partially strike out the Royal Forest and Bird appeal the High Court stressed the very high threshold required before a strike out would be allowed. The Court observed that if a strike out application were successful, it effectively denies a respondent the right to put its arguments before the Court in substantive proceedings.
In the RMA context, the High Court stated that the decision of the Environment Court in Hern v Aickin  NZRMA 475 at  was relevant. The Court in that decision stated:
The authority to strike-out proceedings is to be exercised sparingly and only in cases where the Court is satisfied that it has the requisite material before it to reach a certain and definite conclusion. The authority is only to be used where the claim is beyond repair and so unobtainable that it could not possibly succeed. In considering striking out applications the Court does not consider material beyond the proceedings and uncontested material and affidavits.
The High Court considered, citing Hauraki Maori Trust Board v Waikato Regional Council HC Auckland CIV-2003-485-999, 4 March 2004 at paragraph 18, in addition to the above, there were at least three further considerations relevant to a strikeout application in the RMA context:
(a) the RMA encourages public participation in the resource management process which should not be bound by undue formality: Countdown Properties (Northland) Ltd v Dunedin City Council  NZRMA 145 at 167;
(b) where there is a reference on appeal to the Environment Court, the appellant is not in a position to start again due to statutory time limits; and
(c) there are restrictions upon the power to amend. In particular an amendment which would broaden the scope of a reference or appeal is not ordinarily permitted.
The strike out claim was not found to meet the required high threshold and the Simons appeal was dismissed by the Court.