Case Law

In a judgment delivered by William Young J, the Supreme Court upheld Mobil Oil New Zealand Ltd’s (“Mobil“) appeal against the Court of Appeal’s decision requiring Mobil to pay Development Auckland Ltd (“Development Auckland“) $10 million in remediation costs for contaminated sites at Pakenham and Beaumont Streets, Wynyard Quarter (“Sites“).

Jurisdiction of Councils to Regulate GMOs under the RMA – Response to Christensen and Nicolle, Anderson Lloyd Lawyers

Background – Amuri Irrigation Co Ltd v Canterbury Regional Council

This case concerned an appeal of the Environment Court’s procedural decision in Amuri Irrigation Co Ltd v Canterbury Regional Council [2015] NZEnvC 164 (“Amuri“).  The issues in Amuri arose as a result of appeals over resource consents granted by Canterbury Regional Council to Hurunui Water Project Ltd for a large irrigation project.  Prior to the Environment Court hearing, the parties reached agreement on amendments to the consent conditions and filed draft consent documents.

This recent Environment Court decision addresses a range of matters; however, this case note focuses on the application of King Salmon in the context of a district plan change.

In this case Simon Moffatt appealed a decision of Gendall J in the High Court refusing to overturn a decision by the Canterbury Regional Council (“ECan“), which granted Simon’s cousin, Robert Moffatt, a right to take water to the extent that Simon’s water rights to irrigate Robert’s farmland were not exercised.

The NZTA, in its endeavour to construct the Basin Reserve Bridge, has come up against another red light with the High Court’s Decision in New Zealand Transport Agency v Architectural Centre Incorporated & Others [2015] NZHC 1991.  The High Court dismissed NZTA’s appeal on the basis that NZTA had not established that the Board of Inquiry made an error of law in rejecting NZTA’s application for resource consents and cancelling NZTA’s notice of requirement.  The wide range of issues on appeal enabled the High Court to provide useful commentary on a number of RMA issues ranging from the limits of the High Court’s jurisdiction on appeals of law to the operation of section 171(1), and from the proper consideration of enabling benefits to the application of Environmental Defence Society Inc v The New Zealand King Salmon Co Ltd [2014] 1 NZLR 593 to notices of requirement.    

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.

It is very rare for an applicant to judicially review a decision to notify (with most being challenges of decisions not to notify).  The 2009 amendments removed the presumption in favour of notification, and Toogood J has refined the remaining discretion to a question of whether notification would be likely to result in the Council receiving further information relevant to the issues for determination on the substantive application.  This will be useful for applicants, but could be seen as potentially further undermining the public participatory nature of the RMA.

In the third interim decision relating to the comprehensive rezoning of the Frankton Flats for urban development, the Environment Court decides that the outline development plan (“ODP“) rules are ultra vires.  This is likely to impact on if and how these planning instruments are used in future plans, and the timing of land being up-zoned for urban development.

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. 

In a recent Environment Court case, Palmerston North Industrial and Residential Developments Ltd (“PNIRD“) applied for declarations that submissions they made  regarding proposed Plan Change 6 (“PC6“) to the Palmerston North City District Plan (“District Plan“) were “on” PC6 and therefore within jurisdiction.

A recent decision of Justice Brewer in Auckland Council v Byerley Park Limited is a reminder of the limits of the Environment Court’s jurisdiction under section 293 of the Resource Management Act 1991 (“RMA“) – namely that the Environment Court has the jurisdiction to go beyond the scope of an appeal, but no jurisdiction to go beyond the scope of the relevant plan change. 

Whatever It Takes Trust Inc (“Trust“) sought consent for a multi-unit development (“Development“) opposite Macpherson and Matheson’s (“M“) property in reliance on a controlled activity status under the relevant plan.

In this decision, the Environment Court made three declarations relating to the National Environmental Standard for Assessing and Managing Contaminants in Soil to Protect Human Health (“NES“).  These declarations address the application of the NES in circumstances where a resource consent granted prior to the gazetting of the NES (on 13 October 2011) authorises activities that are now subject to the NES. 

This case involves a judicial review in the High Court of a District Court decision in relation to s181(2) of the Local Government Act 2002 (“LGA 2002“) and clearly demonstrates that the age old principles of statutory interpretation are alive and well.  In particular, this case considers whether the power of territorial authorities to construct sewage and stormwater drainage works “on or under private land” allows the Council authority to “suspend” sewage pipes “over” private land

This High Court decision allowed an appeal against the grant of non-complying resource consent for a supermarket in Frankton Flats, Queenstown.  In allowing the appeal, Justice Fogarty found that the Environment Court had made material errors of law in its application of the section 104D threshold tests.

The Environment Court has upheld an appeal by Sustainable Ventures Limited (“SVL“) against the conditions of a resource consent granted by the Tasman District Council (“Council“) for a 20-unit apartment complex at Pakawau, Golden Bay.

The case highlights the importance of all network operators very carefully identifying, at an early stage in a project’s planning, which aspects of any proposed upgrade might require new or amended property rights, and whether (and to what extent) new resource consents or an amendment to a designation (or outline plan) might be required.

Whether the sensitive landscape and heritage characteristics of the subject land are such that the land should be forever protected from any form of urban development?

This recent case concerned a judicial review application by Royal Forest and Bird Protection Society of New Zealand Incorporated (“Forest and Bird“) challenging the validity of a certificate of compliance granted by the Waitaki District Council to Five Rivers Limited (“Five Rivers“) under section 139 of the Resource Management Act 1991 (“RMA“).  Five Rivers is the owner of an approximately 5,000 hectare Mackenzie high country station near Lake Ohau, located within the Rural Scenic Zone of the District Plan. 

This interlocutory decision addresses the status of scientists under section 274(1)(d) of the RMA and whether such individuals can be considered as persons having “an interest in the proceedings that is greater than the interests that the general public has”.

This costs decision involves one of the Environment Court’s largest costs awards to date, despite the fact that the substantive matter was a plan reference under Schedule 1 of the RMA where costs are not normally awarded.

When is it alright for a Council to call evidence opposing its earlier decision? – In a recent decision, Judge Jackson reiterated the factors the Court will consider when deciding if a Council can call evidence opposing its earlier decision on a resource consent application.