IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY

CIV-2013-476-000311 [2015] NZHC 580

BETWEEN	FEDERATED FARMERS OF
NEW ZEALAND (INC) MACKENZIE BRANCH
Appellant	

AND	
MACKENZIE DISTRICT COUNCIL Respondent

SIMONS PASS STATION LIMITED MERIDIAN ENERGY
Associated Respondents	

Hearing:	6 March 2015	

Appearances:	
M Casey QC and K E Forward for Appellant
D C Caldwell and G C Hamilton for Respondent No Appearance for Simons Pass Station Limited No Appearance for Meridian Energy Limited	

Judgment:	
26 March 2015	

JUDGMENT OF GENDALL J

[1]       The appellant (Federated Farmers)  seeks leave to appeal to the Court of Appeal from a decision I gave in this Court on 23 October 2014 Federated Farmers of New Zealand (Inc) Mackenzie Branch v Mackenzie District Council1  (the High Court decision).

[2]       That decision concerned appeals by Federated Farmers from three decisions of the Environment Court given in November and December 2013 – the sixth (procedural) decision, the seventh (procedural) decision, and the eighth decision (re landscape  objectives).    These  sixth,  seventh  and  eighth  decisions  arose  out  of
proposed Plan Change 13 to the Mackenzie District Plan (PC13).

1	Federated Farmers of New Zealand (Inc) Mackenzie Branch v Mackenzie District Council
[2014] NZHC 2616.

FEDERATED FARMERS OF NEW ZEALAND (INC) MACKENZIE BRANCH v MACKENZIE DISTRICT COUNCIL [2015] NZHC 580 [26 March 2015]

[3]       The present application for leave to appeal is opposed by the respondent

Mackenzie District Council (the Council).

Background

[4]       Issues over the sixth, seventh and eighth decisions of the Environment Court arising out of PC13 of relevance here concern, amongst other things, what is said to be the Environment Court’s jurisdiction to introduce new proposed objectives, policies and rules in reliance on ss 290 and 293 of the Resource Management Act
1991 (the RMA).  These also relate in part to questions raised over concerns about intensification of pastoral farming in areas of national significance in the Mackenzie Basin, an area itself accepted by all as one having an outstanding natural landscape.

[5]       In my High Court decision the following occurred:

(a)       I quashed the sixth decision to the extent that it found the “greening” (pastoral intensification) issue was ultra vires.   The balance of the sixth decision was left intact.

(b)       I quashed the seventh decision and referred it back to the Environment Court for reconsideration, accompanied by certain directions set out at para [170](b) of the High Court decision:

[170]	I therefore make the following orders–

…

(b)        The  appeal  against  the  Seventh  Decision is  substantively dismissed,  though  procedurally  it  succeeds  to  a  limited point.   I therefore quash the Seventh Decision and refer it back to the Environment Court for reconsideration with the following directions:

(i)         Section  293  was  able  to  be  utilised.     A  more appropriate test is set out in this judgment.

(ii)       The directions to the Council should be to prepare changes, not to implement already prepared changes.

(iii)      In light of the Environment Court’s finding that the true  scope  of  PC13  is  determined  to  be  much broader than originally thought by the Council, a new s 32 Report is required and will need to be

commissioned by the Council to address the changes and matters identified by the Environment Court.

(iv)       The  entire  varied  plan  change  should  again  be publicly notified by the Council to enable the community to be consulted and to engage with what is being proposed.

(v)        Following consultation, the Council should submit the final changes to the Environment Court for confirmation.

(c)       I made no direct findings with respect to the eighth decision.   This was due first, in part to Federated Farmers electing not to pursue its appeal on some aspects of this eighth decision and secondly, because matters considered in the eighth decision (that is confirmation of new Objective 3B(i) in reliance on s 290 RMA), were to be reconsidered in light of the directions to the Environment Court as set out at para [5](b) above.

[6]      So far as other background facts are concerned, these together with the procedural history of this matter are detailed and they have been traversed in my High Court decision.  I do not propose to repeat these at length here, other than as will appear throughout this judgment.   Those background facts together with the procedural history of this matter are set out in my High Court judgment at paras [4] – [97].

Proposed points of appeal

[7]       In its present application for leave to appeal, Federated Farmers sets out the proposed points of appeal as follows:

(1) Was the High Court right to determine that the Environment Court had jurisdiction to pursue the course it did under s 293 of the Resource Management Act 1991 (“RMA”) (with the exception of the procedural deficiencies identified)?

(2) Was the High Court right to determine that provisions to address greening  (and  thereby  pastoral  intensification)  were  “on  Plan Change 13” including:

(a)  The reference in the statement of issues to greening having been deleted  by  the  Council  for  the  specific  reason  that  the  Plan

Change  did not address land  use  other than subdivision and building;

(b) The Court having found that the Environment Court was wrong to hold that the issue could not be deleted, whether it could be made “live” again by resort to s 293;

(c)  That the finding at [141](a) that the reference to greening in the statement of issues altered the status quo was in error as it did not change any operative provision of the District Plan; and

(d) The stated purpose of PC 13 could not reasonably be interpreted as extending beyond the particular aspects of use and development addressed by the change?

(3) Was the High Court right to find that there are exceptions to the established test for when s 293 RMA is able to be utilised such that the Environment Court may invoke s 293 where there is:

(a)  an inadequate s 32 Report;

(b) a  failure  to  comply  with  s  74  (including  preparation  in accordance with the provisions of Part 2);

(c)  a more than minor deviation from one of the matters referred to in s 293(3) whether or not raised on appeal?

(4) Was the High Court right to determine that the Environment Court was required by s 6 RMA to recognise and provide for the protection of the outstanding natural landscape in ways that were not proposed by the Plan Change and not raised in submissions or on appeal?

(5) Was the High Court correct to find that Plan Change had as its broad purpose the protection of the Mackenzie Basin from inappropriate subdivision, use and development of any kind?

(6) Was   the   High   Court   right   to   interpret   that   appeals   to   the Environment Court as being sufficiently broad to confer on the Environment Court jurisdiction to consider matters in the round, including the deleted greening issue and pastoral intensification?

(7) Was the High Court correct to find that the Environment Court had found as a matter of fact (and not law) that the issue of greening (and thereby pastoral intensification) was “on” PC13, and to dismiss the appellant’s fifth, sixth, eighth and ninth errors of law as raising mixed questions of law and fact, or wholly factual disputes?

(8) Was the decision to invoke s 293 correct in law in light of the High
Court’s findings:

(a)  that the true scope of PC 13 is much broader than originally thought;

(b) a new s 32 report is required to address the changes and matters identified by the Environment Court;

(c)  the entire varied Plan Change should be publicly notified and further in light of the facts;
(d) there is no provision for the opportunity to make submissions and be heard (as there was in the pre-2005 version of s 293); and

(e)  controls on pastoral intensification will significantly impact land use throughout the Mackenzie District in ways that would not have been contemplated; and

(f)  there will not be the right or opportunity for affected persons to be heard by the Council on the new provisions.

The Council’s position in opposition to the leave application

[8]       Although  in  the  hearing  which  culminated  in  my  23  October  2014

High Court decision, the Council it says generally took the position of supporting Federated Farmers’ appeal, broadly on grounds relating to the jurisdiction of the Environment  Court,  the  Council  before  me  now  opposes  the  present  leave application.  It says the threshold for leave to appeal has not been made out on the grounds that:

(a)       Federated Farmers has not shown good cause as to why leave should be granted.

(b)       Many of the proposed questions of law are questions of fact or mixed fact and law.  The Council says in the High Court I applied orthodox, indeed  conservative,  tests  to  the  particular  factual  and  planning context.

(c)       The  questions  of  law  and  the  issues  sought  to  be  raised,  while important to the particular parties, are not of general or public importance.  Rather they are limited to the particular factual situation and  policy context  arising from  PC13,  the factual  findings  of the Courts, and the breadth of the particular appeals lodged.

(d)       In light of this, the costs and potential delay from the granting of leave to appeal are not outweighed by any public or private interest.

(e)       Even if this Court finds there are seriously arguable questions of law and those questions are of public or private importance, this is an appropriate case for the Court to exercise its residual discretion and decline leave.

(f)       The Environment Court’s seventh decision was quashed in this Court and referred back to the Environment Court.  The Environment Court subsequently issued a Ninth (Procedural) Decision2 containing a number of directions to the Council in an effort to progress resolution of PC13.  According to the Council that is a relevant factor for this Court to consider in the exercise of its discretion.   And certain conclusions from that Ninth (Procedural) Decision for convenience are set out at [18] following:

[9]       The Council takes the broad view that all issues have been fully argued in the Environment Court and in this Court.  It says they have been the subject of detailed submission, hearing and consideration over many years.  The Council maintains this has now reached a point where finality of litigation is called for, albeit that a further Environment Court hearing will be needed following notification and consultation in accordance with the Ninth (Procedural) Decision noted at [8](f) above.  The Council says  the Mackenzie community and  others  are entitled  without further delay to certainty  as  to  the  planning  framework  for  the  Mackenzie  Basin  which  is undisputedly an outstanding natural landscape.   This further delay, the Council contends, involves costs potentially much greater than the actual cost to the parties of any Court of Appeal hearing and, in particular, it involves risks and unquantifiable costs in leaving the Mackenzie Basin landscape vulnerable as a result of an incomplete and uncertain planning framework.

Legal principles

[10]     An appeal to the Court of Appeal from a decision of this Court on an appeal from the Environment Court is brought pursuant to s 308 of the RMA.  Although
s 308 was amended in 2013 to provide that relevant provisions of the Criminal

2	Decision No. [2014] NZEnvC 246 (4 December 2014).

Procedure Act 2011 are to apply, transitional provisions specify that Environment Court proceedings such as the present commencing before 1 July 2013 continue to be dealt with under the now repealed s 144 of the former Summary Proceedings Act
1957  (SPA).    The  Court  of Appeal  decision  in  Foodstuffs  South  Island  Ltd  v Queenstown Lakes District Council3  confirmed this.   Given that s 144 of the SPA applies to appeals under s 308 of the RMA in cases commencing before 1 July 2013 and the current proceedings commenced when the Environment Court appeals were filed in 2009, the present application is governed by the SPA.

[11]     Section 144 of the SPA permits a second appeal on a question of law with the leave either of the High Court (or with the special leave of the Court of Appeal) in limited circumstances. The Court may grant leave in terms of s 144(2) SPA:

…if in the opinion of that Court the question of law involved in the appeal is one which, by reason of its general or public importance or for any other reason, ought to be submitted to the Court of Appeal for decision.

[12]     In summarising the threshold test in Huia Resorts Ltd v Ashburton District

Council4 the Court of Appeal said:

[2]        The combined effect of s 308 of the Resource Management Act 1991 and s 144 of the Summary Proceedings Act 1957 requires that the applicant meet a threshold before special leave to appeal may be granted by this Court. That is because the applicant is seeking to bring a second appeal against an Environment Court decision. It must show that the further appeal would raise questions of law which by reason of their general or public importance, or for any other reason, ought to be submitted to this Court for decision. It is well established that this threshold entails demonstrating that there is a question of law capable of serious argument in a case involving a public or private interest which is sufficient in its importance to outweigh the cost and delay to the parties of permitting another appeal.

[13]     On this, in Dome Valley District Residents Society Inc v Rodney District

Council5 this Court also held at para [4] that:

…Of particular relevance is the policy of the legislation which does not provide an automatic second appeal right. Finality for litigation is a desirable outcome except in those few cases where some legal issue can be identified which transcends the mere partisan interests of the parties.

3	Foodstuffs South Island Ltd v Queenstown Lakes District Council [2013] NZCA 458.
4	Huia Resorts Ltd v Ashburton District Council CA29/05, 28 April 2005.
5	Dome Valley District Residents Society Inc v Rodney District Council HC Auckland, CIV-2008-
404-587, 8 December 2008.

[14]     And in Genesis Power Limited v Manawatu Limited v Wanganui Regional Council  & Ors6  this Court provided a summary of a number of key principles extracted from the authorities where s 144 (in an RMA context) has been considered:

[6]	…a number of principles from the various s 308 or s 144 cases.
Amongst these principles are:

a)         The applicant must show good cause why leave should be granted.

b)         The application must raise a seriously arguable question of law.

c)         If the Court has difficulty in identifying a clear and relevant question of law, leave to appeal should be declined.

d)         It  is  necessary  to  consider  dispassionately  whether  the disputed matter contains the requisite element of sufficient importance. The scarce time and resources of both the High Court and the Court of Appeal are not to be wasted.   The Court of Appeal is not engaged in the general correction of error.     Its  primary  function  is  to  clarify  the  law  and determine  whether  it  has  been  properly  construed  and applied by the Court below.  Not every alleged error of law is of such importance to justify further pursuit of litigation which  has  already  been  considered  and  ruled  upon  by  a Court.

e)         It is not sufficient that issues as a whole are of general public importance or interest.   It is the question identified as the matter  for  appeal  which  must  be  a  matter  of  general  or public interest.

f)          Questions or issues of law which are fact specific or limited to the particular facts and findings of the case at hand are not generally matters of general and public importance.

[15]     In Palmerston North City Council v New Zealand Windfarms Ltd7  it was established  that  this  Court  can  grant  leave  where  the  issues  involved  are  of importance  to  a  significant   group  of  the  community,  including  the  parties themselves, rather than the public generally, invoking the second limb of s 144. And, in Kitewaho Bush Reserve Company Limited v Waitakere CC8  relevant here, the
High Court noted that:

6	Genesis  Power  Limited  v  Manawatu  Limited  v  Wanganui  Regional  Council  &  Ors  HC Wellington CIV-2004-485-1139, 22 May 2007.
7	Palmerston North City Council v New Zealand Windfarms Ltd [2013] NZHC 2654.
8	Kitewaho Bush Reserve Company Limited v Waitakere CC HC Wellington AP23/02, 14 May
2004 at [5].

…The Court has a residual discretion to refuse to grant leave even though there is a question of law involved and the question is one of general or public importance.

[16]     I now turn to consider briefly the threshold for leave to appeal, bearing in mind the legal principles outlined above.

The threshold for leave to appeal

[17]     So  far  as  this  is  concerned,  as  I  have  noted  above  at  [8]  and  [9],  the contention strongly advanced before me by counsel for the Council was that Federated Farmers has not shown good cause here as to why leave to appeal should be granted.  In addition, the Council’s final position as I have noted is that, even if this is a case where the Court properly finds that there are seriously arguable questions of law and those questions are of public or private importance, this case is however an appropriate one for the Court to exercise its residual discretion and to decline leave.  The Council says it is significant here that following quashing of the Environment Court’s seventh decision and the referral of this matter back to that Court, it issued its detailed Ninth (Procedural) Decision containing a number of directions to the Council made in an effort to progress resolution of PC13.

[18]     It is useful to set out the relevant conclusions and directions from that Ninth (Procedural) Decision, a decision which was detailed and given with commendable promptness on 4 December 2014:

9A:     Under section 290 of the Resource Management Act 1991 the (unchanged) policies in the operative district plan which implement objective 3A are confirmed, but renumbered as shown in Schedule B to  this  decision  (consistently  with  the  First  Decision-  [2011] NZEnvC 387 at [142]).

9B:       Under section 290 of the Act the Environment Court  directs the
Council to amend PC13 by changing policies 3B(9), 3B(10) and
3B(ll) to read as in Schedule C attached provided that leave is reserved to any party to apply to set this order aside if that party has reason(s) to oppose it.

9C:       In respect of policy 3B(5) - Farm Base Areas - if any party opposes confirmation of this policy (as stated in Schedule C) under section
290 of the Act they must advise the Registrar in writing giving a brief summary of grounds by 15 December 2014.

9D:	Under section 293 of the Act the Environment Court  directs the
Mackenzie District Council to prepare:

(1)	changes to PC 13:

(a)        including  any  further  subordinate  objectives  (if  it wishes  there  to  be  any  more)  for  the  Mackenzie Basin to address the issue of nonresidential development and buildings; but

(b)        excluding objectives 3A and  3B(l) and (2)  which were settled under section 290 of the Act by the Eighth Decision; and

(c)	including its policies to address these matters:

•	recognition	of	the	Mackenzie	Basin's distinctive characteristics;

•	views from roads;

•	enabling pastoral farming;

•	farm buildings;

•	landscape aspects of subdivision;

•	pastoral intensification;

(d)        including policy 3B(5) - Farm Base Areas - provided that this order is subject to action being taken by a party under Order 9C;

(e)        including  its  methods  for  implementing  all  the policies for objective 3B(l) and (2) and for the new, subordinate, objective 3B(3) if any;

(2)	a section 32 evaluation of the matters - especially rules - added to the amended PC13 under Order 9D(l).

9E:	After completing compliance with order 9D, the Council is directed: (1)	to publicly notify PC13 again on the following terms:
(a)        the provisions amended under section 290 should be included to give the context;

(b)	the provisions still in issue should be identified;

(c)        the  notice  should  invite  written  advice  from  any person who seeks:

(i)	to be consulted; and/or

(ii)	to lodge  a (late) section 274  notice to  be heard by the Environment Court

-	in respect of the provisions still in issue being:

•	(possibly) objective 3B(3);

•	the  substantially  amended  policies  on  the  matters identified in Order 9D(l )(c) and (d); and
•	all the methods of implementation (including rules); (2)	to consult with all the persons who might be affected by the
proposed change or who have made a submission in the light
of the public notification;

(3)	to  make  any  changes  it  considers  appropriate  (within jurisdiction) to PC13 arising out of the consultation; and

(4)	to submit the changes to the court for approval together with a list of the persons who wish to be heard by the court.

9F:       Leave  is  reserved  for  any  party  to  apply  for  further  or  other directions on Orders 9B to 9D by 15 December 2014.

9G:      Leave is also reserved for any party to apply for further or other directions in respect of Order 9E or for directions on the process when PC 13 comes back to the court for approval under section 293 of the Act.

[19]     I repeat that the Council consider this Ninth (Procedural) Decision to be a highly relevant factor for this Court to take into account in exercising its discretion here.

[20]     Turning back to the threshold test for leave to appeal, Federated Farmers’ proposed points of appeal, which I have outlined at para [7] above, are detailed.  I do not propose to address each proposed point individually to consider whether it has passed the threshold test.  As will appear later in this judgment, in my view this is not necessary here, given the general conclusion I reach on this application for leave. Suffice to say that there may well be issues with a significant number of these proposed appeal points as to whether they involve questions of law at all and also, particularly if they do, whether in any event they are of such a general or public importance as to warrant leave being granted.   Before me, Mr Caldwell for the Council argued strongly that the threshold test for each of the proposed points of appeal had not been met.   In my view there may well be merit in many of the arguments he has raised.

[21]     Notwithstanding this, and with a degree of some reluctance, I leave these arguments on one side however.  For present purposes, I am prepared to proceed on the basis that the threshold test for leave to appeal has been made out with regard to the proposed points of appeal.

[22]     The crucial issue here relates to the question whether this is an appropriate case for the Court to exercise its residual discretion to decline leave, essentially as Mr Caldwell for the Council notes, for reasons outlined at [8](e) and (f) and [9] above.  This is so even if I was to find, as I have said I am reluctantly prepared to accept for present purposes, that there are seriously arguable questions of law of public or private importance here which justify the granting of leave.

[23]     I turn now to consider this question as to whether the Court should exercise its residual discretion here to decline leave.

Residual discretion

[24]     As to this aspect, the timeline for the PC13 planning process shows that it is now some seven years since notification of this plan change and some five years since  the  issue  of  the  original  decision  of  the  Commissioners’.    The  Council’s position is that the costs involved in PC13 have been significant and the continuing delays in obtaining a definite position and some implementation of this have left what is described as an uncertain and incomplete planning framework.  The Council says this has caused it significant difficulties in administering its plan and this in turn has left the outstanding natural landscape of the Mackenzie Basin sub-district vulnerable.  It notes that, as a matter of public record, certificates of compliance for pastoral intensification have been granted and further delay in resolving all these issues enables that process to continue.  These must all be seen in my judgment as matters of some concern.

[25]     The Plan Change planning process involved with PC13 has been protracted. To  an  extent  the  Council  acknowledges  that  it  must  accept  costs  and  delays associated  with  the  lengthy hearings  and  appeals  that  have  formed  part  of  this process.  It is noted that in Gisborne Refrigerating Company Limited v Gisborne City

Council9  the Court held that delay and expense arising from lengthy hearings and appeals are not reasons on their own to decline leave for an appeal.  Mr Casey QC, counsel for Federated Farmers, suggested that potentially lengthy hearings and appeals are part and parcel of plan changes and the present proceedings he says are not extraordinary.

[26]     It is clear however that in Coromandel Watchdog of Hauraki Inc v Chief Executive of the Ministry for Economic Development (No 2)10 the High Court indicated that the issue of delay and the position of a respondent council are matters relevant to the exercise of the Court’s discretion under s 144 of the former Summary Proceedings Act 1957 (SPA).

[27]     On these particular issues, I take the view that, if leave to appeal is granted, the further costs and delays which will result, including potential cost or possible damage to the outstanding natural landscape of the Mackenzie Basin involved here, and the continuing uncertainty for the Council and the local community, are simply not outweighed by any public or private interest in this particular instance. The real and  in  many  ways  immeasurable  cost  of  leaving  the  Mackenzie  Basin,  an outstanding natural landscape, vulnerable as a result of an uncertain planning framework which the Council says inevitably arises must, in my view, be avoided.

[28]     At a general level, I am of the view too that the issues giving rise to the proposed  questions  of  law  in  this  case  have  been  fully  argued  in  both  the Environment Court and before this Court.  I agree with the position advanced for the Council that some finality of this litigation is called for.  And importantly, this is not the end of the road for Federated Farmers and its members.

[29]     The  process  to  be  undertaken  now  pursuant  to  the  Ninth  (Procedural) Decision of the Environment Court referred to at para [18] above, is significant.  It will itself involve public notification, consultation and input on what I understand to
be these very issues. All this is still to be undertaken and, in my view, to an extent it

9	Gisborne Refrigerating Company Ltd v Gisborne City Council HC Wellington 11 October 1990
AP12/90.
10	Coromandel  Watchdog  of  Hauraki  Inc  v  Chief  Executive  of  the  Ministry  for  Economic
Development (No 2) HC CIV-2004-485-1838 and CIV-2004-419-1776, 7 December 2005.

will  meet  a concern  of  Federated  Farmers expressed  before me by its  counsel, Mr Casey QC, as to the ability of its members to be involved and participate in these processes.  As I see the position, the reality of the substantive matters concerning PC13 and the new Plan Change provisions will be properly open for consideration and submission following public notification of the entire varied Plan Change, with the Council then submitting the final changes to the Environment Court for approval, a   process   which   will   also   include   a   further   right   for   parties   including Federated Farmers to be heard.  In my view, all this will provide ample opportunity for Federated Farmers and its members having been consulted to provide input, advice and submissions to the Council and to appear and provide submissions before the Environment Court at a subsequent hearing.

[30]	For all these reasons, I am of the view that this is a case where, irrespective of all other matters, the Court should exercise its residual discretion to decline leave.

Conclusion

[31]     The application by Federated Farmers for leave to appeal to the Court of

Appeal from my decision in this Court on 23 October 2014 is dismissed.

[32]	As to costs, I see no reason here why costs should not follow the event in the usual way.

[33]     Costs are therefore awarded to the Council on its successful opposition to the present application on a category 2B basis together with disbursements, if any, as approved by the Registrar.

...................................................
Gendall J

Solicitors:
Duncan Cotterill, Christchurch
Tavendale & Partners, Christchurch
Cooper Rapley, Palmerston North