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North Holdings Ltd v Rodney District Council [2004] NZCA 214; (2004) 17 PRNZ 384 (6 September 2004)

Court of Appeal of New Zealand

North Holdings Ltd v Rodney District Council [2004] NZCA 214 (6 September 2004); (2004) 17 PRNZ 384

Last Updated: 18 December 2011

IN THE COURT OF APPEAL OF NEW ZEALAND

BETWEEN NORTH HOLDINGS LIMITED (NOW MANUNUI FARM PARK LIMITED)
Appellant

AND THE RODNEY DISTRICT COUNCIL
Respondent

Hearing: 24 August 2004

Coram: Anderson P Hammond J William Young J

Appearances: K R M Littlejohn and M J E Williams for Appellant
B H Dickey and J F Verry for Respondent

Judgment: 6 September 2004

Introduction

[1] The appellant, North Holdings, applied for a resource consent under the Resource Management Act 1991 (RMA) with respect to a bush-lot subdivision at Pakiri, north of Auckland.
[2] In September 2002, the respondent District Council determined that the application should be notified.
[3] In October 2002, North Holdings applied for a judicial review of that determination in the High Court at Auckland seeking, (a) a declaration that the District Council's decision to process the application on a notified basis was unlawful; and (b) an order setting aside the decision of the District Council to process the application on a notified basis.
[4] Shortly after the issue of that proceeding, but without prejudice to it, North Holdings prepared and filed a second bush-lot subdivision application in respect of the subject land. North Holdings did not seek to have this application processed on a non-notified basis. The application was notified and submissions for and against the proposal were received from a number of parties. The District Council declined this resource consent application.
[5] This second application was then taken on appeal to the Environment Court. The appeal was compromised. A final consent order was made in the Environment Court during the course of the hearing of the judicial review application. The result of the consent order was that North Holdings obtained a resource consent on terms consented to by it, the Rodney District Council, and certain other interested parties.
[6] The hearing of the application for judicial review nevertheless proceeded to a conclusion, notwithstanding the events we have just mentioned. Venning J delivered a considered decision on 11 September 2003 (Auckland CIV-2002-404-002402).
[7] The application for judicial review was dismissed. Venning J held, inter alia, that there was no longer any utility in the relief sought by North Holdings.
[8] North Holdings appealed to this Court against that judgment.
[9] Although the proceeding in the High Court advanced four causes of action, the appeal to this Court was confined to the issue of whether or not the scheme of the RMA precludes the application of the principles of natural justice to the processing of resource consent applications prior to the consent authority’s determination as to notification.
[10] The essence of this complaint was that in the course of processing of North Holdings’ application, information was obtained by the District Council that is said to have been prejudicial to the notification decision, but which was not provided to North Holdings for consideration or response prior to a determination on notification being made.

Should the appeal be treated as moot?

[11] At the outset of the hearing before us we pressed counsel as to whether there is any utility to be had from the appeal, given that the appellant was granted a resource consent, on terms which were acceptable to it.
[12] Mr Littlejohn sought to persuade us that we should still hear and determine the appeal, essentially on the footing that, in his submission, an important issue of principle, and one of public importance is involved: whether, and if so how far, the principles of natural justice apply to the notification decisions of consent authorities.
[13] Classically, the fact that there is no longer a live issue between the parties was said to be determinative against a superior appellate Court determining an issue (Sun Life Assurance Company of Canada v Jervis [1944] AC 111 (HL), applied by this Court in Finnigan v NZRFU Inc (No 3) [1985] 2 NZLR 190).
[14] This principle was reviewed in R v Secretary of State for the Home Department, ex parte Salem [1999] 1 AC 450 (HL). That was a case in which the appellant asylum seeker was granted refugee status following an adverse decision in the Court of Appeal but before the appeal to the House of Lords was heard. Lord Slynn, in a judgment concurred in by the four other Law Lords, distinguished Jervis as being concerned solely with private rights. He said:

My Lords, I accept, as both counsel agree, that in a cause where there is an issue involving a public authority as to a question of public law, your Lordships have a discretion to hear the appeal, even if by the time the appeal reaches the House there is no longer a lis to be decided which will directly affect the rights and obligations of the parties inter se. The decisions in the Sun Life case and Ainsbury v Millington (and the reference to the latter in r 42 of the Practice Directions Applicable to Civil Appeals (January 1996) to your Lordships’ House) must be read accordingly as limited to disputes concerning private law rights between the parties to the case (at 456).

[15] Nevertheless, His Lordship said a cautious approach should be adopted, and there must be a good reason in the public interest for the appeal to go ahead.
[16] On the facts in Salem, there was no such good reason to determine the appeal. The case, though one of statutory interpretation, depended primarily on the facts.
[17] The House of Lords approved the earlier decision of the Court of Appeal in R v Board of Visitors of Dartmoor Prison, ex p Smith [1987] QB 106. There, Ralph Gibson LJ had accepted that an appeal could go forward despite a decision having been taken not to proceed against a prisoner in any event. His Lordship concluded:

It seemed to all the members of this court that the fact that the prisoner was no longer at risk of further disciplinary proceedings did not deprive the court of jurisdiction to hear this appeal; that there were in it questions of general public interest; and that, even if the prisoner is rightly to be regarded as having no interest in the outcome, the court should, in the exercise of its discretion, hear the appeal on the merits (at 115).

[18] This case law was adopted by this Court in Attorney-General v David [2002] 1 NZLR 501. Leave was granted in that case (an employment decision relating to cross-examination). The Court said:

In a broad sense there are three possible answers to the question whether cross-examination by the parties is available before the authority: cross-examination is as of right; no such cross-examination is permitted; and cross-examination is available in some circumstances with the authority required to rule on whether and, if so, subject to what criteria, cross-examination is permitted. In terms of the Employment Court decision, cross-examination is by right whenever a party assures the authority that it is necessary to resolve a conflict of evidence. That is perhaps not expressed as an absolute right, applicable where any witness is called, because, as framed, it is restricted to cases where that assurance is given and does not extend to cases where a party may wish to cross-examine to elucidate a factual situation but is unable to give that assurance. Nevertheless, the Employment Court’s ruling is close to one end of the spectrum and, given that the authority must adopt the approach which the Employment Court had mandated, we are satisfied that as a question of law the correctness of that stance is a question of law involved in the proposed appeal which is of general and public importance and ought to be submitted to this Court for earlier decision (at [12]).

[19] More recently, in Director General of Social Welfare v W (10 March 2004 CA46/03) a university student had become embroiled in a dispute with the Department of Social Welfare over payment of $90 to enable her son to attend a camp during the school holidays, whilst she was attending lectures. The issue was whether she was entitled to an advance payment under s 82(6) of the Social Security Act 1964.
[20] By the time the dispute lumbered through the Department, a Benefit Review Committee, the Social Security Appeal Authority, and the High Court, the (unsatisfied) need for the money had come and gone. But as the President noted, “in the course of its progress [over eight years] the case has raised matters of general significance to beneficiaries and the Department, particularly in relation to the nature and powers of the Appeal Authority” [para 6]. Although the particular outcome of the case - in the narrow sense of the payment of the $90.00 - was moot, the legal issues before the Authority as to its powers were not, and this Court proceeded to deal with them.
[21] In this instance, although in light of the authorities to which we have just referred this Court has a discretion as to whether it should hear the merits of the appeal, we decline to do so.
[22] The appellant seeks an abstract holding from this Court which would have very distinct implications for applicants, local authorities, and the public in resource consent applications. However the application of the principles of natural justice to resource consent applications must necessarily be distinctly fact dependent. To the extent that the rules of natural justice may apply to such applications, as to which we will say more shortly, such matters are better considered on a case by case basis. And in this case, as Venning J rightly noted, the determination of the case would have no utility.
[23] We do not therefore propose to determine the merits of this particular appeal.

Some brief observations on natural justice

[24] That said, this Court would not wish to be taken as endorsing the bald terms of paragraph [92] of Venning J's judgment, in which the Judge said “I reject the plaintiff's submission that natural justice applies to a decision under s 95". As so stated, paragraph [92] is plainly overdrawn, and Mr Dickey for the District Council did not contend otherwise.
[25] Paragraph [92] was simply a shorthand expression of certain more limited propositions the Judge had dealt with at paragraphs [79], [82] and [89] of the judgment under appeal viz:

[79] The plaintiff submits that the principles of natural justice apply to the decision to notify or not and that the defendant breached the requirements of natural justice by:

• not putting issues that it considered justified notification to the plaintiff for the plaintiff’s comment; and
  • by receiving information adverse to the plaintiff’s desire to have the application proceed on a non-notified basis without disclosing or referring that to the plaintiff for comment and response.

...

[82] At the heart of the plaintiff's submission under this fourth cause of action is the proposition that the plaintiff is entitled to be informed of all relevant information to be considered by the defendant and to participate in the decision whether or not to notify under s 94. There are no express provisions in the Act that require the defendant to do so. As observed by the Privy Council in Furnell v Whangarei High Schools [1973] 2 NZLR 705 case the issue is:

In the present case do the well-known words of Byles J in Cooper v Wands-worth Board of Works [1863] EngR 424; (1863) 14 CBNS 180, 194, apply, viz,

". . . although there are no positive words in a statute requiring that the party shall be heard, yet the justice of the common law will supply the omission of the legislature"?

Or is the code one that has been carefully and deliberately drafted so as to prescribe procedure which is fair and appropriate? (p 717)

...

[89] In the circumstances I am unable to accept the plaintiff's submission that the principles of natural justice apply under s 94 to require a consent authority to advise an applicant of all inquiries made by the consent authority relating to notification or for that matter all communications received by the consent authority relating to the issue of notification before making a determination on that issue.

[26] In short, paragraph [92], taken by itself, would be incorrect, but read in context it was dealing only with the narrower and particular concern raised in this case. It should not be read as authority for a general exclusion of natural justice.
[27] It may be that, on the facts of a given case, challenges can be made to a notification decision on established public law grounds (of which bias, or an infringement of legitimate expectations might afford examples). Whether any such challenges could be made out would turn entirely on the facts and considerations appropriate to the particular case. But challenges to the “preliminary decision” of a consent authority (Discount Brands Limited v Northcote Mainstreet Incorporated (14 June 2004 CA30/04) at [42]) on “natural justice” grounds relating to the information a council has or does not have must be highly problematic, for the reasons we recently set out in Discount Brands. And, the preliminary decision is not determinative of the substantive application. A dissatisfied applicant could always ask the authority for a reconsideration, or even reapply (albeit that this will require a further application fee). In short, there are appropriate ways, short of the heavy hammer of judicial review, to address whatever it was that led the authority to require notification in the first place. And difficulties should rarely arise in this subject area, if consent authorities act sensibly in ensuring that matters of real materiality to the notification decision are canvassed with an applicant prior to the actual notification decision being made.

Conclusion

[28] For these reasons, the appeal is dismissed.
[29] The respondent will have costs of $3,000 together with reasonable disbursements. If the disbursements cannot be agreed they are to be fixed by the Registrar. The disbursements are to include the travel and accommodation costs of two counsel for the respondent.

Solicitors:
Fisher Lamberg, Auckland for Appellant
Meredith Connell, Auckland for Respondent