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High Court of New Zealand Decisions |
IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY
CIV 2006-485-000627
BETWEEN PETER WILLIAM MAWHINNEY AND
GLORIT SUBDIVISION LIMITED
Appellant
AND
WAITAKERE CITY COUNCIL
Respondent
Hearing: 7 December
2007
Appearances: Appellant in Person
R B Enright/G R Milner-White for Respondent
Judgment: 19 December
2007 at 11.00 a.m.
JUDGMENT OF VENNING J
This judgment was delivered by me on 19 December
2007 at 11.00 a.m., pursuant to Rule 540(4) of
the High Court Rules.
Registrar/Deputy Registrar
Date...............
Solicitors:
Kensington Swan, Auckland
Copy to: Mr P W Mawhinney, Swanson
MAWHINNEY AND GLORIT SUBDIVISION LIMITED
V WAITAKERE CITY COUNCIL HC AK CIV
2006-485-000627 19 December 2007
Introduction
[1] If a proposed activity complies with
the provisions of the relevant district
plan then application can be made for a certificate of compliance under s 139 of the
Resource
Management Act 1991 ("the RMA"). If the activity could be lawfully
carried out without a resource consent, the Council must issue
a certificate of
compliance. A certificate of compliance is deemed to be a resource consent.
[2] Entities associated with Mr
Mawhinney own land at Te Henga (Bethells)
Beach within Waitakere City. On their behalf Mr Mawhinney applied for a
certificate
of compliance for a number of proposed boundary adjustments in relation
to 27 titles. The primary purpose of the boundary adjustments
was to increase the
width of vehicle access to the land.
[3] The Council declined the request on 21 June 2005. Mr Mawhinney
and
Glorit Subdivision Limited appealed to the Environment Court. The Council sought
to strike out the appeal on the grounds that
it disclosed no reasonable cause of action
or otherwise was an abuse of process as there was no jurisdiction to grant a resource
consent for the activity. The Environment Court accepted the Council's submissions
and struck out the appeal following a two day
hearing on 21 and 25 November 2005.
Mr Mawhinney then sought a rehearing. That application was dismissed on 21
February 2006.
[4]
Mr Mawhinney and Glorit appeal both decisions.
The appellant's questions of law
[5] An appeal to this Court can only be
on a question of law: s 299 of the RMA.
Mr Mawhinney identified five questions of law in his notice of appeal against the
substantive
decision, which can be summarised as:
1. Whether, on the evidence, the true and only conclusion contradicts
the determination of the Environment Court that the proposed
boundary adjustments exceeded the 10 percent
adjustment permitted
under clause 2.1(a) of the plan.
2. Whether there was any evidence to support
the determinations
reached by the Environment Court in respect of the rural residential
parcels.
3. Whether the Environment Court applied the correct legal test in
striking out the appellant's appeals
and abuse of process when it
omitted to assume factual issues in favour of the appellants as to
whether the proposed boundary adjustments were each more or less
than 10 percent of existing area of the rural
residential parcels.
4. Whether, when referring to an allotment, s 218(3) includes
separation of
the parts by a cadastral boundary shown in the
certificate of title referred to in s 218(3)(a).
5.
Whether the Environment Court erred where it determined or
inferred in respect that subdivision rule 2.1(b) could not be relied on
by the appellants and was inapplicable
in any event.
[6] In his written submissions for the appeal Mr Mawhinney rephrased the
questions in a slightly different way
as to:
· What constitutes an allotment?
· What constitutes a site?
· Does an undivided interest in a lot constitute
an allotment and a site for the
purposes of determining the site area and changes in site area in a proposed
boundary
adjustment under r 2.1(a)?
· Was the appellant entitled to rely on r 2.1(b) despite it not having been referred
to in
a request (and notice of appeal)?
· If the appellant is entitled to rely on r 2.1(b) was it legally untenable that the
proposal in relation to existing lots 323 and 324 were lawful without a resource
consent?
[7] The first three points
relate to the fourth question of law, the "complete site"
argument, which was a major feature of Mr Mawhinney's argument in this
Court.
The last two points relate to the fifth question of law.
The proposal in issue
[8] The application for the certificate
of compliance was made on the basis that
the proposed boundary adjustments complied with r 2.1(a) of the relevant plan, the
Council's
partly operative proposed plan. The relevant provisions of the rule are:
2.0 General
The following rules shall
apply, where relevant, to all subdivision of land.
2.1 Permitted activities
(a) Subdivisions meeting the
following Performance Standards are
Permitted Activities (other subdivision rules do not need to be
complied with):
(i) boundary adjustments where ... no existing site is adjusted
in site
area by more than 10%; ...
[9] The appellant's case is that the boundary adjustments result in adjustments of
less than 10 percent
to the site area so that they comply with rule 2.1(a).
[10] As Judge Sheppard observed in the Environment Court, nearly all of
the titles
subject to the proposed boundary adjustments comprise two or more parcels of land.
One parcel is a rural residential lot
and the other an undivided share (typically
1/1000th) in a large lot held as tenants in common by the proprietors of multiple
adjoining
rural residential properties. The parcels have been amalgamated under s
241 of the Act to comply with conditions imposed by the Council
on previous
If the 1/1000th share of the larger lot is included in the overall
subdivisions.
calculation of the
site area, then the boundary adjustment of the entire site area is
kept under the 10 percent threshold. The appellant's
case is based on that
proposition.
The short answer
[11] The short answer to this appeal is that at least some of the boundary
adjustments that Mr Mawhinney applied for exceeded 10 percent and required a
resource consent so that the Council had no authority
to grant a certificate of
compliance for the particular proposal. In the circumstances the Council was right to
decline the application
for a certificate of compliance and the Environment Court
was justified in striking out the appeal as disclosing no reasonable cause
of action
and as an abuse of process. It does however take some explanation to provide the
reasons for that short answer. I set out
the reasons below.
[12] Mr Mawhinney stated in the application for the certificate of compliance that
the proposal met the requirement
that no existing site was adjusted in site area by
more than 10 percent. However, on Mr Mawhinney's own case on this appeal there
are two lots, 323 and 324, which are adjusted in size by more than 10 percent. Mr
Mawhinney calculated the changes in size as an
18.36% increase in the case of lot
323 and a 29.9% decrease for lot 324. Mr Mawhinney conceded in his written
submissions in support
of this appeal, after setting out the adjustments to lots 323
and 324:
It is accepted that as the variation in these lots exceeds 10% reliance cannot
be placed on Rule 2.1(a) unless the complete site argument is to prevail.
On the face of Mr Mawhinney's own documentation
and submissions the proposal
does not comply with rule 2.1(a) (subject to his "complete site" argument, to which I
will shortly refer).
[13] Mr Mawhinney sought to avoid the effect of that in a number of ways. First,
he submitted that the proposal in relation
to lots 323 and 324 was distinct and
independent from the balance of the proposal and could be severed so the certificate
of compliance
should have been given for the remaining 25 lots even if these two
lots required resource consent. I am not able to accept that submission.
[14] Section 139(1) refers to a "particular proposal or activity". In this case Mr
Mawhinney put forward a particular proposal.
The proposal was to make all the
boundary adjustments identified in the application for the certificate. The boundary
adjustments
were shown on a plan attached to the application. The plan provided for
the adjustments in relation to all the land described in
Schedule B. No attempt was
made to distinguish between the adjustments to lots 323 and 324 and the adjustments
to other lots.
One compliance certificate was sought for all the adjustments
contemplated in schedule B to the application. The particular
proposal Mr
Mawhinney put to the Council was effectively a package. If one part of the package
was non compliant, then the Council
was obliged to refuse the request.
[15] Even if it could be said that the Council took a strict approach to the
application,
it was entirely proper that the Council (and the Environment Court) took
a careful and strict approach. As Panckhurst J noted in
Queenstown Casinos Limited
v Dunedin City Council [1998] NZRMA 209 at 212:
It is to be noted that the compliance certificate process does not involve
public notification. Nor is any
right of appeal available to third parties.
And later at 220:
The important difference [between a declaration and an application
for a
certificate of compliance] is that a declaration of the Environment Court can
be tailored to the particular circumstances
whereas a certificate of
compliance is a creature of statute: s 139 of the Act. It is deemed to be a
resource consent.
It must meet the strictures of the section.
[16] It is for the applicant for the certificate of compliance to set out accurately
why and how the particular proposal (in this case) or activity is said to be complying.
Reference can be made to the decision of
the Planning Tribunal in Wawatai v
Hamilton City Council PT WN W17/96 26 February 1996, Judge Treadwell, RG
Bishop and JR Dart at
6:
There is an onus on an applicant for a certificate of compliance to satisfy the
Tribunal that every aspect of the
activity is in conformity with the relevant
rules pertaining to it. It is not sufficient to leave the Tribunal with a view
that it might be a complying activity ...
[17] That is particularly so where, as here, the rule is an exception to the
requirement for a subdivision resource consent. In Waitakere City Council v
Kitewaho Bush Reserve Company Ltd [2005] 1 NZLR 208 at [85], Randerson J
confirmed that the RMA provides a complete code for the control of the subdivision
of land in New Zealand and
that the presumption under s 11 is that:
subdivision may not take place unless it is either expressly allowed by a rule
in both the district and proposed plans or by a resource consent.
[18] Mr Mawhinney sought to rely on the following passage
from the Tribunal's
decision in Culpan v Vose (1993) 2 NZRMA 380 at 383:
So in examining a request to decide whether a certificate of compliance
should be granted, the territorial
authority is required to make a point-by-
point scrutiny of the proposal by reference to all the applicable district Plan
rules.
[19] Mr Mawhinney submitted that if the Council in this case had given such point
by point consideration to the
matter they would have accepted that the proposal was
compliant in relation to all but lots 323 and 324 and would have granted the
certificate in relation to all other lots. However that submission overlooks the
context of the particular words he relies on. In
Culpan v Vose, in the passage
immediately preceding the one Mr Mawhinney relies on, the Tribunal had noted the
formal nature of,
and importance of, the certificate of compliance procedure.
Further, immediately after the passage, the Tribunal went on to say:
For normal purposes, councils allow certain tolerances. ... However a
certificate of compliance could not properly
be given where there are
shortfalls even shortfalls that might otherwise be tolerated. ... If it is
certified that
a building complies with the district Plan, that is a holding out
by the council that the building complies fully, and in
every respect.
[20] In Culpan v Vose the Court confirmed the need for a council to be sure the
particular proposal or activity
complies before issuing a certificate. It is not
authority for the proposition that Mr Mawhinney seeks to rely on it
for.
[21] Next Mr Mawhinney submitted that even if the application did not comply
with rule 2.1(a), it complied with rule 2.1(b).
Rule 2.1(b) reads:
Subdivisions meeting the following Performance Standards are Permitted
Activities provided that
the subdivision meets all other relevant subdivision
rules in the Plan: ...
[22] But the application for the certificate
of compliance was made in reliance
upon rule 2.1(a). Rule 2.1(b) was not referred to or relied upon. The particular
proposal put
to the Council was for boundary adjustments under rule 2.1(a). Before
the Environment Court Mr Mawhinney sought to submit that the
function of the
Environment Court on appeal is to consider the matter de novo which meant the
Court should consider whether the proposal
complied with rule 2.1(b). Judge
Sheppard rejected that submission. He considered that the Court's duty was to
consider de novo the grounds stated in the s 139 request but as rule 2.1(b) raised
entirely different issues it would be inappropriate
for the Court to make a finding on
whether that proposal qualified without the Council having had notice and
opportunity to present
a considered case. I agree with the Judge's approach. It
comes back to the special nature of a certificate of compliance. More recently
the
Supreme Court has considered the proper approach to be taken by the Environment
Court on appeals:
[29] We accept
that in the course of its hearing the Environment
Court may permit the party which applied for planning permission to
amend its application, but we do not accept that it may do so to an
extent that the matter before it becomes in substance
a different
application. The legislation envisages that the Environment Court will
consider the matter that was before
the Council and its decision to the extent
that it is in issue on appeal. Legislation providing for de novo appeals has
never been read as permitting the appellate tribunal to ignore the
opinion of the tribunal whose decision is the subject
of appeal. In the
planning context, the decision of the local authority will almost always be
relevant because of the
authority's general knowledge of the local context in
which the issues arise.
(emphasis added)
(Waitakere City Council
v Estate Homes Limited [2007] 2 NZLR 149, 164).
The particular nature of the certificate of compliance procedure does not support an
amendment to the proposal through the
appeal process.
[23] There is a further difficulty in relation to reliance upon rule 2.1(b). The plain
wording of rule 2.1(b)
distinguishes it from rule 2.1(a). While subdivisions
complying with the performance standards of rule 2.1(a) are permitted
activities, rule
2.1(b) requires, in addition to the performance standards set out in that clause, that
the subdivision meet all
other relevant subdivision rules in the Plan.
[24] The land in issue is within the foothills environment. The relevant plan
expresses
a need to protect the character and amenity of the foothills environment
from inappropriate or unsuitable subdivision. There is a
policy that settlement in the
foothills environment should be designed, located and of a density that recognises
the position of
that area in protecting valued natural resources and that particular
regard should be had to the cumulative impacts of settlement,
comprehensive design
and management of settlements and the relationship of individual sites with
surrounding catchments and with
natural and physical resources. On the design of
subdivisions in the foothills environment, there is a policy of restoration and
vegetation, of minimising adverse effects of structures, roads, surveying and other
infrastructure. Subdivision of land in the
foothills environment is provided for in
rule 7. Each one of the subdivision activities referred to in rule 7 requires resource
consent.
The specific provisions that regulate subdivision within the foothills
environment take precedence over the general rule relating
to all subdivisions in rule
2.1(b). Mr Mawhinney cannot therefore rely on rule 2.1(b) of the plan.
[25] So unless Mr Mawhinney's
complete site argument can succeed, the appeal
must fail.
The complete site argument
[26] The critical requirement for a
permitted activity under rule 2.1(a) of the plan
is that:
No existing site is adjusted in site area by more than 10%.
[27] Lots 323 and 324 are rural residential lots. They are included in certificates
of title under identifiers NA139A/725
and NA139A/726 respectively. Undivided
shares in the common parcels are also included on the certificates of title. They were
amalgamated
under s 241 of the Act. For example, for lot 324 (certificate of title
NA139A/726), the existing position and the appellant's proposal
is:
Existing Hectares
6.0057
Lot 324DP210991
1/80th share lot 9 DP166619 0.3681
1/80th share
lot 200 DP210991 0.3919
site area (the total area of the site/certificate of title)
6.7657
Proposed
Lot 3249 4.2100
1/80th share lot 989
1.2512
1/80th share lot 209 0.7990
site area (the
total area of the site/certificate of title) 6.2602
0.5055
7.5%
Change in site area
[28] Taken on its own, the rural residential lot 324 is reduced in size area by the
proposal from
6.0057 to 4.2100 hectares (29.9 percent), and is not compliant with
rule 2.1(a). But if the appellant's complete site argument is
correct then the overall
change in the complete site area is only 7.5 percent.
[29] The validity of Mr Mawhinney's argument depends
on a consideration of the
definition of "site" for the purposes of rule 2.1(a).
"Site" is defined in the plan to mean:
· an allotment comprised in a single certificate of title; or
· An allotment shown on an approved survey plan for which
a separate
certificate of title could be issued without further consent of the Council;
or
· the aggregation of land held in more than one certificate
of title for the
purpose of a particular development, where an encumbrance or
equivalent is incorporated on
each title so that the title cannot be
disposed of separately ...
[30] The appellant places reliance on the references
to "allotment" under the
definition of site. The appellant does not rely on the third aspect of the definition.
[31] The issue
then becomes the meaning of "allotment". The appellant submits
that together, the rural residential lots and the undivided shares
in the common
parcels come within the definition of an allotment. Allotment is defined in s 218 of
the Act. Section 218(1) confirms
that subdivision of land means the division of an
allotment. Section 218(2) provides that an allotment is a "continuous area ..."
of a
parcel of land.
[32] An allotment then, means any parcel of land that is a continuous area and
whose boundaries are shown
separately on a survey plan. The various rural
residential and access lots are prima facie areas of land whose boundaries
are shown
separately on survey plans. They each, individually, are prima facie separate
allotments as the term is defined in
s 218(2). The appellant's argument to the
contrary is based on the exception provided by s 218(3).
[33] Section 218(3) provides
an extension to what is a continuous area of land for
this purpose:
(3) For the purposes of subsection (2), an allotment
that is--
(a) Subject to the Land Transfer Act 1952 and is comprised in
one certificate of title
or for which one certificate of title could be
issued under that Act; or
(b) Not subject to
that Act and was acquired by its owner under
one instrument of conveyance--
shall be deemed to be a continuous
area of land notwithstanding that
part of it is physically separated from any other part by a road or in any
other
manner whatsoever, unless the division of the allotment into such
parts has been allowed by a subdivision consent granted
under this Act or by
a subdivisional approval under any former enactment relating to the
subdivision of land.
(emphasis added)
[34] Relying on that extended definition Mr Mawhinney submitted that the rural
residential lot and the undivided
common parcels of land comprise a single allotment
so that the rural residential parcel and common parcel comprise a single site
in terms
of the definition of site within the plan. He further submitted that as site boundaries
is defined to mean the boundary
as shown on "the survey plan or certificate of title
..." then the site area of the site is its total area, namely the combined area
of the
rural residential parcel and the common parcel serving it.
[35] Mr Mawhinney's argument is dependent upon the reference
to a separation of
the two parcels "in any other manner whatsoever" in s 218(3) extending to include a
separation of the two parcels
of land by a cadastral boundary. In support of that
argument Mr Mawhinney referred to s 220(2)(b) of the Act, which provides:
Land shall be regarded as adjoining other land notwithstanding that it is
separated from the other land only by a road,
railway, drain, water race,
river, or stream.
and submitted that if Parliament had intended the reference to "any other manner
whatsoever" in s 218(3) to refer to a railway, drain, water race, river or stream it
would have said so. Mr Mawhinney also submitted
that alternatively, "road" as
defined in s 315 of the Local Government Act 1974 is defined as land, not a physical
carriageway.
[36] Judge Sheppard rejected these submissions and found that, read in context,
the separation under s 218(3) "in any other manner
whatsoever" is confined to a
physical separation of the kind that occurs with separation by a road. He rejected the
appellant's contention as untenable.
[37] It is
a matter of interpretation of the relevant provisions of the plan and the
Act. I agree with Judge Sheppard's interpretation of the
provisions. The section
must be interpreted in its context. In my view the reference to "in any other manner"
is plainly a reference
to a physical separation because it follows the earlier reference
in the section to the land being "physically separated" from any
other part by a road.
The focus is on a physical separation, not separation by a cadastral boundary. The
separation by "any other
manner" is by way of physical separation.
[38] The balance of the section 218(3) must also be considered. It is relevant that
it goes on to provide an exception to the extended definition in the case of a
subdivision:
unless the division of the allotment
into such parts has been allowed by a
subdivision consent granted under this Act ...
which is inconsistent with Mr Mawhinney's
argument.
[39] The appellant's contention is simply untenable. The rural residential parcel
and undivided share in a common parcel
do not, together make an allotment. As
they are not an allotment they cannot together constitute a site for the purposes of the
plan
and particularly rule 2.1(a).
[40] In light of the above findings the questions of law raised by Mr Mawhinney
can be dealt with
briefly.
Question 1 whether on the evidence the true and only conclusion contradicts the
determinations of the Environment Court?
[41] Mr Mawhinney submitted that the area adjustments of the rural residential
parcels in respect of 25 of the 27 subject certificates
of title did not exceed 10
percent of the existing area when calculated on a parcel by parcel basis. Even
accepting that argument
for present purposes, the short point is that two of the 27,
lots 323 and 324, did not comply. The application for the certificate
of compliance
was for the particular proposal which included all 27. For the reasons discussed
above the application for the certificate
of compliance was not for a "permitted
activity" within the meaning of s 139(3) and s 77B(1) because it did not fall within
r 2.1(a).
The Council was right to decline the application.
[42] Mr Mawhinney next submitted that when calculated on an allotment by
allotment
basis (the complete site argument) the adjustments in relation to lots 323
and 324 were permitted activities. Alternatively
Mr Mawhinney submitted the
boundary adjustments of lots 323 and 324 were permitted under subdivision rule
2.1(b). For the reasons
given above I do not accept those arguments.
[43] Finally Mr Mawhinney submitted that his application for a certificate of
compliance
should effectively have been severed by the Council. Again, for the
reasons given above this submission cannot succeed.
Question
2 was there any evidence to support the determination reached by the
Environment Court?
[44] On Mr Mawhinney's own evidence
and submission lots 323 and 324 did not,
subject to the complete site argument, comply. The proposal did not comply with
r 2.1(a)
of the plan.
Question 3 did the Environment Court apply the correct legal test in striking out
the appellant's appeal as an abuse
of process when it omitted to assume factual
issues in favour of the appellants?
[45] Mr Mawhinney submitted that the Environment
Court erred by omitting to
assume factual issues in favour of the appellants, and particularly in ignoring the
appellant's assertion
that the proposed adjustment of the areas of the rural residential
parcels did not exceed 10 percent of their existing area.
[46]
The general principles that apply to a strike-out application in this Court are
also generally applicable to strike-out applications
in the Environment Court but
there are additional considerations that can apply in the case of applications to strike
out before
the Environment Court:
· The Resource Management Act encourages public participation in the resource
management process and which
not be bound by undue formality;
· Where there is a reference or appeal to the Environment Court, the appellant is
not in
a position to start again due to statutory time limits; and
· There are restrictions upon the power to amend. In particular,
an amendment
which would broaden the scope of the reference or appeal is not ordinarily
permitted.
(Hauraki Maori Trust
Board v Waikato Regional Council HC AK CIV 2003-485-
999 4 March 2004 Randerson J).
[47] Although the general principles relevant
to strike-outs apply, the particular
nature of the matter before the Environment Court in this case is relevant, i.e. it was
an appeal
from a decision of the Council declining an application for a certificate of
compliance under s 139. The Council is required to deal
with the application for the
certificate in the terms it was made. Once the Council declined that application there
was no basis
to amend it during the appeal process. The position is similar to that in
Curtis v Hutt City Council EnvC Court W65/99 10 June 1999,
Judge Kenderdine,
where it was held there was no jurisdiction to cure the defective application or deal
with it because the appellant
had failed to apply for a discretionary resource consent
in circumstances where such was required. Reference can also be made to
the last
point made by Randerson J in the Hauraki Maori Trust Board case, namely that
there are restrictions on the power to amend.
[48] It is also relevant that the issue for appeal turned primarily on questions of
law and interpretation. The appellant's case
before both the Environment Court and
this Court on appeal is dependent upon the interpretation of the provisions in the
plan and
Resource Management Act. The facts are not in issue.
[49] Finally, I note that Mr Mawhinney has accepted that, at least in relation
to
lots 323 and 324 and subject to the complete site argument, the proposal did not
comply with rule 2.1(a).
Question 4 whether
when referring to an allotment the expression under section
218(3) of the RMA includes separation of the parts by a cadastral boundary
shown
on the certificate of title?
[50] This is the complete site argument which cannot succeed for the reasons
given above.
Question 5 whether the Environment Court erred when it determined or inferred
that the appellants could not rely on rule 2.1(b)?
[51] Mr Mawhinney submitted that it was up to the consent authority to undertake
a point by point scrutiny of the relevant provisions
to determine whether the
certificate of compliance could be lawfully issued and that it was not for the
applicant to carry out that
exercise. He submitted that if rule 2.1(a) did not apply,
rule 2.1(b) did.
[52] For the reasons given above I reject that submission.
The Council was not
obliged to go outside the particular proposal presented to it.
[53] Nor can rule 2.1(b) have any application
to the present case for the reasons
set out earlier.
Rehearing
[54] The application for rehearing was made under s 294 of
the RMA. Under that
section, new and important evidence must have become available or there must have
been a change in circumstances,
either of which might have affected the decision, for
the Court to order a rehearing.
[55] The application for rehearing was
made on the basis that the initial hearing
had proceeded on an erroneous understanding of the number of sites affected by a
change
of more than 10 percent. Mr Mawhinney produced a reworked schedule for
the purposes of the application for rehearing. Mr Mawhinney
contended that the
boundary adjustments would increase by more than 10 percent the areas of the rural
residential lots in the case
of only two of the 27 titles. Then he submitted that there
had been a change in circumstances that might have affected the decision,
namely
the Court's own interpretation of the meaning of the word allotment in s 218(3).
[56] Judge Sheppard was prepared to accept the possibility
he misunderstood Mr
Mawhinney's case at the original hearing on how many of the rural residential lots
would have had their areas
increased by more than 10 percent but even so noted that
Mr Mawhinney conceded at least two would. But the Judge did not accept that
such
evidence was new and important evidence that had become available. Nor did he
accept there was a change in circumstances arising
out of the reasoning of the Court
in deciding the very proceedings proposed to be a rehearing.
[57] Mr Mawhinney sought to challenge
that decision by formulating two
questions of law.
Whether the Environment Court erred in determining the evidence showing a
comparison
of areas in the new format was not new evidence?
[58] Despite the way he framed the first question, Mr Mawhinney seems to have
accepted his reformulation of the evidence was not new evidence because he
submitted that if it was not new evidence then the Court
was wrong to have struck
out the appeal as an abuse of process in the first place. However that submission
overlooks that the appeal
was struck out for a number of reasons. As Randerson J
observed in Waitakere City Council v Kitewaho Bush Reserve Co Ltd [2005] 1
NZLR 208:
[66] What constitutes an abuse of process for the purpose of the relevant
rules in the general Courts or s 279(4)
of the RMA is not capable of ready
definition but it is designed to be a flexible remedy which may be applied to
a
wide variety of circumstances. It will not lightly be exercised because it
has the effect of shutting out a party from the
processes of the Court.
[59] The reformulation of the question by Mr Mawhinney did not answer the
difficulties he faced with the
law and interpretation of the plan.
[60] Next Mr Mawhinney submitted s 294 did not pose a test as to whether or not
the information
should have been presented at the earlier hearing and the Judge was
wrong to approach it that way. The wording of s 294 is plain.
There is jurisdiction
for a rehearing where, after any decision has been given by the Environment Court,
new and important evidence
becomes available. It is implicit from the wording of
the section that the evidence was not, for whatever reason available at the
hearing.
The "new evidence" Mr Mawhinney relied on was a reformulation of the case rather
than new evidence as such. An application
for rehearing is not to be used to seek to
obtain another hearing because of omissions in the presentation of the case at the
original
hearing: Shepherd v Rodney District Council (1992) 1 NZRMA 288.
Whether the Environment Court erred in inferring that it could not consider an
appeal against a refusal of a certificate of compliance
for fully complying boundary
adjustments on the basis the request also included unrelated boundary adjustments?
[61] Mr Mawhinney
submitted that because the boundary changes for 25 of the
titles complied with rule 2.1(a) it was mandatory for the certificate of
compliance to
have been issued in respect of them, and it was irrelevant that it also included
unrelated boundary adjustments. In
finding against the appellant on that point,
Mr Mawhinney submitted the Environment Court had erred. That is the same matter
that
was raised in the substantive appeal and has been dealt with. It is not a change
in circumstances providing jurisdiction for a rehearing
of the proceedings. The
Judge was quite right to decline the rehearing.
[62] Mr Mawhinney then submitted that even if the arguments
were wrong they
demonstrated a good and arguable case. But as a matter of principle, strike-out
applications can succeed even where
a close examination of the law is required as
was the case here. The Judge gave Mr Mawhinney's submissions very full and
careful
consideration before dismissing the appeal.
Result
[63] The appeal is dismissed.
Costs
[64] I reserve costs for written
submissions. The respondent is to file submissions
by 25 January 2008. The appellant is to respond by 8 February. I will then fix
costs
on the basis of the written submissions.
__________________________
Venning J
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