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MAWHINNEY V WAITAKERE CITY COUNCIL HC AK CIV 2008-485-1119 [2009] NZHC 174 (19 February 2009)

IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY
                                                                CIV 2008-485-1119


              IN THE MATTER OF           THE RESOURCE MANAGEMENT ACT
                                         1991

          
   BETWEEN                    PETER WILLIAM MAWHINNEY
                                         Appellant

              AND     
                  WAITAKERE CITY COUNCIL
                                         Respondent


Hearing:      19 February 2009

Counsel:
     P Mawhinney, in person, Appellant
              G R Milner-White and M Broad for Respondent

Judgment:     19 February 2009


                      (ORAL) JUDGMENT OF HEATH J




Solicitors:
Kensington Swan, Auckland
Copy to:
Appellant in person


MAWHINNEY
V WAITAKERE CITY COUNCIL HC AK CIV 2008-485-1119 19 February 2009

Introduction


[1]    Mr Mawhinney seeks leave to appeal to the
Court of Appeal against a
judgment I gave on 27 November 2008.             In that judgment, I dismissed Mr
Mawhinney's appeal from
an Environment Court decision that had struck out his
appeals to that Court on grounds of abuse of process.


[2]    The second issue
before me is one of costs. Mr Milner-White, on behalf of
the Waitakere City Council, seeks increased costs for the appeal hearing
before me.
He also seeks costs on the present application, if the Council were successful.


Leave to appeal


[3]    In my judgment
of 27 November 2008 I dealt briefly with a discussion on the
topic of leave to appeal that occurred during the course of the hearing
of the appeal.
I perceived that there had been an agreement that I could treat Mr Mawhinney as
having applied orally for leave to
appeal and I set that down for hearing on 10
December 2008.


[4]    At that hearing, Mr Mawhinney (correctly) submitted that the
date fixed was
prior to the time in which he had the right to make a proper application, following
determination of an appeal by
the High Court.


[5]    I could not resist Mr Mawhinney's submission that the oral application had
no effect, on the basis that
the appeal was not formally dismissed that day.
Accordingly, timetabling orders were made on 10 December 2008 to enable the
application
for leave to appeal to be heard today.


[6]    The right to apply for leave to appeal from my judgment stems from s 308 of
the Resource
Management Act 1991 which, in turn, incorporates s 144 of the
Summary Proceedings Act 1957.           The relevant provision is s
144(2), which
provides:

       144 Appeal to Court of Appeal

       ...

       (2) A party desiring to appeal to the Court of
Appeal under this section
       shall, within 21 days after the determination of the High Court, or within
       such further time
as that Court may allow, give notice of his application for
       leave to appeal in such manner as may be directed by the rules
of that Court,
       and the High Court may grant leave accordingly 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.

       ....

[7]    In R v Slater  [1997] 1 NZLR 211 (CA) at 214-215, the Court summarised the
statutory question as follows: Is there a question of law 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?


[8]    Mr Mawhinney submits
that there are three errors of substance in my
decision which, individually or cumulatively, justify the grant of leave to appeal.


[9]    First, he contends that I misinterpreted s 11 of the Act to add a gloss on the
scheme of the Act, by prohibiting a resource
consent for a subdivision if there were a
failure to comply with a rule in a district or a proposed plan.


[10]   The second is
that I erred in ruling that it was not permissible under the
scheme of the Act for a subdivision consent to be granted through the
combined
mechanisms of a resource consent and certificates of compliance. This point may be
referred colloquially as the "jig-saw
approach". Effectively, what is suggested is that
resource consents can be obtained for parts of the proposed subdivision, with the
subdivision consent being consummated by obtaining certificates of compliance for
any parts remaining that may not otherwise qualify
for a resource consent.


[11]   The third point is that I failed to take account of s 139(6) which deals with
the way in which certificates
of compliance are to be treated. Mr Mawhinney
submits that the status of such a certificate, vis a vis resource consents, is an
important
issue.

[12]   Mr Mawhinney's submission is that all of those points are of "great public
interest" and have a bearing on all consents
that may be sought for subdivisional
purposes.


[13]   Mr Milner-White submits that the points raised by Mr Mawhinney do not
meet
the threshold level required for the grant of leave.


[14]   In reaching my conclusion that the Act did not permit a subdivision
to be
undertaken through a combination of resource consents and certificates of
compliance, I applied an analysis of the Act undertaken
by Randerson J in Kitewaho
Bush Reserve Co Ltd v Waitakere City Council  [2005] 1 NZLR 208 (HC). However,
that finding of law was not necessary to Randerson J's decision and was expressly
described by him as "obiter".


[15]   In Kitewaho, Randerson J held that a subdivision could not be effected under
the Act unless it was expressly allowed by a
rule in a district or proposed plan or
authorised by a resource consent.


[16]   The question is whether the issues raised by Mr
Mawhinney meet the criteria
for the grant of leave.


[17]   To some extent the challenge to my judgment is a challenge to the analysis
undertaken by Randerson J in Kitewaho. Mr Mawhinney was the human mind of
Kitewaho Bush Reserve Co Ltd. He made an application for
leave to appeal that
judgment. On 14 May 2004, Randerson J dismissed that application. So far as the
obiter analysis was concerned,
he Judge declined to grant leave because his findings
were not material to, nor necessary for, his decision: see Kitewaho Bush Reserve
Co
Ltd v Waitakere City Council (High Court Auckland, AP32/03, 14 May 2004,
Randerson J).


[18]   After Randerson J declined leave,
Mr Mawhinney sought special leave to
appeal from the Court of Appeal, as contemplated by s 144(3). The Court of Appeal
also declined
leave on the grounds that the issues raised were primarily factual and

appropriate for a specialist Court. However, the Court of
Appeal left open the
correctness or otherwise of Randerson J's analysis. McGrath J, for the Court, said:

       [22] It may be that
in an appropriate case it will be possible for at least some
       of the theories of Mr Mawhinney, which he seeks to advance by
way of a
       second appeal, to challenge the prevailing views of what the Act requires. In
       the present case however the
underlying basis for the applicants to challenge
       the construction of s11 is absent. The applicants cannot continue with the
       proceedings the subject of the appeal in any event because they have not
       observed the statutory requirements. In those
circumstances there is no
       proper basis for them to bring a second appeal.

See Mawhinney v Waitakere City Council (CA109/04,
23 September 2004).


[19]   For the reasons given in my 27 November 2008 judgment, I did not consider
there was any merit in the
argument advanced by Mr Mawhinney. It seemed to me
that the Act was clear. I had no doubt about the Environment Court's jurisdiction
to
strike out the appeal. My analysis of the Act came to precisely the same conclusion
as Randerson J. There are no conflicting decisions
of this Court which require
resolution by the Court of Appeal.


[20]   Mr Mawhinney's best point is that there is a public interest
in having the
issues determined by the Court of Appeal because of the need to have a final and
authoritative decision for other cases.
But the force of that submission is diminished
by the fact the point has been raised in cases only involving Mr Mawhinney, or some
entity controlled by him.


[21]   In those circumstances I am not satisfied that the threshold for leave to appeal
has been made
out. This is the type of case which, if leave were to be granted, it is
preferable for the Court of Appeal to do so itself. Accordingly,
if Mr Mawhinney
wishes to pursue the issue he will need to make application for special leave to
appeal to the Court of Appeal.


[22]   I add one further comment on a matter raised by Mr Mawhinney in his
submissions. Mr Mawhinney criticised the fact that I
had limited submissions on the
leave question to 15 pages. There is no merit in that criticism. Indeed, if special
leave were sought
from the Court of Appeal, the number of pages that may be filed
are 10 and, as I understand it, the limit is strictly enforced.


Costs


[23]    In my judgment of 27 November 2008 I awarded costs to the Council on a 2B
basis together with reasonable disbursements.
On 10 December 2008 I recalled that
judgment on the grounds that both parties wished to make contrary submissions and
I accepted
that I had not expressly heard from them on questions of costs at the
hearing.


[24]    Mr Milner-White submits that costs ought to be awarded on a 2B basis, with
an
uplift of 50%. He submits that Mr Mawhinney, under various guises, has run
similar "unmeritorious" arguments. On that basis, he submits
this is an appropriate
case for an award of costs above scale. In accordance with the intimation in my
judgment, Mr Milner-White
does not seek certification for second counsel.


[25]    Mr Mawhinney submits that there is a public interest element in the issues
discussed by the Court and it should be regarded as a test case and one in which it is
inappropriate to award costs. If I were not
to accept that submission, Mr Mawhinney
urges me to restrict costs to a purely nominal amount.


[26]    I am persuaded that the
Council has been put to unnecessary costs, not only
by arguments which have been raised and determined earlier, but also by the prolix
and non-focussed way in which submissions were made in advance of the appeal.
That caused the Council to instruct its lawyers to
prepare thoroughly on the basis of
a number of issues raised which had no prospect of success.


[27]    Further, there is no real
public interest element in the present appeal. The
present appeal was brought to promote private interests associated with Mr
Mawhinney
and his associated entities. I agree with Mr Milner-White that an order
for increased costs is justified on the appeal. I make the
specific order later.


[28]    Mr Milner-White also seeks costs on the application for leave to appeal. Mr
Mawhinney makes a similar
submission in opposition. I am not prepared to allow
any uplift on costs in relation to the application for leave to appeal because
the
threshold issue involved was the single point that required attention in preparation.

[29]     However, I propose to stay execution
of the costs judgment so that Mr
Mawhinney has the opportunity to pursue his application for special leave to appeal
and to ensure
that he is not penalised by being required to pay those costs before that
issue has been determined.


Result


[30]     For those
reasons, Mr Mawhinney's application for leave to appeal is
dismissed.


[31]     Costs and reasonable disbursements are awarded in
favour of the Council on
a 2B basis, together with a 50% uplift. The quantum of costs are approved in terms
of the schedule attached
to Mr Milner-White's submissions on costs dated 30
January 2009. Disbursements shall be fixed by the Registrar. I do not certify
for
second counsel.


[32]     On the application for leave to appeal, costs are awarded in favour of the
Council, on a 2B basis
together with reasonable disbursements. Both costs and
disbursements shall be fixed by the Registrar. I do not certify for second
counsel.


[33]     Execution on the costs judgments is stayed. It is stayed initially for a period
of 20 working days from today's
date, to enable an application for special leave to be
filed and served in accordance with r 14 of the Court of Appeal (Civil) Rules
2005.
If such an application were filed within time, the stay shall extend to determination
of the special leave application. If
the special leave application were granted, the
stay extends to determination of the appeal.




                               
                    ____________________________
                                                                      P R Heath
J