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Auckland Transport v Western Properties Limited [2017] NZHC 1470 (29 June 2017)

Last Updated: 4 August 2017

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2016-404-3212 [2017] NZHC 1470

JUDGMENT OF WOODHOUSE J (LEAVE TO PROCEED WITH APPEAL)

This judgment was delivered by me on 29 June 2017 at 3:30 p.m. pursuant to r 11.5 of the High Court Rules 1985.

Registrar/Deputy Registrar

..........................................

Solicitors / Counsel:

Mr R J Somerville QC, Barrister, Dunedin

Mr G C Lanning (appellant’s instructing solicitor), Simpson Grierson, Solicitors, Auckland

Mr R Bartlett QC, Barrister, Auckland

Mr J Nolen (respondent’s instructing solicitor), KMO Ltd, Solicitors, Auckland

AUCKLAND TRANSPORT v WESTERN PROPERTIES LTD [2017] NZHC 1470 [29 June 2017]

[1] The appellant, Auckland Transport, appealed against a decision of the Environment Court. The Environment Court had allowed an appeal of the present respondent, Western Properties, against a decision of Auckland Transport refusing consent under s 167(1)(b) of the Resource Management Act 1991 (the Act) to construct a building which would, in part, be within a designation in the Auckland Unitary Plan. Auckland Council is the requiring authority responsible for the designation.

[2] The hearing of the appeal was due to proceed before me on 6 June 2017. At the commencement of the hearing the parties advised that issues between them had been settled following an agreement for Auckland Transport to purchase the piece of land owned by Western Properties that is subject to the designation.

[3] As between the parties to this appeal the matter is at an end. As recorded in a minute issued on 6 June 2017, the appeal is not to proceed to determine rights between them. The position was recorded in that way because Dr Somerville QC, for Auckland Transport, advised that Auckland Transport nevertheless wished to proceed with the appeal, if possible, to determine what he submitted is an issue of importance for Auckland Transport and other designating authorities. This concerns the scope of an appeal to the Environment Court under s 179 of the Act; more broadly, the extent of the jurisdiction of the Environment Court on such an appeal.

[4] Although the involvement in this proceeding of Western Properties, as respondent, was at an end, the appeal in a formal sense was adjourned. This was to enable Dr Somerville to prepare and file a memorandum addressing the question whether this Court should proceed to hear argument on the issues raised by the appeal notwithstanding the fact that all issues between the parties, including legal issues, are at an end.

[5] I have now received a helpful memorandum from Dr Somerville. He cited and discussed the leading New Zealand authority, a decision of the Supreme Court in

R v Gordon-Smith¹ and decisions of the House of Lords and Supreme Court of

Canada.²

[6] The Court in Gordon-Smith said:³

... In general, appellate Courts do not decide appeals where the decision will have no practical effect on the rights of parties before the Court, in relation to what has been at issue between them in lower Courts. This is so even where the issue has become abstract only after leave to appeal has been given. But in circumstances warranting an exception to that policy, provided the Court has jurisdiction, it may exercise its discretion and hear an appeal on a moot question.⁴

[7] The Court outlined the main reasons for the general rule as follows:

[18] The main reasons for the general policy of restraint by appellate Courts in addressing moot questions are helpfully identified by the Supreme Court of Canada in Borowski v A-G of Canada.⁵ They are, first, the importance of the adversarial nature of the appellate process in the determination of appeals, secondly, the need for economy in the use of limited resources of the appellate Courts and, thirdly, the responsibility of the Courts to show proper sensitivity to their role in our system of government. In general advisory opinions are not appropriate.

[8] I have concluded, for the reasons that follow, that the Court should not exercise its discretion in this case to grant leave to proceed with the appeal.

[9] Dr Somerville submitted that the “central issue” on appeal is one where there is an issue involving a public authority, Auckland Transport, and a question of public importance analogous to a public law issue. There is some weight in the point, and I note that leave has been granted in some cases not involving public law.⁶ However, in my judgment this point is insufficient to outweigh other considerations.

[10] Dr Somerville submitted that the argument is not fact dependent and there “is unlikely to be” any new matter raised in another appeal that would not be raised in

¹ _{R v Gordon-Smith [2008] NZSC 56, [2009] 1 NZLR 721.}

² R v Secretary of State for the Home Department ex p Salem [1999] UKHL 8; [1999] 1 AC 450 at 456-457;

Borowski v Attorney-General of Canada [1989] 1 SCR 342 at 353, both of which decisions were discussed in, and the former applied in, Gordon-Smith.

³ _{R v Gordon-Smith, above n 1, at [16].}

⁴ _{Borowski v Attorney-General of Canada, above n 2, at 353, 239.}

5. Borowski v Attorney-General of Canada, above n 2, at 358-363, 243-247. See also the subsequent discussion in R v Smith [2004] 1 SCR 385, (2004) 235 DLR (4th) 587.

⁶ Attorney-General v David [2001] NZCA 336; [2002] 1 NZLR 501 (CA).

this appeal. Having read the Environment Court’s decision and the submissions of both counsel in preparation for the appeal, I am not at all persuaded that that will necessarily be the case. Real caution is required before concluding, in effect, that the only argument before the Court will be a “pure” question of law. The uncertainty as to the true scope of the appeal is indicated to an extent by Dr Somerville’s reference to the “central issue”. It occurs not infrequently that parties embark on a hearing to argue what is thought to be an isolated point of law arising in the context of a wider case and it becomes apparent that an adequate answer to the single issue cannot be given in isolation from a proper understanding of the facts. This was discussed in Gordon-Smith as follows:

[20] The value of Courts determining appeals in an adversarial context lies in the fact that having a stake in the outcome fosters full argument on the questions before the Court. The need for legal principles to be applied to particular facts is also a valuable discipline for the Courts in determining those principles. In this respect the issue for a Court, in deciding whether to allow a moot appeal to proceed, was aptly expressed by the Court of Appeal in David, as being “whether a general question posed in relation to future conduct permits of a categorical answer or whether the limits and conditions can only be defined adequately and safely by reference to particular facts”.⁷

[11] It was submitted that there are considerations which mean that the proposed appeal meets the second factor identified at [18] of Gibson-Smith – the need for economy in the use of the limited resources of the appellate court. The submission was that this is an appropriate case because the “central issue” has not been the subject of a decision of this Court, it is an issue which is likely to come before the Environment Court again, and that Court would therefore be assisted with a decision from this Court. Reference was made to an observation of Judge Smith in the Environment Court, in this case. The Judge said that the case “has that feel to me that it is breaking ground in an area I suspect we are going to get a lot more work in

future years”.⁸

[12] In my judgment, a test case in respect of a matter of this nature, divorced from its factual foundation, is not an occasion for use of the limited resources of this

_{Court in respect of appeals from the Environment Court. In addition, for the}

⁷ _{At [8].}

8. Western Properties Ltd v Auckland Transport [2016] NZEnvC 234. The comment is recorded in the transcript of the hearing at p 1060.

purposes of a test case in this Court as to the scope of s 179 of the Act, it is likely that this Court would be better placed to consider the issues if there is at least one further decision of the Environment Court on the point, and taken on full appeal with the involvement of both parties. A particular aspect of this is that a further opinion of the Environment Court is likely to be of assistance given the specialist jurisdiction of that Court.

[13] There is, finally, the third point from Borowski, summarised at [18] of Gordon-Smith – “the responsibility of the Courts to show proper sensitivity to their role in our system of government”. The Court concluded with the observation that, “in general advisory opinions are not appropriate”. What is sought in this case is an advisory opinion apparently arising out of the first case of its type to come before the Environment Court. This is not an appropriate case for a general advisory opinion.

[14] The application for leave to proceed with the appeal is dismissed. The appeal is now at an end.

Woodhouse J