Auckland Council (Formerly Auckland Regional Council) v Auckland Council (Formerly Manukau City Council)
| Jurisdiction | New Zealand |
| Judge | R G Whiting |
| Judgment Date | 28 March 2011 |
| Neutral Citation | [2011] NZEnvC 77 |
| Court | Environment Court |
| Date | 28 March 2011 |
In the Matter of appeals under clause 14(1) of the First Schedule to the Resource Management Act 1991 (the Act)
[2011] NZEnvC 77
Environment Judge R G Whiting sitting alone pursuant to section 279 of the Act
BEFORE THE ENVIRONMENT COURT
Final decision of conditions of consent — appellant granted consent to construct a second dwelling on his property in 2005 — respondent sought financial contributions under s108(1) Resource Management Act 1991 (conditions of resource consents) — District Plan provided for assessment of financial contributions at current market values — whether rules applying to a proposal should be those at the time the application was lodged — resource consent granted before conditions finalised.
Mr P O'Driscoll for Te Akitai Waiohua Waka Taua Trust
Ms F Lupis for Watercare Services Limited
Ms M Dickey and Mr M Allan for Auckland Council
Mr R Enright and Ms H Connell for Makaurau Marae Maori Trust Board Incorporated and Te Kawerau Iwi Tribal Authority
Mr P Cavanagh for Bianconi Investments Limited, Kilroy Investment Group and Tunicin Investments Limited
Mr D Nolan and Mr C Brown for Auckland International Airport Limited Mr D Allan for Florapak Partnership
Mr R Baldwin and Mr Duff for Mangere Bridge Residents & Ratepayers Association Incorporated
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A. The application for discovery and inspection of documents is declined.
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B. The application for an order for full and clear particulars of the grounds of opposition to the Applicant's joinder as a party is declined.
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C. Costs are reserved.
There are eight appeals being dealt with in relation to this discovery application. They are in relation to two topics. Firstly, Manulcau City Council — Proposed Plan Change 14 (Mangere Gateway Heritage Area) and secondly, Proposed Plan Change 13 to the Auckland Regional Policy Statement (extension to the Metropolitan Urban Limits — Mangere Gateway Heritage Area).
After being involved in a lengthy dispute resolution process, the parties have filed consent documentation in relation to a number of these appeals. The Court has received six section 274 notices and waiver applications from Te Akitai Waiohua Waka Taua Trust on behalf of Ngati Pare Waiohua, Te Akitai Waiohua, and Ngati Pou Waiohua between January 2011 and March 2011 in relation to the following, appeals;
[a] ENV-2010-AKL-000022: Watercare Services Limited v Auckland Council (formerly Manukau City Council)
[b] ENV-2010-AKL-000023: Auckland Council (formerly Manukau City Council) v Auckland Council (formerly Auckland Regional Council);
[c] ENV-2010-AKL-000027: Makaurau Marae Maori Trust Board Incorporated v Auckland Council (formerly Manukau City Council)
[d] ENV-2010-AKL-000033: Auckland International Airport Limited v Auckland Council (formerly Manukau City Council)
[e] ENV-2010-AKL-Q00034; Auckland Council (formerly Auckland Regional Council) v Auckland Council (formerly Manukau City Council)
[f] ENV-20J0-AKL-000035: Auckland Council (formerly Auckland Regional Council) v Auckland International Airport Limited
On the 18 March 2011, the Court received an application for further particulars, discovery and inspection of documents accompanied with an affidavit from Mr David Wilson on behalf of Te Akitai Waiohua Waka Taua Trust (Te Akitai). The Court issued directions on the same day by email to all parties, directing that any party that wished to lodge a notice of opposition was to do so by 5pm on Wednesday 23 March 2011, Te Akitai were to file any rebuttal by 5pm on 25 March 2011.
This discovery application only correlates to the section 274 notices and waiver applications being sought in respect of the appeals at [2] (b), (c) and (e). The discovery application appears to only be seeking documents from the Makaurau Marae Trust Board Incorporated (Makaurau) and Te Kawerau Iwi Tribal Authority (Te Kawerau). This does not indicate that other parties involved witlvthis application and the related section 274 and waiver applications will not be directly affected.
On the 22 March 2011, the Court received notice of opposition from Bianconi Investments Limited, Kilroy Investment Group, Tunicin Investments Limited (Bianconi) and Auckland International Airport Limited (Auckland Airport).
On the same day, the Auckland Council (the Council) also filed a memorandum stating that they would abide the decision of the Court, but in adopting that stance wished to record a few matters. Firstly, that this application is filed against the backdrop of the Te Akitai's waiver applications which are to be heard by the Court on Monday 28 March 2011, which is today, Secondly, the application for discovery appears to be focused entirely on the issue of mandate, which is not relevant to formulating a request to be joined as a section 274 party and is not a matter that the Environment Court has jurisdiction to deal with, Thirdly, that this matter is almost identical to the circumstances in the Watercare discovery application, the subject of a recent decision of mine; Watercare Services Ltd & Others v Auckland Council & Others. 1
On the 23 March 2011, the Court received a memorandum of counsel on behalf of Watercare Services Limited ( Watercare), I note that Watercare is not a party to an appeal which is the subject of this discovery application. However, Watercare are affected as the discovery is being sought in support of Te Akitai's numerous section 274 notices and waiver applications, one of which is to join Watercare's appeal (ENV-2010-AKL-000022). I note that
the issues raised are substantially similar to the notices of opposition previously filed by the other partiesOn the same date, the Court received a notice of opposition from Makaurau and Te Kawerau. In the interests of efficiency they adopt the grounds provided by Auckland Airport in their notice of opposition dated 22 March 2011. Makaurau and Te Kawerau also firmly rely on the recent Watercare 2 decision of the Environment Court, which they describe as a virtually identical application by the same applicant,
This application is made in respect of Te Akitai seeking documents to support their section 274 and waiver applications, In their application they seek;
An order that Makaurau Marae Maori Trust Inc and Te Kawerau Iwi Tribal Authority Inc file a notice of full and clear particulars of the grounds of its opposition to the Applicant's joinder as a party. 3
Te Warena Taua, at Para 9 denies that Te Akitai Waiohua have tribal precedence (mana whenua) over Kawerau and Makaurau. However he has decided to withhold information that is available to be disclosed, on these issues from the Environment Court. 4
The documents are relevant as they will advance the Waiohua iwi contention that the Waiohua iwi contention they have been excluded as the mana whenua group by two other tribal groups who have intruded on to their ancestral land and made a settlement contrary to the provisions of the Resource Management Act 1991, 5
Te Akitai referred to the provisions of the Local Government (Auckland Council) Act 2009, No32, to establish that Te Akitai have mana whenua status over the areas detailed in their applications. 6 They contended that Makaurau are not a mana whenua group in the Auckland area and do not fulfil the legislative requirement.
They also submitted that Te Kawerau is a mana whenua group, as defined by the legislation. However, the area of land, is not within their tribal boundaries as recognised by the Crown and other mana whenua groups.
Since filing the application, Mr O'Driscoll has advanced two further grounds:
[i] A need to examine a side agreement involving Bianconi, Makaurau Marae and Te Kawerau.
[ii] To establish Te Akitai's exclusion from the decision making group.
Section 278 of the Act provides that:
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(1) The Environment Court and Environment Judges have the same powers that a District Court has in the exercise of its civil jurisdiction, including, without limitation, the power to commission a report from an independent expert on any matter raised in an appeal, as provided for by rules 342 to 348 of the District Courts Rules 1992.
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(2) An application for an order for discovery or production of documents may be made only with the leave of an Environment Judge.
In some aspects of the District Court Rules 2009, the High Court Rules 2009 have been adopted, This discovery application will be discussed in terms of the High Court Rules Part 8, Sub-part 3: Discovery. The High Court Rules were substituted, as from 1 February 2009, by section 8(1) Judicature (High Court Rules) Amendment Act 2008 (2008 No 90).
High Court Rule 8.25 is for an order to discover particular documents before proceedings have commenced. This rule states:
(1) This rule applies if it appears to a Judge that-
(a) A person (the intending plaintiff) is or may be entitled to claim in the court relief against another person (the intended defendant) but that it is impossible or impracticable for the intending plaintiff to formulate the intending plaintiff's claim...
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