Heybridge Developments Ltd v Bay of Plenty Regional Council Hc Tau

• Jurisdiction: New Zealand
• Judge: Peters J
• Judgment Date: 19 August 2011
• Neutral Citation: [2010] NZEnvC 195
• Court: Environment Court
• Date: 19 August 2011
• Docket Number: CIV-2010-470-585

[2010] NZEnvC 195

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CIV-2010-470-585

IN THE MATTER OF the Resource Management Act 1991

AND

IN THE MATTER OF an appeal under s 299 of the Act against

BETWEEN

Heybridge Developments Limited

Appellant

and

Bay of Plenty Regional Council

Respondent

and

Pirirakau Incorporated Society

Interested Party

Appearances:

K Barry-Piceno for the Appellant

P Cooney for the Respondent

J Koning for the Interested Party

Solicitors/Counsel:

Ms K Barry-Piceno, Barrister, Tauranga (email: kate@kbplawyer.co.nz)

Mr P Cooney, Cooney Lees Morgan, Solicitors, Tauranga (pcooney@clmlaw.co.nz) Mr J Koning, Jackson Reeves, Solicitors, Tauranga (john@jacksonreeves.co.nz)

STEPHEN HEWLETT

Deputy Registrar

High Court of New Zealand

RESERVED JUDGMENT OF Peters J

1 The appellant appeals a decision of the Environment Court given on 10 June 2010. The Court dismissed the appellant's appeal against a decision of the respondent refusing consent for earthworks and other activities.

2 A party may appeal against a decision of the Environment Court to the High Court on a question of law (s 299 Resource Management Act 1991 (“RMA”)). A question of law arises if the Environment Court: 1

• (a) applied a wrong legal test; or

• (b) came to a conclusion without evidence, or one to which, on evidence, it could not reasonably have come; or

• (c) took into account matters which should not have been taken into account; or

• (d) failed to take into account matters which it should have taken into account.

3 An appellant ought not to be granted relief unless an identified error of law has materially affected the Environment Court's decision. 2

4 It is not for the High Court to enter into a re-examination of the merits of the Environment Court's decision. 3 In New Zealand Suncern Construction Ltd v Auckland City Council, Fisher J referred to the decision in Countdown and said: 4

It follows that the Court should resist attempts by litigants disappointed before the Planning Tribunal/Environment Court to use appeals to this Court as an occasion for revisiting resource management merits under the guise of questions of law … This includes attempts to re-examine the mere weight which the Tribunal gave to various conflicting considerations before it…

Background

5 The site in issue (“site”) is located in Te Puna on the west bank of the mouth of the Wairoa River, abutting Tauranga Harbour. The site is low lying and is a former wetland. It comprises 44 hectares and is made up of four lots. The proposed earthworks are to be carried out on lot 2 DPS2844. The site was part of about 50,000 acres which the Crown confiscated in 1864 after the battle of Gate Pa.

6 The site was first surveyed for subdivision and registered with the Land Transfer Office in 1939. In 1939 or thereabouts the site was drained and it has been farmed and held in private ownership since then. Prior to 1939 large areas of the site were inundated with water during the incoming tide.

7 A third party purchased the site in 1973 and modified lot 2. He constructed a stop bank around the perimeter, installed drains across the lot and filled in the Hakao Stream, which bisected part of the site.

8 The site is not identified as a site of cultural significance in any planning instrument.

9 The appellant acquired the site in December 1996. On 1 April 1999, the appellant applied to the Western Bay of Plenty District Council (“District Council”) for consent to subdivide it into 13 lots. The District Council declined the application. The appellant appealed to the Environment Court. The hearing before the Environment Court appears to have come down to a contest between the appellant and representatives of Pirirakau hapu (“Pirirakau”) as to whether the site was waahi tapu for the purposes of s 6(e) RMA, due to the possible burial on the site of Tutereinga, Pirirakau's ancestor and chief.

10 Pirirakau believe that all the members of their hapu descend from Tutereinga and that Tutereinga was buried at Tahataharoa some 600 years ago. Tradition has it that, when asked where he wished to be buried, Tutereinga replied “bury me at Tahataharoa so that I might hear the murmur of the sea”. The whereabouts of the burial site was kept secret, as a matter of custom. Tahataharoa comprises about 150 hectares and encompasses the site. It is possible therefore that Tutereinga was/is buried on the site.

11 The Environment Court heard the case over six days, in a hearing presided over by Judge Bollard. The Court gave an interim decision in November 2002 (“first decision”). The Court was not satisfied that the site was waahi tapu. There was no appeal of the decision.

12 After the first decision the appellant applied to the respondent for earthworks consents so that it could pursue the subdivision. The low lying nature of much of the site meant building platforms would have to be created.

13 In about 2006, the appellant applied to the District Council for consent to subdivide the site into four lots. This application was the subject of a hearing before the District Council. The respondent did not participate in the hearing. Pirirakau sought to do so but was out of time and so was unable to participate. The District Council granted consent to the subdivision in December 2006. The appellant then withdrew its previous application to subdivide into 13 lots.

14 The appellant then applied to the respondent for the consents now in issue. The appellant seeks to continue an existing road for about 1 km and to create three building platforms. These works require fill, hence the application for an earthworks consent to excavate up to 221,000 m3 of fill from a 5.5 ha “borrow” pit the appellant wishes to establish on lot 2. The borrow pit is to be excavated to a depth of up to three or four metres, with surplus material returned to the pit on completion of the works.

15 Under the Bay of Plenty Regional Water and Land Plan, earthworks on the site are a permitted, controlled or discretionary activity, depending on volume. They are permitted up to 5,000 m ³ and controlled at up to 20,000 m ³. They are a discretionary activity at 220,000 m ³.

16 The respondent delegated the applications to an independent commissioner. The commissioner identified that the main issue was the effect of the proposed activities on Pirirakau. The respondent declined consent in a decision dated 17 February 2009.

Appeal to the Environment Court

17 The appellant appealed to the Environment Court. At [35], the Court said that all the parties had agreed that the issues which Pirirakau had raised would form the basis of the appeal, and that the Court would resolve it accordingly, notwithstanding reservations as to this restricted approach. The three issues before the Court were:

• (a) Was the appellant being asked to respond to a relitigation of cultural issues which the Court had already determined in the first decision?

• (b) Is the subject site Maori ancestral land and/or a waahi tapu?

• (c) Should the consents sought be granted, given the matters in s 104 RMA and Part 2 of the Act?

18 On the first issue, the Court found that:

• • the appellant was not being required to relitigate issues which had already been decided;

• • in the first decision the Court had made no definitive finding as to whether the site or part of it was affected by a waahi tapu; and

• • the Court was free to look at the matter again.

19 The Court's findings on the second issue were:

• • the appellant accepted that the site was Maori ancestral land;

• • the appellant accepted that the site was within Tahataharoa;

• • there was no evidence that Tutereinga was buried on the site or, if so, where the burial site might be and accordingly the Court was unable to make a finding that the site was waahi tapu, or was not for that matter;

• • Pirirakau held a genuine belief that Tutereinga might be buried somewhere on the site; and

• • the effect of evidence which the appellant had adduced, for instance as to tidal movements on the site and the modifications which had occurred both to the site and surrounding area, did not persuade the Court that Pirirakau's belief was misconceived.

20 On the third issue, the Court decided that it would not grant consent to the applications. The Court considered that any earthworks on the site would have an adverse effect on Pirirakau's relationship with the site, given the belief referred to above, and that this effect could not be modified by attaching conditions to the consents. The Court dismissed the appeal accordingly.

Statutory provisions

21 As I have said, the consents which the appellant sought were for discretionary activities. Section 104 RMA sets out matters to which a consent authority must have regard when considering an application for resource consent. Section 104(1), which is the relevant provision for present purposes, reads as follows:

104 Consideration of applications

• (1) When considering an application for a resource consent and any submissions received, the consent authority must, subject to Part 2, have regard to–

  • (a) any actual and potential effects on the environment of allowing the activity; and

  • (b) any relevant provisions of-

    • (i) a national environmental standard: (ii) other regulations:

    • (iii) a national policy statement:

    • (iv) a New Zealand coastal policy statement:

    • (v) a regional policy statement or proposed regional policy statement:

    • (vi) a plan or proposed plan; and

  • (c) any other matter the consent authority considers relevant and reasonably necessary to determine the application.

  • …

22 Part 2, referred to in the opening words of s 104(1), is headed “Purpose and Principles” and...