Te Mauri O Te Wai Incorporated v Northland Regional Council

• Jurisdiction: New Zealand
• Judge: J A Smith
• Judgment Date: 21 March 2011
• Neutral Citation: [2011] NZEnvC 65
• Court: Environment Court
• Date: 21 March 2011

IN THE MATTER of an appeal under Section 120 of the Resource Management Act 1991 (the Act)

BETWEEN

Te Mauri O Te Wai Incorporated (ENV-2010-AKL-000318)

Appellant

and

Northland Regional Council

Respondent

and

Far North District Council

Applicant

[2011] NZEnvC 65

Court:

Environment Judge J A Smith

BEFORE THE ENVIRONMENT COURT

Application by District Council seeking to have an appeal against a Regional Council decision to grant resource consent for wastewater treatment plant struck out under s279(4) Resource Management Act 1991 (powers of an Environment Judge) on the basis of abuse of process — application by the appellant for waiver of time to serve appeal under s281 (waivers and directions) — appellant had not made submissions at Council level — appellant made up of members who had made individual submissions — whether the appellant was a successor to a body of persons under s2A(2) Resource Management Act 1991 (successors).

Submissions:

Ms P A Fordyce for Far North District Council

Mr S Hutton for Te Mauri O Te Wai Incorporated

• A. Te Mauri O Te Wai Incorporated is classed as a successor under section of the Act.

• B. The Strike — Out application is declined.

• C. The waiver of time to serve the appeal on the applicant, Far North District Council is granted.

DECISION OF THE ENVIRONMENT COURT

REASONS FOR DECISION

Introduction

1 The appeal by Te Mauri 0 Te Wai Incorporated (the Appellant) was lodged with the Court on 26 November 2010. It appeals against the decision of the Northland Regional Council (Regional Council) to grant resource consents to the Far North District Council (District Council) for the Rawene Wastewater Treatment Plant (Treatment Plant) which is adjacent to the Omanaia River arm of the Hokianga Harbour.

2 On the 13 December 2010, the District Council applied for this appeal to be struck out on the grounds that the appellant has no right to lodge any appeal on this matter, as they made no submission at the Council level to the applicant's resource consent application. The District Council submit that the appellant does not fulfil the criteria under the act to be a successor to any person that lodged a submission.

3 On the 15 December 2010, Judge Newhook issued the following directions;

If the appellant wishes to oppose the application to strike-out its appeal it must lodge notice to that effect, supported by affidavits and any other documentation by 28 January 2011. The FNDC was directed to respond to any notice of opposition that was filed by 11 February 2011.

4 These directions were complied with. In addition, the applicant also filed an application for waiver of time for the late service of their appeal on the District Council.

5 On the 8 March 2011, a telephone conference was convened in front of Judge Smith to discuss the documentation that had been filed by parties on the strike out application.

Strike — Out Application

6 Section 279(4) deals with strike-out applications:

• An [Environment Judge] sitting alone may, at any stage of the proceedings and on such terms as the Judge thinks fit, order that the whole or any part of that person's case be struck out If the Judge considers-

  • (a) That it is frivolous or vexatious; or

  • (b)That it discloses no reasonable or relevant case in respect of the proceedings; or

  • (c)That it would otherwise be an abuse of the process of the [Environment Court] to allow the case to be taken further.

7 The District Council applied under section 279(4) of the Act to have the appeal struck out on the following grounds:

• [a] The appellant is not a person who made a submission on the resource consent application; they became incorporated on 17 November 2010

• [b] The appellant is not a successor of any person who made a submission on the resource consent application.

• [c] Therefore the appellant has no right to appeal and accordingly its appeal is an abuse of process.

• [d] The Incorporation has 15 members, only 11 members lodged original submissions.

• [e] The submitters in the Incorporation acted individually at Council level, they did not present as a group nor did they jointly present any expert on their collective behalf.

8 The appellants filed a notice of opposition to the District Council's application submitting;

[6] The incorporation in opposing the application, relies on East Bay Conservation Society Incorporated v Marlborough District Council [2004] BRM Gazette 143 and Schwass Family Partnership v Marlborough District Council (2006) 12 ELRNZ 56; [2006] NZRMA 271 and submits thereto that the incorporations circumstances fit within the principles established wherefore the incorporation is the successor to the body of persons who filed submissions for the resource consent application for the RWWTP, so as to be a successor within the meaning of section 2A, Resource Management Act 1991 (“Act”) so as to be entitled to appeal under section 120 of the Act.

9 The main issue that the District Council raises is to allow this appeal to continue would be an abuse of process as the appellant did not submit on the resource consent application and therefore does not fit the criteria under section 120 of the Act to bring this appeal.

Successors

10 The Courts have always been reluctant to strike out appeals and therefore, the Court's jurisdiction to strike out proceedings is exercised sparingly. In Briggs v Kapiti Coast District Council 1 the Court stated:

The power to strike out appeals is one which this Court exercises sparingly. Public participation in Resource Management appeals is encouraged by the Act itself and by the Court as a matter of policy.

11 The appellant seeks a declaration from the Court under section 311 of the Act; that the appellant as the representative of an informal group of persons is the successor and as such has status to make an appeal under section 121 of the Act. Successors are defined in section 2A of the Act;

• (1) In this Act, unless the context otherwise requires, any reference to a person, however described or referred to (including applicant and consent holder, includes the successor of that person.

• (2) For the purposes of this Act, where the person is a body of persons which is unincorporated, the successor shall include a body of persons which is corporated and composed of substantially the same members.

12 The appellant submits that they are a successor in accordance with section 2A of the Act. They are an incorporated group which is comprised of 15 members, 11 of whom submitted on this resource consent application. They submit that their members acted together, holding meetings, working in unison for a common purpose; to prevent the treatment plant discharging into the Omanaia River Arm of the Hokianga Harbour,

13 The District Council say that they have considered the appellants response but claim that the appellant did not submit on the application and the members of the Incorporation that did, did not act in concert, giving no indication of this stance at the Hearing.

14 The fundamental question is whether the appellant is a successor to a ‘body of persons’ as required under section 2A(2). If the 11 submitters are found to make up a collective body, then the Incorporation that made the appeal can succeed the submitters and the appeal is legitimate under section 120 of the Act.

Were the Incorporation members an unincorporated body at the time submissions were made?

15 East Coast Conservation Society Incorporated v The Marlborough District Council 2 states that the test for being an unincorporated body is:

• [a] Two or more persons;

• [b] having a similar or related purpose under the Act;

• [c] who have in some general way...