Te Mauri O Te Wai Incorporated v Northland Regional Council

 
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[2011] NZEnvC 65

BEFORE THE ENVIRONMENT COURT

Court:

Environment Judge J A Smith

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
Submissions:

Ms P A Fordyce for Far North District Council

Mr S Hutton for Te Mauri O Te Wai Incorporated

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).

The issues were: whether Te Marui was a successor to a body of persons under s2A RMA (successors) and whether a waiver of time to serve the appeal should be granted.

Held: The Court's jurisdiction to strike out proceedings should be exercised sparingly, as the RMA encouraged public participation in the Act ( Briggs v Kapiti Coast District Council). If Te Mauri could show that its members were an unincorporated body at the time submissions were made, Te Mauri could succeed the submitters and the appeal would be legitimate under s120 RMA (right to appeal). The test for being an unincorporated body was that it consist of two or more persons having a similar or related purpose under the RMA and who agreed in a general way to act in concert at one or more stages of the proceedings ( East Coast Conservation Society Incorporated v Marlborough District Council). The key consideration to allowing such a body to be a successor was that the original submissions were a group action with a common intent or purpose ( Baxter v West Coast Regional Council). Te Mauri had 11 future members submit on the application. The focus of the group with relation to the RMA included water quality, human health and cultural issues. The RMA did not require that the body of persons had to convey that they had acted in concert. The fact that they had not portrayed themselves as a body of persons at the hearing was not fatal.

Succession should not be viewed in a narrow sense in the context of the participatory processes of the RMA. It was arguable that persons who had made submissions should be entitled to subsume those submissions in a group approach ( Sandspit Yacht Club Marina Society Incorporated v Auckland Council). It was not an issue if the incorporated body increased in size, so long as it contained a substantial proportion of the unincorporated body members ( Gold Mine Action Incorporated v Otago Regional Council). To exclude Te Mauri would be prejudicial and against the promotion of public participation in the RMA. Te Mauri was made up of 73% of the “body of persons” who submitted on the treatment plant resource consent application. Te Mauri was an incorporated version of what had previously existed.

Te Mauri had failed to serve the notice of appeal on the District Council within the statutory time frame of five working days from the date of lodging the appeal with the Environment Court. Instead, the appeal was served nine days after it was lodged with the Court. The Council would not be unduly prejudiced by the appeal being served four days late. Failure to complete service obligations did not constitute an abuse of process.

Application for strike-out in respect of an abuse of process was declined. Waiver of time granted.

  • 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 Council1 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...

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