P W & J D Lindsay v Dunedin City Council

• Jurisdiction: New Zealand
• Judge: Judge Jackson
• Judgment Date: 30 January 2013
• Neutral Citation: [2013] NZEnvC 8
• Docket Number: ENV-2012-CHC-112
• Court: Environment Court
• Date: 30 January 2013

In The Matter Of The Resource Management Act 1991

In The Matter Of An Appeal Under Section 120 Ofthe Act

Between

P W & J D Lindsay (Env-2012-Chc-112)

Appellants

and

Dunedin City Council

Respondent

[2013] NZEnvC 8

court:

Judge Jackson

ENV-2012-CHC-112

BEFORE THE ENVIRONMENT COURT

Determination of validity of notice under s274 Resource Management Act 1991 (“RMA”) (representation at proceedings) for representation in Environment Court proceedings — “residents and friends” society lodged s274 RMA notice to become a party to the Environment Court proceeding in respect of a resource consent for function centre — several of the society members also lodged s274 notices in their own capacity — society submitted it had an interest in the proceedings greater than the interest of the general public as its objective was to protect the amenity values of the function centre — whether the interest of the society was greater than that of the general public giving it standing to lodge a s274 notice.

PROCEDURAL DECISION

• A: Under section279(1)(a) ofthe Resource Management Act 1991, the Environment Court declines to order that The Currie Road Residents and Friends Society Incorporated's section 274(1)(d) notice is invalid;

• B: Costs are reserved. Any costs application is to be lodged and served by 8 March 2013; any reply is to be lodged and served by 5 April 2013.

REASONS

Introduction

1 On 26 September 2012 P W and J D Lindsay (“the appellants”) lodged with the Registrar of the Environment Court a notice of appeal against conditions attaching to a decision of the Dunedin City Council granting land use consent 1 to operate a function venue and garden tours at 95 Currie Road, Outram, Dunedin.

2 On 24 October 2012 The Currie Road Residents and Friends Society Incorporated (“the Society”) lodged a notice of its wish to become party to the proceeding under section 274 of the Resource Management Act 1991 (“the RMA” or “the Act”). The Society's section 274 notice states that it wishes to become a party on the basis it is a person who has an interest in the proceedings greater than the interest that the general public has. The Society goes on to say that it has an interest greater than the general public based on its purposes which are as follows:

• • To protect the amenity values of Currie Road for the residents and their friends and families;

• • To foster and maintain the rural lifestyle of Currie Road, Outram;

• • To ensure Currie Road remains a tranquil, peaceful environment; to share that environment with close friends and family.

I have no direct evidence that those are the objects of the Society. But nor has that been challenged. I accept Professor Henaghan's metaphor that the residents believed that the Society “… would amplify their voices”.

3 On 26 November 2012 the appellants lodged an application under section 279 of the Act, seeking an order that the section 274 notice is invalid and that the Society has not established standing to be heard. That application follows the procedure approved by the High Court in Meadow 3 Ltd v van Brandenburg 2.

4 By way of minute dated 28 November 2012 the court directed that any notices of opposition and suppmiing affidavits were to be lodged by 5 December 2012. The Society was also to confirm whether it agreed with the matter being dealt with on the papers and if so it should lodge any legal submissions by 14 December 2012. The appellants and the Council (if it wished to be heard) were to lodge any legal submissions in reply by 21 December 2012. The patiies have complied with the timetable and agreed that the issue of standing should be determined on the papers. The Society also lodged an i1regular 3 affidavit (actually sworn by K P Wanington) dated 5 December 2012 which I have also read in accordance with section 276 of the Act, which allows the

Environment Court to read anything relevant to a decision even if it is put forward in a way that does not comply with the law of evidence

5 The Dunedin City Council abides 4 the decision of the court.

6 The Society's was not the only section 274 notice lodged in this proceeding. On 15 October 2012 the Registrar had received section 274 notices which are identical except for the names 5. Each states that the person wishes to become a party to the proceeding as a submitter on the subject matter of the proceeding. They claim that the amenities of the neighbourhood may be affected by the operating conditions of the function venue. It is not contested that these individuals have standing to be parties under section 274(1)(e) of the Act. All of these people are members of the Society.

Section 274 and the authorities on it

7 In 2009 section 274(1) was amended to read 6 (relevantly):

274 Representation at proceedings

(1) The following persons may be a party to any proceedings before the Environment Court:

• (a) the Minister:

• (b) a local authority:

• (c) the Attorney-General representing a relevant aspect of the public interest:

• (d) a person who has an interest in the proceedings that is greater than the interest that the general public has,…

• (e) a person who made a submission to which the following apply:

• (i) it was made about the subject matter of the proceedings; and

That wording is different from the previous section 274(1) in two ways. First, and most obviously, the right for a person to be heard if representing “… a relevant aspect of the public interest” has gone. Only the Attorney-General has that right now 7.Secondly, and more subtly, a person may now only be a party if they have an “interest in the proceedings that is greater than the interest that the general public has”. That compares with section 274 in its earlier versions which all required a person to have an interest “greater than that of the public generally”. It is unclear whether that new wording makes any significant change. However, I received no submissions on the issue, so will assume it does not.

8 A leading case—on a similar wording of section 274—referred to in submissions here is Purification Technologies Ltd v Taupo District Council 8. That decision was concerned with an appeal against refusal of a certificate of compliance 9 in respect of an

irradiation plant 10 proposed for Mangakino. The Planning Tribunal first carefully pointed out the case was different from the more familiar kind of appeal against grant or refusal of resource consent” 11. It then observed that, unlike a resource consent appeal where the Planning Tribunal (or the Environment Court) has to decide the appeal on the substantive merits in a discretionary exercise, the issue is quite different when it is considering a certificate or compliance. In the latter case “… the Tribunal does not have a discretion or choice to exercise” 12

9 It is in that context that the passage relied on by counsel for the appellants has to be read. The Planning Tribunal wrote13:

… we hold that, on the true interpretation of the section, the interest in the proceedings greater than that of the public generally which qualifies a person to appear and call evidence must be one of some advantage or disadvantage, such as that arising from a right in property directly affected, and which is not remote. We also hold that an interest in proceedings in seeking to enforce the public law as a matter of principle, a belief that activity of a particular kind ought to be prevented, or as part of an endeavour to achieve the objects of an association, or uphold the values which it was formed to promote, would not be an interest in the proceedings greater than that of the public generally. Nor would an interest in the preservation of a particular environment, or an intellectual or emotional concern, the satisfaction of righting a wrong, an interest in upholding a principle, a sense of grievance or the risk of being ordered to pay costs. In our view a more liberal interpretation of the phrase “interest in the proceedings” would not be giving effect to the new regime of the Resource Management Act but would be reverting to the more liberal regime of the former legislation which Parliament has chosen not to continue. (My emphasis).

10 Thirteen persons had given section 274 notices including three incorporated societies 14. The Planning Tribunal found that none of these societies had an interest in the proceedings greater than that of the public generally because they would achieve no greater advantage (or disadvantage) than the public generally in knowing whether a certificate of compliance should be refused or issued.

11 There is one aspect of Purification Technologies Ltd v Taupo District Council with which I respectfully disagree. The Tribunal stated that for a society to join a proceeding “as part of an endeavour to achieve the objects of [its] association …” 15 would not “be an interest in the proceedings greater than that of the public generally”. With respect, I consider that is an over-generalisation—that statement should be qualified by the words “… depending on what those objects are”. For example, if the objects are general, such as “… to protect the native forest and birds of New Zealand” or “to campaign for and support both rural communities and the agricultural industry” then any society with those objects could be seen as representing an aspect of the public

interest and thus should not—in the absence of more specific purposes—be let in the back door under section 274 as having an interest greater than that of the general public

12 Later cases are of more relevance because they concern notices given under section 274 in respect of appeals on resource consents. In a High Court decision, Ngaliwai Trust Board v New Zealand Historic Places Trust, 16 Greig J referred to Purification Technologies, but emphasised that “a proprietorial interest” in the relevant land, or site, was not essential:

If the meaning is to be restricted in some...