R D & G v Britten (ENV-2010-Akl-000348) v Auckland Council
| Jurisdiction | New Zealand |
| Court | Environment Court |
| Judge | M Harland |
| Judgment Date | 15 July 2011 |
| Neutral Citation | [2011] NZEnvC 205 |
| Date | 15 July 2011 |
In The Matter of an appeal under Section 325 of the Resource Management Act 1991 (the Act)
Decision No. [2011] NZEnvC 205
Environment Judge M Harland
BEFORE THE ENVIRONMENT COURT
Application for leave to make further submissions on the principle of officially induced error following an appeal against an abatement notice but before decision — whether there was prejudice to the respondent — whether the principle of officially induced error was recognised in such proceedings.
Mr A Webb for RD & G V Britten
Mr M Casey QC for the Council
A. The application is declined.
On 24 December 2010, Mr and Mrs Britten were served with an abatement notice to cease the importation of any concrete, rock and/or fill material of any description onto their property at 19 Church Street, Swanson.
Compliance under the abatement notice was required by 27 December 2010. Mr and Mrs Britten filed an appeal against the abatement notice and at the same time applied for a stay of the abatement notice.
The matter was heard on 18 April 2011 with the decision in respect of it reserved. Mr and Mrs Britten have applied for leave to file further submissions on what is referred to as “the principle of officially induced error”.
The respondent opposes the application.
In support of the application for leave, counsel for Mr and Mrs Britten submitted that the principle of officially induced error has been applied by the Supreme Court in Canada and it has been recognised that there is no bar to its application in New Zealand. Mr Webb referred to Tipple v New Zealand Police 1 as authority for this proposition. Mr Webb further submitted that the principle is relevant to the facts of these proceedings, the Court would be materially assisted by submissions from the parties about it and there would be no undue prejudice to either party if his clients' application was granted.
Mr Casey QC for the Council accepted that the Court has the jurisdiction to allow further submissions on a point of law such as this, but he submitted that a threshold must be crossed that warranted reopening the hearing, in that there must be some
material relevance to the nature of the proceeding, and the issues before the Court. In this case, Mr Casey QC submitted there is no such relevanceMr Casey QC also submitted that the principle of officially induced error has not been applied in New Zealand. He submitted that in Tipple v Police, Holland J declined to apply the principle, because an alternative way of achieving justice was available to the Court. Further Mr Casey QC submitted that the application of the principle overseas has been limited to criminal cases and only to those involving strict liability.
Under section 269 of the Act the Court has jurisdiction to allow further submissions after the close of a hearing but before a decision has been delivered. However, leave should be granted sparingly, bearing in mind the nature of the submissions sought to be made and the issue of fairness to all parties. I accept Mr Casey's submission that the threshold of relevance must be established.
In Lai v Auckland Council 2 leave was granted as a “significant indulgence” because the appellants sought to rely only on evidence already called, and there was no significant prejudice caused to the respondent.
Leave is unlikely to be granted in many cases as the case management procedures in this Court allow the parties plenty of time before a hearing to...
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