R D & G v Britten (ENV-2010-Akl-000348) v Auckland Council

 
FREE EXCERPT

Decision No. [2011] NZEnvC 205

BEFORE THE ENVIRONMENT COURT

Court:

Environment Judge M Harland

In The Matter of an appeal under Section 325 of the Resource Management Act 1991 (the Act)

Between
RD & GV Britten (Env-2010-Akl-000348)
Appellants
and
Auckland Council
Respondent
Submissions:

Mr A Webb for RD & G V Britten

Mr M Casey QC for the Council

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.

At issue was whether the principle of officially induced error applied in New Zealand; and whether the application would cause prejudice to the respondent.

Held: Under section 269 Resource Management Act 1992, the Court had jurisdiction to allow further submissions after the close of a hearing but before a decision had 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. The threshold of relevance must be established. The granting of leave was a “significant indulgence” ( Lai v Auckland Council).

Leave was unlikely to be granted in many cases as the case management procedures in the Environment Court allowed the parties plenty of time before a hearing to outline the nature of their cases and to consider the legal principles that might apply. Cases were generally carefully structured and cross examination focussed on the issues that were identified in the evidence and submissions as applying. As a general matter of fairness, one party should not be permitted to effectively reopen the debate after the evidence and submissions had concluded without there being very compelling reasons to do so and without the reason for the failure to raise it during the hearing being explained.

The authorities did not establish the existence of a substantive defence of “officially induced error” in New Zealand. At its highest, all that could be said is that “officially induced error” may support an application for discharge without conviction under section 106 Sentencing Act 2002 ( Crafar v Waikato Regional Council).

There was no legal basis for the principle of officially induced error to apply in these proceedings, given that it had only been referred to as a defence in criminal cases, and even then it had been determined that it did not apply in New Zealand. As such the principle did not have any material relevance to this matter.

To grant leave would effectively require further submissions to be filed on a principle that has not been found to be relevant ever before in New Zealand after all of the evidence had been heard.

Application for leave to file further submissions declined.

DECISION OF THE ENVIRONMENT COURT IN RELATION TO AN APPLICATION BY THE APPELLANTS FOR LEAVE TO MAKE FURTHER SUBMISSIONS FOLLOWING HEARING BUT BEFORE DECISION

A. The application is declined.

REASONS FOR DECISION
Introduction
1

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.

2

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.

3

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”.

4

The respondent opposes the application.

Mr and Mrs Britten's submissions
5

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 Police1 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.

The Council's submissions
6

Mr Casey QC for the Council accepted that the Court has the jurisdiction to allow further submissions on a point of law...

To continue reading

REQUEST YOUR TRIAL