Re application by Auckland Council (Decision on Notice of Withdrawal)

JurisdictionNew Zealand
CourtEnvironment Court
JudgeJudge J A Smith,Environment Judge
Judgment Date12 December 2011
Neutral Citation[2011] NZEnvC 386
Docket Number(ENV-2010-AKL-000279)
Date12 December 2011

Decision No. [2011] NZEnvC 386



At Auckland, Environment Judge J A Smith, on the papers

Environment Commissioner H A McConachy

Environment Commissioner A Leijnen


In the Matter of Schedule 10 to the Local Government Act 1974 and in the matter of an application stopping of portions of Higham Road, South Head, Kaipara

Auckland Council (as successor to Rodney District Council)

Mr P M S McNamara and Ms K M Bell for Auckland Council (the Council)

Mr K W Berman for L D Higham & Sons, Mr and Mrs Higham & Ors (the Highams)

Mr J D Young for South Head Action Group & Ors (SHAG)

Mr P D Vahry for Auckland Four Wheel Drive Club Incorporated (Objectors)

Dr H Barr for Council of Outdoor Recreation Associations of NZ (CORANZ)

Mr M Webber for himself

Decision refusing to accept withdrawal of road-stopping proceedings without leave — parties wished to withdraw application for road closure — matter had already been heard by Environment Court (“EC”) and interim decision issued indicating road stopping would be reversed — if proposal was reversed by court no proceedings could be entertained for two years — whether road-stopping appeal might be withdrawn or abandoned without leave.

Held: It was clear that appellants could withdraw or abandon an appeal without leave ( Mullen v Parkbrook). Road-stopping was in a different statutory context to the withdrawal of a general appeal. The procedure for dealing with applications was specified by Sch 10 LGA. At the point when objections were received, the council was under a mandatory requirement to forward the matter to the EC and had no discretion. At the time it was referred, the council was functus officio and had no other role in the proceedings (other than evidentiary). Effectively the EC became the determining authority seized of the matter. The court would have to refuse the road stopping if no evidence was presented to the court in support of it. The reference to court was therefore very different to a general appeal.

Where a matter had progressed to a hearing and an interim decision, it would be an abuse or process to allow it to be withdrawn. This was not the kind of situation that was contemplated by Mullen.

The parties appeared to wish to avoid the two year prohibition on further proceedings that would follow a refusal of the road-stopping. In the circumstances, a withdrawal would be an abuse of process.

Interim decision confirmed and road-stopping reversed.


A. For the reasons given, the Court refuses to accept the withdrawal of road-stopping.

B. The Court confirms its interim decision and refuses to confirm the road-stopping given no further discussions are offered.

C. Costs (if awardable) are reserved and any application is to be filed within 15 days, reply a further 10 days, and final reply 5 days thereafter.



Subsequent to the Interim Decision of this Court being issued on this matter ( [2011] NZEnvC 223), a joint memorandum of the Council and the Highams was filed dated 28 October 2011.


That memorandum advised that the applicants (the Highams) now wish to withdraw the application. The memorandum stated 1 that:

    … they have now concluded that modifying the proposal to the satisfaction of the Court and the objectors, given the Court's findings on the interim decision, will be too onerous. On that basis, both parties now consider that no useful purpose would be served by the parties attending the facilitated meeting. Withdrawal 6. Withdrawal of the proposal is made without leave, in reliance on Mullen v Parkbrook Holdings Limited[1999] 2 NZLR 312 …
The Issue

Other parties have opposed the withdrawal of these proceedings and say that that the road-stopping should be dismissed by the Court. There have been extensive submissions from most parties on the issue.

Withdrawal of Proceedings

There is no doubt that for general proceedings before the Environment Court, an appellant may withdraw or abandon an appeal without leave. In Mullen v Parkbrook2 the Court noted:

… we have come to the view that Salmon J was correct in the decision to which he came. Whichever way one looks at the issue, the indications are in favour of appellant having the right to withdraw or abandon the appeal subject only to that course not being an abuse of process. A 274 party participant may not challenge that withdrawal or abandonment other than as an abuse of process …


Whilst we do not suggest there is any doubt about the withdrawal of a general appeal, a road-stopping is in a different statutory context. In Mullen v Parkbrook, they noted: 3

What emerges from these authorities is that it is crucial to examine the statutory framework in which the issue of withdrawal or abandonment arises. Generally, those initiating proceedings have a right to withdraw or abandon them, but in some instances it may be apparent from the terms of the legislation and the policies and values which legislation seeks to enhance that this general right is, in some way, circumscribed. We have already considered the relevant provisions of the Act and will now address policy considerations.


Accordingly, we consider first:

  • [a] The statutory framework; and then proceed to examine, if relevant

  • [b] The stage of the proceedings; and

  • [c] Whether there is an abuse of process.

The Statutory Framework

The 10 th Schedule to the Local Government Act 1974 gives a singular route for hearing before the Environment Court. The 10 th Schedule itself is curiously

worded, and on its face, appears to create a code. The Local Government Act gives to Council a series of powers, including Section 319:

319 General powers of councils in respect of roads

(1) The council shall have power in respect of roads to do the following things:

(h) to stop or close any road or part thereof in the manner and upon the conditions set out in section 342 and Schedule 10 …


Clearly this gives to the Council a discretion that must be exercised in a particular manner and upon conditions set out in that Schedule. Schedule 10 is annexed hereto and marked A. Schedule 10 confirms that it is necessary for certain preliminary steps to be undertaken which relate to the type of information to be supplied, advertising notices, and the like.


Clause 4 provides that:

4. If no objections are received … the council may … declare that the road is stopped …


Again it is clear that this is a discretionary power of the Council. Subsections ( 5) and (6) are directly referable to this case.


Under Clause 5:

5. If objections are received as aforesaid, the council shall … unless it decides to allow the objections …, send the objections together with the plans aforesaid, and a full description of the proposed alterations to the Environment Court.


At the point in time where objections are received, the Council does not appear to have any choice but to send the file to the Environment Court unless it decides not to proceed with the road-stopping. The wording of Clause 5 is mandatory — shall. I have concluded that it is not possible to interpret this word in the context of Schedule 10 as may, and I have concluded that the Council has no discretion but to forward the matter to the Court where the Council wish to proceed:

6. The Environment Court shall consider the district plan, the plan of the road proposed to be stopped … and any objection made thereto by any person, and confirm, modify, or reverse the decision of the council which shall be final and conclusive on all questions.


Again, the use of the mandatory word shall here is interesting, and the words in the paragraph are final and conclusive on all matters certainly indicate an intention for a binding decision to be reached. Clause 7 reinforces this position by noting that if the Council's decision is reversed:

7 . … no proceedings shall be entertained by the Environment Court for stopping the road for 2 years thereafter.


Where the Court confirms the road stopping, the Council then has a discretion as to whether to proceed with that stopping under Clause 8.


I have concluded that the intention of this scheme of Schedule 10 is clear. At the point in time, under Clause 5, where the matter is referred to the Court, the Council is functus officio. It has no continuing, or other, role in respect of the matter as a deciding authority until the decision of the Court, at which time it then has a discretion as to whether to proceed or not.


Accordingly, the reference to the Court in this case is very different to a general appeal. Effectively, the Environment Court becomes the decision authority and seized of the matter. Although there is a role for the Council, this would simply presenting evidence as to the initial steps leading to the Court hearing. I have concluded on this basis that the Court's obligation would be to refuse the road-stopping in the event that no evidence was presented to the Court in support of it.

Where the Case has proceeded to Hearing

In this particular case, that option is not open to the parties. Evidence has been presented to the Court and there was no indication prior to the issuing of the decision of this Court that either the Council or the Highams did not wish to proceed.


To the contrary, it appears that the Council and the Highams considered the contents of the decision, which indicates that the Court did not immediately refuse the road-stopping, and gave an opportunity to see if a satisfactory modification could be agreed. Essentially, the Council and the Highams have decided not to proceed with the modification and appear to be wishing to avoid a refusal of the road-stopping.


Re-reading the decision of Mullen v Parkbrook, it does not appear that the Court was considering the situation where a case had...

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