Saddle Views Estate Ltd v Dunedin City Council

• Jurisdiction: New Zealand
• Judge: Whata J
• Judgment Date: 20 November 2014
• Neutral Citation: [2014] NZHC 2897
• Docket Number: CIV 2013-412-000465
• Court: High Court
• Date: 20 November 2014

Between

Saddle Views Estate Limited

Appellant

and

Dunedin City Council

Respondent

[2014] NZHC 2897

CIV 2013-412-000465

IN THE HIGH COURT OF NEW ZEALAND

DUNEDIN REGISTRY

Appeal against an Environment Court (EC) declaration that a 55 year old quarry did not have consent to operate — Saddle Views alleged that it had a consent under s38A Town and Country Planning Act 1953 (TCPA) (control of use of lands for certain purposes) and that evidence of this consent was to be found in a letter written by a former county engineer — EC placed minimal weight on a letter written in 1966 by a former county engineer and referring to a consent — EC said it was unreliable as it referred to the original consent being conditional and there had been no power to impose conditions until the year the letter was written — decided that s38A TPCA applied to a change in character rather than scale of the activity — EC also found that at the time that any consent would have been issued, the county council had a conflict of interest as it relied on the gravel from the quarry for its roads — this matter had not been put to counsel — whether the EC had been wrong to place minimal weight on the county engineer's letter — whether the EC wrongly interpreted s38A TCPA — whether the EC had made irrelevant findings of a conflict of interest — whether in the context of this proceeding (a declaration paving the way for enforcement proceedings) s9 Resource Management Act 1991 (Restrictions on use of land) reversed the ordinary burden of proof and was inconsistent with the presumption of innocence in s25(c) New Zealand Bill of Rights Act 1990.

Counsel:

C S Withnall QC and T J Shiels QC for Appellant

M R Garbett and R J Brooking for Respondent

JUDGMENT OF Whata J

TABLE OF CONTENTS

Introduction	[1]
Central issues in the Environment Court	[4]
The immediate background to this appeal	[5]
The wider context
The site and the quarry	[6]
Statutory regime in 1960	[6]
The planning history	[11]
The wider history	[13]
The Court's reasons	[14]
Sections 9 and 10	[16]
Jurisdiction	[18]
Alleged errors of law
First alleged error of law – Wrong approach to hearsay evidence	[20]
Assessment	[23]
Second alleged error of law – Assessing weight statements against interest	[26]
Third and eighth alleged error of law: Misinterpretation of the Edwards letter and wrongly held consent could not be a s 38A consent	[28]
Assessment	[32]
Fourth alleged error of law: Wrongly treating documents as referring to “existing use rights”	[36]
Assessment	[39]
Fifth alleged error of law: Wrong interpretation of documents in light of later terminology and planning practice	[40]
Assessment	[42]
Sixth alleged error of law: Wrong test in the evaluation of circumstantial evidence	[44]
Assessment	[45]
Seventh alleged error of law: Wrong treatment of newspaper reports	[47]
Assessment	[48]
Ninth alleged error of law: Wrong interpretation of the word “character”	[49]
Assessment	[52]
Tenth alleged error of law: Wrong interpretation of s 38A of the TCPA	[62]
Eleventh alleged error of law: Irrelevant findings of conflict of interest	[64]
Twelfth alleged error of law: Speculation about invalidity	[68]
Assessment	[69]
Thirteenth alleged error of law: Speculation about “planning approval” in respondent's concession	[70]
Assessment	[72]
Fourteenth alleged error of law: Burden of proof	[73]
Assessment	[75]
Fifteenth alleged error of law: Disregarding relevant evidence of the existence of a consent	[77]
Assessment	[81]
Sixteenth alleged error of law: True and only proper finding was that a consent existed	[84]
Materiality of errors	[85]
Relief	[88]
Resolution
Burden of proof	[89]
General principles	[93]
NZBORA	[95]
The statutory frame	[98]
Natural meaning	[102]
Justification	[106]
The proper approach	[114]
Applying the three steps	[115]
Evidence of consent	[116]
Evidence as a whole	[126]
Outcome	[130]
Result	[136]
Cautionary note – need for consensus on scope	[137]
Costs	[138]

Introduction

1 The Environment Court made a declaration that a large, 55 year old quarry was not authorised by a consent. The owner of the quarry, Saddle Views Estate Limited (Saddle Views) appeals under's 299 of the Resource Management Act 1991 (the RMA) on the basis that the Environment Court made 16 errors of law — a truly remarkable feat, if correct, given that the Court was essentially engaged in a single issue inquiry.

2 It transpires that the Court made one clear error. The Court found that Taieri County Council (the TCC) had a conflict of interest over the use of the quarry. 1 This finding informed the Court's overall assessment that it was more likely that a consent or permission was not granted to authorise the quarrying. 2 The Council disavows any conflict and Saddle Views says there was no evidence on it. I am also advised by counsel that they were not given the opportunity to submit on the existence or relevance of this conflict. In so doing the Court fell into procedural and substantive error. 3 No regard should have been had to the conflict of interest without putting the issue of conflict to the parties.

3 Ordinarily I would simply refer the matter back to the Environment Court for its reconsideration given the fulsome fact finding review undertaken by it. But, by the end of the hearing, both parties requested that I assess the merits. This is difficult given the scheme of the RMA and the limited jurisdiction of this Court to resolve issues of law, not fact. 4 Any merits assessment must be approached with caution and, where appropriate, with due deference to the Environment Court's findings. 5 Accordingly, I will:

• (a) briefly set out the (essentially undisputed) background to the current appeal;

• (b) summarise the key findings of the Environment Court;

• (c) address the alleged errors of law; and

• (d) resolve the central issues (as far as I am able) in light of the above.

The central issues in the Environment Court:

4 The Council sought the following declarations:

• a. Whether there exists a lawful right for the Saddle Hill Quarry to operate on the site at 275 Saddle Hill Road, Saddle Hill (legally described as Lot 3 DP 317701 held in Certificate of Title OT 69455); and

• b. If so, the extent of that right under the Resource Management Act 1991.

The immediate background to this appeal

5 A quarry has operated at the current rate of extraction since 1960. This has caused significant controversy over many years because of the effect of quarrying on Saddle Hill, a local feature said to have been sighted by Captain Cook. There have been at least two investigations into the legality of the operations, including by the Minister of the Environment in 1974. Those investigations concluded that nothing could be done to curtail the quarrying. However, after Saddle Views recently appeared to claim that it could remove the entire hill, the Dunedin City Council commenced enforcement proceedings to ring fence the operations. It was then agreed that declarations should be sought by the Council as to the legal status of the quarry operation. An application was duly made and the Environment Court resolved: 6

[97] We find that the evidence establishes on the balance of probabilities that the Taieri County Council did not grant consent under's 38A of the TCPA 1953 to Downer in 1959 or 1960. Consequently we hold that a “permission” does not exist which could be deemed to be a resource consent under the RMA. We will make a declaration to that effect.

The wider context

The site and the quarry

6 I adopt the site description provided by the Environment Court:

[14] Saddle Hill is close to Mosgiel and about 18 kilometres from the Octagon in Dunedin. One or other of its two peaks is sometimes called Jaffray Hill due to the long association with William and Margaret Jaffray (some early Scottish settlers) who purchased the land in the late 1840s and built a house between the peaks. However, the peaks, together with the land between them, have been generally referred to as Saddle Hill in the district plan and other documents, as it is all part of the same land feature. Because the name ‘Saddle Hill” better describes the whole complex, that is the two peaks and the land between, we will continue with that usage. The hill on which SVEL is quarrying is called “Jaffray Hill” on the Land Information New Zealand Map NZ Topo50-CE16 (Mosgiel) so we will follow that usage.

[15] In the 1950s the owner of the land was a company called George Scurr and co. Ltd (“Scurr and co.”). That company leased the land or part of it to a construction company called Downer and Co. Ltd. In 1960 Downer commenced quarrying on a royalty basis on the face of the hill visible from Taieri Plain, because of the high quality of the metal, and its accessibility. The reason for Downer's quarrying was “… because of their contract requirements for a substantial quantity of high class metal … for the construction of the Momona Airport”. Momona Airport is the principal commercial airport for Dunedin and is located on the Taieri Plain, south of Mosgiel and to the east of the whaleback shape of Maungatua.

[16] An aerial photograph taken in 1962 shows that quite extensive quarrying on both the northern (or pommel) side of Jaffray Hill and on the southern side had taken place since 1959.

[17] Downer operated the quarry until 1965 when it sold “the [crushing] plant” to George Scurr and Co Ltd. It is noteworthy that no rights were sold with it, leading to a possible inference there...