Wynn-Parke v Auckland City Council

 
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[2010] NZEnvC 64

BEFORE THE ENVlRONMENT COURT

Court:

Environment Judge L J Newhook

Environment Commissioner W R Howie

Environment Commissioner H A McConachy

(Hearing ofthis interlocutory application undertaken on the papers)

ENV-2009-AKL-358

In the Matter of an appeal under Section 120 of the Resource Management Act 1991

BETWEEN
D & R Wynn-Parke (Env-2009-Akl-000358)
Parke Barrellzin Trust Vicki Vuleta Trust (Env-2009-Ajcl-000359)
Appellants
and
Auckland City Council
Respondent
and
Empire Entertainment Limited
Applicant
Counsel:

B Parkinson for applicant

A Halloran for respondent

A Webb for appellants and s 274 parties

Application for leave to file further evidence pursuant to s276 Resource Management Act 1991 after the Environment Court had reserved its decision — whether the Court had the discretion to receive further evidence after its decision had been reserved, either for its own satisfaction, or where the interests of justice required it; whether the applicant's witnesses had been appropriately tested in cross-examination.

Held:

The court had a duty to understand and evaluate all evidence. There would however be a real likelihood of prejudice to other parties including additional cost and stress for all if the application were to be granted. The Court needed to be cognisant of the maxim that there should be an end to litigation. These proceedings were in a sense public law proceedings, but in an application appeal this could be less important than might be the case in policy planning appeals. An application should not be made simply in an attempt to repair an omission in a party's case. It was a rare case in which cross-examination would furnish evidence that was determinative of an important issue in a case. The parties had ample opportunity to air the issue under s16 RMA to the extent that they wished or needed, and it was now the task of the court to evaluate the evidence received. Application declined.

DECISION OF THE ENVIRONMENT COURT ON APPLICATION UNDER SECTION 276 OF THE ACT FOR LEAVE TO FILE FURTHER EVIDENCE AFTER CONCLUSION OF HEARING
  • A. Application refused.

  • B. Costs reserved.

REASONS
1

On 27 th – 29 th January 2010 we undertook the substantive hearing of these appeals against a consent that had been granted by Auckland City Council to operate an entertainment facility at 59 Upper Queen Street from 6.00pm to 4.00am, 7 days per week. At the conclusion of the hearing the Court reserved its decision.

2

At all stages since filing, the appeals have been approached by the parties in a vigorous, even highly contentious manner, and the hearing was no different.

3

A week after the close of the hearing, the court received this application for leave to file further evidence under Section 276 of the Act.

4

Part of the dispute had involved a proposal by the applicant to place patrons onto the footpath outside the front of the premises at times that they wished to smoke, at any hour up to the proposed 4.00am closing time. The alleged inappropriateness of this had been raised by the appellants and their expert witnesses in evidence, and resisted by experts called by the applicant.

5

This application contemplated that there would be further evidence from one of two of the applicant's acoustic witnesses, Mr Warren, addressing:

  • [a] The options for locating the smokers' area on-site;

  • [b]The potential noise effects on neighbouring properties and measures recommended to mitigate such effects in order to comply with the District Plan noise limits at the boundaries; and

  • [c]Consequential amendments to conditions of consent.

6

In relation to the latter, it was noted that Condition 6 of the council consent required that “public access to the rear of the building by staff carpark along the accessway shall be restricted from 10pm onwards”, which might require amendment in order that an alternative smoker's area be accommodated on site.

7

The respondent, through counsel, indicated that it would abide the decision of the Court on the application. The appellants vigorously opposed it.

Analysis
8

The applicant submitted that the Court had the discretion to receive further evidence after its decision had been reserved, either for its own satisfaction, or where the interests of justice require it, citing Montego Motors Limited v Horne1 and a decision of this court in Lyttle v Auckland City Council2.

9

Counsel also noted, correctly, that this court is afforded the same powers as the District Court in the exercise of its civil jurisdiction (Section 278 of the Act), and that Section 269 enables the Environment Court to regulate its own proceedings in such manner as it thinks fit.

10

Also of relevance, it was submitted having regard to the decision of the Court in Wood v Selwyn District Council3, that cases before the Environment Court are public law proceedings in which a general public interest may transcend the private interests of the parties. We note that it was however acknowledged in that decision that the court nevertheless needed to be conscious of the maxim that there should be an end to litigation, and that the court should be alert as to whether there would be no real likelihood of prejudice to any other party by admitting further evidence. Some emphasis

was also placed on a caution that the application should not be one brought simply to repair an omission in the...

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