Wynn-Parke v Auckland City Council
| Jurisdiction | New Zealand |
| Judge | L J Newhook,W R Howie,H A McConachy |
| Judgment Date | 05 March 2010 |
| Neutral Citation | [2010] NZEnvC 64 |
| Docket Number | ENV-2009-AKL-358 |
| Court | Environment Court |
| Date | 05 March 2010 |
In the Matter of an appeal under Section 120 of the Resource Management Act 1991
[2010] NZEnvC 64
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
BEFORE THE ENVlRONMENT COURT
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.
B Parkinson for applicant
A Halloran for respondent
A Webb for appellants and s 274 parties
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A. Application refused.
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B. Costs reserved.
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.
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.
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.
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.
This application contemplated that there would be further evidence from one of two of the applicant's acoustic witnesses, Mr Warren, addressing:
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[a] The options for locating the smokers' area on-site;
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[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
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[c]Consequential amendments to conditions of consent.
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.
The respondent, through counsel, indicated that it would abide the decision of the Court on the application. The appellants vigorously opposed it.
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 Horne 1 and a decision of this court in Lyttle v Auckland City Council 2.
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.
Also of relevance, it was submitted having regard to the decision of the Court in Wood v Selwyn District Council 3, 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
All of these factors need to be considered in this case.
Similar factors were identified in the Lyttle case, with an observation that the court should not take too stringent a view as to whether something was an omission or whether something had assumed importance in the course of an ever-changing case of considerable complexity. That factor calls to be examined here.
An allegation was initially made that the notices of appeal did not plead Section 16 RMA, nor raise the suitability of the proposal to locate smokers on the footpath.
However, Mr Webb correctly identified that one of the two appeals expressly pleaded the issue of noise coming from patrons smoking on the footpath.
Ms Parkinson submitted that s16 was first raised in the acoustic evidence of Mr Hegley (on behalf of the appellants), that is after the applicant had exchanged its evidence.
A finer analysis by Mr Webb identified that one of the...
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