MARK GRAEME KIRKLAND and GRAEME HUGH & ORS v DUNEDIN CITY COUNCIL [2001] NZCA 151 (14 May 2001)

IN THE COURT OF APPEAL OF NEW ZEALAND

ca 78/01

	between	MARK GRAEME KIRKLAND and GRAEME HUGH KIRKLAND
		Applicants

	and	DUNEDIN CITY COUNCIL
		Respondent

Hearing:	14 May 2001
Coram:	Richardson P Thomas J Tipping J
Appearances:	L A Andersen for Applicants F B Barton for Respondent
Judgment:	14 May 2001

judgment of the court delivered by RICHARDSON P

[1] This application under s308 of the Resource Management Act 1991 seeks special leave to appeal against the decision of the High Court allowing an appeal against the decision of the Environment Court in which the Environment Court held thatit had no jurisdiction under s32 of the Resource Management Act to consider whether the s32 analysisof the Dunedin City Council Proposed District Plan provided by the Council complied with s32(1) of the Act, that inquiry being barred by s32(3).

[2] Section 32(3) provides:

(3) A challenge to any objective, policy, rule, or other method, on the ground that subsection (1) of this section has not been complied with, may be made only in a submission made under--

(a) Section 49 or section 50 or either of those sections as applied by section 57;or

(b) The First Schedule.

[3] The Proposed Plan was notified on 24 July 1995.The present applicants promptly made a submission averring total non-compliance with the duties imposed on the Dunedin City Council under s32(1) which provides:

(1) In achieving the purpose of this Act, before adopting any objective, policy, rule, or other method in relation to any function described in subsection (2), any person described in that subsection shall--

(a) Have regard to--

(i) The extent (if any) to which any such objective, policy, rule, or other method is necessary in achieving the purpose of this Act; and

(ii) Other means in addition to or in place of such objective, policy, rule, or other method which, under this Act or any other enactment, may be used in achieving the purpose of this Act, including the provision of information, services, or incentives, and the levying of charges (including rates); and

(iii) The reasons for and against adopting the proposed objective, policy, rule, or other method and the principal alternative means available, or of taking no action where this Act does not require otherwise; and

(b) Carry out an evaluation, which that person is satisfied is appropriate to the circumstances, of the likely benefits and costs of the principal alternative means including, in the case of any rule or other method, the extent to which it is likely to be effective in achieving the objective or policy and the likely implementation and compliance costs; and

(c) Be satisfied that any such objective, policy, rule, or other method (or any combination thereof)--

(i) Is necessary in achieving the purpose of this Act; and

(ii) Is the most appropriate means of exercising the function, having regard to its efficiency and effectiveness relative to other means.

[4] Over the next four years the Council considered all the submissions filed in respect of the plan or particular features of the plan or particular properties, including what it described as a number of miscellaneous submissions to the whole plan which was the category into which these applicants' submission fell.The Council released all the decisions at the same time in August 1999.It rejected the present applicants' submission.

[5] On 17 September 1999 the applicants referred the subject matter of the s32 submission to the Environment Court which, as we have said, held in its decision of 17 August 2000 that it lacked jurisdiction in the reference to consider the non-compliance issue.

[6] On appeal the High Court (John Hansen and Chisholm JJ) on 21 December 2000 held that the Environment Court had jurisdiction to take into account the adequacy or even the total absence of a s32 analysis when considering the reference on its merits.It held that s32(3) must be read in conjunction with clause 14 of the First Schedule to the Act to enable a reference to be brought following a submission and that the inadequacy of a s32 analysis is not a procedural issue but a matter to be taken into account in the Environment Court's substantive analysis of the provisions.The High Court further ruled that, if the Environment Court held that there had been non-compliance with s32, it did not have power to direct a Council to undertake a s32 analysis and would have to do so itself.

[7] Subsequently, on 27 March 2001 the High Court refused the application for leave to appeal to this court against that decision.The proposed question of law, which is directed both to the jurisdiction of the Environment Court to considers32 issues and to its powers and duties if it finds non-compliance is:

Does the Environment Court have jurisdiction to direct a Local Authority to carry out a Section 32 analysis in respect of the whole or part of a plan where the referrer has raised the issue of Section 32 in a submission under the First Schedule of the Resource Management Act 1991 and then referred the matter to the Environment Court pursuant to Clause 14 of the First Schedule Resource Management Act 1991?

[8] In dismissing the application for leave to appeal the High Court took the view that the question of law was not a live issue and there was not the slightest prospect that the Environment Court would refer the matter back to the Council when the Environment Court itself was perfectly capable of undertaking any necessary analysis and had a statutory responsibility to do so.

[9] With respect, we are satisfied that this is a proper case for the granting of leave.Theprecedent importance of the High Court decision is obvious. We accept Mr Andersen's submissions that the consequence of non-compliance with s32 of the Resource Management Act 1991 is an issue which involves a matter of general or public importance fundamental to the operation of the Resource Management Act;that in mandatory terms the section requires the local authority to perform the obligations specified in s32(1) before adopting any objective, policy, rule or other method in relation to any function described in s32(2) including the preparation of a proposed plan,and is fundamental to the adoption of plans, setting out as it does the necessary evaluation and reasoning process that results in the adoption of the provisions contained in the plan;that there is a divergence of judicial opinion reflected in the differing approaches of the Environment Court and the High Court;and that the associated question whether the Environment Court, if it has jurisdiction to rule on non-compliance and rules that there has been non-compliance, may remit the matter to the local authority to undertake the s32 analysis or whether the Environment Court is obliged to undertake what may be a protracted, detailed planning analysis in terms of s32 itself, is a matter or general or public importance.As well, and apart from its present relevance for these parties, the appeal clearly involves a question involving a public authority as to a question of public law (R v Secretary of State for the Home Department, ex parte Salem [1999] 2 All ER 42;New Zealand Employers Federation Inc v National Union or Public Employees (CA 32/01, judgment 2 May 2001) which should be ruled on definitively by this court at an early date. And we are not persuaded that the lapse of time and considerations of convenience tell against the grant of special leave to appeal.

[10] The application for leave to appeal is granted with costs to the applicants in the sum of $2,000 together with travel and any accommodation expenses of counsel as fixed, if necessary, by the Registrar.

Solicitors

Kirkland Lawyers, Dunedin, for applicants

Anderson Lloyd Caudwell, Dunedin, for respondents