BURRELL DEMOLITION LIMITED v ALEXANDER JAMES BURRELL & ORS [2002] NZCA 37 (18 March 2002)

IN THE COURT OF APPEAL OF NEW ZEALAND

ca161/01

	between	BURRELL DEMOLITION LIMITED
		First Appellant

	AND	ALEXANDER JAMES BURRELL
		Second Appellant

	and	WELLINGTON REGIONAL COUNCIL
		First Respondent

	AND	C & D LANDFILL LIMITED
		Second Respondent

	AND	JOHN HAROLD PATRICK MORGAN
		Third Respondent

Hearing:	7 March 2002
Coram:	Gault J Tipping J Anderson J
Appearances:	P A Morten for Appellants J W Tizard for First Respondent No appearance of Second and Third Respondents
Judgment:	18 March 2002

judgment of the court delivered by TIPPING J

[1] This case concerns the C & Dlandfill situated in Happy Valley, Wellington.Two issues arise.The first, which is of general significance, concerns the ambit of the Environment Court's discretionary power to make declarations under s313 of the Resource Management Act 1991 (the Act).The second, which is particular to this case, concerns what materials may be deposited in the landfill, and in what circumstances.This involves the correct construction of a condition (condition 12) in the relevant resource consent.Differences arose on this second matter between the appellants, Burrell Demolition Ltd (Burrell) and its Director, Mr A J Burrell, and the first respondent, the Wellington Regional Council (the Council) which has the responsibility for enforcing the terms of the resource consent.The Council had prosecuted Burrell for breach of condition 12.

[2] It was agreed between the parties that declarations would be sought from the Environment Court under s313 as to the true meaning of the condition.The Council made an application and the matter came before Judge Kenderdine on 8 December 2000.In a judgment delivered on 22 December 2000 she declined to make any declaration.She did, however, express some views on the interpretation issues.The Council appealed to the High Court against the Judge's refusal to make any declaration and, in a judgment delivered on 30 April 2001, Doogue J concluded that the Environment Court had been wrong in declining to make any declaration.He then went on to make formal declarations himself as to the meaning of condition 12.From this decision Burrell and Mr Burrell obtained leave to appeal to this Court on two points of law, being the two matters identified at the outset.We will address the more general point first.

The background to the s313 point

[3] The first reason why the Environment Court declined to make any declaration was that, in the Judge's view, the declarations sought were very precise and, in the light of the evidence, too restrictive.The Judge also observed that they might form the basis for further prosecutions, there already being numerous informations laid against Burrell for breach of condition 12. She referred to other matters but the two main points in the Judge's mind appear to have been those just mentioned.

[4] In the High Court Doogue J said that the primary issue on this aspect of the case was whether the Environment Court was obliged in the circumstances to make a declaration in respect of the meaning of the disputed condition.He observed:

I have considerable sympathy with the Environment Court in respect of this issue when it has a statutory discretion to decline to make a declaration. Until very recently I had myself considered that when a declaration was sought the Court had an unfettered discretion to decline to make a declaration so long as the discretion was exercised upon a principled basis.However, in Electoral Commission v Tate [1999] 3 NZLR 174, in a case where I was the Judge at first instance, a Court of Appeal of five Judges came to a different conclusion.It is true that that case was dealing with the interpretation of statutes.However, the Court noted in the course of its judgment:

[31] ....It is the Courts' task to interpret and enforce provisions which confer rights, or impose duties, or vest powers in named persons or bodies, including governmental agencies.....

[32] The Courts' function to interpret and enforce statutory law has implications for the rule of law. Unless the meaning of a statute is declared when it is validly in dispute, the law, and with it, the lawfulness of the person or body's actions, will be uncertain. Thus, where a body purports to act in accordance with a disputed interpretation of a statutory provision, and on the proper interpretation it does not have that power, the body will be acting illegally and any person affected will be deprived of a right or rights which he or she is entitled to enjoy under the law. To avoid this situation the Courts' authoritative interpretation is required. No one under the rule of law is able to escape the disinterested judgment of the law, and rendering that disinterested judgment is the function of an independent judiciary.

[33] For these reasons it is fundamental that the Courts are never entitled on the principle non liquet (it is not clear) to decline to determine the legal meaning of a relevant enactment.....

[5] We should point out here that the basis for the decision of this Court in Tate's case was that it was inappropriate for a Court to decline to make a declaration concerning the true meaning of a statutory provision on the ground that it was unclear (non liquet) or involved a political question.The case does not undermine the generally discretionary nature of declaratory relief, albeit the discretion to grant or withhold such relief must be exercised on a principled basis.

[6] After pointing again to the fact that Tate's case had involved construction of a statute, and indicating that in his view the principles would be the same with the construction of a resource consent condition, Doogue J said:

I cannot help but take the view that unless there was a sound reason why a declaration should be refused in the present case the Environment Court was obliged to determine the meaning of the conditions in dispute.As was noted in Electoral Commission v Tate, there may be a number of sound reasons why a declaratory judgment or order should be refused - for example, where the question is one of mixed law and fact or where the question is an abstract or hypothetical question, or where the order would have no utility.Here, however, the question is simply one of the interpretation of the conditions and what they permit and what they do not permit.There is no suggestion that that is other than a question of law in the circumstances of this case.The other usual bases for refusing a declaration do not exist.

[7] The Judge then observed that the Environment Court's reasons for refusing to make declarations did not come within the types of exceptions he had just discussed, saying:

... the first reason given is that the declarations sought are very precise and in the light of the evidence too restrictive.That is not a reason of itself for refusing to make a declaration although it could affect the form of any relief.The second reason given in that paragraph is that the declarations may form the basis for further prosecution.However, the issue is what is the meaning of the conditions.As they stand they can form the basis for prosecution.Clarification of their meaning may prevent further prosecutions by clarifying the position for the operators of the landfill and for the WRC. Thus this is again an irrelevant consideration.

[8] Doogue J's ultimate conclusion was expressed in this way:

I conclude therefore under this head that the Environment Court was wrong in principle and in law in declining to make declarations as to the meaning of the conditions in dispute and that in relying on the reasons that it did it was relying on irrelevant considerations.

[9] When Mr Morten opened this aspect of the appeal he was asked from the Bench what this Court should do, if minded to agree with his submission that the Environment Court had not erred in the exercise of its discretion, in view of the fact that the High Court had itself made formal declarations.After taking further instructions Mr Morten sensibly, in the light of his client's original stance, accepted that this Court should in these particular circumstances embark on the issue of the true construction of condition 12 in any event.He did not abandon his first ground of appeal concerning s313 and hence we will deal with the point to the extent appropriate.

Declarations under the Resource Management Act 1991

[10] Section 313 of the Act is in these terms:

313 Decision on application

After hearing the applicant, and any person served with notice of the application[, and any other person who has the right to be represented at proceedings under section 274,] who wishes to be heard, the [Court] may--

(a) Make the declaration sought by an application under section 311, with or without modification; or

(b) Make any other declaration that it considers necessary or desirable; or

(c) Decline to make a declaration.

[11] Also relevant are section 310 and section 311:

310 Scope and effect of declaration

A declaration may declare--

(a) The existence or extent of any function, power, right, or duty under this Act, including (but, except as expressly provided, without limitation)--

(i) Any duty imposed by section 32 (other than any duty in relation to a plan or proposed plan or any provision of a plan or proposed plan); and

(ii) Any duty imposed by section 55.

(b) Whether or not there is or is likely to be (contrary to any of sections 62(2), 67(2), and 75(2)) an inconsistency between--

(i) Any provision or proposed provision of a policy statement or plan; and

(ii) Any provision or proposed provision of a policy statement (whether national or regional) or plan or water conservation order; or

(c) Whether or not an act or omission, or a proposed act or omission, contravenes or is likely to contravene this Act or a rule in a plan or proposed plan, a requirement for a designation or for a heritage order, or a resource consent; or

(d) Whether or not an act or omission, or a proposed act or omission, is a permitted activity, controlled activity, discretionary activity, non-complying activity, or prohibited activity, or breaches section 10 (certain activities protected) or section 20 (certain existing lawful activities allowed); or

(e) The point at which the landward boundary of the coastal marine area crosses any river[; or]

[(f) Whether or not a territorial authority has made and is continuing to make substantial progress or effort towards giving effect to a designation as required by section 184A; or

(g) The matters provided for in section 379 (provisions deemed to be plans or rules in plans).]

311 Application for declaration

(1) Subject to subsections (2) and (3), any person may at any time apply to the [Environment Court] in the prescribed form for a declaration.

(2) No person (other than the consent authority or the Minister) may apply to the [Environment Court] for a declaration that a consent holder or any other person is contravening any condition of a resource consent or a rule in a plan or proposed plan that requires the holder to adopt the best practicable option to avoid or minimise any adverse effect of the discharge to which the consent or rule relates.

(3) No person (other than a local authority, consent authority, or the Minister [of Conservation]) may apply to the [Environment Court] for a declaration under section 310(e).

[12] Although discretionary in nature, the power given to the Environment Court to make declarations is a useful tool in the administration of the Act.We agree with Doogue J that particularly when parties who are faced with a live issue, as these parties were, combine to seek declaratory assistance, the Environment Court should be slow to decline relief.It is not appropriate to seek to compile an exhaustive list of circumstances when it may be right nevertheless to refuse declaratory relief. We also agree with Doogue J that the fact that the Environment Court Judge found the formulation of the declaration sought too precise and restrictive was not a sufficient reason of itself to decline to make any declaration at all.Having become acquainted ourselves with the construction issues, we do not consider that it would have been an unduly onerous task for the Judge to reformulate the declarations to accord with her views or simply to express those views and leave it to counsel to lodge draft declarations to reflect them.

[13] The second matter mentioned by the Judge is of greater significance.It concerns the relationship between an application for a declaration under s313 and a current or foreshadowed prosecution raising the same issues.The present case is different from most in this field in that both parties agreed that a declaration should be sought.Doogue J was of the view that clarification of the meaning of condition 12 might prevent further prosecutions by clarifying the position for the operators of the landfill and for the Council. He held that in referring to possible further prosecutions the Environment Court Judge had been influenced by an irrelevant consideration.The prosecution aspect was not entirely irrelevant however, even in a case where the parties had agreed that declaratory relief be sought.

[14] As a general rule declarations in the civil courts should not be made in respect of matters arising in pending or anticipated criminal proceedings.The leading English authority is Imperial Tobacco Ltd v Attorney-General [1980] 1 All ER 866 H.L.There prosecutions for breaches of the gaming laws had been commenced and more were threatened.Before trial the defendant issued proceedings in the Commercial Court for a declaration that its schemes were lawful.Declarations had been made below but the House of Lords held that it was inappropriate for a declaration to be granted in such circumstances. Viscount Dilhorne, who gave the leading speech, said at 875:

Such a declaration is no bar to a criminal prosecution, no matter the authority of the court which grants it. Such a declaration in a case such as the present one, made after the commencement of the prosecution, and in effect a finding of guilt or innocence of the offence charged, cannot found a plea of autrefois acquit or autrefois convict, though it may well prejudice the criminal proceedings, the result of which will depend on the facts proved and may not depend solely on admissions made by the accused. If a civil court of great authority declares on admissions made by the accused that no crime has been committed, one can foresee the use that might be made of that at the criminal trial.

The justification for the Court of Appeal taking this unusual and unprecedented course (no case was cited to us where a civil court had after the commencement of a prosecution, granted a declaration that no offence had been committed) was said to be the length of time it would have taken for the matter to be determined in the criminal courts. I can well see the advantages of persons being able to obtain rulings on whether or not certain conduct on which they propose to embark will be criminal and it may be a defect in our present system that it does not provide for that. Here, I wish to emphasise, it was not a question whether future conduct would be permissible but whether acts done were criminal. It was said that the administration of justice would belie its name if civil courts refused to answer reasonable questions on whether certain conduct was or was not lawful. I do not agree. I think that the administration of justice would become chaotic if after the start of a prosecution, declarations of innocence could be obtained from a civil court.

At 879 Lord Fraser said:

I am in entire agreement with my noble and learned friends that this is not a case in which the discretion of the court should have been exercised to make the declaration. By doing so the civil court, in my opinion, improperly intruded into the domain of the criminal court, notwithstanding that criminal proceedings had already been begun. We were not referred to any reported case where such intrusion had occurred and in my opinion it ought not to be permitted except possibly in some very special circumstances which are not found here.

Lord Lane's view was the same at 884:

Counsel appearing before your Lordships' House were unable to find any case in which a defendant in criminal proceedings already properly and not vexatiously instituted had applied for a declaration that the criminal proceedings were unfounded or based on a misapprehension as to the true meaning of the criminal statute. I do not find that dearth of authority surprising. It would be strange if a defendant to proper criminal proceedings were able to pre-empt those proceedings by application to a judge of the High Court whether sitting in the Commercial Court or elsewhere. What effect in law on the criminal proceedings would any pronouncement from the High Court in these circumstances have? The criminal court would not be bound by the decision. In practical terms it would simply have the inevitable effect of prejudicing the criminal trial one way or the other.

Where there are concurrent proceedings in different courts between parties who for practical purposes are the same in each, and the same issue will have to be determined in each, the court has jurisdiction to stay one set of proceedings if it is just and convenient to do so or if the circumstances are such that one set of proceedings is vexatious and an abuse of the process of the court. Where, however, criminal proceedings have been properly instituted and are not vexatious or an abuse of the process of the court it is not a proper exercise of the court's discretion to grant to the defendant in those proceedings a declaration that the facts to be alleged by the prosecution do not in law prove the offence charged.

The other members of the Appellate Committee, Lord Edmund-Davies and Lord Scarman, agreed with these views.

[15] The same general principle was followed by Hardie Boys J in R v Sloan [1990] 1 NZLR 474, 479.The principle was also adopted by Thomas J in Auckland Health Board v Attorney-General [1993] 1 NZLR 235, 243.In that case His Honour acknowledged that a declaration could be made when it related to criminal proceedings but observed that in such circumstances the discretion should be sparingly exercised.He made reference to the leading authorities, including Imperial Tobacco and Sloan.He noted that in most cases it would be inappropriate to make a declaration in the Court's civil jurisdiction which would pre-empt a decision of the Court in its criminal jurisdiction.He developed the reasons for that view by reference to various passages in the speeches in Imperial Tobacco, some of which have been already cited.Thomas J also mentioned, as a significant factor, that the Court was normally reluctant to make declarations concerning the legal status of future conduct, a feature to which Doogue J did not make express reference when coming to his conclusion.

[16] It is not necessary to say any more about matters of general principle. In the light of the authorities it is difficult to say, as did Doogue J, that the Environment Court Judge had no good reason for declining to make a declaration.In the particular and unusual circumstances of this case we consider that the Judge could properly have exercised her discretion in favour of making a declaration but she was not obliged to do so.We do not propose to allow the appeal on this basis because that would involve vacating Doogue J's declaratory orders.There would then be no basis for this Court to embark on the issue of construction.This would frustrate the obvious desirability, the matter having come this far, of there being an authoritative determination of the issues of construction.As noted earlier, the appellant sensibly does not now oppose that course.We wish to make it clear for the future that the fact that parties may consent to the seeking of a declaration under s313 in a case where there are pending or potential criminal proceedings involving the same issues should not of itself be regarded as carrying much weight in the exercise of the discretion.

The construction of condition 12

[17]Although it is condition 12 which is primarily in issue, it is convenient to set out the text of both condition 12 and condition 13.

12. All material disposed of at the landfill shall be cleanfill with no potential to produce harmful effects on the environment and shall be restricted to a natural material such as clay, soil, and rock, and other inert material such as concrete, brick or non-combustible demolition products (with no more than 5 percent timber or other non-hazardous construction materials).

13. That no liquid waste, domestic, industrial and commercial waste, hazardous waste, contaminated soil, soil or clay in a saturated condition, trees, and garden trimmings shall be disposed of at the landfill.

[18] As there was virtual agreement between counsel, when the issues were discussed before us, as to the correct construction of condition 12, we will not traverse the background and the views of the Environment Court and the High Court.Those of the High Court do not differ to any great extent from what we see as the correct interpretation of condition 12 in the aspects at issue.The first point to note is that condition 12 deals with disposal of material at, meaning into, the landfill.The condition is directed to material which may be deposited into the landfill.It is not therefore appropriate to focus on the content of an individual truck load unless it is deposited directly into the landfill and not set aside for sorting before deposit.Rather the focus is on an individual deposit and it is in this latter respect that the 5% requirement operates.Each deposit of material into the landfill must contain no more than 5% timber or other non-hazardous construction materials.By this means the whole landfill cannot logically comprise more than 5% of that type of material.The materials referred to in the first part of the condition do not have to come from the same source as those referred to within the brackets.But in the context they must both be "cleanfill" and "demolition products".

[19] There was an issue concerning the ability to deposit what was variously described as green waste and organic material.Doogue J was correct in differing from the views expressed by the Environment Court on this issue. Such material may not be deposited in the landfill.Condition 12 amounts effectively to a prohibition against depositing any material which does not come within the classes of material which are permitted.Condition 13 represents a more specific prohibition.The deposit of green waste/organic material is not permitted by either condition.

[20] If declarations are required in this Court counsel should be able to agree upon their wording.We invite a joint memorandum setting out what is proposed. It is necessary for the appeal to be formally disposed of.Subject to any variation which may be necessary to the declarations made by Doogue J the appropriate course would appear to be that the appeal should be dismissed.We do not consider that any order for costs should be made either way.We make no formal order for dismissal of the appeal at this stage in case counsel wish to make any point in respect of formal disposition.The point can be dealt with at the same time as counsel deal with the draft declarations.

Solicitors

Harkness & Peterson, Wellington, for Appellants

Oakley Moran, Wellington, for First Respondent