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Huia Resorts Ltd v Ashburton District Council [2005] NZCA 85 (28 April 2005)

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Huia Resorts Ltd v Ashburton District Council [2005] NZCA 85 (28 April 2005)

Last Updated: 9 May 2005

IN THE COURT OF APPEAL OF NEW ZEALAND

CA29/05

BETWEEN HUIA RESORTS LIMITED
Applicant

AND ASHBURTON DISTRICT COUNCIL
Respondent

Hearing: 18 April 2005

Court: Anderson P, McGrath and O'Regan JJ

Counsel: G D S Taylor for Appellant
A M Douglas for Respondent

Judgment: 28 April 2005

JUDGMENT OF THE COURT

The application for special leave to appeal is dismissed.

REASONS

(Given by McGrath J)

[1] This is an application for special leave to appeal on questions of law to this Court, against a judgment of the High Court, dismissing an appeal from the Environment Court. The underlying issue concerns the stopping of a paper road.
[2] The combined effect of s 308 of the Resource Management Act 1991 and s 144 of the Summary Proceedings Act 1957 requires that the applicant meet a threshold before special leave to appeal may be granted by this Court. That is because the applicant is seeking to bring a second appeal against an Environment Court decision. It must show that the further appeal would raise questions of law which by reason of their general or public importance, or for any other reason, ought to be submitted to this Court for decision. It is well established that this threshold entails demonstrating that there is a question of law capable of serious argument in a case involving a public or private interest which is sufficient in its importance to outweigh the cost and delay to the parties of permitting another appeal.
[3] In December 1990 the Ashburton District Council, the respondent to the application for special leave, agreed to the stopping and transfer of parts of a road in its district to an adjacent owner, subject to conditions including that the owner would meet the costs of the transfer and provide continuing access by right of way to one of the lots transferred. The owner indicated acceptance of the conditions and asked the Council to proceed, but it did not do so until December 2000, with the result that the stipulated statutory procedures were only then initiated by the Council. These included public notification of the proposed road closure and specific notification to adjoining owners, including the applicant, which exercised its right to object.
[4] The Council did not allow the objections and they were referred to and heard by the Environment Court. On 24 May 2004 that Court, acting under clause 6 of the tenth schedule to the Local Government Act 1974, confirmed the Council’s decision.
[5] The applicant then appealed to the High Court on questions of law. The appeal was determined by Chisholm J, in a judgment delivered on 1 October 2004, in which he upheld the position of the Council. In particular Chisholm J held that the delay of ten years between the initial agreement of the Council to stop the road and the undertaking of the statutory processes required to stop the road had not caused any prejudice to the applicant and was not accordingly invalid on account of the inactivity between 1990 and 2000. Secondly, the Judge decided that the fact that the stopping would give rise to a private benefit to the citizen to whom the parts of the closed road would be transferred did not invalidate the statutory process. Thirdly the Judge held that the Council was entitled, in reaching its decision, to take into account that the applicant already had legal access to its property via a right of way which the Environment Court considered to be efficient. Finally the Environment Court had not, as the applicant had contended, fundamentally misunderstood the applicant’s case. The Court had been entitled to conclude that the prospective development of the stopped road at some point in the future was unlikely to be able to withstand a robust cost benefit analysis. It was also open to the Court to conclude that in the absence of a bridge it was unlikely that an all weather sealed road would be feasible in any practical sense and to take that into account, even though the applicant’s case was not confined to the prospective road being sealed and available at all times.
[6] In support of the application for leave to appeal to this Court Mr Taylor indicated that the applicant first wishes to argue that Chisholm J wrongly proceeded on a basis that delay could not render an administrative decision unlawful in the absence of prejudice to the applicant. Mr Taylor’s central proposition, that would be put to this Court on this question if special leave is given, is that a lengthy delay in itself can vitiate a decision.
[7] Over the period of delay concerned there have been changes to the Tenth Schedule to the Local Government Act 1974 which governs the statutory process for stopping of a road. It is not however suggested that the new statutory provisions prevent a process for stopping a road which was started prior to their coming into effect from continuing. Nor is it contended that there is any relevant effect of the delay in question, such as by lulling the appellant into a sense of false security with prejudicial consequences. The proposed question is also not concerned with whether a local authority could in its discretion decide to revisit its original decision after such a delay. The argument would be confined to the narrower proposition that delay to the extent that took place in this case could invalidate a decision to agree to stop a road subject to the statutory processes.
[8] Three considerations have led us to the view that this question is not one of sufficient public or private importance to warrant it being the subject of a second appeal to this Court. First, the issue concerned is a very narrow one which would not often arise outside the present context. Secondly, while questions concerning the effect of delay might possibly arise from time to time in a wider context, the answer would nearly always be greatly influenced by the particular statutory and factual context, so that there would be little general precedential value in a decision of this Court on the point. Thirdly, as the question is not concerned with effect of delay on other persons interested a decision of this Court of the point would not serve a section of the public likely to be affected by the delay. For these reasons there is insufficient public interest to warrant an appeal. Nor does the question have sufficient private importance, and in our view there is no other reason warranting a second appeal on the point.
[9] The second question of law raised in support of the special leave application is that Chisholm J is wrong to hold that it was open to the Environment Court to decide that in the absence of a bridge the applicant’s projected access road would not feasible in any practical sense. The passage in the Environment Court’s decision that the High Court held showed no error of law reads:

[15]...the real thrust of the case for Huia Resorts is the wish to keep open the possibility of at least the northern portions of Harts Road being formed and used at some point in the future. Huia Resorts owns and operates a lodge-type operation which, over the winter season, accommodates skiers using the Mt Hutt Skifield. For skiers to leave the lodge, travel along the right of way, along SH72, and then to the access road to Mt Hutt off McLennans Bush Road, is a journey of about 9.8 kilometres. Mr Gorrie, the principal shareholder and director of Huia Resorts Ltd hopes that one day he might be able to use the northern parts of Harts Road to take him up to and then across Pudding Hill Stream. He would then rejoin Harts Road, go across private land, to which he believes he can negotiate access, and then get directly onto the Mt Hutt access road. Mr Huish (whose evidence we discuss in para [16] calculates that this would reduce the journey to about 3 kilometres.
[16] From an engineering point of view all of that may technically be feasible. Mr Gorrie arranged for the area to be examined by Mr Gary Huish, a civil engineer with Traffic Design Group. Mr Huish confirms that the formation of Harts Road could be done, but that the Pudding Hill Stream"...would be impossible at times due to gravel movement and periods of flooding....a greater degree of work such as culverts or bridging would improve the periods of access". Mr Huish believes that there is a potential benefit in not stopping Harts Road; the benefit being the possible future shortened distance between Huia Resort and the Mt Hutt access road. That might be so, but whether such a proposal would withstand any kind of rigorous cost-benefit analysis is, we think, highly dubious, given the projected, small, number of vehicle trips per day, and those only in the ski season. We note that Mr Huish does not venture any estimate at all of costs. Mr Gorrie speaks of having investigated the possibility of installing a bridge, but gives no information about possible cost. The evidence from the Council is that it would be highly unlikely to ever grant consent to the building of a bridge in that position across Pudding Hill Stream. In the absence of a bridge, Mr Gorrie'’ projected access road would not be feasible in any practical sense.

[10] The applicant seeks to argue that this passage proceeds on a legal error being inconsistent with the common law rule that even though conditions may prevent a road from being used during some periods it nevertheless in law remains a road which is usable. The High Court’s decision concerning the feasibility of the road, did not however, turn on the proposition that in law the road ceased to be usable (in a practical sense). All that the High Court was saying was that in addressing the applicant’s evidence of possible future use of the paper road, the Environment Court was entitled to be sceptical about whether the proposal could withstand a rigorous cost-benefit analysis given impediments to passage across Pudding Hill stream at times and the lack of information about the cost of a bridge. The Environment Court was doing no more than taking into account a judgment it had formed that the use of the road as an all weather sealed public road in the foreseeable future was not a realistic proposition. It was entitled to make that judgment, and to treat it as a relevant factor, although the applicant’s proposal was not necessarily for a tar-sealed road. That matter is, as Chisholm J recognised in subsequently refusing leave to appeal on the point to this Court, essentially a factual judgment against which no appeal can be brought. The judgment is not one which would be undermined by an appeal based on the second question of law that the applicant wishes to put to this Court. Accordingly to the extent that there is a legal issue raised it is not relevant to the finding concerned so that there is no sufficient public or private interest or other good reason for special leave to be given to appeal on this point.
[11] In these circumstances the statutory threshold for a second appeal to this Court is not met. The application is dismissed. The applicant must pay costs of $3000 to the respondent together with disbursements including any travel and accommodation costs as agreed by counsel and failing agreement to be determined by the Registrar.

Solicitors:
Helmore Ayers, Christchurch, for Applicant
Wynn Williams & Co, Christchurch, for Respondent

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[1]	This is an application for special leave to appeal on questions of law to this Court, against a judgment of the High Court, dismissing an appeal from the Environment Court. The underlying issue concerns the stopping of a paper road.
[2]	The combined effect of s 308 of the Resource Management Act 1991 and s 144 of the Summary Proceedings Act 1957 requires that the applicant meet a threshold before special leave to appeal may be granted by this Court. That is because the applicant is seeking to bring a second appeal against an Environment Court decision. It must show that the further appeal would raise questions of law which by reason of their general or public importance, or for any other reason, ought to be submitted to this Court for decision. It is well established that this threshold entails demonstrating that there is a question of law capable of serious argument in a case involving a public or private interest which is sufficient in its importance to outweigh the cost and delay to the parties of permitting another appeal.
[3]	In December 1990 the Ashburton District Council, the respondent to the application for special leave, agreed to the stopping and transfer of parts of a road in its district to an adjacent owner, subject to conditions including that the owner would meet the costs of the transfer and provide continuing access by right of way to one of the lots transferred. The owner indicated acceptance of the conditions and asked the Council to proceed, but it did not do so until December 2000, with the result that the stipulated statutory procedures were only then initiated by the Council. These included public notification of the proposed road closure and specific notification to adjoining owners, including the applicant, which exercised its right to object.
[4]	The Council did not allow the objections and they were referred to and heard by the Environment Court. On 24 May 2004 that Court, acting under clause 6 of the tenth schedule to the Local Government Act 1974, confirmed the Council’s decision.
[5]	The applicant then appealed to the High Court on questions of law. The appeal was determined by Chisholm J, in a judgment delivered on 1 October 2004, in which he upheld the position of the Council. In particular Chisholm J held that the delay of ten years between the initial agreement of the Council to stop the road and the undertaking of the statutory processes required to stop the road had not caused any prejudice to the applicant and was not accordingly invalid on account of the inactivity between 1990 and 2000. Secondly, the Judge decided that the fact that the stopping would give rise to a private benefit to the citizen to whom the parts of the closed road would be transferred did not invalidate the statutory process. Thirdly the Judge held that the Council was entitled, in reaching its decision, to take into account that the applicant already had legal access to its property via a right of way which the Environment Court considered to be efficient. Finally the Environment Court had not, as the applicant had contended, fundamentally misunderstood the applicant’s case. The Court had been entitled to conclude that the prospective development of the stopped road at some point in the future was unlikely to be able to withstand a robust cost benefit analysis. It was also open to the Court to conclude that in the absence of a bridge it was unlikely that an all weather sealed road would be feasible in any practical sense and to take that into account, even though the applicant’s case was not confined to the prospective road being sealed and available at all times.
[6]	In support of the application for leave to appeal to this Court Mr Taylor indicated that the applicant first wishes to argue that Chisholm J wrongly proceeded on a basis that delay could not render an administrative decision unlawful in the absence of prejudice to the applicant. Mr Taylor’s central proposition, that would be put to this Court on this question if special leave is given, is that a lengthy delay in itself can vitiate a decision.
[7]	Over the period of delay concerned there have been changes to the Tenth Schedule to the Local Government Act 1974 which governs the statutory process for stopping of a road. It is not however suggested that the new statutory provisions prevent a process for stopping a road which was started prior to their coming into effect from continuing. Nor is it contended that there is any relevant effect of the delay in question, such as by lulling the appellant into a sense of false security with prejudicial consequences. The proposed question is also not concerned with whether a local authority could in its discretion decide to revisit its original decision after such a delay. The argument would be confined to the narrower proposition that delay to the extent that took place in this case could invalidate a decision to agree to stop a road subject to the statutory processes.
[8]	Three considerations have led us to the view that this question is not one of sufficient public or private importance to warrant it being the subject of a second appeal to this Court. First, the issue concerned is a very narrow one which would not often arise outside the present context. Secondly, while questions concerning the effect of delay might possibly arise from time to time in a wider context, the answer would nearly always be greatly influenced by the particular statutory and factual context, so that there would be little general precedential value in a decision of this Court on the point. Thirdly, as the question is not concerned with effect of delay on other persons interested a decision of this Court of the point would not serve a section of the public likely to be affected by the delay. For these reasons there is insufficient public interest to warrant an appeal. Nor does the question have sufficient private importance, and in our view there is no other reason warranting a second appeal on the point.
[9]	The second question of law raised in support of the special leave application is that Chisholm J is wrong to hold that it was open to the Environment Court to decide that in the absence of a bridge the applicant’s projected access road would not feasible in any practical sense. The passage in the Environment Court’s decision that the High Court held showed no error of law reads: