Coromandel Watchdog of Hauraki Incorporated v Chief Executive of the Ministry of Economic Development and ors [2006] NZCA 58 (6 April 2006)

Last Updated: 21 April 2006

IN THE COURT OF APPEAL OF NEW ZEALAND

CA285/05

BETWEEN COROMANDEL WATCHDOG OF HAURAKI INCORPORATED
Appellant

AND CHIEF EXECUTIVE OF THE MINISTRY OF ECONOMIC DEVELOPMENT
First Respondent

AND NEW ZEALAND MINERALS INDUSTRY ASSOCIATION
Second Respondent

AND AUCKLAND CITY COUNCIL AND AUCKLAND REGIONAL COUNCIL
Interveners

Hearing: 6 April 2006

Court: William Young P, Gendall and Ronald Young JJ

Appearances: R B Enright and A W Braggins for Appellant
H Rennie QC and R M Macky for First Respondent
R A Fisher and M L Van Kampen for Second Respondent
J Caldwell and V Evitt for Interveners

Judgment: 6 April 2006

JUDGMENT OF THE COURT

A Leave to appeal is granted, but only in relation to the question, "Did the High Court err in holding that a prohibited activity status can only be used when a planning authority is satisfied that, within the timespan of the Plan, the activity in question should in no circumstances ever be allowed in the area under consideration?"
B The applications for leave to intervene by the Auckland City Council and the Auckland Regional Council are granted.
C Costs are reserved.

REASONS
(Given by William Young P)

[1]	We are required to deal with applications for leave to appeal from a judgment of Simon France J delivered on 2 September 2005 in which he dismissed appeals by, inter alia, Coromandel Watchdog of Hauraki Inc ("the appellant") against a decision of the Environment Court. There are also intervention applications by the Auckland City Council and Auckland Regional Council.
[2]	We are satisfied that leave ought to be granted on the point referred to in 2.2 of the application for leave to appeal:

Did the High Court err in holding that a prohibited activity status can only be used when a planning authority is satisfied that, within the timespan of the Plan, the activity in question should in no circumstances ever be allowed in the area under consideration?

It raises a point of law which we see as both genuinely arguable and of general and public importance. Given that importance we think it right to grant leave.

[3]	In granting leave, we are not determining that the Environment Court decision necessarily turned on a legal conclusion as to jurisdiction (along the lines adopted by Simon France J) as opposed to an evaluative or policy approach. So it may be that an answer in favour of the appellant to the question we have posed would not necessarily result in the decision of the Environment Court being set aside. As well, we should record that no-one set out to persuade us that the planning process has moved on so far as to make this appeal moot.
[4]	Leave is declined in relation the ground in referred to in 2.1 of the application seeking leave to appeal – a ground which was not, in the end, pursued by counsel for the appellant.
[5]	The applications for leave to intervene by the Auckland City Council and the Auckland Regional Council are granted. They have a distinct interest in the outcome of the appeal, even if their use of prohibited activity status differs from that of the Thames-Coromandel District Council in question in this case. The issues are important and their intervention may add value to the process with little added cost. That they are not representing all local authorities does not seem to us to be a critical factor especially as there will be no local body participation at the hearing of the appeal if we were to refuse leave to intervene.
[6]	Costs are reserved.

Solicitors:
Kensington Swan, Auckland for Appellant
Simpson Grierson, Auckland for Respondents
Buddle Findlay Auckland for the Interveners