Easton v Wellington City Council [2011] NZCA 27 (18 February 2011)

Last Updated: 23 February 2011

IN THE COURT OF APPEAL OF NEW ZEALAND

CA813/2010 [2011] NZCA 27

BETWEEN BENJAMIN MORLAND EASTON Appellant

AND WELLINGTON CITY COUNCIL Respondent

Hearing: 15 February 2011

Court: Glazebrook, Arnold and Harrison JJ

Counsel: Appellant in Person and B O'Shaughnessy C M Stevens for Respondent

Judgment: 18 February 2011 at 3.30 pm

JUDGMENT OF THE COURT

1. The decision of the Environment Court in this matter is final, so that neither the High Court nor this Court on a further appeal has jurisdiction to hear an appeal from it.
2. The applicant must pay the respondent costs for a standard application on a band A basis and usual disbursements.
   

REASONS OF THE COURT
(Given by Arnold J)

[1] The applicant has waged a vigorous campaign, with others, to stop the Wellington City Council (the Council) from putting a two way bus lane through Manners Mall, a long established pedestrian mall in Wellington. To implement its proposal, the Council had to revoke the pedestrian mall status of the relevant section of Manners Street. The process for this is set out in s 336 of the Local Government Act 1974, supplemented by s 83 of the Local Government Act 2002.
[2] Section 336 provides for a declaration to be made following a special consultative process that is provided for in s 83. In relation to appeals against the making of declarations, s 336 provides as follows:

(2) A declaration–

...

(b) does not take effect until–

(i) the time for appealing under subsection (3) has expired; and

(ii) any appeals have been determined under subsection (4).

(3) Any person may, within 1 month after the making of a declaration, or within such further time as the Environment Court may allow, appeal to the Environment Court against the declaration.

(4) The appeal must be made and determined by the Environment Court in accordance with the Resource Management Act 1991 and any regulations made under that Act and the Court may quash or affirm the declaration, or affirm the declaration with modification.

(5) The decision of the Environment Court under subsection (4) is final.

(6) Subsections (2)(b) and (3) to (5) do not apply to a declaration that gives effect to the provisions of an operative district plan under the Resource Management Act 1991.

[3] Section 336(6) does not apply in the present case.
[4] When the Council made a declaration revoking the pedestrian mall status of Manners Street an organisation called The City Is Ours Inc (the CIO) appealed to the Environment Court against the decision under s 336(4). The CIO was represented at the hearing by Mr Easton. The appeal was unsuccessful.[1]
[5] The CIO had dispensed with Mr Easton’s services at the conclusion of the hearing of the appeal. Accordingly, when the Environment Court dismissed the appeal, Mr Easton sought to challenge it by issuing two sets of proceedings in his own name, namely an application for judicial review in respect of the Council’s decision to revoke the pedestrian mall status of Manners Mall and an appeal against the Environment Court’s decision. On the Council’s application, Clifford J struck both sets of proceedings out.[2]
[6] Mr Easton then filed an appeal against Clifford J’s decision. While accepting that Mr Easton had a right of appeal against Clifford J’s decision to strike out the judicial review proceedings, the Council took the view that Mr Easton required leave to appeal against the Judge’s order striking out his appeal. It is this latter matter that is presently before us.
[7] The basis on which Clifford J struck out the appeal was that the Environment Court’s decision in this matter was final by virtue of s 336(5) of the 1974 Act. Mr Easton argues that the Judge was wrong in reaching that conclusion because s 299(1) of the Resource Management Act 1991 (the RMA) applies. That subsection provides:

A party to a proceeding before the Environment Court under this Act or any other enactment may appeal on a question of law to the High Court against any decision, report, or recommendation of the Environment Court made in the proceeding.

Mr Easton argues that s 299(1) trumps section 336(5) and has identified what he says are two questions of law that merit consideration by this Court.

[8] We consider that it is clear beyond argument that Clifford J was correct to conclude that s 336(5) applies. As a result, there is no further ability to appeal against the Environment Court’s decision in the present case, with or without leave. Although s 336(4) provides that the appeal must be made and determined by the Environment Court in accordance with the RMA, s 336(5) goes on to say that the decision of the Environment Court under s 336(4) is final. This removes any further right of appeal that would otherwise have been available under the RMA. The view that there can be no further appeal is supported by s 336(2)(b), which provides that a declaration does not take effect until either the appeal period has expired and no appeal has been lodged or any appeal that is lodged has been determined under s 336(4). This indicates that once an appeal under s 336(4) has been determined, the appeal process is at an end.
[9] For the sake of completeness we note that the Council raised further objections to Mr Easton’s appeal proceedings, in particular that he lacked standing to bring them having been involved in the hearing before the Environment Court as a representative of the CIO and not in his personal capacity. It was not necessary for Clifford J to deal with these aspects in the context of the appeal given the view he reached about the effect of s 336(5). We are in a similar position. These matters will, however, be relevant to the appeal in respect of Clifford J’s decision to strike out the judicial review proceedings.
[10] In the result, then, we consider that the High Court did not have jurisdiction to hear an appeal from the Environment Court’s decision and the purported appeal was correctly struck out. Mr Easton’s attempt to appeal against Clifford J’s strike out decision similarly lacks a proper basis. We cannot grant leave in respect of an appeal we do not have jurisdiction to hear.
[11] Mr Easton must pay the respondent costs for a standard application on a band A basis plus usual disbursements.

Solicitors:
DLA Phillips Fox, Wellington for Respondent

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[1] The City is Ours Inc v Wellington City Council [2010] NZEnvC 115.

[2] Easton v Wellington City Council HC Wellington CIV-2010-485-678 and CIV-2010-485-748, 29 October 2010.