Burnie Family Trust v Bay of Plenty Regional Council [2014] NZHC 2807; (2014) 18 ELRNZ 59; [2015] 2 NZLR 541 (12 November 2014)

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BETWEEN	GEOFFREY RAYMOND BURNIE, ESTHER MARGARET BURNIE and DAVID MAVITTY SIMPSON as Trustees of the BURNIE FAMILY TRUST Applicant
AND	BAY OF PLENTY REGIONAL COUNCIL First Respondent RAYMOND KEITH FLEMING Second Respondent ROTORUA DISTRICT COUNCIL Third Respondent

Hearing:	(On the papers)
Appearances:	David Simpson for the Applicant Paul Cooney for the First Respondent David Rendall for the Second Respondent Deborah Riley for the Third Respondent
_Judgement:	_{12 November 2014}

This judgment was delivered by on 12 November 2014 at 4:30pm pursuant to Rule 11.5 of the High Court Rules.

BURNIE & ORS v BAY OF PLENTY REGIONAL COUNCIL & ORS [2014] NZHC 2807 [12 November 2014]

Introduction ..............................................................................................................[1] Background...............................................................................................................[5] The review proceedings .........................................................................................[21]

RMA (trout and water) .........................................................................................[22]

RMA (potential that failure of management, accident, extreme weather even or earthquake would likely have serious environmental consequences) ..................[24]

RMA (limited notification) ...................................................................................[25] Fourth ground of relief: Error on the face of the document ...............................[26] Joint consideration ...............................................................................................[28] Application for interim orders ..............................................................................[29] Legal principles ......................................................................................................[35]

reasonable chance of the applicant succeeding in that context? .........................[42] Conclusion...............................................................................................................[53] Result .......................................................................................................................[54]

[1] Raymond Keith Fleming, the second respondent, applied to the Bay of Plenty Regional Council (“the Regional Council”) for a resource consent in December 2012 seeking consents for a variety of activities in order for him to operate a construction and demolition landfill at his property situated at 62 Te Manu Road, Rotorua.

[2] The consent application was granted. The Burnie Family Trust (“the Burnie Trust”) has applied to have this decision judicially reviewed. That proceeding is set down for hearing early next year.

[3] After the Regional Council granted the resource consent Mr Fleming made a Land Use Consent application to the Rotorua District Council (“the RDC”). That application has been set down for hearing in late November.

[4] The current application seeks interim relief to restrain the Regional Council and the RDC from taking any further steps in relation to the resource consent application before the RDC until the substantive review proceeding is heard.

[5] The Regional Council, as with regional councils elsewhere in New Zealand, is responsible for controlling issues around water, the discharge of contaminants to land, air or water, soil conservation, the enhancement of eco-systems and water bodies, water quality and controlling natural hazards and hazardous substances. The Regional Council is also responsible for preparing the regional plans which regulate these activities and for the issuing of resource consents within the context of their functions under the Resource Management Act 1991 (“RMA”).

[6] Mr Fleming’s resource consent application to the Regional Council related to specific activities associated with the operation of a construction and demolition landfill. In particular he sought consents for earthworks necessary for the formation of the landfill, the discharge of construction and demolition fill and contaminants to land and the discharge of contaminated storm water to land where it enters the water.

[7] It seems Mr Fleming’s application was so he could regularise previously unauthorised activities which had been taking place on his property which involved its use as a fill site. He had been dumping various types of fill material and construction waste without having the necessary resource consents from the Regional Council. He needed those consents because the activity involved unauthorised discharges to the land and air.

[8] At Mr Fleming’s request one of the Regional Council’s consents officers visited the site and discussed with him what was necessary for him to comply with the Regional Council’s requirements so he could lawfully operate the site as a landfill in the future.

[9] After the site visit the consents officer wrote to Mr Fleming setting out what he needed to do and recommended he should engage an environmental consultant to help him prepare a site management plan for the proposal.

[10] The issue was complicated to some extent by the necessity to also engage the local district council, the Rotorua District Council (“RDC”). As a district council, the RDC is primarily responsible for controlling the effects of land use and the effects of activities on the surface of lakes and rivers. Mr Fleming separately applied for consents relating to those matters for which the RDC had specific responsibility such as the stock piling of reusable material, the discharge of wood products to land and earthworks. These also included issues such as traffic and access, noise, dust, etc.

[11] Discussions took place between the Regional Council and RDC about whether any of the applications engaging the RDC should be considered in tandem with the issues relevant to Mr Fleming’s application to the Regional Council with the possibility of having a joint hearing process if public notification was required. The Regional Council’s consents officer was of the opinion that a decision on this issue was premature given that at that time an application from Mr Fleming had yet to be received and an assessment of the potential effects yet to be undertaken.

[12] The engineering firm, Tonkin & Taylor, undertook preliminary site assessments and produced a site inspection report which made recommendations for the site to ensure it met the Ministry for the Environment’s “Guide to Managing Cleanfills”. That report also concluded the current landfill operation posed a negligible risk to human health and some risk to the environment. The report recommended that “non standard commercial and demolition material should be removed or adequately covered to prevent leaching and discharges to the air”.

[13] On 17 December 2012, the planner instructed by Mr Fleming to prepare the application, lodged the resource consent. The consents officer checked it to ensure all the relevant consents had been applied for. He was aware that other consents were required from the RDC, that these had not yet been applied for. He was of the view that the activities which fell for consideration by the Regional Council could be fully assessed without considering the RDC’s requirements. The consents officer considered whether or not public notification was required. He decided it was not because the applicant had not requested public notification, there was no rule or national environmental standard that required notification under s 95A(2)(c) of the RMA and the applicant had not refused or failed to provide further information in response to a request in terms of s 95C of the RMA. He also considered that the effects of the environment could be managed with appropriate conditions and would be less than minor and, on that basis, considered that public notification was not required under s 95A of the RMA.

[14] He then considered whether the application should be limited notified under s 95B of the RMA. This requires the identification of any affected persons in relation to an activity if the activity’s adverse effects on the people are minor or more than minor. Hardly surprisingly, written approval of the application was received from the Fleming family who owned the land. However the consents officer considered that adjacent landowners to the site were not “affected persons” because any effects would be confined within the property’s boundaries and any potential effects beyond the boundary would not be more than minor.

[15] The consents officer knew that the Burnie Trust family home was about a kilometre from the landfill site and about 140 metres from the access way at its closest point.

[16] On this basis he decided that there were no “affected persons” in relation to the activities for which consents were being sought and no requirement to notify anyone of the resource consent application filed by Mr Fleming. He recommended to his supervisor, the Regional Council’s Consents Manager, the application should be processed on a non-notified basis. She agreed with him and decided to process the application on a non-notified basis.

[18] On 3 June 2014 the Burnie Trust brought the application to judicially review

[19] The Burnie Trust owns an 8 hectare property situated at 54 Te Manu Road. The property is not immediately adjacent to the proposed landfill site but the unsealed access road runs along the southern boundary of the Trust’s property. The Trust’s house, occupied by members of the Burnie family, is located approximately one kilometre from the landfill site which they say is about 60 metres from the Ngongotaha Stream, a natural feature which has been identified as being “a

nationally significant habitat and fishery values for trout”.¹The land which is the

subject of the consent is within the catchment of both the Ngongotaha Stream and the Utuhina catchment.

[20] The first the Burnie Trust knew of Mr Fleming’s application to the Regional Council was when Mr Fleming approached them in October 2013 with a RDC “Written Approval of Affected Persons” form. Attached to the form was a summary of the proposal to operate the landfill which indicated the Regional Council had already granted its approval. The Burnie Trust brought the proceedings to revoke the Regional Council’s consent.

[21] The statement of claim contains four grounds of relief which are summarised below.

First ground of relief: Failure to publicly notify – s 95A of the RMA (trout and water)

[22] In exercising its discretion not to notify the application, the Burnie Trust says that the Regional Council gave inadequate consideration to the fact that the RDC had identified the land in its proposed district plan as a “significant natural area” within which the proposed landfill is a non-complying activity and that the Regional Council failed to give consideration to s 6 of the RMA in relation to matters of national importance and, more particularly, the protection of areas of significant indigenous vegetation and significant habitats of indigenous fauna. Had it done so it would inevitably have concluded that the adverse effects would likely to be more than minor and should thus have publicly notified the application.

[23] The Burnie Trust says that the Regional Council failed to have regard to s 7 of the RMA in relation to the requirement to protect the habitat of trout and salmon²and that it failed to attach any significance to the fact that the Ngongotaha Stream is identified in the Regional Council’s own water and land plan as being “a nationally significant habitat in fishery values for trout”. They say had it done so it would have concluded that public notification should have been given.

Second ground of relief: Failure to public notify – s 95 of the RMA (potential that failure of management, accident, extreme weather even or earthquake would likely have serious environmental consequences)

[24] Furthermore, the Burnie Trust claims the Regional Council failed to give any consideration to the effect on the environment in the event of a management failure, accident, extreme weather event or earthquake, noting that any mishap would be likely to have serious environmental consequences and that those who utilise the river system and rely on it for their livelihood should have been provided with the

opportunity to be heard on a notified application. This is the “low risk” but “high impact” ground of relief.

Third ground of relief: Affected party – ss 95B and 95E of the RMA (limited notification)

[25] The Burnie Trust also claims that the Regional Council was wrong when it concluded that there were no affected parties who ought to have been notified. They say that they are an affected party because the adverse effects are minor or more than minor by reason of one or more of the following:

(a) dust generated from the access way, from the top of the trucks and from the landfill itself;

(d) heavy traffic on Te Manu Road and the inconvenience, danger and noise emanating from this;

(e) an easement running with the Burnie Trust’s property which provides access to the Ngongotaha Stream for the purpose of drawing water for domestic consumption downstream from the proposed landfill and the concerns that in the event of pollution entering the river system the water would be unusable.

[26] The Burnie Trust claims that the Regional Council wrongly concluded that all adjacent landowners had provided unconditional written approval but failed to identify the Burnie Trust as an affected person which would have required limited notification.

[28] Sitting in behind these grounds of review and central to the present application seeking interim relief is the argument is that the two applications were related and should have been heard together. The Burnie Trust say that the Regional Council failed to identify all the necessary consents which would have allowed for the possibility of a joint consideration of the proposal between the Regional Council and the RDC. Failure to do so meant that the applications were not considered in a holistic manner.

[29] The Burnie Trust now brings an application under s 8 of the Judicature Amendment Act 1972 seeking an order that the Regional Council and the RDC be restrained from taking any further steps in relation to the resource consent application before the RDC until the judicial review has been determined.

[30] Mr Fleming lodged a Land Use Resource Consent application with the RDC on 27 March 2013. The RDC determined the application should be notified. A hearing date of 17 October 2014 was initially set. Notification of the hearing date was given after the substantive judicial review proceedings were filed which explains why no application for interim relief was made at the time the proceedings were filed.

[31] The RDC asked Mr Fleming if he would agree to a deferment of the hearing in accordance with s 37A of the RMA.³Apparently the request was made because RDC officers were of the view it would be beneficial for the application to be heard after the outcome of the judicial review proceedings.

[32] However Mr Fleming would not consent to a deferment and as a consequence the RDC was obliged to set the application down for a hearing. It is this hearing

³Section 37A of the RMA prohibits a consent authority from extending time limits unless certain criteria are met including the consent of the applicant.

which the Burnie family seek to have suspended until the outcome of the substantive proceedings is determined.⁴

[33] A telephone conference was scheduled before me. Mr Rendall for Mr Fleming, while not consenting to any adjournment of the RDC hearing, did suggest one possible option might be for the RDC hearing to proceed but on the basis of an undertaking by Mr Fleming that no steps to implement any consents would be taken before the judicial review was determined. However, Mr Simpson, for the Burnie Trust, resisted such a course and in the absence of consent the Court was left with no option but to deal with the present application on an urgent basis. Submissions have been filed by all parties and I have decided the matter on the papers.

[34] I have since received advice that the RDC hearing is now scheduled to take place on 19 November 2014.

[35] This application for interim orders is brought under the provisions of s 8 of the Judicature Act 1972. Section 8 states:

(1) Subject to subsection (2) of this section, at any time before the final determination of an application for review, and on the application of any party, the Court may, if in its opinion it is necessary to do so for the purpose of preserving the position of the applicant, make an interim order for all or any of the following purposes:

(a) Prohibiting any respondent to the application for review from taking any further action that is or would be consequential on the exercise of the statutory power;

[36] The approach to an application made under s 8 is discussed in Carlton and

_{United Breweries Limited v Minister of Customs.}⁵_{There the Court of Appeal said}

⁴_{A fixture is apparently likely to take place in the first
part of 2015, probably in February.}

⁵Carlton and United Breweries Limited v Minister of Customs [1986] 1 NZLR 423 (CA).

that the power should not be restricted by reading qualifications into the broad language of the section and that the test and terminology used in interim injunctions is not appropriate. Under s 8 it is for the Court to determine whether, in the circumstances shown to exist, reasonable necessity to preserve the applicant’s position is established and, if so, whether an interim order should be made. In

...the nature of the review proceedings will be material. So will the character, scheme and purpose of the legislation under which the impugned decision was made. And appropriate weight must of course be given to all the factual circumstances including the nature and prima facie strength of the applicant's challenge and the expected duration of an interim order.

(a) Is there a serious issue in contest between the parties and a reasonable chance of the applicant succeeding in that contest?

(b) Is it necessary to make the interim order in order to preserve the position of the applicant?

[39] In Esekielu v Attorney General it was said that the appropriate test was whether there was “a real contest between the parties and a reasonable chance of an applicant succeeding in that contest.” ⁸In Carlton and United Brewers Limited the Court of Appeal noted that a “serious question to be tried” test may be too light and that a prima facie case for ultimate success in the judicial review proceedings should be preferred. In Minister of Immigration v Kang it was said the test is raised or

[40] In my view, in the context of the present case, the Esekielu test of “real contest” is appropriate.

[41] I propose to deal with each of the three questions referred to above in order.

Is there a serious issue in contest between the parties and a reasonable chance of the applicant succeeding in that context?

[42] The relief sought on the present application is to restrain Mr Fleming and the RDC from taking any further steps in relation to the resource use consent application until the substantive application for judicial review has been determined. The position sought to be preserved relates solely to the argument that the applications should be heard together. I must there consider whether there is a real contest between the parties and a reasonable chance that the Burnie Trust might succeed on this argument.

[43] The Burnie Trust claims that the RDC application relates to the same land which is subject to the consent issued by the Regional Council and that Mr Fleming’s filing of separate applications has prevented an integrated approach to considering the proposed land use by the relevant territorial authorities. The essence of this argument is that the Regional Council’s and RDC’s hearings should proceed together in accordance with s 102 of the RMA which states as follows:

(1) Where applications for resource consents in relation to the same proposal have been made to 2 or more consent authorities, and those consent authorities have decided to hear the applications, the consent authorities shall jointly hear and consider those applications unless—

(a) all the consent authorities agree that the applications are sufficiently unrelated that a joint hearing is unnecessary; and

Trust argues that because the Regional Council wrongly elected to non-notify as no

consideration was made of s 91 of the RMA which could have been used to bring s 102 of the RMA into play. ¹⁰

(1) A consent authority may determine not to proceed with the notification or hearing of an application for a resource consent if it considers on reasonable grounds that—

(a) other resource consents under this Act will also be required in respect of the proposal to which the application relates; and

(b) it is appropriate, for the purpose of better understanding the nature of the proposal, that applications for any 1 or more of those other resource consents be made before proceeding further.

[46] Mr Simpson for the Burnie Trust submits that sound resource management principles require a joint consideration of applications where there is more than one consenting authority. In support of that submission he refers to the judgment of Judge D F Shepherd in Affco New Zealand Limited v Far North District Council where his Honour stated that where more than one resource consent is required for a proposal, applications for all consents should be made at about the same time noting the value of integrated decision making and the utility of assessing together the

[47] However, as Mr Rendall for Mr Fleming notes, Affco New Zealand Limited related to the bundling of multiple land use consents being made. It is a very different factual situation from that which confronts this Court.

[48] Mr Cooney for the Regional Council submits that s 91 only applies to when a decision to notify or not notify has been made. When the decision has been made

_{not to notify s 91 is not engaged. In the present case the Regional
Council made the}

¹⁰The application to the Regional Council was made on 17 December 2012; the application to the

decision not to notify and thus s 91 is not engaged.¹²The Regional Council’s consent officer said that joint applications are relatively uncommon, commenting that:

and district consents ... [to be] sought separately at different points in time.

[49] It is plain from the evidence that Mr Fleming wanted to apply for the consents separately. The consent officer said he communicated with Mr Fleming who was aware that he needed separate consents from the RDC for the works but wished to first address the Regional Council consents before undertaking the RDC consent process.

[50] There is nothing in the RMA which requires the applicant to bring the consents at the same time thus triggering s 102. Furthermore, s 91 may not be used to bring it into play where a decision not to notify has been made. For these reasons I am not satisfied that the Burnie family has established that there is a real contest and a reasonable possibility of success in this argument. I am thus not satisfied it is necessary to restrain any steps taken by the Regional Council and the RDC in respect of the RDC application.

[51] In any event if the Burnie Trust is successful in its judicial review then both consent applications could be heard together which would mean that while there would be some inconvenience associated with re-hearing the RDC application, the inconvenience would not be substantial.

[52] Further there is no evidence that the landfill could, in any event, begin operation prior to the substantive hearing. Given the indications of when this Court can hear the judicial review proceedings the delay is minimal and measured in a few

[53] I am not satisfied the applicants have established that there is a serious issue in contest in relation to the relief sought. I do not regard it as necessary to consider the remaining grounds for review as their success does not relate to the relief sought.

[55] Costs are awarded in favour of the second respondent on a 2B basis with disbursements as fixed by the Registrar.

High Court of New Zealand Decisions

Burnie Family Trust v Bay of Plenty Regional Council [2014] NZHC 2807; (2014) 18 ELRNZ 59; [2015] 2 NZLR 541 (12 November 2014)