Wellington City Council v Aitchison [2016] NZHC 167 (16 February 2016)

Last Updated: 9 March 2016

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2015-485-752 [2016] NZHC 167

BETWEEN	WELLINGTON CITY COUNCIL Appellant
AND	PETER AITCHISON AND SYLVIA AITCHISON Respondents

Hearing:	5 February 2016
Counsel:	K M Anderson and K E Krumdieck for Appellant M J Slyfield for Respondents
Judgment:	16 February 2016

_{JUDGMENT OF ELLIS J}

_{I direct that the delivery time of this judgment is}

_{9.30 am on the 16}^th _{day of February 2016}

WELLINGTON CITY COUNCIL v AITCHISON [2016] NZHC 167 [16 February 2016]

[1] Mr and Mrs Aitchison and Walmsley Enterprises Limited (WEL) have been embroiled in what loosely may be termed a fencing dispute. The dispute has received considerable media coverage and has been the subject of two recent Environment Court decisions.¹ This judgment concerns a procedural point about the role of the Wellington City Council (the Council) in the appeal by WEL against the earlier of them. Although technical in nature the point is of some moment to both

the Council and the Aitchisons.

Background

[2] In 2011 WEL built a 1.8 metre high fence on the boundary between its property in Roseneath and the property belonging to the Aitchisons. The Aitchisons say the fence had “gross adverse effects” on their apartment. Following failed negotiations the Aitchisons issued proceedings under the Fencing Act 1978 but before these went to trial WEL removed the fence.

[3] But in 2014 WEL built another structure on the same boundary which was termed a “children’s play facility”. The structure was large and, at least from the Aitchisons’ side, very ugly. It completely obscured what had previously been their commanding views over Wellington harbour. The fort had been built without a resource consent and on a non-notified basis because the Council was of the view that it complied with the rules about building recession planes in the District Plan.

[4] The Aitchisons applied to the Environment Court for declarations about the proper interpretation of the relevant part of the District Plan. They contended that the Plan did not permit the structure which had been erected by WEL. The Council was named as the first respondent and took an active role in opposing the declarations sought. WEL was named as an “interested party”. Mr David Walmsley appeared in person on his company’s behalf.

[5] On 17 September 2015 the Environment Court issued a decision granting the declarations sought by the Aitchisons.² On 8 October 2015 WEL filed an appeal in

¹ _{Those decisions will be discussed later in this judgment.}

² Aitchison v Wellington City Council [2015] NZEnvC 163.

this Court in accordance with pt 11 of the Resource Management Act 1991 (the

RMA).³ A chronology of what then occurred is as follows: (a) on 21 October 2015 the Aitchisons filed:

(i) a notice of intention to appear and be heard on the appeal under s 301 of the RMA;

(ii) an application to strike out WEL’s appeal;

(b) on the same day the Council also filed a notice of intention to appear and be heard on the appeal under s 301;

(c) on 29 October the Council filed a memorandum which stated:

3. Wellington City Council ... was heavily involved in the development of the District Plan and is responsible for its on-going administration and enforcement. It is participating in the appeal so that the Court is aware of the Council’s views on the District Plan interpretation issues arising. In that regard, the Council’s position is that the relevant provisions should be interpreted in the manner advanced by the Council in the Environment Court proceedings that are the subject of the appeal.

...

5. For its part, the Council abides the Court’s decision on the strike out application. If the strike-out application is unsuccessful, the Council will participate in the substantive hearing on the basis outlined above.

(d) for reasons that are not presently material, on 4 November the Aitchisons advised that they would not pursue their strike out application;

(e) a one day fixture on 29 February 2015, for the substantive appeal, was allocated;

(f) on 13 November 2015 the Walmsleys filed an amended notice of appeal;

(g) on 18 November 2015:

(i) the Aitchisons and the Council applied to the Environment

Court for enforcement orders (discussed further below); and

(ii) the Council advised the parties that it intended to file a notice under s 305 of the RMA;

(h) in accordance with that advice, on 24 November 2015 the Council filed a document entitled “Notice of appeal on other questions of law” under s 305;

(i) a timetable for filing submissions was directed on 16 December 2015.

[6] As noted above, on 18 November applications were made by the Aitchisons and the Council to the Environment Court for enforcement orders against WEL and Mr and Mrs Walmsley under s 17 and pt 12 of the RMA. Section 17 imposes a duty on all persons to “avoid, remedy, or mitigate any adverse effect on the environment” of any activity carried on by them or on their behalf, regardless of whether it complies with the relevant law, standard, consent or designation. While breach of that duty creates no direct liability it may be indirectly enforced by orders made under pt 12 which can (inter alia) require a person to take steps to avoid remedy or mitigate any actual or likely effect on the environment that he or she has caused.

[7] On 22 January enforcement orders were made by the Environment Court effectively requiring the Walmsleys to remove all offending parts of the play structure/fence.⁴ The factors noted by the Court as favouring the orders were:

(a) the extreme nature of the adverse effects caused by the structure which was said to be grossly offensive and objectionable;

(b) the artificiality of the play structure, given:

(i) the history of earlier fences built there by the Walmsleys; and

(ii) its location on a property where “the Walmsleys do not live to provide for children who do not live there either”;⁵

(iii) the acknowledgement by their architect that the play structure was a contrivance;

(c) the refusal of the Walmsleys to consider avoiding, remedying or mitigating the adverse effects on the Aitchisons; and

(d) (less determinatively) the need that had been signalled by a Council committee in 2009 for a review of the relevant provisions in the District Plan and the fact that that review had not yet occurred.

[8] The effect of the enforcement order decision is that the Walmsleys were required to demolish the offending structure. I was advised that they are complying with the order.

[9] As I understand it, another similar application by the Aitchisons which sought an order prohibiting WEL from undertaking a similar construction in future was not determined by the Environment Court and remains pending.

[10] On 29 January 2016 WEL filed a notice discontinuing its appeal.

[11] As far as the Aitchisons are concerned, the discontinuance and the enforcement orders mean that the matter is resolved. But the Council’s position is that it still wishes to pursue its own appeal from the Environment Court decision in order to obtain clarity from this Court as to the proper interpretation of the District Plan. Whether it may do so is the subject of the remainder of this judgment.

The statutory provisions

[12] It is useful to set out the relevant parts of pt 11 of the RMA in full:

299 Appeal to High Court on question of law

(1) 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.

(2) The appeal must be made in accordance with the High Court Rules, except to any extent that those rules are inconsistent with sections

300 to 307.

300 Notice of appeal

(1) An appellant shall file a notice of appeal within 15 working days after the date on which the appellant is notified of the Environment Court’s decision or report and recommendation.

(2) The appeal shall be filed with the Registrar of the High Court.

(3) Within the time specified in subsection (1) the appellant shall serve a copy of the notice on the authority whose decision was the subject of the Environment Court’s decision or report and recommendation.

(4) Before or within 5 working days after the appeal is filed the appellant shall serve a copy of the notice on—

(a) every other party to the proceedings or any person who appeared before the Environment Court; and

(b) the Registrar of the Environment Court. (5) The notice of appeal shall specify—

(a) the decision or report and recommendation, or part of the decision or report and recommendation, appealed against; and

(b) the error of law alleged by the appellant; and

(c) the question of law to be resolved; and

(d) the grounds of appeal with sufficient particularity for the court and other parties to understand them; and

(e) the relief sought.

(6) The Registrar of the Environment Court shall send a copy of the whole of the decision appealed against to the Registrar of the High Court as soon as reasonably practicable after receiving the notice of appeal.

301 Right to appear and be heard on appeal

(1) A party to any proceedings or any person who appeared before the Environment Court, who wishes to appear on an appeal to the High Court shall give notice of intention to appear to—

(a) the appellant; and

(b) the Registrar of the High Court; and

(c) the Registrar of the court; and

(d) when the decision or report and recommendation was made by the court after an appeal to it, the authority whose decision was appealed.

(2) The notice to appear under subsection (1) shall be served within 10 working days after the party was served with the notice of appeal.

302 Parties to the appeal before the High Court

(1) The parties to an appeal before the High Court are the appellant and any person who gives notice of intention to appear under section

301.

(2) The Registrar of the High Court shall ensure that the parties to an appeal before the High Court are served with—

(a) every document which is filed or lodged with the Registrar of the High Court which relates to the appeal; and

(b) notice of the date set down for hearing the appeal.

303 Orders of the High Court

(1) The High Court may, on application to it or on its own motion, make an order directing the Environment Court to lodge with the Registrar of the High Court any or all of the following things:

(a) anything in the possession of the court:

(b) a report recording, in respect of any matter or issue the High Court may specify, any of the findings of fact of the court which are not set out in its decision or report and recommendation:

(c) a report setting out, so far as is reasonably practicable and in respect of any issue or matter the order may specify, any reasons or considerations to which the court had regard but which are not set out in its decision or report and recommendation.

(2) An application under subsection (1) shall be made—

(a) in the case of the appellant, within 20 working days after the date on which the notice of appeal is lodged; or

(b) in the case of any other party to the appeal, within

20 working days after the date of the service on him or her of a copy of the notice of appeal.

(3) The High Court may make an order under subsection (1) only if it is satisfied that a proper determination of a question of law so requires; and the order may be made subject to such conditions as the High Court thinks fit.

304 Dismissal of appeal

The High Court may dismiss an appeal if—

(a) the appellant does not appear at the hearing of the appeal; or

(b) the appellant does not proceed with the appeal with due diligence and another party applies to the court to dismiss the appeal.

305 Additional appeals on questions of law

(1) When a party to an appeal other than the appellant wishes to contend that the decision or report and recommendation of the Environment Court is in error on other questions of law, that party may lodge a notice to that effect with the Registrar of the High Court.

(2) The notice under subsection (1) shall be lodged within 20 working days of the date on which the respondent is served with a copy of the notice of appeal.

(3) Sections 299, 300(3) and (4), 303, and 304 apply to a notice lodged under subsection (1) with all necessary modifications.

306 Extension of time

On the application of a party to an appeal, the High Court may extend any period of time stated in sections 299 to 301, 303, and

305.

307 Date of hearing

When a party to an appeal notifies the Registrar of the High Court—

(a) that the notice of appeal has been served on all parties to the proceedings; and

(b) either—

(i) that no application has been lodged under section

303; or

(ii) that any application lodged under section 303 has been complied with—

the appeal is ready for hearing and the Registrar shall arrange a hearing date as soon as practicable.

Preliminary comment

[13] Counsel were agreed that if the Council is able to pursue the matter and is ultimately successful in this Court the position would be that:

(a) the enforcement order requiring demolition of the play structure would remain valid and in force (and indeed would already presumably have been complied with);

(b) the Aitchisons (and/or the Council) could reactivate their Environment Court application for a further enforcement order aimed at preventing WEL building similar structures in future; but

(c) in the absence of such an order, WEL could conceivably build another structure that complied with the Council’s interpretation (as confirmed by this Court) and was offensive to the Aitchisons.

[14] It is important to record that counsel were also agreed that the resolution of the present and particular issue between WEL and the Aitchisons did not mean that the issue raised by their appeal was moot. That is because the Council was the respondent in the Environment Court proceeding and could, of course, have filed its own appeal in the first instance. Moreover, it is accepted that the proper interpretation of the District Plan is of ongoing practical and legal concern for the Council.

[15] But Mr Slyfield nonetheless submitted that permitting the Council to continue would mean that although the existing dispute between the Aitchisons and WEL was at an end, the Aitchisons would still be required to participate in the appeal to defend the Environment Court decision in order to protect their future position. He said that if the Council is permitted to continue and succeeds in the appeal, WEL may yet rebuild another similar structure. That concern is not fanciful, given the history of the matter.

[16] The reasons that the Aitchisons do not wish to continue defending an appeal are obvious and need not be articulated here. Accordingly they said that the

Council’s role was only ever to coat-tail on WEL’s appeal. WEL’s abandonment means that the Council no longer has standing; the appeal is now at an end and the hearing on 29 February must be vacated.

[17] Ms Anderson for the Council maintained that the Aitchisons had other options. If they chose, for reasons of cost, not to be heard in the appeal, any difficulty posed by the absence of a contradictor could be addressed by the appointment of counsel to assist. She very reasonably acknowledged that any such appointment would probably be at the Council’s expense. Moreover she said that the Aitchisons could reactivate their application for the third enforcement order. If granted, such an order would afford them some future protection.

[18] Against this background I turn now to address the critical issue, namely the status of the Council in this appeal.

Discussion

[19] Notwithstanding Mr Slyfield’s clear and engaging submissions, in the end I consider that the Council must be able to continue with the appeal, for the reasons that follow.

[20] First, I agree entirely that had the Council only filed a notice of intention to appear under s 301, its rights in relation to the appeal would cease upon its abandonment by WEL. But it seems to me that the additional step of filing a notice under s 305 signals a change in status and an intention to take an independent and more substantive position.

[21] In that respect I agree with Ms Anderson that filing a s 305 notice can usefully be regarded as being akin to filing a cross-appeal under r 20.11 of the High Court Rules. Its status and effect as a cross-appeal is in my view confirmed by:

(a) the wording used in the section heading (additional appeals on questions of law);⁶

⁶ Interpretation Act 1999 s 5(2) and (3).

(b) the fact that filing such a notice is predicated upon a party (namely a person who has filed a notice of intention to appear) wishing to contend that the Environment Court decision is in error on some other questions of law;

(c) the express incorporation in s 305(3) of ss 299, 300(3), 303 and 304, all of which relate to the way in which s 299 appeals are brought and dealt with; and

(d) the incorporation of the relevant High Court Rules in s 299.

[22] Mr Slyfield’s principal submission against the above was that s 305(3) does not incorporate s 300(5) which requires a notice of appeal not only to identify the question of law to be resolved and the grounds of appeal but also the relief that is sought by an appellant. He said that it can be inferred that the omission of a requirement that a s 305 notice specify relief means that such a notice is not intended to give rise to any independent substantive remedy.

[23] Specifying the relief sought is a requisite component of not only a notice appeal under s 300 but also the equivalent High Court Rules dealing with appeals and cross-appeals (rr 20.9(1) and 20.11(3)). Arguably, however, those rules are themselves at least indirectly applicable by virtue of the fact that s 305(3) incorporates s 299 which, in turn, provides that an appeal must be made in accordance with the High Court Rules. Moreover, it is difficult to see why it would be necessary for s 305(3) to apply s 304 (which empowers the Court to dismiss an appeal if an appellant does not appear at the hearing or prosecute the appeal with due diligence) if the filing of a s 305 notice was intended to have no substantive and independent effect.

[24] The fact that the s 300(5) requirements are not incorporated into s 305 is not

therefore sufficient to tip the balance in the Aitchisons’ favour.

[25] If I am correct in regarding the filing of a notice under s 305 as either constituting, or being analogous to, a cross-appeal, then it follows that the

Walmsleys’ discontinuance does not mean that the Council is unable to pursue the matter. That that is so appears to be quite clear from r 20.11 and the commentary to it.

[26] At this point I acknowledge the submission that the Council in its early correspondence may have signalled a more passive approach. Again, however, I cannot regard that as determinative. While the Aitchisons are obviously disappointed by the Council’s apparent change in stance they are not disadvantaged by it in any legally relevant way. More particularly this is not a case where they have relied to their detriment on the Council’s earlier advised position; it seems to me that there was nothing they could or would have done differently had the Council simply filed an appeal under s 299 at the outset.

[27] And lastly, even if I am wrong in the above analysis it would remain open to the Council to apply to the Court for an extension of time under s 306 for bringing a s 299 appeal. Although Mr Slyfield submitted that the factors that ordinarily fall to be considered in determining such an application would militate against the granting of an extension, I am unable to agree. The Council has a legitimate interest in the issues raised by the appeal and there is necessarily a wider public interest in the proper interpretation of the District Plan. The Council took all the appropriate and necessary statutory steps to enable its position to be advanced and dealt with in the context of WEL’s appeal. The change in circumstances wrought by WEL’s discontinuance of it was not of the Council’s making or within its control. Although I appreciate entirely the invidious position the Aitchisons find themselves in, the interests of justice would appear to me to favour an extension of time, if that were necessary.

Conclusions

[28] In summary I consider that:

(a) by filing a notice under s 305 of the RMA in the context of the Walmsleys’ appeal the Council assumed the position of a cross- appellant;

(b) the Council’s appeal remains extant notwithstanding the Walmsleys’

discontinuance of their appeal;

(c) the Aitchisons will need to consider whether they wish to be heard in

the Council’s appeal; and

(d) if they do not then in all likelihood it will be necessary to appoint counsel to assist.

[29] In light of the need for the Aitchisons to have time to consider their position and the real possibility that an amicus will be appointed and will require time to get up to speed, I consider that the hearing scheduled for 29 February cannot now fairly proceed. The urgency which led to the allocation of that fixture has been diminished considerably by the enforcement orders made against the Walmsleys. Accordingly I direct that:

(a) the fixture on 29 February is vacated;

(b) within 10 working days the Aitchisons are to file a memorandum advising whether they wish to be heard in the Council’s appeal;

(c) following receipt of that advice there is to be a telephone conference with me with a view to allocating a new fixture and making any other necessary directions.

[30] Leave is reserved should counsel require further assistance or clarification in the meantime.

[31] My own view is that any costs relating to the matter discussed in this judgment should lie where they fall. But if counsel have a different view that may be raised at the next telephone conference.

“Rebecca Ellis J”

Solicitors: DLA Piper, Auckland, for Appellant

Brookfields Lawyers, Wellington, for Respondents