Faloon v Palmerston North Airport Limited

[2014] NZCA 291

IN THE COURT OF APPEAL OF NEW ZEALAND

CA49/2014
[2014] NZCA 291

BETWEEN	CLARENCE JOHN FALOON Applicant
AND	PALMERSTON NORTH AIRPORT LIMITED Respondent

Hearing:	23 June 2014
Court:	Harrison, Wild and French JJ
Counsel:	Applicant in Person J W Maassen for Respondent
Judgment:	2 July 2014 at 10 am

JUDGMENT OF THE COURT

A        The application for special leave to appeal is dismissed. 

B The applicant must pay the respondent’s costs as for a standard application for leave to appeal on a Band A basis with usual disbursements.

____________________________________________________________________

REASONS OF THE COURT

(Given by Harrison J)

Introduction

1. Clarence Faloon applies for leave to appeal to this Court against the judgment of Joseph Williams J delivered in the High Court (the substantive decision),[1] dismissing Mr Faloon’s appeal against a decision of the Environment Court striking out his application for a declaration under s 311 of the Resource Management Act 1991.  In a subsequent judgment Joseph Williams J dismissed an application by Mr Faloon for leave to appeal to this Court (the leave decision).[2]

Background

[1]Faloon v Palmerston North Airport Ltd [2013] NZHC 2124.

[2]Faloon v Palmerston North Airport Ltd [2013] NZHC 3325.

1. In his leave decision Joseph Williams J succinctly set out the background to Mr Faloon’s applications as follows:[3]

   [4]       Mr Faloon sought a declaration that the respondent was undertaking the diversion of water without the benefit of the required resource consent allowing that diversion.  Initially it was thought that Mr Faloon was challenging the lawfulness of a diversion of the Kawau Stream built by himself and his father in 1977 (the Faloon diversion).  During the hearing, it was discovered that Mr Faloon was instead challenging the lawfulness of an upstream diversion of the Kawau Stream, built in 1958 (the runway diversion).  That diversion travels underneath a runway at Palmerston North airport and spills into the Faloon diversion.  I concluded, for reasons that it is not necessary to detail, that the runway diversion was lawfully constructed.

   [3]Faloon v Palmerston North Airport Ltd, above n 1.

2. The Judge correctly noted that the threshold to be met in allowing a second appeal is high. For these purposes, Mr Faloon was required to establish that there was a question of law involved in the appeal and that it is one by reason of its general or public importance or for any other reason ought to be submitted to this Court for decision. The Judge identified four grounds on which Mr Faloon applied for leave,[4] and then comprehensively addressed and dismissed each of them.[5] 

Decision

[4]At [8].

[5]At [10]–[32].

1. Before us Mr Faloon submitted that the lower courts had made three errors of fact which separately or collectively constituted an error or errors of law, and which satisfied the criteria for special leave to appeal.  The first alleged error was a reference in the Environment Court’s decision dated 1 October 2012 to evidence supplied by the parties.  That decision is not the subject of this appeal, and the Environment Court’s reference is of no consequence now.

2. The second alleged error was made by Joseph Williams J in his substantive decision as follows:[6]

   [7]       Despite solving the drainage issues in the vicinity and making the land suitable for residential subdivision, [Trade Lines Ltd] never built the subdivision Mr Faloon senior had planned.  TLL ran out of money – the residential housing market in Palmerston North at the time being very flat – and the company was ultimately liquidated.  In 1993, the portion of the TLL land containing the Faloon diversion was acquired by [Palmerston North Airport Ltd] under the Public Works Act 1981.The party that subsequently acquired the remaining TLL land from TLL’s liquidator then completed the development in an up-swinging market and did well.

   [6]Faloon v Palmerston North Airport Ltd, above n 2 (emphasis added). 

3. Mr Faloon submits that the highlighted sentence from this passage contains an error of fact.  However, there is no doubt that Palmerston North Airport Ltd (PNAL) acquired a portion of the land.  Whether it was under the Public Works Act 1981 or otherwise is not material to the Environment Court’s decision to refuse to make a declaration that PNAL was undertaking a diversion of water without the benefit of resource consent which it is otherwise required to hold by law.

4. The third alleged error is said to exist in this passage from Joseph Williams J’s leave judgment as follows:

   [22]     Mr Faloon did not produce any evidence during the hearing to support a finding that the runway diversion contravened s 10(1) [of the Manawatu – Orua River District Act 1923].  Leave to appeal on this ground is also refused.

5. This finding, even if it was in error, was made in the leave judgment and could not possibly constitute a question of law requiring this Court’s determination.

Result

1. The application for special leave to appeal is dismissed.  Mr Faloon must pay the respondent’s costs as for a standard application for leave to appeal on a Band A basis with usual disbursements.

Solicitors:
Cooper Rapley, Palmerston North for Respondent