Port Otago Limited v Environmental Defence Society Incorporated

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA240/2020
[2020] NZCA 246

BETWEEN	PORT OTAGO LIMITED Applicant
AND	ENVIRONMENTAL DEFENCE SOCIETY INCORPORATED First Respondent OTAGO REGIONAL COUNCIL Second Respondent ROYAL FOREST AND BIRD PROTECTION SOCIETY OF NEW ZEALAND INCORPORATED Third Respondent MARLBOROUGH DISTRICT COUNCIL Fourth Respondent

Court:	Cooper and Brown JJ
Counsel:	L A Anderson QC for Applicant D A Allan and M C Wright for First Respondent A J Logan for Second Respondent P D Anderson and W Jennings for Third Respondent J W Maassen and B Mead for Fourth Respondent
Judgment: (On the papers)	23 June 2020 at 10.30 am

JUDGMENT OF THE COURT

The application for leave to appeal is granted on the following question of law:
Did the High Court misapply the Supreme Court’s decision in Environment Defence Society Inc v New Zealand King Salmon Co Ltd?[1]
[1]Environment Defence Society Inc v New Zealand King Salmon Co Ltd [2014] NZSC 38, [2014] 1 NZLR 593.

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Solicitors:
McMillan & Co, Dunedin for Applicant
Ellis Gould, Auckland for First Respondent
Ross Dowling Marquet Griffin, Dunedin for Second Respondent

CaseChat Overview and Summary

Port Otago Limited applied to the Court of Appeal of New Zealand for leave to appeal against a decision of the High Court which had found that Port Otago Limited's discharge of dredged material into the Port of Dunedin was unlawful. The Environmental Defence Society Incorporated opposed the application, and the Otago Regional Council and the Royal Forest and Bird Protection Society of New Zealand Incorporated intervened. The Court of Appeal was required to decide whether it should grant Port Otago Limited leave to appeal against the High Court's decision. The Court of Appeal held that the High Court had misapplied the Supreme Court’s decision in Environment Defence Society Inc v New Zealand King Salmon Co Ltd and that the question of law raised by Port Otago Limited was arguable. Therefore, the Court of Appeal granted Port Otago Limited leave to appeal.

In granting leave to appeal, the Court of Appeal noted that the High Court had incorrectly applied the Supreme Court’s decision in Environment Defence Society Inc v New Zealand King Salmon Co Ltd by failing to consider the specific circumstances of the case. The Court of Appeal held that the High Court had applied a general rule, rather than considering the specific facts and circumstances of the case. The Court of Appeal held that the High Court's approach was incorrect and that the question of law raised by Port Otago Limited was arguable. The Court of Appeal therefore granted Port Otago Limited leave to appeal.

The Court of Appeal made no orders as to costs.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established