Royal Forest & Bird Protection Society v Kapiti Coast District Council and Kotuku Parks Limited

IN THE SUPREME COURT OF NEW ZEALAND
SC 29/2009
[2009] NZSC 61
BETWEENROYAL FOREST AND BIRD PROTECTION SOCIETY OF NEW ZEALAND INCORPORATED

Applicant

ANDKAPITI COAST DISTRICT COUNCIL

First Respondent
ANDKOTUKU PARKS LIMITED

Second Respondent

Court:Elias CJ, Blanchard and Wilson JJ
Counsel:T J Castle for Applicant

J S Kós QC for Respondents

Judgment:16 June 2009

JUDGMENT OF THE COURT

The application for leave to appeal is dismissed, with costs of $2,500
to the respondents jointly.

REASONS
[1]       Section 93(1)(b) of the Resource Management Act 1991 provides that public notification of consent applications is not required if the consent authority is satisfied that the adverse effects of the activity on the environment will be minor. Section 94A(c) then requires the consent authority, when considering whether the adverse effects will be minor, to disregard any effect on a person who has given written approval to the application. The Court of Appeal[1] accepted the submission of the applicant that, correctly construed, s 94A(c) prevented consideration of effects personal to the party giving written approval but permitted consideration of wider effects. The Court found however that the first respondent, as the consent authority, had considered the application on that basis.
[1] [2009] NZCA 73.
[2]       Relying on the judgment of this Court in Discount Brands Ltd v Westfield (New Zealand) Ltd,[2] the applicant contends that, in applying its interpretation of s 94A(c), the Court of Appeal erred in law by departing from the requirement that the consent authority be satisfied that the effects which can be considered are not more than minor. It appears to us however that the Court was not intending to lay down any new test when it said that the first respondent’s planners had not ignored the reserve in question or pretended it did not exist. In fact, the judgment describes the consideration the planners gave to the reserve.
[2] [2005] 2 NZLR 597.
[3]       In summary, the applicant won on the point of general principle in the Court of Appeal, but lost in application of that general principle to the facts of the particular case. There is no point of general importance in issue which would justify an appeal to this Court. The Court of Appeal was not clearly in error in finding as it did on the facts and there is therefore no question of miscarriage of justice. The application for leave to appeal is therefore dismissed.
[4]       Because the respondents filed a joint submission through Mr Kós QC, costs should be fixed as if there were a single respondent. The applicant is therefore ordered to pay costs of $2,500 to the respondents jointly.
Solicitors:
Buddle Findlay, Wellington for Applicant
Simpson Grierson, Wellington for First Respondent
Shanahan Law, Wellington for Second Respondent

CaseChat Overview and Summary

The Supreme Court of New Zealand dismissed an application for leave to appeal by the Royal Forest and Bird Protection Society of New Zealand Incorporated against the Kapiti Coast District Council and Kotuku Parks Limited. The applicant, a conservation organisation, sought to challenge the decision of the Court of Appeal that had dismissed its appeal regarding the Council's decision to grant resource consent for the development of a residential property. The applicant argued that the Court of Appeal had misinterpreted a section of the Resource Management Act 1991, which governs environmental consents, in relation to the consideration of environmental effects that were personal to a party who had given written approval to the application.

The legal issues before the Supreme Court concerned the interpretation of section 94A(c) of the Act, which requires the consent authority to disregard any effect on a person who has given written approval to the application when considering whether the adverse effects of the activity on the environment will be minor. The Court of Appeal had held that this section permitted consideration of wider effects, beyond those personal to the party giving written approval. The applicant argued that this interpretation was incorrect, and that the consent authority must be satisfied that the effects which can be considered are not more than minor.

The Supreme Court found that the Court of Appeal had not laid down a new test but had rather described the consideration given by the planners to the reserve in question. The Court held that the applicant had won on the point of general principle in the Court of Appeal but lost in the application of that principle to the facts of the case. The Court of Appeal had not been clearly in error and there was no miscarriage of justice. Therefore, the application for leave to appeal was dismissed. The Supreme Court also ordered that costs of $2,500 be paid jointly by the applicant to the respondents.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established