Te Runanga a Iwi O Ngati Kahu v Far North District Council

IN THE SUPREME COURT OF NEW ZEALAND

SC 66/2013
[2013] NZSC 134

BETWEEN

TE RŪNANGA-Ā-IWI O NGĀTI KAHU
Applicant

AND

FAR NORTH DISTRICT COUNCIL
First Respondent

CARRINGTON FARMS LIMITED
Second Respondent

CARRINGTON ESTATE LIMITED
Third Respondent

CARRINGTON RESORT LIMITED
Fourth Respondent

Court:	McGrath, Glazebrook and Arnold JJ
Counsel:	J D K Gardner-Hopkins and D J Minhinnick for Applicant M E Casey QC for First Respondent R B Brabant, I M Gault and A M Glenie for Second, Third and Fourth Respondents
Judgment:	2 December 2013

JUDGMENT OF THE COURT

A.Leave to appeal is granted.
B.The approved grounds of appeal are:
(a)In relation to the land use consent application:
(i)Whether or not “special circumstances” existed such that the Far North District Council had discretion in terms of s 94C(2) of the Resource Management Act 1991 to notify the application for the land use consent;
(ii)Whether or not the authority made a reviewable error in exercising that discretion; and
(iii)What degree of scrutiny is appropriate when reviewing non-notification decisions.

(b)In relation to the subdivision consent application, whether or not the unimplemented land use consent should have been taken into account, when determining the application for the subdivision consent, as part of:
(i)The “environment” under s 104(1) of the Resource Management Act 1991; or
(ii)The permitted baseline under s 104(2).

(c)Whether the Court of Appeal’s interpretation of the settlement agreement was correct.

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REASONS

The Court wishes the parties to address in their submissions the question of the sequencing of the land use and the subdivision applications.

Solicitors:
Russell McVeagh, Wellington for Applicant
Law North Limited, Kerikeri for First Respondent
Bell Gully, Auckland for Second, Third and Fourth Respondents

CaseChat Overview and Summary

Te Runanga-ā-Iwi o Ngāti Kahu appealed against a decision of the Court of Appeal that had dismissed their appeal against a decision of the Far North District Council. The council had declined to notify a land use consent application for a subdivision of land owned by Carrington Farms Limited. Ngāti Kahu claimed that the council should have notified them of the application and that the council's decision not to notify was reviewable. The case raised issues concerning the interpretation of the Resource Management Act 1991 and the sequencing of the land use and subdivision applications. The Supreme Court was tasked with determining whether special circumstances existed that would allow the council to exercise its discretion under section 94C(2) of the Act, whether the council made a reviewable error in exercising that discretion, and the degree of scrutiny appropriate when reviewing non-notification decisions. Additionally, the court needed to determine whether the unimplemented land use consent should have been considered when deciding the subdivision consent application, and whether the Court of Appeal had correctly interpreted the settlement agreement.

The Supreme Court found that the council did not have discretion to decide whether or not to notify the application for the land use consent, as the criteria set out in section 94C(2) of the Act were not met. The court also held that the council's decision not to notify was not reviewable. Regarding the sequencing of the applications, the court held that the land use consent application should have been considered before the subdivision consent application. The court found that the Court of Appeal had correctly interpreted the settlement agreement. Therefore, the Supreme Court allowed the appeal and remitted the matter to the council for reconsideration.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established