IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV Appellant. MANUKAU CITY COUNCIL Respondent

Transcription

1 IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV UNDER IN THE MATTER OF BETWEEN AND the Resource Management Act 1991 ("the Act") of an appeal brought pursuant to s 299 of the Act CASH FOR SCRAPS Appellant MANUKAU CITY COUNCIL Respondent Hearing: 3 August 2006 Appearances: A D Banbrook for Appellant M J Dickey for Respondent (MCC) D G Johnstone (ARC) Judgment: 18 September 2006 at 3:30 pm RESERVED JUDGMENT OF COURTNEY J APPLICATION FOR LEAVE TO ADDUCE FURTHER EVIDENCE This judgment was delivered by Justice Courtney on 18 September 2006 at 3:30 pm pursuant to Rule 540(4) of the High Court Rules Registrar/Deputy Registrar.. 18 September 2006 Solicitors: Counsel: Brookfields, P O Box 240, Auckland Fax: (09) M J Dicke C K Lyon, P O Box , Newmarket Fax: (09) A D Banbrook, P O Box 3600, Auckland Fax: (09) CASH FOR SCRAPS V MANUKAU CITY COUNCIL HC AK CIV September 2006

2 AND IN THE MATTER of an application to change or cancel interim and final enforcement orders under s 321 of the Act BETWEEN AND CASH FOR SCRAP LIMITED Appellant AUCKLAND REGIONAL COUNCIL Respondent AND IN THE MATTER of an application under s 315 of the Act BETWEEN AND WILLIAM VICTOR CONWAY, CAROL MARGARET DOWN, CASH FOR SCRAP LIMITED and MILLINEUM INVESTMENTS LIMITED Appellants AUCKLAND REGIONAL COUNCIL Respondent

3 Introduction [1] Cash for Scrap Limited (CFS), William Conway, Carol Margaret Down and Millenium Investments Ltd have appealed from a decision of the Environment Court 6 December They now apply for leave to adduce further evidence on the appeal. [2] CFS occupies adjoining sites at 11 and 13 Bairds Road, Otara on which it operates a scrap metal business. The business was started by Mr Conway in 1994 at 11 Bairds Road. Although no longer a director or shareholder of CFS, Mr Conway is still closely associated with the business. His partner, Ms Down is the sole shareholder and director of CFS Ltd. She is also the sole director of Millineum, which now owns 11 Bairds Road and is the lessee of 13 Bairds Road. [3] For some years the Manukau City Council (MCC) and the Auckland Regional Council (ARC) have been concerned about issues of water and soil contamination arising from the operation. In December 2002 the Environment Court ordered that the scrap metal business (then operating at 11 Bairds Road only) cease operating. In December 2005 the Environment Court determined that CFS had neither permitted nor existing use rights in respect of the sites. It confirmed the earlier enforcement orders for remediation work and granted the ARC enabling orders to undertake the necessary work. [4] In relation to the Environment Court s findings as to existing/permitted uses the grounds of appeal are that the Environment Court erred in : a) Construing the MCC s second reviewed District Scheme [General Ordinances] so as to find that failure to comply with the performance controls imposed by R rendered the otherwise permitted use of 11 Bairds Rd as a scrap metal yard unlawful; b) Wrongly applying the test under s 10(1)(a)(ii) Resource Management Act 1991 (RMA) relating to the character, nature and intensity of the

4 operation by considering 11 and 13 Bairds Rd together rather than separately; c) Wrongly finding that the operation at 13 Bairds Rd was not a permitted use in light of the previous use of the site as a timber yard. This ground of appeal is not entirely clear from the Amended Notice of Appeal but it refers specifically to [90] of the decision. The only reason given at that paragraph is the failure of CFS tocomply with the development controls in Rule I have therefore treated this ground of appeal as being the same (but in relation to 13 Bairds Rd) as the first ground of appeal discussed above i.e. whether failure to comply with the performance controls imposed by R affects the otherwise permitted status of an activity; [5] In relation to the enforcement orders, the grounds of appeal are that the Environment Court erred in: a) Making order 3, that burning of wastes should cease, when there was no evidence that waste had been burnt; b) Making orders 5 & 6, requiring remediation orders, when the remediation work had already been completed. [6] In relation to the enabling orders, that the Environment Court erred in making them because the remediation work had already been completed. Principles applicable to application for leave to adduce further evidence on appeal [7] CFS seeks leave to adduce the following evidence: Affidavit of Azad Ahmed Sheikh affirmed 15 February 2006

5 Affidavit of Brian Arthur Jacobson sworn 21 July 2006 to which is annexed a letter from the ARC to a Mr Mark Sandstad 5 July [8] An appeal undser s 299 RMA is limited to appeals on a point of law. The appellants rely on the inherent jurisdiction of the Court, it being established that r 716 High Court Rules, which provides for the adducing of further evidence on an appeal, does not confer that power in relation to appeals on a point of law. However, special circumstances would have to exist to justify the Court exercising its inherent jurisdiction to allow further evidence: Schier v Removal Review Authority (1998) 12 PRNZ 477 (CA); Terrace Tower (NZ) Pty Limited v Queenstown Lakes District Council [2001] 2 NZLR 388. Mr Sheikh s evidence [9] Prior to 1993, 11 Bairds Road was occupied by Mobil Oil Limited, on which it had operated the Glade Service Station. In March 1993 Best & Less Service Station Limited (of which Mr Sheikh was a director) took over the lease. Mr Sheikh s proposed evidence is that: Best & Less Service Station Limited took over the lease in March 1993 It operated a service station business which included retail sales of petrol, oil and motor vehicle accessories together with a workshop that carried out vehicle repairs, warrant of fitness work and sale of motor vehicle tyres The business had five employees, three in the retail section and two in the workshop In October 1993 Best & Less Service Station Limited took over the lease of another Mobil service station in Mangere. It moved out of the Glade Service Station in February 1994

6 After Best & Less Service Station Limited moved out Mobil continued to operate the service station for a period (unspecified) before it was closed down. [10] The purpose of this evidence is to show that the service station operated continuously throughout 1993 and into Sections 10 and 20A RMA confer existing use rights in certain circumstances. CFS maintains that it had acquired such rights in relation 11 Bairds Rd because of the previous use of the site as a service station. However, the Environment Court rejected this, partly because it found that the service station had ceased operating on the site more than six months before CFS was established. [11] In relation to the discharge of contaminants the Environment Court doubted that s 20A applied to CFS at all but then went on to say: [68] However, even if we are wrong about that, the terms of s 20A require that the activity (discharging contaminants into land) was lawfully established in the first place, and CFS has not shown this. CFS could not rely in the service station use, as this had been discontinued for more than six months, and if Mr Conway was correct that car bodies were received on to the site from the start of his occupation in 1994, then discharges to land will in all probability have been occurring unlawfully since then i.e. in contravention of s 15 RMA and of the ALW notified in [69] It is not enough to say, as Mr Jacobson seemed to think, that because some industrial use had previously been present on the site then there will be existing use rights. The focus under s 20A has to be on a particular activity that requires resource consent under the Regional Plan, and in this case it is the activity of discharging contaminated stormwater from an industrial site [12] In respect of the land use the Court said: [72] Under subs (2), existing use rights are lost if the use is discontinued for a period of twelve months. The evidence of Mr Jacobson was that the service station had closed in 1989 (it will be recalled that this was when Mobil resumed ownership, according to the certificate of title). On this basis, no existing use rights could flow to CFS from the prior use. Certainly, the onus is on CFS to prove otherwise. [13] Mr Banbrook submitted that the Environment Court s findings in relation to previous uses of the site were based on a statement from a witness, Brian Jacobson, to the effect that in 1989 Mobil had re-purchased the service station site at 11 Bairds Road with a view to closure. The Environment Court inferred from that statement

7 that the industrial use of the site for a service station had been discontinued for a period of more than six months prior to Mr Conway taking over in However, he said that this would be refuted by Mr Sheikh s evidence, which is clearly to the effect that the service station was still being operated as late as February [14] The MCC accepted that Mr Sheikh s evidence would confirm that there was no gap between the previous service station business and Mr Conway s scrap metal business. However, Ms Dickey submitted that, notwithstanding the continuity of these uses, CFS would still have failed to prove that the use of 11 Bairds Road as a service station had been lawfully established. Further, even if the service station had been lawfully established, that fact would not affect the Environment Court s finding at [83] that the second limb of the s 10 test was not satisfied because any existing use rights would have been lost by the end of 2002 as a result of the increase in intensity and scale of the use of 11 Bairds Road: [82] When one looks at the intensity and scale of the scrap metal yard as a whole, we are again satisfied that the effects are dissimilar [83] While Mr Banbrook encouraged us to look at the existing use rights of #11 and #13 separately we consider that this is unrealistic, but even if we did it would not help his clients. CFS did not occupy #13 until 2003 and by then the effects of the operation at #11 were producing complaints and were dissimilar in intensity and scale, and possibly also in character to those in Existing use rights at #11, had they ever existed, were lost by [15] Mr Sheikh s evidence would certainly put in doubt the Environment Court s conclusion that the service station had been closed in However, this would not be a sufficiently special circumstance to warrant allowing further evidence to be adduced. The Court did consider, hypothetically, what the position would have been had existing use rights been established through the existence of the service station and it is clear that, even if it had been shown that the service station had been in continuous use, the position would not have been different: [69] It is not enough to say, as Mr Jacobson seemed to think, that because some industrial use had previously been present on the site then there would be existing use rights. The focus under s 20 has to be on the particular activity that requires resource consent under the Regional Plan, and in this case it is the activity of discharging contaminated storm water from an industrial site. There is plenty of evidence of likely contamination of storm water during CFS s occupation, and no evidence at all of any caused by the service station. It follows that CFS had no inherited existing use rights, and

8 because s 15 RMA was in force before CFS occupied the site, the relevant activity was never lawfully established in terms of s 20A. [70] Section 20A also requires that the effects of the activity are the same or similar in character, intensity and scale to the effects that existed before the rule was notified or became operative. For the same reasons as are given below relating to land use, this has not been established [16] It is clear from the decision that, even if the scrap metal yard had been lawfully established by way of existing use rights as a result of the service station operating continuously, any such rights would have been lost by the end of 2002 because of the increase in intensity and scale since 1994: [81] We are quite satisfied that the effects, since at least 2001, have not been of the same of similar intensity and scale, and this is with reference only to car bodies. [82] When one turns to look at the intensity and scale of the scrap metal yard as a whole we are again satisfied that the effects are dissimilar. [83]...Existing use rights, of #11, had they ever existed, were lost by [17] Up to this point I therefore agree with Ms Dickey that Mr Sheikh s evidence could not make any difference to the outcome, given the Environment Court s view that, even if established, existing use rights would have subsequently been lost. However, CFS s amended Notice of Appeal includes a challenge to the Environment Court s finding regarding the scale and intensity of use. However, in my decision on the application by MCC and ARC delivered at the same time as this decision, I have struck out that ground of appeal. [18] It follows that, even if Mr Sheikh s evidence had been before the Court, the outcome would still have been the same, namely a failure to prove an existing use. I therefore find that this evidence is not material to an issue in the appeal. [19] The MCC also objected to Mr Sheikh s evidence on the ground that it was not fresh and could have been found with reasonable diligence before the hearing. The hearing in the Environment Court was held in November Mr Sheikh s evidence was obtained in February 2006 but not filed, nor, apparently, provided to the respondents until July 2006.

9 [20] Mr Jacobson, a witness for CFS, gave an affidavit describing the circumstances in which he claimed to obtain Mr Sheikh s evidence. He says that he made enquiries specifically to investigate the history of uses at 11 Bairds Road and these included enquiries of Mobil Oil and of the property consulting firm CB Richard Ellis Limited, which had managed properties on behalf of Mobil Oil. However, it appeared that records relating to 11 Bairds Road had been archived and could not practically be located. After the decision of the Environment Court had been delivered in December 2005 Mr Jacobson made further enquiries, which led him to Mr Sheikh, who is currently involved in a Mobil service station in Massey Road. Mr Jacobson contacted Mr Sheikh in January [21] I do not accept that Mr Sheikh s evidence is fresh. Within a few weeks of the Environment Court s decision being delivered Mr Jacobson located Mr Sheikh who seemed to have been working in that area throughout the whole period. The irresistible inference is that Mr Sheikh could, with reasonable diligence, have been located prior to the hearing. [22] I therefore find that there are no special circumstances that would justify granting leave to adduce Mr Sheikh s evidence. Mr Jacobson s evidence [23] CFS seeks leave to adduce an affidavit from Mr Jacobson exhibiting a letter written by the ARC in July 2006 in relation to 11 Bairds Road. This letter was addressed to a Mr Mark Sandstad, who is said to be a property developer interested in 11 Bairds Road. [24] The grounds for the application are that the letter came into existence after the Environment Court hearing in November 2005 and contradicts evidence given by ARC officers. It is therefore relevant to the Court s jurisdiction to direct a re-hearing of the Environment Court proceedings under r 718A of the High Court Rules. [25] Mr Banbrook submitted that this evidence is relevant to the Environment Court s refusal to cancel the enforcement orders and to its making of the enabling

10 orders. He said that the Environment Court made these decisions on the basis that there was still remediation work to be carried out in respect of 11 Bairds Road, whereas the letter shows that all remediation work required had been completed in [26] At [109] of its decision the Environment Court said: It is accepted that the remediation work in the vicinity of the stream bank where the large quantity of contaminants had been discharged in1991, was done by the City Council after payment was made by CFS. However, the applicant is vague about its completion of other remediation work required. Mr Banbrook s submissions advised us that such work had been commissioned. After all this time that is simply not good enough. [27] The letter that CFS relies on, which was written by Rebecca Cleghorn, a contaminated sites officer with the ARC, stated: Thank you for your enquiry regarding resource consent No for 11 Bairds Road, Otahuhu. This consent was issued to Millineum Investments Limited on 18 January 2002, to authorise approximately 15 m of works associated with the rehabilitation and stabilisation of a stream bank, in accordance with s 13 of the Resource Management Act 1991 (RMA). The consent expired on 30 April 2002 and the works authorised by the consent have not been carried out by the consent holder at this date. Consequently, and after consultation with the consent holder, the works were carried out by the Auckland Regional Council (ARC) on 26 April Four samples were taken from the excavation area by ARC staff on the day of the works, and only one of those samples showed the presence of any total petroleum hydrocarbons (TPH) in the soil. This minor detection was well below guideline levels for the tier 1 soil acceptance criteria for commercial/industrial land use, and for the protection of public health and ground water quality specified in the guidelines for assessing and managing petroleum hydrocarbon contaminated sites in New Zealand, (Ministry for the Environment, 1999). This means that the works intended and authorised under this consent have been carried out to the satisfaction of the ARC. Please note, however, that any works that have been carried out on the stream bank since 26 April 2004, and any activities that have been carried out at the site which may have had an effect on the area carried by this consent since 26 April 2004 are outside the scope of this letter, and may or may not meet ARC permitted activity status. As discussed, the remainder of the site at 11 Bairds Road has not been fully investigated for soil or ground water contamination and therefore is considered potentially contaminated

11 [28] Mr Banbrook submitted that the thrust of the ARC case in support of the enabling and enforcement orders, was that the site was the subject of ongoing contamination but the only remediation work referred to by the Environment Court was that at [109] which was work in the vicinity of the stream bank, and the letter showed that such work had been completed in If that were the case then there was no evidential basis for making the order and the lack of an evidential basis may be regarded as a question of law: Edwards v Bairstow [1956] AC 14 (HL). [29] Mr Banbrook further said that the ARC had not produced any samples or analysis of stream water at the Environment Court hearing to show that the stream was contaminated. CFS itself had done so and, although these were criticised by the ARC, they showed no contamination. [30] For the ARC, Mr Johnstone, pointed out that the work referred to in Ms Cleghorn s letter related to a particular resource consent granted in respect of 11 Bairds Road. Referring to the interim enforcement orders granted by the Environment Court, Mr Johnstone pointed out that paragraphs 3, 5 and 6 related not only to the stream bank but also to the neighbouring property between the site and the stream. [31] The difficulties I have in accepting CFS s position are: a) I do not have before me any of the evidence adduced in the Environment Court. Mr Jacobson simply asserts that the letter contradicts, in part, evidence given in the Environment Court but is not specific about who gave that evidence or what it was. As a result, I am unable to form a view as to whether the letter does, in fact, contradict evidence given before the Environment Court. b) I cannot conclude that the letter relates to all the remediation work required to be done at the site. To the contrary, the work it refers to appears to be work within a relatively narrow scope i.e. 15 m of works associated with the rehabilitation and stabilisation of the stream bank pursuant to a particular resource consent. In comparison, the

12 Environment Court was dealing with 11 Bairds Road generally and the interim enforcement orders appear, on their face, to cover a much wider area and type of work. c) There is no challenge to the statement at [109] of the decision that Mr Banbrook told the Court that other remediation work required had been commissioned. This submission, made by Mr Banbrook on behalf of CFS, strongly suggests that whatever remediation work had been required as at November 2005, had not yet been completed. This, in turns, undermines the suggestion that the letter 5 July 2006 did relate to the whole of the remediation work required. [32] I conclude that the letter is not material and there are no grounds on which it could properly be adduced as evidence on the appeal. P Courtney J