BEFORE THE ENVIRONMENT COURT I MUA I TE KOOTI TAIAO 0 AOTEAROA Decision No. [20181 NZEnvC 52 IN THE MATTER BETWEEN

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1 BEFORE THE ENVIRONMENT COURT I MUA I TE KOOTI TAIAO 0 AOTEAROA Decision No. [20181 NZEnvC 52 IN THE MATTER AND BETWEEN of the Resource Management Act 1991 of an application pursuant to s 149T of the Act QUEENSTOWN AIRPORT CORPORATION LIMITED (ENV-2011-WLG-41 ) Applicant Court: Environment Judge J E Borthwick Environment Commissioner R M Dunlop Environment Commissioner D J Bunting Hearing: at Christchurch on 4 and 5 April 2018 Appearances: M Casey and C Somerville-Frost for Queenstown Airport Corporation Limited R Somerville and R Ward for Remarkables Park Limited J Winchester for Queenstown Lakes District Council (Regulatory) K Hockly for Queenstown Lakes District Council (Corporate) Date of Decision: 20 April 2018 Date of Issue: 20 April 2018 DECISION OF THE ENVIRONMENT COURT ON APPLICATION FOR REHEARING A: Application for a rehearing is refused. B: Costs are reserved. REASONS Introduction [1) In August 2017 Queenstown Airport Corporation Ltd published a document for public consultation on options for dealing with an increase in projected passenger LOT 6 - DECISION 2018

2 2 movements, including whether there should be a limit on movements, through Queenstown Airport. [2] Relative to the infrastructure that could be enabled under the Airport's designation,' an expanded existing terminal at Queenstown Airport is predicted to reach maximum passenger movements in This is some ten years earlier than forecast at the time Queenstown Airport lodged a notice of requirement to extend its designation over land owned by Remarkables Park Limited" [3] Through the document, entitled "Master Plan Options: Let's start talking about tomorrow" ("the options document"), the Airport is seeking the public's response on whether and how to accommodate the predicted growth. In this context, the Airport has identified two viable options to enable up to 5.1 million passenger movements per annum. The Airport layout under both options is different from the one pursued by the Airport under the notice of requirement and considered by this court. [4] Remarkables Park says this constitutes new and important evidence; evidence which, had it been available to the Environment Court might have affected or changed the decision confirming the notice of requirement. Consequently, it applies for a rehearing pursuant to s 294 of the Act. [5] The application for rehearing is opposed by Queenstown Airport. Going further, Queenstown Airport has made an interlocutory application for an order striking out the application for rehearing on the grounds that the application is frivolous, vexatious and an abuse of process. Both applications were set down to be heard together. [6] Given the importance of the proceeding to Remarkables Park, particularly in light of its legitimate expectation that Queenstown Airport would use its own land for airport purposes and not Remarkables Park land for undertaking the work,3 we will decide the application for rehearing and then, as we were invited by Queenstown Airport, indicate our view on the merits of the strike out application. 1 An application to extend the existing designation (Designation 2) was confirmed by the Environment Court on 31 March 2017 in Re : Queenstown Airport Corporation Ltd [2017] NZEnvC 46. This decision was unsuccessfully appealed by Remarkables Park Ltd to the High Court. 2 Affidavit of R C Keel sworn 28 February Queenstown Airport Corporation Ltd [2014] NZEnvC 244 at [69].

3 3 [7] The District Council (in its corporate and regulatory capacities separately represented) supports Queenstown Airport. Rehearing application [8] Section 294(1) of the Resource Management Act 1991 provides that: [w]here, after any decision has been given by the Environment Court, new and important evidence becomes available or there has been a change in circumstances that in either case might have affected the decision, the court shall have power to order a rehearing of the proceedings on such terms and conditions as it thinks reasonable. [9] On an application being made, the Environment Court is required to consider whether one of the preconditions might have affected the decision. The requirement to consider the preconditions, as Heath J has held, "invokes the concept of materiality rather than one of miscarriage or interests of justice"; per Shepherd v Environment Court at [36].4 The preconditions, which he describes as being "prescriptive", are justified because the court's decisions typically affect both the immediate parties and the public generally. Thus s 294(1) is focused on the establishment of the preconditions and the assessment of materiality5 [10] Remarkables Park Limited ("RPL") submits the options document is "material" because it affects Lot 6. Under two of the three options identified, the existing passenger terminal would be relocated. If those options were to be implemented, RPL says the Airport would first need to demonstrate consideration had been given to using the site of the existing passenger terminal and industrial land to the north for airport purposes such as general aviation and helicopters facilities. 6 [11] While it is correct that the options document identifies a requirement for Lot 6 under layouts that are different from the one advanced by Queenstown Airport ("QAC") in the earlier proceeding, materiality refers to the decision made by the Environment Court. We agree with QAC that materiality informs what is meant by "important" evidence in s 294(1). Evidence will not be important unless it is material to the decision made by 4 Shepherd v Environment COUIt (NZHC) Auckland CIV , 21 October Shepherd v Environment Court at [37]. 6 Queenstown Airport is consulting on activities that may be situated on the site of the passenger terminal were it to relocate. The options document does not show General Aviation relocating to this area.

4 4 the court. [12J The parties agreed the relevant decision is the final decision released in March 2017; Queenstown Airport Corporation Ltd [201 7J NZEnvC 46. In saying that, the aspect of the final decision that is to be reheard was not clearly articulated by RPL. In the final decision, the court reconsidered all its findings in light of Part 2 and this included the earlier substantive decisions on s 171(1)(b).Y The general thrust of RPL's notice of motion is to seek a rehearing on whether, in light of the options document, adequate consideration was given to alternative sites pursuant to s 171(1 )(b) of the Act. This would entail a complete rehearing of the NoR, not least because the enquiries under ss 171(1)(b) and (c) are inter-related. [13J That said, in light of RPL's legitimate expectation, we would not refuse rehearing the NoR on the grounds that it would be akin to a hearing de novo. Consideration [14J The evidence led by QAC in support of the NoR, advanced an airport layout where all airport facilities were co-located south of the main runway on or adjacent to Lot 6. On its face, the options document raises questions about the reliability of evidence and the credibility of experts called on behalf of QAC in support of the notice of requirement. That is because at first blush the document identifies two airport layouts that are inconsistent with the court's findings of fact and our decisions concerning the adequacy of consideration given to alternative sites. 8 [15J The question for us to determine is whether the options document, which is "new" evidence, is also important evidence in the sense that it is material to the final decision. We find on the evidence that it is not material to the final decision for the following reasons: (a) for demand forecast of up to 3.2 mppa 9 the options document confirms the airport layout supported by QAC in the final decision (option 1); 7 In particular, [201 2) NZEnvC 206 and [2014) NZEnvC Options 2 and 3. 9 MPPA means Million Passenger Movements Per Annum.

5 5 (b) the capacity at the airport to accommodate greater passenger movements is a constraint on tourism generally; (c) the Chief Executive Officer of QAC confirmed the NoR is required to address the increase in the future demand up to 3.2 mppa and that QAC is committed to pursuing and progressing the NoR;'o (d) the Airport cannot accommodate unconstrained growth in passenger numbers. Most obviously, growth is constrained by limits on airport noise and by land ownership and zoning of land; (e) the decision whether and to what extent to accommodate additional demand growth of up to 5.1 mppa is contingent on or, at the very least, informed by matters that are outside of the Airport's control. This includes the capacity of existing infrastructure to accommodate new visitors to the district (the capacity of roads, visitor accommodation, worker accommodation, essential services were cited); and (f) the views of Queenstown residents are important. The Airport is part of this community and its activities directly impact on them. The fact that growth can (at least in theory) be accommodated under a differently configured airport layout does not mean the community will support this outcome. The costs to Queenstown residents may outweigh the benefits of increased growth. [16) The information contained in the document is not material to the decision made by the court. Put simply, the court is not engaged with a fact-finding exercise about which of the airport layouts" in the options document might ultimately find favor. Change in circumstances? [17) While not pleaded as a ground for rehearing, RPL submits the potential for relocating the passenger terminal is a change in circumstances which might also have affected the decision. [18) There is no evidence to support a proposition that the passenger terminal will be in a different location to that considered by the court. This possibility only arises under the options document were the Airport to accommodate an increase in growth of up to ' 0 Affidavit of R C Keel dated 28 February 2018 at (36). 11 Options 2 & 3 in particular.

6 6 5.1 mppa. In this circumstance, the options document identifies the passenger terminal at a different location. For now, grow1h of passenger numbers is constrained to 3.2 mppa by infrastructure to be developed under the NoR, with other constraints - such as limits on noise - restricting actual passenger movements to a level falling short of 3.2 mppa. It does not follow from this that the court's earlier fact-finding "might" have been affected had the options document been in evidence. [19] There is no change in circumstances because no decision has been made by the Airport to accommodate the greater demand or to relocate the passenger terminal. Outcome [20] The application for rehearing is refused. Strike out application [21] Having declined the application for rehearing, there is no need to decide QAC's interlocutory application to strike out the proceeding. We will, however, give an indication as to the merits of the application. [22] QAC has sought an order striking out the application for rehearing on the grounds that it is frivolous, vexatious and an abuse of process. QAC submits the High Court has addressed the substance of the grounds for the rehearing application in its decision Remarkables Park Ltd v Queenstown Airport Corporation Ltd. ' 2 [23] RPl opposed the interlocutory application. QlDC supports QAC's position. Litigation history [24] In 2017 RPl appealed the decision of the Environment Court confirming the notice of requirement (Queenstown Airport Corporation Ltd [2017] NZEnvC 46). This is the second of two appeals by RPl to the High Court concerning QAC's notice of requirement to alter Designation 2 of the Queenstown lakes District Plan to extend the aerodrome at Queenstown Airport. The second appeal was dismissed by Justice Nation in Remarkables Park Ltd v Queenstown Airport Corporation Ltd [2017] NZHC Remarkables Park Ltd v Queenstown Airport Corporation Ltd [2018J NZHC 269.

7 7 [25] The appeal was set down to be heard in the High Court on 4 December On 22 November 2017 RPL filed three applications. First, an application to the Environment Court for rehearing; second an application to adjourn the High Court hearing pending the Environment Court's decision on the rehearing application; and finally, an interlocutory application to the High Court for leave to adduce further evidence, specifically, the options document. [26] The application seeking leave to adduce further evidence to the High Court was made on the grounds that the options document was not available at the time the Environment Court made its decision and that it was "cogent and material". RPL director, Mr A F Porter filed an affidavit in support giving four reasons for placing the document before the High Court. These being: (a) (b) (c) (d) the QAC document is new and important evidence that has become available since the final Environment Court decision Queenstown Airport Corporation Limited" was issued; had such evidence been available at the time of the decision, it might have affected or changed that decision; it is in the interests of justice that the High Court takes into account the QAC document which is at odds with the evidence that the Environment Court was relying on when making its decision; and there is significant prejudice to RPL if the court does not have all the public information relevant to the evaluations the Environment Court is required to make. [27] A memorandum filed in support of the leave application cites rule of the High Court Rules which provides that a party to an appeal may adduce further evidence only with leave of the court. The High Court may grant leave only if there are special reasons for hearing the evidence (rule 20.16(2)). By way of example of a "special reason", the rules refer to evidence about matters that have arisen after the date of the decision appealed against that are or may be relevant to the determination of the appeal. [28] Published after the Environment Court released its decision, RPL explained in its memorandum that the contents of the options document are cogent and likely to be highly 13 Queenstown Airport Corporation Limited [2017] NZEnvC 46.

8 8 material to issues to be determined by the High Court; namely whether the Environment Court had erred in finding QAC had given adequate consideration to alternatives under s 171 (1 )(b) and had erred in failing to undertake a full evaluation of "a hybrid option" which took into account RPl's legitimate expectation. RPl's position being that the " document both undermines and contradicts the Environment Court's decision to confirm the NoR. Had that document been before the Environment Court, it could have led to a different result. 15 [29] Following a telephone conference on 29 November 2017 Justice Nation issued a decision declining to adjourn the High Court hearing, reserving his decision on the application for leave to adduce further evidence for final determination when the appeal was heard. ' He observed that if there is to be a rehearing this will be because the Environment Court decides the information in the document materially impacts on the correctness of its factual determinations H [30] The application for leave to adduce further evidence was heard by the High Court together with RPl's notice of appeal. The High Court refused leave to adduce the document because it found that it was not sufficiently relevant to the issues before that court and the appeal was dismissed in its entirety.1s QAC relies on this determination, together with its supporting reasons, for an order striking out the application. [31] QAC says the Environment Court is bound by the decision of the High Court, the ratio is dispositive of the issues raised by RPl '9 or, at the very least, highly persuasive. 20 QlDC adopted those submissions, with Mr Winchester amplifying that the Environment Court is bound by the High Court's findings on the relevance of the document to the Environment Court's factual determinations.,. Memorandum of counsel in support of interlocutory application by RPL for leave to adduce further evidence dated 22 November 2017 at [11-4). See also submissions of appellant in support of application for leave to adduce further evidence dated 4 December 2017 at [17]-[20]. 15 Memorandum of counsel in support of interlocutory application by Remarkables Park Ltd for leave to adduce further evidence dated 22 November 2017 at [15] and [18].,. Remarkables Park Ltd v Queenstown Airport Corporation Ltd [2017] NZHC 2962 at [10]. 17 [2017] NZHC 2962 at [14]. 1S Remarkables Park Ltd v Queenstown Airport Corporation Ltd [2018] NZHC 269 at [157]. 19 QAC Strike Out submissions at (24). 20 Transcript at 50.

9 9 Same claim different courts? [32] QAC referred to the decision of Collier v Butterworths of NZ Ltd (1997) 11 PRNZ 581, in support of an application to strike out for abuse of process where, as it is contested in this case, another court has made a prior determination of a claim which, in substance, is the same. [33] Master Venning (as he then was) in Collier v Butterworths of NZ Ltd (1997) 11 PRNZ 581, struck out the plaintiff's claim in negligence finding that properly analysed, and in substance, this was the same claim as in an earlier proceeding for defamation which had been also struck out because it was time barred. The later-in-time claim for negligence was pleaded in order to avoid the difficulty faced by the plaintiff under the limitation provisions of the Defamation Act. Master Venning held that as such the claim was an abuse of the process of the court. 21 [34] We accept that there is considerable public interest in the finality of decisionmaking and acknowledge the deference and respect shown between courts of different jurisdictions as a matter of judicial comity. [35] RPL does not say that the Environment Court erred by not taking into consideration a document that did not exist at the time we made our decision. 22 Before the High Court RPL sought leave to adduce the options document in support of a key argument that the Environment Court erred because we did not further consider the issue of alternative sites after Queenstown Airport introduced new evidence concerning a dual taxiway in [36] RPL submits that the High Court has made no factual findings, and nor was it required to do so, as the grounds of appeal were on questions of law. More particularly, the High Court was not required to consider whether the options document could materially impact on the factual determinations of the Environment Court, as this was a matter for the Environment Court on the rehearing application. Ultimately, the High Court found that the options document was not sufficiently related to the legal issues raised by

10 the questions of law for it to be adduced as further evidence in the appeal [37] At this hearing, RPL submits that had the options document been available to the Environment Court at the time we made our factual determinations, our final decision might have been different. [38] QAC takes issue with RPL's description of the High Court proceedings. [39] It records that in the amended notice of appeal" RPL alleged the Environment Court had made 18 errors and sought 13 questions of law be determined, several of which concerned whether the court's fact-finding was supportable on the evidence. 26 Several times it is asserted that "the only reasonable conclusion was one that contradicts determinations" made by this division of the Environment Court. There are other questions of law not addressing sufficiency of evidence, including the question referred to by Mr Somerville above where RPL alleged that the court wrongly exercised its discretion when it failed to take into account evidence called on behalf of RPL concerning alternative sites.27 [40] The memorandum filed in the High Court supporting the application for leave to adduce the options document records RPL's contention that the options document "undermines and in fact presents options that contradict the Environment Court's decision to confirm the NoR over Lot 6 ".28 The High Court, however, refused leave because the options document was found not to be sufficiently relevant to the issues before that court and the appeal was dismissed in its entirety'>9 QAC relies on this decision to support its strike out application.,y, 24 RPL Strike Out submissions at [25]-[27]. 25 Amended notice of appeal (High Court) dated 4 December See amended notice of appeal dated 4 December 2017 at [5.2], [5.8(a)], [5.8(b)], [5.8(c)], [5(d)]), [5.10], [5.11] 27 Amended notice of appeal at [5.14]. 28 In the memorandum of counsel in support of interlocutory application by Remarkables Park Ltd for leave to adduce further evidence dated 22 November 2017, RPL identifies the options document being relevant to,,'< < the grounds of appeal at [5.8(b)]. These grounds were expanded in RPL's submissions in support of 6(1 <'"J:'" "S~ application for leave to adduce further evidence dated 4 December 2017 to include questions of law in the rn ~;,:h,,'i.'<j!), \ amended notice of appeal at [5.2], [5.8(c)] and [5.8(d)].. ~ r~k(:-',.:.~. ~'l 29 Remarkables Park Ltd v Queenstown Airport Corporation Ltd [20 18] NZHC 269 at [157].. ;! 'it)....) o~, (;l\ :gl:~ '~;~\;hj;:t {~I. ~?:~. '- -'..-li/ -It/,... ~ <,,{:.\ /. ~OUfn O~ ::./ ---~...,

11 11 Discussion [41] In a case before the Employment Court, the presiding judge, Judge Corkill, citing Collier v Butterworths neatly engaged with the issue raised by QAC in this proceeding in the following way:30 As a starting paint, it is necessary to identify the nature of the problem, or the "gist of the dispute"." tn my view the authorities emphasise that the Court is required to assess the essence or reality of the claim. The Court is entitled to analyse the substance of the allegations, not merely their form" Although the Court must assume that the pleaded facts are true, that does not mean that the Court is prevented from considering the legal consequences of the pleaded facts in a realistic fashion. Footnotes: 46. As it was put by Gilbert J in the more recent decision of Ecostore Company Ltd v Worth [2017] NZHC 1480; and see also Pain Management, above n 33, at [23], and BD Grange, above n 34, at [88]. 47. This proposition is well established with regard to strikeout applications and jurisdiction arguments: New Zealand Social Credit Political League Inc v O'Brien [1984]1 NZLR 84 (CA) at 95; Collier v Butterworths of New Zealand (1997) 11 PRNZ 581 (HC) at 586; Green v Matheson [1989]3 NZLR 564 (CA) ; and in this Court, Clark v NCR (NZ) Corporation [2006] ERNZ 401, at [35] and [37]. [42] At the heart of the claims in this proceeding and on appeal to the High Court is a challenge to the correctness of the factual determinations made by this court. In each case, the enquiry is as to the sufficiency of evidence that was before the Court. [43] We consider that the application for rehearing by RPL does invite the Environment Court to come to a different view from the High Court on the relevance of the options document to the sufficiency of evidence on matters on which we made findings of fact. [44] The appeal before Justice Nation concerned "whether or not there were errors of law in the way the Environment Court dealt with relevant issues before it on the evidence which was then available". 31 We do not understand that it is RPL's intention to invite this court to revisit our decision in light of the new evidence concerning a dual taxiway. This question has been dismissed by the High Court. Rather, RPL says the options identified in the document raise doubt about the reliability of evidence which this court accepted when its making factual findings. Is this the same question considered by the High Court? 30 Performance Cleaners All Property Services Wellington Ltd v Chinan [2017] NZEmpC 152 at [85]. 31 [2018] NZHC 269 at [164].

12 12 We consider that it is and that the High Court determined this question finding that the options document did not demonstrate a factual error in the findings in the Environment Court." [45J Expanding, we note that at [5.1J of the amended notice of appeal RPL raises a question of law whether this court erred in determining that QAC had given adequate consideration to alternatives (s 171 (1 )(b)). This pleading does not challenge the sufficiency of evidence. The High Court held this matter could not be pursued as no party had appealed the Environment Court's earlier substantive decisions. 33 It seems doubtful in these circumstances, that the High Court did consider the relevancy of the options document when determining this question. If it did not, then RPL is arguably free to raise the matter on an application for rehearing. [46J The matter does not end here. There is a close nexus among the questions of law before the High Court, including those questions going to sufficiency of evidence to support the Environment Court's fact-finding. Over several years the Environment Court has dealt with considerable and complex interrelated questions of fact and opinion. RPL describes its appeal as placing "discrete" questions of law for determination by the High Court. 34 Traversing nearly all aspects of the court's decision-making since 2014 the questions are not, in our view, discrete. [47J Directly relevant to the question of whether QAC gave adequate consideration to alternative sites is the question at [5.2J of the amended notice of appeal: Is the case one in which the only rea sonable conclusion contradicts th e determination that undertaking the work on QAC land for GA purposes would not promote th e sustainable management of natural and physical purposes. This question does contest the sufficiency of evidence which the Environment Court relied on to make a finding of fact and goes to the heart of the enquiry under s 171 (1 )(b). [48J The broader context of this question is important. We have said, and say again, the enquiries under ss 171(1)(b) and (c) are inter-related. That is because if there is an ",-<- - 'Y..~ 32 ~~I' [2018] NZHC 269 at[164). (r;~,j ;:::{{:::J 33 Remarkables Park Ltd v Queenstown Airport Corporation Ltd [2018] NZHC 269 at [75] and [86].,i>; I:'.,':':.''''' l. ~" : J 34 RPL Strike Out submissions at [25]. ~n '\J f,"..,. :' i '~~ a ~ PIi\l,J,. '.' t;.",:. ~ }~ \i~i \. ~'~fi~ - I <7", t;lv~'ijii';;',@. \.. ~ /. :,\"vl " -~17' "',_._- \~(;;/ '-'" C01} 1'[ 01' " "'-----

13 13 alternative site for undertaking the work that is owned by QAC, this begs the question whether the requirement for RPL's land is reasonably necessary.35 Bringing to account RPL's legitimate expectation fairness, requires the NoR be cancelled if undertaking the work on QAC's land would meet the statutory criteria and achieve the statute's purpose. 36 [49] RPL had submitted the options document was directly relevant to the question of law at [5.2]. That was not the High Court's view. The High Court held there was a reasonable evidential basis for the Environment Court's conclusion. 37 [50] We accept QAC's submission that the claims are in substance the same in both courts. This is most plainly the case where RPL challenged the sufficiency of evidence upon which we made our factual findings, arguing the options document was relevant to these determinations. As we have found in the application for rehearing, the options document does not disclose new and important information or a change in circumstances that in either case might have affected our decision. We have no reason to demur with the ratio decidendi, at paragraphs [157]-[163] of the High Court's decision, which accords with our own view of the relevance of the options document. [51] To conclude, so that the full import of RPL's legitimate expectation on the application for rehearing could be brought to bear on the application for rehearing, and in response to RPL's continuing concerns as to fairness, we considered the application for rehearing without prior deliberation as to whether the substance of its claims have been considered by another jurisdiction. In the normal course, we would have considered the interlocutory application and, as indicated, would have struck the application for rehearing out on the basis that it is an abuse of process. Directions [52] I CostsCs>n both applications are reserved ~ ~':0. \~~.~rthwick Envir nment Judge 35 [2014J NZEnvC 244 at [90J [91J. 36 [2014J NZEnvC 244 at [92]. 37 Remarkables Park Ltd v Queenstown Airport Corporation Ltd [2018J NZHC 269 at [115J.