Environmental / Resource Management

Can Territorial Authorities Now Appeal Their Own Resource Consent Decisions?

Auckland Council v Auckland Council [2018] EnvC 56

In the recent case Auckland Council v Auckland Council the Environment Court made a number of interesting procedural and jurisdictional findings relating to Auckland Council’s ability to appeal its own decision made as a consent authority.

The Proceedings

Auckland Council (Consent Authority) refused to grant Auckland Council (Applicant) resource consent to construct a pedestrian accessway along a beach front reserve at Orewa Beach. The Environment Court addressed whether Auckland Council, as Applicant, could appeal this decision by Auckland Council as Consent Authority (via commissioners). The Court allowed the appeal to proceed to hearing.

Jurisdictional Issue: can Auckland Council appeal against its own decision not to grant consent?

The Court recognised that while it is not unusual for a territorial authority to act as both the applicant for a resource consent and as the consent authority, it is unusual for a territorial authority to challenge its own decision. Therefore, the Court sought to determine in what circumstances, if any, a territorial authority may appeal its own decision.

On the face of the issue the Court noted applicants generally may appeal a decision and that there is no express exclusion preventing a local authority, who is also the relevant consent authority, from lodging an appeal. The Court found such a reading conflicts with the general legal principle that a single entity with unity of purpose cannot sue itself. However, the Court could identify no clear authority for this legal principle in civil, contract, tort, criminal, case and public law. Conversely the Court noted in company law, a company may be only one legal personality no matter how complex the internal arrangements.

Counsel for the Applicant argued there were common law instances where unincorporated groups were held to fall within the definition of “person” under section 2 of the RMA. The Court rejected this argument on the basis this case distinguished itself from past cases, citing Auckland Council as an identifiable single entity whose structure should not be disaggregated into unincorporated bodies of persons. The Council noted three instances where the territorial authorities have acted against themselves (none of which were directly applicable to the issue in question):

  1. where two different parts of a territorial authority are separately engaged in the proceeding but present a unified position;

  2. where one part of a territorial authority challenges the decision of another part of the territorial authority to rectify a technical issue; and

  3. prosecutions where a territorial authority has determined it must prosecute itself as a responsible public body and, as the defendant, has pleaded guilty.

The Court concluded, in the absence of clear statements in New Zealand and United Kingdom Law, there is no express authority that a council, as an applicant for resource consent, may not appeal its own decision as a consent authority.

The Court relied upon a United States Supreme Court decision which found where a proceeding presents a justiciable case beyond the identities of the parties, an appeal may be allowed.

On this basis, the Court looked beyond the identities of the parties and noted the presence of section 274 parties both in support and opposition to the consent. The Court concluded there was a real issue to be determined as to whether the consent should be granted or not. Given the presence of other parties the Court concluded it was not required to reach a conclusion on the role of the Council and left open the issue whether it was lawful.

The real controversy exception

Significantly the Court decided, on the basis there was real controversy other parties sought to resolve, that it was not required to take any steps to restrict the Applicant from pursuing an appeal against the decision of the Consent Authority.

Procedural Issue: Accountability and justice must be ensured

As a single entity the Council must act with integrity and accountability. As Auckland Council may not be split up, it must act in a manner that minimises procedural complications and avoids conflicts. In the name of justice and accountability all parties are required to be fully informed of the Council’s position to enable them to present their case effectively in response.

Consequently, the Council as Applicant and Consent Authority was directed to put forward a joint memorandum setting out the proposed terms and conditions for the hearing, including the extent to which Council staff may be involved in opposing roles. If agreement cannot be reached, the parties must present their own memoranda with proposals.

© Brookfields Lawyers 2018 – All Rights Reserved

 

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