Environmental / Resource Management

Cherry picking points on Appeal

Can the Environment Court appeal process be limited by a Council's reasons for refusal?

Appellants challenging Council decisions refusing resource consent in the Environment Court occasionally argue that the range of matters for consideration by the Court on appeal should be regarded as limited by the Council's reasons for refusal.

The appellants advanced just such a jurisdictional argument (unsuccessfully) in a recent Environment Court case, Engebretsen & Song v Whangarei District Council [2016] NZEnvC 086.

The facts

The appellants had applied to the Whangarei District Council for resource consent to enable the redevelopment of an existing residential dwelling into a general store and café at Whangarei Heads.  The Commissioner appointed by the Council declined the consent application.

The appellants appealed under section 120(1) of the Resource Management Act 1991 (RMA), which – the Environment Court noted – states that the content of an appeal to the Environment Court can be against the whole or any part of a decision of a consent authority. The appellants elected to focus their arguments solely on traffic issues – in other words, to focus on a part of the Commissioner’s decision.  They argued that the Commissioner had only declined consent for traffic reasons, that their appeal adopted all of the decision except for the refusal for traffic reasons, and that the section 274 parties who did not submit on traffic effects in the first instance were not able to participate in the hearing.

The issue

The underlying issue for the Environment Court to determine was: can the reasons for refusal stated in the Council decision bind the Environment Court and the section 274 parties on appeal? 

What the Court had to say

The Court regarded the appellants' argument as misconceived, commenting that:

[12]      Whilst an appeal before the Court against a grant can be limited to those matters raised in the appeal, an appeal against refusal cannot be so limited, given that no consent had been granted at all. …

In the absence of agreement between the parties, the appellants would need to establish all of the matters necessary in terms of the District Plan and the RMA, and satisfy the Court that resource consent should be granted.  The Court was evidently concerned at the suggestion, implicit in the appellants' argument, that it could not have regard to all actual and potential effects of the activity, to ensure they were adequately avoided, remedied or mitigated.

Comment

The decision provides useful clarification of an important point.  Where consent has been refused and there is therefore no consent at all, an applicant cannot 'cherry pick' issues in order to limit the Court's jurisdiction on appeal.  The Court's finding is consistent with the de novo status of appeal hearings in the Environment Court (according to which the Court conducts a complete rehearing afresh).  It is also consistent with the accepted position at law that, while the Court must have regard to the Council's decision under section 290A of the RMA, this does not mean that the Council decision must be followed.  

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