The Environment Court has confirmed that it is not possible to appeal a decision to decline an application for resource consent based on the reasons for the decision. Neither is it possible to use such reasons to bind the Environment Court, or limit the participation of interested (s.274) parties on appeal.
Background
In December 2014, Mr Engebretsen and Ms Song (the applicants) applied to the Whangarei District Council for resource consent to authorise the development of a residential dwelling at Whangarei Heads into a general store and café. The consent application was notified, and attracted 11 objectors.
The Council declined the application, stating that adverse privacy, noise and amenity effects “can be managed in a way that is appropriate to its situation in a residential environment”, but “[f]or traffic safety reasons (and traffic safety reasons only) the proposal is not considered appropriate under s.104 of the Act”.
The applicants appealed that decision, but only in respect of “traffic safety reasons”. The applicants argued that by limiting their appeal to traffic effects, this in turn limited the objectors’ (s.274 parties) participation in the appeal to traffic effects only. Moreover, the applicants argued that those objectors who had not raised traffic effects in their original submissions could not participate in the appeal.
Jurisdictional questions
Can a party appeal part of a decision to decline resource consent?
The unusual appeal gave rise to a preliminary jurisdictional question: is it possible to appeal a decision to decline resource consent in part? The Environment Court concluded early in its judgment that the answer must be ‘no’.
Section 120 of the Act provides that the decision of a consent authority can be appealed to the Environment Court “against the whole or any part of a decision of a consent authority”. Appeals of part of a decision traditionally relate to challenges to resource consent conditions imposed. In this case, the Court identified the following statement as the consent authority’s decision to decline consent: “Pursuant to s. 104 of the Act I decline consent”.[1] The reasons that followed this decision were found not to form part of the decision itself. The Court held that the consent authority’s decision was indivisible, and must therefore be appealed in its entirety. As was noted in Beca v Auckland City Council,[2]
“The Council’s decision is therefore to grant or refuse consent, and if consent is granted to impose appropriate conditions… under s.113(1) every decision on an application for a resource consent is required to be in writing and state “the reasons for the decision” … However, the reasons are not the decision, even if both the decision and the reasons put forward are contained in the same resolutions of the Planning Commissioners.”
The applicants had sought as relief that the consent be granted, arguing that all matters (other than traffic) had been settled at first instance. However, the Court held that in order to grant the consent, the applicants would need to establish to the Court’s satisfaction that the application met the requirements of the Act and relevant planning provisions. Further and contrary to the applicant’s reading of the consent decision, the Court found that traffic issues were not the only reasons for declining the application. In addition, if consent were to be granted the Court noted, conditions would be needed to address other operational effects including privacy, noise and amenity.
Can the reasons for the refusal of consent bind the Environment Court and s. 274 parties?
The Court went on to consider whether it was possible to bind the appellate court, or limit participation of s.274 parties who had not originally submitted on traffic effects.
It found that the applicant’s argument would effectively prevent the Court from having regard to the purpose of the Act, and all actual and potential effects of the activity to ensure that they were adequately avoided remedied, or mitigated.This would “undermine the Act itself”.
Given that the appeal could not be made against reasons (in part) for the decision to decline consent, it followed that neither the Environment Court nor the s.274 parties could be restricted by those reasons not challenged by the applicant. The appeal opened up the consent application in its entirety.
Finally, the Court noted the High Court’s decision in Simons Hill Station Limited v Royal Forest & Bird Society of NZ Inc, which held that appellant submitters are not bound by the scope of their original submissions on appeal (that is, the High Court found an appellate submitter can raise a matter on appeal that it did not originally submit on, provided that matter was before the originating tribunal).[3] The Environment Court stated that the implications of the High Court’s decision remained unclear in other contexts, it concluded that if an appellant submitter is not limited on appeal, then this must also apply to submitters who join an appeal as s.274 parties.
Outcome
The Environment Court found that the applicants could not appeal only part of the decision to decline consent, nor could the reasons for the decision bind the Environment Court or limit participation of s.274 parties on appeal.
The Court indicated it would consider any application for costs in respect of the “misconceived” jurisdictional issue. It remains to be seen whether the applicants will succeed in the substantive appeal.
Comment
It is well established that decision maker should provide robust and detailed reasons in support of a decision to grant or decline resource consent. However, the case of Engebretsen & Song reminds us that the reasons in support of a decision to decline resource consent do not comprise part of the decision itself.
This case also illustrates the difference between appealing a decision to grant consent, and a decision to decline. When appealing a decision to grant resource consent, a party may appeal the decision itself (seeking that consent be refused), or merely some of the conditions attaching to that decision (seeking changes to those conditions). In contrast, a decision to decline resource consent has no conditions attached, and the reasons for the decision cannot be substituted in their place. In the words of the Environment Court “there is no part of [a decision to decline consent] which is capable of appeal”.
[1] ‘Report and decision of Hearings Commissioner Giles Bramwell’, Part 9, page 24, dated 14 December 2015.
[2] NZ EnvC A102/99 at [17].
[3] [2014] NZHC 1362.