RESOURCE MANAGEMENT LAW ASSOCIATION OF INC.

RM NEWSLETTER

APRIL 2006

PRESIDENT’S REPORT 5. A speaker from Utah lamented the fact that that State’s planning controls relate Dear Members only to private development, and not to federal or state projects. Some of his I am writing this report high above the photographs showed the appalling Tasman Sea, returning from the joint NZPI / results – reminiscent of some PIA Conference at Surfers Paradise. developments here before the old Town & Country Planning Act was amended to It was a top conference, 800 registrants, bind the Crown. including 150 or so from New Zealand. A few of my random reflections and 6. MfE won 5 awards, including one for the observations are as follows: RMA Enforcement Manual, which was given in association with the RMLA. 1. Whilst there were only 150 registrants from New Zealand, there were hundreds 7. The MfE also won an award for its of Kiwis attending. Anyone with any “Making Good Decisions Programme”, doubts about the extent of the brain which was the subject of much interest drain needs to think again! I was left from Australian practitioners. with the impression that if the New Zealand planners in Australia were all to 8. Perhaps the last word should go to the return home, Australia would have major taxi driver who, when I told him it was a problems staffing its consultancies and conference of town planners at the councils. Convention Centre, said to me - “Geez; where is Osama when you need him?” 2. It was revealing to hear the city planner from Gladstone, Queensland (a Kiwi by Alan Dormer PRESIDENT the way) note that in nine years in

Australia, it has never been suggested to him that he should consult the indigenous people. TRIBUTE TO TREVOR GOULD 3. In a discussion on urban intensification, a planner from Tasmania claimed that 9 November 1947 – 11 February 2006 the City of Hobart had a “footprint” the size of New York City. By Principal Environment Judge Bollard

As Principal Judge of the Environment Court, I 4. Charles Landry, an inspirational keynote am honoured to be asked by Trevor’s family to speaker and planning consultant from participate in the tributes to Trevor bearing on the UK, reminded us that the cities we the many facets of his outstanding life and all love could not be built today – career. May I first of all express on behalf of all planning controls would see to that. my fellow Judges and the Commissioners of the Court our sincere sympathy and condolences to Trevor’s family, to Monique, and to his close friends and professional colleagues.

RMLA, C/- 4 Shaw Way, Hillsborough, – Tel/Fax: (09) 626-6068 - Email: [email protected] Shore. Trevor’s input as counsel in that case By the time I was appointed to the Bench in was characteristically beneficial in assisting the 1988, Trevor’s name was firmly established as Court and resulted, as so often happened when a leading environmental law counsel. My Trevor was involved, in his clients’ position colleague Judge David Sheppard brings to mind being upheld. In determining that case I was cases involving early supermarket proposals in able gratefully to cite and draw from another the 1970s in which Trevor’s services were in major retailing case in which Trevor was demand. In an environmental law practice that involved in the South Island, commonly known extended over 30 years or more, Trevor was, to to lawyers as the Countdown case, where again use David Sheppard’s words: “an absolute Trevor was on the winning side. model counsel whose cross-examination was no less effective through the quiet way in which In deference to others yet to speak in Trevor’s it was administered”. memory, I will pause here and conclude the outline of my very positive thoughts and Trevor’s careful analysis of a case, his unerring recollections of Trevor’s environmental law perception of the vital issues and the skill he career from the Court’s perspective. In doing displayed in dealing with them, even when so, it is surely fitting formally to record on this restricted by the less than ideal nature of a heartfelt occasion that Trevor was a highly client’s brief of instructions, were the attributes respected counsel countrywide, the loss of of a truly accomplished advocate; and they whom will be keenly felt in many quarters, were rendered all the more compelling by including members of the judiciary, those Trevor’s unfailingly courteous demeanor for practising at the Resource Management Bar, which he was so well-known, coupled with the and the wider legal profession. Trevor’s rare penetrating logic of his questioning and qualities that shone through in his advocacy will submissions. long be remembered and we lament his passing. Each of the Environment Judges well remembers those cases in which Trevor appeared before the Court as counsel. One or By Suzanne Janissen, Partner, two Judges were also involved with Trevor in Chapman Tripp [Abridged version] the days when they practised at the Bar – and in those instances it was always a happier My name is Suzanne Janissen. I am a partner experience to have Trevor on the same side as in the environmental law team at Chapman oneself. Two areas of Trevor’s substantial Tripp, here in Auckland. It has been my contribution to the planning and environmental privilege to have worked with Trevor off and on law field stand out – namely retailing and waste since I joined Chapman Tripp over 20 years management. Significant cases in which Trevor ago, initially as one of his law clerks. I would was involved in recent years included, amongst like to share with you some personal and a variety of others, the Kate Valley landfill in professional thoughts about Trevor the lawyer – Canterbury, the notable retail development whose sudden and early death is a huge loss proposal by The Warehouse chain in Gisborne, for the firm, for our team and for the profession and the Tairua Marina project in the as a whole. Coromandel which Trevor agreed to take over from another senior counsel on the latter’s A little background first. appointment to the High Court Bench. Trevor initially joined Chapman Tripp as a I particularly recall two cases that came before partner in January 1985 on the merger with his my division of the Court in which Trevor then firm, Sheffield Young & Ellis. He featured as counsel. The first was back in 1990 subsequently left Chapman Tripp to form the and involved a contentious TV transmitter to boutique law firm, Ellis Gould, before rejoining serve the East Coast Bays area. Trevor us as consultant in 1993, with the title Counsel represented TVNZ. Sian Elias QC, as she then – Environmental Law. With over 30 years was, appeared for the territorial authority in experience in environmental and resource opposition. Both counsel served their clients’ management matters, there is no question that interests extremely well, but Trevor won the day Trevor was recognised as one of New on the merits. His presentation was Zealand’s leading practitioners in this field. immaculate. The areas he covered were varied and many, The second case arose when Trevor appeared and he could turn his hand to anything. There with Vernon Rive as his junior in the major are many things that we will remember about litigation in late 2000 regarding future planning Trevor – the Lawyer: provision for large scale retailing on the North

2 RMLA, C/- 4 Shaw Way, Hillsborough, Auckland – Tel/Fax: (09) 626-6068 - Email: [email protected] and we are all the better for learning from - His intellectual brilliance. He had a genuine him. passion for the law and could quickly cut through to the key issues. He was a master In my opinion, Trevor stood head and shoulders at crafting succinct persuasive submissions (literally in many cases) over the majority of and opinions. When he told a junior solicitor members of the profession. We have lost one of “now I'm sure there was a case about 8 our leaders. years ago on that point…”, you can be assured it was there. It may take you a few days to find it – but it was there! RESOURCE MANAGEMENT

- He was a brilliant advocate and had a NEWS courtroom presence that was impossible to ignore. When Trevor stood, others listened ELA FUND or were silenced. Our firm was indeed fortunate to have its own “in-house QC”. Members are reminded of the existence of the Environmental Legal Assistance Fund. - His devastating cross-examination. While always maintaining a respectful stance, Trevor could cut an expert witness’s It provides groups (not individuals) with evidence into shreds – often without that funding to help prepare, mediate and/or expert even realising it until he stepped off present RM cases before the Courts. The the witness stand and saw his own lawyer’s fund is available to cover the time and white face! expenses of legal representatives and/or expert witnesses. - His strategic and tactical advice was highly sought after by clients all over New Zealand. Interested folk should check the MfE His pragmatic approach, seeing the bigger website (www.mfe.govt.nz) or contact the picture while pursuing the winning points, went far beyond simply mastering the legal ELA Coordinator at (04) 439-7420, early in technicalities of a project and exhibited his the process rather than later. considerable commercial acumen and skills.

- His unquestioned integrity and respect for Talk Environment Roadshow 2005 the Bench. Trevor would go to the wall for a client if that was required. But if he The Talk Environment Roadshow 05 disagreed with a direction being taken, or it webpages have now been updated to tell was inconsistent with previous advice, then, you about how your feedback is influencing by gosh, the client would know about it! the Ministry for the Environment’s work and - His wise and diplomatic Counsel. Trevor had policy. To check this out, go to: a masterful way of approaching difficult or sensitive issues, both with clients and http://www.mfe.govt.nz/withyou/talkenviron around the partnership table. ment/index.html

- He set the very highest of standards, both for himself and his teams. That said, while he preferred to and often did work with “the REGIONAL NEWS best in the profession”, he had the ability to bring the best out in everyone. Auckland – Martin Williams

- It is well known that Trevor did not suffer The Auckland Branch has got off to a busy start fools gladly. And patience was certainly not with, as at April, three functions convened. In one of his virtues, as many a phone would February, Chapman Tripp hosted a function at attest after being thrown against his office which Richard Hancy presented Transit’s wall! current role and involvement in transport and development in the Region (an issue of - Trevor was a great teacher and fabulous undoubted interest to every travelling member mentor. He “stretched” those lawyers who of the Association). A social function was worked with him as they rose to meet his generously hosted by on 23 challenge and his standards. There are a March, at which those attending enjoyed number of “Trevor protégées” here today spectacular food and wine as well as views

3 RMLA, C/- 4 Shaw Way, Hillsborough, Auckland – Tel/Fax: (09) 626-6068 - Email: [email protected] from the roof top “Garden” at Simpson Canterbury – David Collins Grierson’s new premises. The Canterbury AGM on 6 March saw David On 12 April, as part of a road show series, the Collins and Monique Thomas re-elected as Minister for the Environment will (at time of chairperson and secretary, and Philip Maw writing) outline his intentions for responding to elected as treasurer. Bob Batty was appointed the challenge of meeting the demands of a to be our RMLA/NZPI liaison person, and Cindy growing and changing economy, while Robinson and Chris Fowler are going to assist protecting our unique environment. Planning in organising and running functions, seminars for further functions throughout the year is and roadshows. underway. The tentative programme of activities for the The Auckland Branch Committee is also busy first part of the year includes: preparing for this year’s conference, to be hosted in Auckland at the Sky City Convention - a visit to the Pegasus Bay New Town Centre between 5 and 8 October. The theme of display center to see the model, followed by the conference is “Pathways to Sustainability”. lunch The conference will explore alternative - the Minister for the Environment's address approaches to achieving sustainable outcomes on 27th April in both an urban and rural context. We have so - the Tony Hearn Memorial Lecture far secured internationally renowned speakers - a mid-winter function for the plenary sessions who will outline the origins of the sustainable development concept If Canterbury RMLA members are aware of at international law, and provide thought people who are not currently members but provoking and challenging view points as to could be interested in our activities, please let how sustainable development can best be us know. achieved. The plenary sessions will be coupled with a diverse range of workshops and field Nelson / Marlborough – Bryan Dwyer trips exploring alternative approaches to sustainable development around such issues as In February the Nelson Marlborough branch urban growth, energy, water quality and hosted Fiona McLeod, the Nelson Marlborough protection of the marine environment. If you are Conservancy Solicitor for the Department of interested in the debate as to whether Conservation. She gave a talk on DoC’s role in sustainable outcomes are best achieved respect to the RMA and its mandate under the through a regulatory (central planning) versus Conservation Act (and other legislation listed in individual/voluntary approach, whether in an its first schedule). urban or rural context, this conference is for you. In March, the Nelson branch of the NZ Institute of Landscape Architects hosted a talk by Joan – James Winchester Nassauer, a visiting professor of landscape architecture from the University of Ann Arbour, The Wellington branch hosted the Minister for Michigan. Quite a few RMLA members the Environment, the Hon David Benson-Pope attended. The focus of her talk was the NE at a well attended function Simpson Grierson's American experience with the spread of offices in early March. exurban lifestyle blocks and its consequences for native species, water use, waste disposal The Minister presented to members on the and fuel use. She and other researchers challenges in the environmental area over the discovered that how individuals used and next Parliamentary term and the Government's planted their blocks often depended on the priorities for environmental management. The examples available to them in the immediate branch will shortly advise members of its neighbourhood. scheduled events for the next few months, including details of a one day RMA enforcement Otago / Southland – Michael Garbett workshop in June. In March the Otago / Southland branch hosted The Wellington chair is James Winchester. the Minister for the Environment's road show in James can be contacted on e-mail: Dunedin. The Minister was well received, and [email protected], or tel challenged with a number of questions from (04) 924 3503. members. The Minister was direct, helpful and relaxed despite being subjected to personal and

4 RMLA, C/- 4 Shaw Way, Hillsborough, Auckland – Tel/Fax: (09) 626-6068 - Email: [email protected] political attacks in Parliament and in the media specialist Court on a subject within its the previous week. sphere of expertise. To succeed on appeal an aggrieved party must prove RECENT CASES that the Court erred in law - never an easy burden where the presiding Judge has unique familiarity with the statute By Bal Matheson, Russell McVeagh governing the Court's jurisdiction. Most lawyers understand the narrow compass The permitted baseline test "strictly of a question of law. speaking" Increasingly, though, some contrive to Wise and Nebesky v Thames-Coromandel convert the essential character of a District Council (High Court, Auckland Registry, finding of fact into one of law, heedless of CIV-2004-485-000278, Frater J, 14 December Fisher J's contextual recitation of first 2005) is a decision of the High Court which principles in New Zealand Suncern dealt with a situation where the Environment Construction Ltd v Auckland City Council Court had omitted to refer to its assessment of [1997] NZRMA 419. the relevance of the permitted baseline test in its written decision. Frater J then noted that the issue for determination was whether or not she could be The background to this appeal was relatively satisfied that the permitted baseline test had straight-forward. It concerned a property near been relevant to the circumstances at issue in Whangamata owned by Mr Wise and Mrs this case, and, if it had been, that it had been Nebesky. They had applied to the Thames- adequately considered. Coromandel District Council (“Council”) for resource consent to subdivide the property into She noted that there had been significant two lots. dialogue between the Environment Court Judge, counsel and indeed a number of However, the proposed lots were smaller than witnesses regarding the application of the the minimum lot area allowed and as a permitted baseline test. There remained consequence the application fell to be assessed however an absence of reference to the as a restricted discretionary activity. permitted baseline and its relevance to the case At first instance the application was declined, within the decision of the Environment Court and a subsequent appeal against that decision itself. to the Environment Court had also been dismissed. The Appellants then appealed to The High Court concluded at paragraph 82 that, the High Court under s299 of the Act. at the relevant time, consideration of the permitted baseline was mandatory and that the The Appellants identified six grounds of appeal, failure to refer to it was, "strictly speaking", an but of particular interest were that the error of law. Frater J then noted that in Environment Court had failed to take account of circumstances where an error of law has been the permitted baseline test, and had placed established, the Court has a discretionary undue weight and consideration on "as of right" power to determine whether or not the matter limitations for an "as of right" subdivision and should be referred back to the Environment gave no consideration to the permitted baseline Court. She noted that where an error of law test, particularly the opportunity to establish has been made out, the Environment Court's substantial ancillary buildings "as of right". decision should be quashed or referred back for consideration, unless it is beyond doubt that the The starting point for the High Court's error did not affect the decision. consideration of these matters was to reiterate that appeals to the High Court from a decision Frater J then considered whether the error in of the Environment Court were limited to points question was material and concluded that it was of law only. Frater J quoted with support the apparent from the various dialogue between the following passage by Harrison J in McGregor v parties that the Environment Court's lack of Rodney District Council (2004) NZRMA 481 at reference to the baseline was not material. The [1] which sets out the reasons for this approach: decision also noted that neither counsel had referred to the baseline test in their written Parliament has circumscribed rights of submissions and concluded on that basis that appeal from decisions of the Environment they too must have regarded it as of less Court for an obvious reason. A Judge of significance and certainly not determinative of this Court is not equipped to revisit the the decision. merits of a determination made by a

5 RMLA, C/- 4 Shaw Way, Hillsborough, Auckland – Tel/Fax: (09) 626-6068 - Email: [email protected] During the hearing evidence was adduced "Sex in the City" showing that under the bylaw there were only three relatively small pockets of land on which In JB International Limited v Auckland City brothels could be established or from which Council (High Court, Auckland Registry, they could be operated as permitted or CIV2005-404-2214, Heath J, 14 March 2006), discretionary activities within the Isthmus area. the High Court was asked to consider whether a bylaw, promulgated by the Auckland City Heath J concluded that the bylaw in question Council to control the location of brothels, was effectively forbids the operation of small owner- valid. The Court was also asked to determine, operated brothels in suburban homes, and was with reference to the interests of a particular therefore ultra vires the bylaw making power brothel operating in suburban Auckland, contained in s14 of the Prostitution Law Reform whether or not Auckland City Council had Act 2003. exercised its power to dispense with full compliance with a bylaw in a lawful manner. Further, the bylaw could be characterised as unreasonable because, contrary to Parliament's The background to these proceedings is well clear intentions, it excluded all brothels known. In June 2003, Parliament enacted the (including small owner-operated brothels) from Prostitution Law Reform Act 2003 which virtually all areas within the Isthmus as a result decriminalised the provision of commercial of the way in which the bylaw establishes the sexual services in New Zealand. Under s12 of preferred location of brothels. Heath J stated at that Act, Parliament delegated to territorial paragraph 99 that "…it is scarcely conceivable authorities, such as Auckland City Council, the that Parliament intended virtually no brothels, power to legislate on signage used to advertise whether small or large, to operate on the a brothel and, under s14, the location at which Auckland Isthmus". brothels could operate. Consequently, the High Court quashed Under the Act, a territorial authority can prohibit Auckland City Council's Brothels Bylaw. or regulate signage in circumstances where it is necessary to prevent the public display of such More recent cases will follow in the RMLA signage that is likely to cause a nuisance or Journal. serious offence to ordinary members of the public using the area or is incompatible with the FORTHCOMING EVENTS existing character as use of the area (s12(2)), but may only regulate the location of a brothel (s14). CONTINUING PROFESSIONAL DEVELOPMENT Section 12 of the Bylaws Act 1910 provides the source of jurisdiction to challenge the validity of Please see the RMLA Website a bylaw and allows the High Court to make an (www.rmla.org.nz) for all Forthcoming and order quashing or amending an invalid bylaw. Future Events – including details of CPD With reference to s17 of the Bylaws Act, the qualifying events. Court discerned four distinct bases that a bylaw may be deemed invalid on: CHANGE OF ADDRESS? o The bylaw is ultra vires the legislating body. o The bylaw is repugnant to the laws of New To: RMLA, C/- Karol Helmink, 4 Shaw Way, Zealand. Hillsborough, Auckland o The bylaw is unreasonable. o The bylaw is invalid "for any other cause Please note my new contact details as follows: whatever." Name: ______

In this case, the operator of a brothel in the Firm: ______Auckland suburb of Epsom, known as "Club 574", challenged the bylaw promulgated by Address: ______Auckland City Council on the grounds that it was ultra vires, repugnant to the laws of New ______Zealand and unreasonable. Other challenges were based on arguments of proportionality and Ph: ______Fax: ______uncertainty. Email: ______

6 RMLA, C/- 4 Shaw Way, Hillsborough, Auckland – Tel/Fax: (09) 626-6068 - Email: [email protected]