Case Law

Staufenberg Family Trust No.2 v Queenstown Lakes District Council

When is it alright for a Council to call evidence opposing its earlier decision?

Author: Brigid Kelly, Senior Solicitor, Russell McVeagh
Number: [2011] NZEnvC 383
Court: Environment Court
Party: R and J Young Family Trust and Queenstown Lakes District Council

The applicant, R and J Young Family Trust, sought consent from the Queenstown Lakes District Council (“Council“) for a commercial entertainment facility near Wanaka Airport.   The Council’s planner and landscape architect recommended against granting consent to the application for resource consent.  Despite this, the application was granted consent by the independent commissioners appointed by the Council to hear the application.

The Council’s decision was appealed by the Staufenberg Family Trust No. 2 and Mr and Mrs Feint.  The Council’s own Strategy Committee then resolved that “the decision of the [Independent] Commissioners is not supported”.   As a result of this resolution, the Council sought leave from the Court to present evidence from council officers which, while consistent with the earlier section 42A reports, would be in opposition to the Council’s own decision. (The Judge did not need to determine whether this Council process was appropriate.  However, he did raise concerns about whether this approach was permissible under the RMA or Local Government Act 2002.)  

The applicant opposed the Council’s application and claimed to be significantly prejudiced by the Council’s change in position.  The applicant had been involved in negotiations with the appellants from an early stage and claimed that the Council’s u-turn adversely affected the settlement negotiations which were already underway with the appellants.

In his decision, Judge Jackson considered previous case law where Councils have sought leave to produce evidence opposing their earlier decisions and restated the principles he developed in Canterbury Regional Council v Christchurch City Council [2000] NZRMA 512 and Mainframe Limited v Queenstown Lakes District Council (C67/2002).  Whether a Council is able to change its position is a discretionary question and will involve consideration of fairness, whether there has been a change in circumstances, public confidence in the process and the integrity of the RMA.  Ultimately, in this case, public confidence in the process was the key factor in deciding to refuse the Council’s application.

  • Fairness – Judge Jackson commented that fairness in this context is procedural fairness. This requirement is usually met by the Council seeking leave to call the evidence well in advance of the hearing.  While the Judge recognised that there may be “some perception of unfairness” to the applicant as there will be more parties in opposition, he reiterated that the Court reaches its decision on strength of evidence, not weight of numbers.  Overall, he found that fairness was neutral as the Council had provided sufficient warning (so the applicant was not prejudiced) and the evidence the Council was proposing could be covered by the appellants (so the Council was not prejudiced if the application was declined).
  • A change in circumstances – This normally arises when an applicant amends it application (but it remains within the scope of the original application).  The Judge referred to Mead v Queenstown Lakes District Council (C61/2009) where new information before the Council meant that it was able to support an application it had previously opposed. However, in the current case the Court was not aware of any new information before the Council warranting its change in position.
  • Maintaining the integrity of the RMA – While the Judge agreed that the integrity of the RMA is preserved by informing the Court of all relevant matters, he found that this factor is a minor one when the case does not involve a matter of national importance.  This critical observation distinguished this case from his earlier decision in Mainframe where leave was granted to the Council to produce evidence in opposition to its earlier decision granting consent.  In Mainframe it was alleged that the proposed house site was in an Outstanding Natural Landscape (a matter of national importance) and therefore the Court wanted all relevant information.   While the Council argued that Mainframe was also distinguishable because it was heard by councillors (rather than independent commissioners) the Judge was not convinced that this was relevant.
  • Public Confidence in the process – The Judge considered this to be the most important factor.  Generally public confidence is better maintained if the Council defends or supports its earlier decision or alternatively abides the decision of the Court.  The Judge accepted that public confidence is also supported by the Court having all the relevant evidence before it to assist in determining the appeal.  In this case the Judge noted that two appellants and section 274 parties could fulfil this function and that it was open to those parties to call the Council officers to give evidence in support of their case.

Of the cases considered by the Judge in the decision only Mead post-dated section 290A of the RMA coming into force.  The Judge interpreted this requirement to have regard to the Council’s earlier decision as being to “decide how much weight should be given to the Commissioners’ decision”.  The Judge held that appropriate weight may not be given to that decision if it is ignored or contradicted by the council’s witness and that:

In general terms, when a local authority has made a decision, unless it is obviously wrong at law, the public is entitled to believe that the decision will be supported before the Environment Court.  This is reinforced under the RMA by section 290A…

The Judge refused the Council’s application stating that public confidence in the decision making process will generally require a Council to support its decision before the Environment Court unless there is a valid reason justifying a departure.  When read in conjunction with the Judge’s earlier decision in Mainframe it is clear that matters of national importance will have a bearing on whether the Court is minded to grant leave to the Council to call evidence opposing its earlier decision.