Case Law

Treble Tree Holdings Limited v Marlborough District Council

The status of scientists under section 274(1)(d) of the RMA

Author: Bronwyn Carruthers, Partner and Brigid Kelly, Senior Solicitor
Number: [2012] NZEnvc 38
Court: Environment Court
Party: Treble Tree Holdings Limited v Marlborough District Council

Background

The substantive matter relates to an application made in August 2009 by Treble Tree Holdings Limited for three new coastal permits for aquaculture at Treble Tree Point, Waitata Reach on the northern side of the outer Pelorus Sound.  The applications were refused by the Marlborough District Council and appealed to the Environment Court in July 2010.  In August 2010, Mr R Schuckard, a professional ornithologist, filed a section 274 notice under section 274(1)(d) claiming an interest greater than the public generally.  He had not submitted on the application and therefore was unable to become involved under section 274(1)(e).  Treble Tree Holdings Limited advised the Court as early as October 2010 that it did not accept that Mr Schuckard had status to appear but agreed, on a without prejudice basis, to put the issue aside while mediation took place.  Mediation did not occur until 2012 and no agreement was reached between the parties.

In March 2012, Treble Tree Holdings Limited applied to the Court for an order that Mr Schuckard’s notice was invalid on the grounds that he did not have an interest in the proceedings greater than the public generally.

Mr Schuckard’s notice and interest

Mr Schuckard is a professional ornithologist with a particular interest in King Shags, their lifecycle and population in the Marlborough Sounds.  He has authored and peer reviewed a number of publications on King Shags and was a project manager for a King Shag Conservation Management Strategy.  In his affidavit, Mr Schuckard stated that: “My interest does not involve the occupation of marine space by marine farms, my interest is strictly to ensure that the Court has before it information as to the King Shag and its feeding grounds in the context of the appeal before it”. 

Mr Schuckard’s section 274 notice recorded his previous involvement in Environment Court cases involving aquaculture in the Marlborough Sounds.  He has been involved in marine farming on the outer Pelorus Sounds for over 16 years, including having been involved in a previous Environment Court hearing in 1995 (Trio Holdings Limited and Treble Tree Limited v Marlborough District Council Decision W126/1996).

Mr Schuckard stated that he was not aware of the current application at the time of the Council hearing and that he sought legal advice as soon as he became aware of the application.  His section 274 notice did not include any reference to his main concern (being the possible effects of new mussel farms on the population of endemic King Shag).  However, the decision recorded Mr Schuckard’s solicitor’s submission that, given the time pressures involved, Mr Schuckard’s concerns may not have been fully understood at the time the notice was lodged.

Procedural issues and authorities on section 274(1)(d)

An initial procedural issue considered in the decision was whether Treble Tree Holdings Limited should have made an application to strike out the section 274 notice.  However, presiding Judge Jackson accepted the High Court’s decision in Meadow 3 Limited v van Brandenburg which stated that “the principles applicable in a strike out contest [are] of no relevance” when the validity of a section 274 notice is challenged.  Instead, the Judge agreed that the validity of a section 274 notice should be considered under section 279(1)(a) “whereby an Environment … Judge may make orders in the course of a proceeding”.

In reviewing the background to section 274(1)(d), the Judge highlighted amendments that have been made to the section by the Resource Management (Simplifying and Streamlining) Amendment Act 2009.  The Simplifying Act replaces the phrase “the public generally” with the phrase “that the general public has”.  While the Judge found that it played no part in this particular decision, he noted that the new words in the Simplifying Act were arguably a dilution of the previous test as “the interest of the general public is often apathetic”.

The Judge considered the authorities on section 274(1)(d) and in particular the leading case Purification Technologies Limited v Taupo District Council [1995] NZRMA 197 as clarified by Meadow 3 Limited v van Brandenburg (2008) 14 ELRNZ 267.  In Purification Technologies, Judge Shepherd wrote that “the interest in the proceedings greater than that of the public generally which qualifies a person to appear and call evidence must be one of some advantage or disadvantage, such as that arising from a right in property directly affected, and which is not remote”.  In that decision, Judge Shepherd concluded that “an interest in the preservation of a particular environment, or an intellectual or emotional concern” would not be sufficient to be considered as an interest in the proceedings greater than the public generally.  In the High Court’s decision in Meadow 3 Limited, Justice Pankhurst clarified that “intellectual or emotional concern is insufficient, absent an interest in the proceedings based on some genuine advantage or disadvantage, often of a proprietorial nature, and which is not remote”.

Judge Jackson also considered whether the status of the King Shag as a rare bird meant that section 6(c) (the protection of areas of significant habitats of indigenous fauna) came into play.  More specifically, he considered whether the subject of Mr Schuckard’s interest (ie the protection of potentially significant habitat) could support a claim of an interest greater than that of the public generally/general public has.  Ultimately, however, the Judge found that the appropriate approach is to consider the interest of the aspiring party, not the particular environment under consideration.

Determination

The Judge was critical of the reference to “intellectual” in the Purification Technologies decision noting that “”Intellectual” is used there with a pejorative whiff: it suggests “academic”, non-practical”, and “not engaging in the real world””.  Instead the Judge commented that practical scientific researchers should be accorded more respect and that robust scientific evidence is about the best evidence a court can hope for.  The Judge determined that a person who has carried out practical scientific research in an area has more than a mere intellectual interest in the proceedings about that area and may claim to have an interest in the proceedings greater than the general public has.  He did note, however, that a sufficiently high threshold of research should be crossed, for example, the publication quality of scientific papers.

Judge Jackson held that Mr Schuckard does have an “interest greater than the general public has” as an ornithologist with published research on the use by King Shags of the site subject to the application.  He noted that Mr Schuckard’s previous involvement in the 1995 appeal was irrelevant to his ability to join these proceedings under section 274(1)(d).

It remains to be seen how this case will be applied in future situations involving applications to join proceedings on the basis of having an interest greater than the general public has.  In particular, the Judge in this decision made no finding in relation to whether there was “some genuine advantage or disadvantage … which is not remote”, which was a consideration in both the Meadow 3 Limited High Court decision and the Purification Technologies Planning Tribunal Decision.