By: Kirstie Wyss
Published: 9/08/2013
Queenstown has become a hotspot, not only for adventure tourism, but also resource management litigation.  In a recent article, we discussed caselaw involving two resource consent applications to build a Pak'nSave and a Mitre 10 Mega at Frankton Flats, Queenstown (the "Consent Cases").1 A further development has emerged in a related High Court appeal. 

The situation arose due to a proposed plan change to the Queenstown Lakes District Plan ("PC19").  Judge Borthwick's division of the Environment Court heard the appeals on the PC19.  Meanwhile, Judge Jackson's division granted consent for the two applications in the Consent Cases.  Judge Borthwick decided to disregard the findings in Judge Jackson's decision.  This formed the basis of an appeal to the High Court against Judge Borthwick's decision. 

In Shotover Park Ltd and Remarkables Park Ltd v Foodstuffs (South Island) Ltd,2 two appellants alleged that one division of the Environment Court failed to consider the reasoning of another division of the Environment Court, namely, Judge Borthwick disregarding Judge Jackson's decisions in the Consent Cases.  The appellants alleged this was an error of law and thus Judge Borthwick's decision on the content of PC19 should be set aside.  This first decision under PC19 was an interim "higher order" decision; a further hearing on PC19 is required for Judge Borthwick to complete the lower order matters. 

The appeals were dismissed by Fogarty J.  His Honour considered that Judge Borthwick could have considered the reasoning of the other Court; however, the questions each Court was examining were materially different.  This was in part due to the different statutory functions each Court was carrying out.  Judge Borthwick was assessing a proposed plan change under sections 31, 32 and 33 of the Resource Management Act 1991 (the "Act"), while Judge Jackson was considering resource consent applications under sections 104 and 104D of the Act.  As a common element, Part 2 of the Act applied to both statutory functions.  In this case, Fogarty J found that the distinction between the different functions of the two Courts meant there was no duty of one Court to consider the reasoning of the other.  It would have been permissible for Judge Borthwick to consider the Consent Cases; however, it was not mandatory. 

Further, when deciding the content of a plan, as opposed to the grant of a particular resource consent, the Court is not obliged to confine "environment" to the "existing environment", as defined in Hawthorn.3  Therefore, Judge Borthwick was not obliged to assume that the environment within PC19 contained the Pak'nSave and Mitre 10 Mega, which were granted consents pursuant to the Consent Cases. 

At the time Fogarty J heard the appeals in Shotover Park, the Consent Cases had been appealed to the High Court, where the grant of consents was overturned and the applications were remitted back to the Environment Court to be reconsidered in the light of PC19.  Further, leave had just been granted to appeal the High Court decision on the resource consents to the Court of Appeal.  Justice Fogarty noted that the already long delays around PC19, would make it hard to justify abandoning a decision on PC19 until the appeals on the Consent Cases were resolved.
 
While the appeals were dismissed in Shotover Park, there will still be interesting consequences in light of the pending Court of Appeal decision in the Consent Cases.  In relation to PC19, as this appeal was against the interim "higher order" decision, if the Court of Appeal reinstates the resource consents, Judge Borthwick may still be able to take the resource consents into account as being likely to be implemented.  If the appeals are dismissed, Judge Jackson may still reconsider the resource consents in light of the directions from the High Court in the Consent Cases. 


2 Shotover Park Ltd and Remarkables Park Ltd v Foodstuffs (South Island) Ltd [2013] NZHC 1712.
3 Queenstown Lakes District Council v Hawthorn Estates Ltd [2006] NZRMA 424 (CA) at [84]. 
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