'Z.~ ~fllrj~'ml ~ 2<J Ii

Transcription

1 BEFORE THE ENVIRONMENT COURT Decision No. [2018] NZEnvC 5 IN THE MATTER AND IN THE MATTER of the Resource Management Act 1991 of an application under s 314 of the Act BETWEEN AND AND AND AND VIPASSANA FOUNDATION CHARITABLE TRUST BOARD and KEEP THE PEACE MAKARAU VALLEY INC (ENV-2017-AKL ) Applicants RAYMOND MYLES O'BRIEN and VICTORIA MEl SIEN PICHLER First Respondents AUCKLAND SHOOTING CLUB INC Second Respondent EVERSON EARTHMOVING LTD Third Respondent AUCKLAND COUNCIL Fourth Respondent Court: Hearing: Date of Decision: Date of Issue: Environment Judge DA Kirkpatrick sitting alone under s279( 1)( a) of the Act on the papers 24 January 2018 'Z.~ ~fllrj~'ml ~ 2<J Ii DECISION OF THE ENVIRONMENT COURT ON APPLICATION FOR DISCOVERY AND INSPECTION A. The First, Second and Third Respondents are ordered to discover: i. all written communications to and from the Third Respondent and/or

2 2 Graham Everson concerning the earthworks on 287 and/or 297 Tuhirangi Road commenced on or after 27 October 2017; and ii. any plans, calculations or methodology for the earthworks on 287 and/or 297 Tuhirangi Road commenced on or after 27 October B. Such discovery is to be done in accordance with the requirements of the District Court Rules applying to tailored discovery. C. In all other respects the application for discovery and inspection by the Applicants is dismissed. D. Costs are reserved. REASONS Introduction [1] The Applicants, Vipassana Foundation Charitable Trust Board and Keep the Peace Makarau Valley Incorporated (the Applicants), apply for orders: a) that the Fourth Respondent (the Council) discover various records of its inspections of 287 and/or 297 Tuhirangi Road, any reports recommending compliance or enforcement action in relation to earthworks on those properties and any resource consent for earthworks that have occurred there since 27 October 2017; b) that the First, Second and Third Respondents discover: i) all written communications to and from the Third Respondent and/or Graham Everson concerning the earthworks on 287 and/or 297 Tuhirangi Road commenced on or after 27 October 2017; and ii) any plans, calculations or methodology for the earthworks on 287 and/or 297 Tuhirangi Road commenced on or after 27 October 2017; and

3 3 c) granting access to the properties at 287 and 297 Tuhirangi Road by an independent earthworks expert, surveyor, planner and any technical assistant(s) for the purpose of evaluating compliance of the earthworks on those properties. [2] The grounds for the application are that the orders sought are necessary and appropriate as: a) The Council will not make its information available in a prompt or reasonable timeframe; b) The explanations of the Respondents about the earthworks are not consistent with the photographic evidence filed in support of the application; c) There is a risk that unauthorised earthworks will continue unabated; d) The Council has failed to act effectively or at all in its statutory duty under s84 of the Act to observe and enforce its plans; and e) Based on District Court Rules 8.19, 8.20 and [3] An affidavit of John George Rafaelli affirmed on 14 December 2017 was filed in support of the application. Mr Rafaelli affirms that on 14 December 2017 he walked through neighbouring land and viewed the earthworks that had been carried out at 287 Tuhirangi Road and that were being carried out at 297 Tuhirangi Road. Mr Rafaelli opines that the latter earthworks exceed 1000m 2 in area. Attached to the affidavit are 15 photographs showing earthworked areas and earthmoving machinery. Unfortunately, the affidavit does not include any information on which to assess his opinion or any sort of key that would assist in identifying the locations in the photographs or the locations from where the photographs were taken. [4] In a memorandum dated 15 December 2017 for the Applicants in support of the application, counsel advised: a) The Council reinstated the certificate of compliance relating to the shooting range at 287 Tuhirangi Road by a decision of its hearing

4 4 commissioners dated 21 November 2017; b) The Applicants intended to challenge that reinstatement decision by an application for judicial review to be filed prior to 22 December 2017; c) A notice of hearing and case on appeal in relation to the appeal against the High Court's earlier decisions 1 were to be filed in the Court of Appeal by 21 December 2017; d) The evidence of Mr Rafaelli showed that the earthworks at 297 Tuhirangi Rd were inconsistent with creating farm tracks and were not dissimilar to the earthworks at 287 Tuhirangi Rd shown in the photographs attached to the affidavits of K F McKay affirmed on 7 and 14 November 2017 and filed in support of the original application for enforcement orders and interim enforcement orders; e) Discovery from the Council is sought because obtaining the information under the Local Government Official Information and Meetings Act 1987 would be too slow; f) Access to the properties is sought for the purposes of ascertaining compliance with both the undertakings previously given to the Court by the First Respondent and the new earthworks presently underway. Counsel notes that the assistance of the Police will be requested. g) Counsel submits that the earthworks should be subject to independent assessment and appraisal. [5] The Council says that the information sought from it has already been provided to the applicants under the Local Government Official Information and Meetings Act It notes that the applicants have made a further request for information which it is presently processing under that Act. [6] The First, Second and Third Respondents oppose the making of orders against 1 Vipassana Foundation Charitable Trust Board v Auckland Council & ors [2017] NZHC 1457 and [2017] NZHC 1492.

5 5 them on a variety of grounds, including: a) The documents sought are private as among themselves; b) There is no lawful or reasonable basis for requiring discovery and inspection of those documents; c) The Applicants are not a consent authority or an enforcement authority; d) The Council has been inspecting the properties and has measured the earthworks at 297 Tuhirangi Road and on 18 January 2018 issued abatement notices in respect of those earthworks with which the Respondents will comply; e) The earthworks undertaken comply with the relevant plan rules for permitted activities; f) The First Respondents continue to comply with their undertakings to the Court in respect of 287 Tuhirangi Road; g) It is not lawful, necessary or appropriate for the Applicants to have access to the properties; and h) Concurrent proceedings by the Applicants serve no useful purpose. Discussion [7] The Environment Court and Environment Judges have the same powers that the District Court has in the exercise of its civil jurisdiction. 2 Many aspects of that jurisdiction are codified in the District Court Rules 2014, including discovery and inspection of documents in Part 8 and inspection and testing in subpart 3 of Part 9 relating to evidence. [8] It is pertinent at the outset to draw the attention of the parties to Rule 8.2 of the Rules, which provides: 2 Section 278 Resource Management Act 1991.

6 6 8.2 Co-operation (1) The parties must co-operate to ensure that the processes of discovery and inspection are- (a) proportionate to the subject matter of the proceeding; and (b) facilitated by agreement on practical arrangements. (2) The parties must, when appropriate,- (a) consider options to reduce the scope and burden of discovery; and (b) achieve reciprocity in the electronic format and processes of discovery and inspection; and (c) ensure technology is used efficiently and effectively; and (d) employ a format compatible with the subsequent preparation of an electronic bundle of documents for use at trial. [9] It is also pertinent to note that the discovery regime in the District Court's civil jurisdiction automatically requires a standard form of discovery by all parties, unless dispensed with by order of that Court. The position in this Court is quite different - there is no standard requirement for discovery in proceedings before this Court and under s278(2) of the Act: (2) An application for an order for discovery or production of documents may be made only with the leave of an Environment Judge. [10] Consequently, it is necessary to consider and apply the District Court Rules for discovery in the different context which exists in this Court. [11] Rule 8.19 provides: 8.19 Order for particular discovery against party after proceeding commenced If at any stage of the proceeding it appears to a Judge, from evidence or from the nature or circumstances of the case or from any document filed in the proceeding, that there are grounds for believing that a party has not discovered 1 or more documents or a group of documents that should have been discovered, the Judge may order that party- (a) to file an affidavit stating- (i) whether the documents are or have been in the party's control; and (ii) if they have been but are no longer in the party's control, the party's best knowledge and belief as to when the

7 7 documents ceased to be in the party's control and what has become of them; and (b) to serve the affidavit on the other party or parties; and (c) if the documents are in the person's control, to make those documents available for inspection, in accordance with rule 8.27, to the other party or parties. [12] This rule proceeds on the basis that discovery has already been required but has not been fully provided. The Applicants' reliance on this rule appears to be based on their seeking discovery of particular documents rather than general or standard discovery. I will proceed on the basis that this is an application for tailored discovery in terms of Rule 8.8. [13] Rule 8.20 provides for discovery before a proceeding is commenced and I do not think that rule is relevant here, where the proceeding has commenced. [14] Guidance can be gained from several earlier decisions of this Court. In Challenge Charters Ltd v America's Cup Village Ltef his Honour Judge Sheppard reviewed s278 of the Act, the predecessor to Rule 8.19 and case law. He held that there 'are three criteria for making an order for discovery: (1) Whether there are grounds for believing that the documents may be, or may have been, in the possession, custody, or power of the party against whom the order is sought. (2) Whether there are grounds for believing that the documents are relevant to a matter in question in the proceedings, in the sense of being capable of advancing a party's case or of damaging the case of its adversary. Relevance is to be determined by the pleadings. (3) Whether the making of an order is reasonably necessary. [15] He also noted that even where these criteria are satisfied, there remains a discretion whether to grant leave. Without determining the point, he observed that it seemed possible there might be a case where the issue of an order otherwise justified might be disproportionately oppressive, or otherwise unjust, when leave might be declined in the exercise of the Court's discretion. [16] In Radco Trading Ltd & Dig Investment Group Ltd v Auckland City CounciP the Court addressed that discretion in a case where tangata whenua had provided 3 Challenge Charters Ltd v America's Cup Vii/age Ltd AI0/99. 4 Radco Trading Ltd & Dig Investment Group Ltd v Auckland City Council A 023/2004.

8 8 culturally sensitive information which affected the appellant's land on a confidential basis to the Council. The Court explored alternative methods to try and balance the principles of open justice with issues of confidentiality and noted the various methods available to a Court to address those potentially conflicting concerns. [17] In Naturally Best NZ Ltd & Shotover Park Ltd v Queenstown Lakes District Council 5 his Honour Judge Jackson reviewed the principles and case law in relation to claims of privilege and confidentiality arising in respect of certain commercial deeds. His Honour held that the public interest in informed decision making under the Act overrides any potential embarrassment from having one's side deals disclosed. [18] A similar approach was taken in Yovich v Whangarei District Councif where his Honour Judge Smith ordered that an agreement for sale and purchase be discovered, but with information identifying the purchaser, the price and any financial conditions redacted. [19] The power to make an order for inspection of a property is contained in Rule 9.25: 9.25 Order for inspection, etc (1) The court may, for the purpose of enabling the proper determination of any matter in question in a proceeding, make orders, on terms, for- (a) the inspection of any property: (b) the taking of samples of any property: (c) the observation of any property: (d) the measuring, weighing, or photographing of any property: (e) the conduct of an experiment on or with any property: (f) the observation of a process. (2) An order may authorise a person to enter any land or do anything else for the purpose of getting access to the property. (3) In this rule, property includes any land and any document or other chattel, whether in the control of a party or not. [20] This rule has been described as providing for an "extended discovery order" generally to allow one party to inspect property where the state or quality of that property is in some way in issue in the proceeding? It is, as always, appropriate to the 5 Naturally Best NZ Ltd & Shotover Park Ltd v Queenstown Lakes District Council C 102/ Yovich v Whangarei District Council [2015] NZEnvC Gillespie v Guest [2013] NZHC 668 at [64]- [65].

9 9 exercise of the discretion to consider whether the making of such an order is reasonably necessary. Consideration of that may entail consideration of the sufficiency of any discovery of documents that has occurred. Evaluation [21] In respect of the order for discovery sought against the Council, that appears to have been overtaken by events so that it is not reasonably necessary to make such an order. [22] For the future, while the Court has no jurisdiction in relation to the Local Government Official Information and Meetings Act 1987 and will not circumscribe its powers under s278 because of that other Act, Rule 8.2 is clear that discovery must be undertaken in a co-operative manner. While the Applicants raised a concern that the process under that other Act may be too slow, that has not been the case this time and no doubt the Council is always mindful of its statutory obligation to deal with requests for information as soon as reasonably practicable. [23] In respect of the order for discovery sought against the First, Second and Third Respondents, particular (or tailored) discovery is sought limited to: i) all written communications to and from the Third Respondent and/or Graham Everson concerning the earthworks on 287 and/or 297 Tuhirangi.Road commenced on or after 27 October 2017; and ii) any plans, calculations or methodology for the earthworks on 287 and/or 297 Tuhirangi Road commenced on or after 27 October [24] In terms of the criteria for making an order for discovery: a) It seems reasonable to assume that there could well be written communications among the Respondents or Mr Everson as a principal of the Third Respondent, together with associated working documents, concerning earthworks on one or other of the properties; b) It is likely that any such communication or document would be relevant to the question of the purpose and extent of such earthworks having regard

10 10 to the basis on which the application for enforcement orders has been made; and c) It appears unlikely that the Respondents will discover such documents or make them available for inspection by exchange without an order being made, so that the making of an order is reasonably necessary. [25] Considering the reasons advanced by the First Second and Third Respondents in opposition to the making of an order in the exercise of the general discretion whether to grant leave, I do not consider that any issue of privacy arises. The documents sought appear to fall within the ambit of the business records of the Third Respondent. No details of privilege or confidentiality or other sensitivity are raised. The Applicants are not public bodies, but their ability to seek discovery is based on having made their application to the Court. It is not apparent that the Council would have the information which is sought from these Respondents. It is not appropriate to undertake a merits assessment of the case for the purposes of an application for discovery. The existence of concurrent proceedings is not, by itself, a bar to any aspect of procedure in one of those proceedings. [26] In my judgment, there are no sufficient reasons to refuse an order for particular or tailored discovery in the circumstances of this proceeding. I note that it must be implicit in the application and necessarily appreciated by the Respondents that if discovery is ordered, then to be effective there should also be a corresponding order to allow inspection of the discovered documents. [27] In respect of the order for inspection, I am not satisfied that the making of such an order is reasonably necessary. It is clear from the affidavits already filed that the Applicants are able to observe the site and see the earthworks. While they may not be able to undertake a surveyor perform tests, it is not clear to me that those things need to be done, at least at this stage. It is clear that the Council has been inspecting the properties and so the information sought may be able to be obtained through the Council. The position might be revisited once discovery has occurred. [28] I am also concerned that the application does not address the details of how any inspection would be undertaken or by whom. The brief reference to a request for assistance from the Police amplifies my concern. If a person seeks an order to enter onto another person's property in circumstances where the Police need to be present,

11 11 then particular care must be taken in establishing both the grounds for such an order and the manner in which it will be carried out. Decision [29] The First, Second and Third Respondents are ordered to discover: i) all written communications to and from the Third Respondent and/or Graham Everson concerning the earthworks on 287 and/or 297 Tuhirangi Road commenced on or after 27 October 2017; and ii) any plans, calculations or methodology for the earthworks on 287 and/or 297 Tuhirangi Road commenced on or after 27 October [30] Such discovery is to be done in accordance with the requirements of the District Court Rules applying to tailored discovery. [31] In all other respects the application for discovery and inspection by the Applicants is dismissed. [32] Costs are reserved. D A Kirkpatrick