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Do it once and do it right: message for developers
Appeals to the High Court from the Environment Court are rarely successful. In the past year, we are aware of only three successful appeals against Environment Court decisions, out of a total of 15 appeals. The lesson for developers – do it once and do it right.
A recent example of the High Court's reluctance to interfere with Environment Court decisions is the decision of Justice Cooper in Schweder and Flynn Brothers Limited v Franklin District Council. In this case the High Court considered an Environment Court decision that Schweder and Flynn Brothers Limited claimed had failed to give reasons for approving the provisions of a Pukekohe Hill structure plan.
Justice Cooper agreed that the Environment Court had not given detailed reasons for its decision to approve the structure plan. However, he declined to set aside the Environment Court decision on the basis that the reasons for the decision were implicit in an earlier court decision on zoning issues. The judge said that in determining the zoning issues in favour of the council, the Environment Court had "by implication, supported the general policy thrust of the council's objectives and policies for Pukekohe Hill".
The High Court's reluctance to interfere with the Environment Court decision, and its reliance on implied reasoning in doing so, is consistent with the general trend that very good reasons will need to be shown before a specialist court's judgment will be overturned.
There is little doubt, given the infrequent success of appeals to the High Court from the Environment Court, that such appeals are hard to win. The High Court's preference is clearly to let the specialist tribunal sitting in the Environment Court determine the issues, and in the absence of compelling reasons to the contrary will not be easily persuaded into overturning those decisions.
The lesson for developers is clear. Once a council's decision is being considered by the Environment Court, make sure you get it right. Trying to address perceived inadequacies in the Environment Court's reasoning on appeal is unlikely to be successful.
* Josh McBride acted for the appellants in this case.
