High Court

Appeals to the High Court


A decision of the Environment Court is generally conclusive on matters of fact. However, a further limited right of appeal exists to the High Court on a question of law. 1243  The purpose of an appeal on a question of law is to determine whether the Environment Court has acted within its powers. The weight given to various relevant considerations is for it to determine and cannot be reconsidered by the High Court. 1244  A question of law may include the following:

  • Has the Environment Court applied the wrong legal test?
  • Has the Environment Court come to a conclusion without evidence (or a conclusion which on the evidence could not reasonably have been reached)?
  • Has the Environment Court taken into account matters which should not have been taken into account?
  • Has the Environment Court failed to take into account matters which should have been considered?

The High Court is vigilant to guard against appeals of fact “dressed up” as questions of law. 1245

Any error of law must have materially affected the result of the Environment Court’s decision for the High Court to grant relief. 1246

Where an error is found the usual practice is to remit the case back to the Environment Court for further consideration.

A decision of the High Court on a point of law is able, with leave, to be appealed to the Court of Appeal, and with further leave, to the Supreme Court. 1247

If you are considering an appeal to the High Court you will need to consult with a resource management lawyer.

Judicial review of notification decisions

The issue of whether or not to notify a resource consent application has been the subject of numerous applications to the High Court for judicial review. This is because the Environment Court does not have jurisdiction to consider challenges to a notification decision. 1248  In order to overturn a notification decision on the basis that it is unlawful, it will normally be necessary to establish one of the following grounds:

  • The decision-maker made an error of law
  • The decision-maker took into account irrelevant matters
  • The decision-maker failed to take into account relevant matters
  • The decision-maker had insufficient information on which to base the decision 1249

It is also possible to challenge a decision on the basis that it was unreasonable. This is a high test to meet and requires the appellant to establish that the decision was so unreasonable that no reasonable decision-maker could ever come to it (known as the Wednesbury test).

An applicant for judicial review must generally have ‘standing’. This means the decision not to notify must result in an adverse effect which sets you apart from the public at large. 1250  However, a very liberal approach has been taken to the issue of standing under the RMA. 1251  As a result it is generally sufficient if you have an honest or genuine interest or raise issues of genuine importance to the public at large. 1252

If the High Court find an error in the Council’s decision it has a discretion whether to grant relief. The usual presumption is that error will result in relief being granted unless there are special circumstances, for example if a plaintiff delayed taking steps to pursue judicial review and development has proceeded. 1253

If the Court overturns the decision not to notify, it will not substitute its own decision but instead will refer the matter back to the decision-maker to be reconsidered.

If you are considering judicial review of a notification decision you will need to consult with a resource management lawyer.

  1. Section 299 Resource Management Act 1991

  2. Hunt v Auckland City Council [1996] NZRMA 49

  3. Countdown Properties(Northlands) Ltd v Dunedin City Council [1994] NZRMA 145

  4. Nicholls v Papakura District Council [1998] NZRMA 233 (HC)

  5. Section 308 Resource Management Act 1991

  6. Section 310 Resource Management Act 1991

  7. See Westfield (NZ) Ltd v North Shore City Council [2005] 2 NZLR 597 (SC) andNorthcote Mainstreet Inc v North Shore City Council [2006] NZRMA 137 (HC) in which the Court found that the consent authority must have adequate information (but not all-embracing information) in order to be satisfied to make a decision on an informed basis.

  8. Quarantine Waste (NZ) Ltd v Waste Resources Ltd [1994] NZRMA 529

  9. Nolan, Environmental and Resource Management Law, Chapter 19: Environmental litigation and dispute resolution, p 1150

  10. Society for the Protection of Auckland City & Waterfront Inc v Auckland City Council [2001] NZRMA 209King v Auckland City Council [2000] NZRMA 145

  11. See sections 83 and 150 Local Government Act 2002

Last updated at 10:14AM on January 8, 2015