Leave to appeal direct to Supreme Court from High Court – Resource Management Act 1991 – Criminal Procedure Act 2011 – Senior Courts Act 2016 – general or public importance – risk of miscarriage of justice – High Court Rules 2016 – jurisdiction – amenity value – approach to kaitiakitanga – The Canyon Vineyard Ltd v Central Otago District Council [2023] NZCA 74

The Canyon Vineyard Ltd v Otago District Council & Bendigo Station Ltd [2023] NZSC 108.

Canyon’s application to the Supreme Court for leave to appeal directly from the High Court was declined. The application for leave was also out of time. The Supreme Court assumed Canyon was also applying simultaneously for leave to appeal out of time.

Canyon owns land west of Bendigo’s land where it operates a vineyard, restaurant and function centre. Canyon is solely owned and directed.

Bendigo was granted a resource consent by Central Otago District Council to subdivide part of its land into 12 lots. Canyon opposed Bendigo’s resource consent application on the basis the subdivision would negatively affect “rural amenities”. When the council granted the resource consent, Canyon appealed to the Environment Court. The court upheld the consent for a slightly different proposal.

Canyon appealed to the High Court on a point of law, but was declined. Canyon then failed to obtain leave from the Court of Appeal, under s 299 of the Resource Management Act 1991. Section 299 appeals are governed by subpart 8 of part 6 of the Criminal Procedure Act 2011.

Canyon then sought leave from the Supreme Court for a direct appeal on two errors: the Environment Court had failed to consider evidence on kaitakitanga and the Environment Court and High Court had erred in assessing the effects of the proposal in the context of the Central Otago District Council District Plan objective to “maintain and where practical enhance rural amenity values”.

The council said the Supreme Court did not have jurisdiction to hear the appeal because Canyon had already exercised its second appeal to the Court of Appeal under s 303 of the Criminal Procedure Act. Therefore, the exception to a right to appeal in s 69(a) of the Senior Courts Act 2016 applied.

It also said s 75 of the Senior Courts Act stipulated exceptional circumstances must exist before an appeal could be made direct from the High Court to the Supreme Court.

Bendigo cited Burke v Western Bay of Plenty District Council [2005] NSC 46 and Te Whānau a Kai trust v Gisborne District Council [2023] NZSC 77 as authority for exceptional circumstances being a high barrier when the Court of Appeal has already declined leave to appeal in a fully reasoned judgment, as was the case here.

Applicable principles: whether Court of Appeal judgment is fully reasoned – whether tests under ss 74 and 75 of the Senior Courts Act are satisfied – whether exceptional circumstances exist – whether risk of miscarriage of justice – whether alleged erroneous treatment of evidence material to decision – whether lower courts rejection of evidence adequately explained – whether assessment of “effects” erroneous – civil miscarriage of justice test – Junior Farms Ltd v Hampton Securities Ltd (in liq) [2006] NZSC 60.

Held: The application for an extension of time to apply for leave was dismissed because leave to appeal would not be granted.

It was not necessary to determine whether Supreme Court had jurisdiction because the application did not satisfy s 75 of the Senior Courts Act criteria. Canyon did not establish a risk of a miscarriage of justice. While the approach to kaitiakitanga and proper interpretation of plans could be matters of general public importance, they were not in this case. The Environment Court and High Court had not made an error of law in interpreting the effects of the proposed subdivision.

After 14 years as general counsel for a local authority, Andrea Hilton is now a sole practitioner practising local government law.

The Canyon Vineyard Ltd v Otago District Council & Bendigo Station Ltd [2023] NZSC108