Case Law - Application for a declaration

Franklin District Council v Waiuku Rigging & Labour Hire Ltd and Others [1997] 3 NZPTD 840

The Council applied for an enforcement order against the respondents. The issue was the meaning of a provision of the Council's Transitional District Plan and it was not possible to decide whether or not an enforcement order should be made until the Tribunal decided on the meaning of the provision. The parties agreed to seek a declaration as to the meaning of the Plan provision and then consider the rights of the parties in the light of that determination.

Coalition of Residents Associations Inc v Wellington City Council [2001] W056/01

In this case the Court declined to make the three declarations sought, but granted the parties an opportunity to make further submissions. Further submissions were made but the Court, for similar reasons, declined to make the declarations sought ([2001] W90/2001).

The applicants objected to the visual impact of cables fixed by Telstra Saturn Limited to an overhead line. Telstra Saturn had a certificate of compliance to carry out line work. The Court noted at paragraph 7 that a declaration should not "form a springboard for a prosecution or similar penal sanctions" by reason that an act or omission may have been illegal in terms of the relevant plan.

The Court declined to make the first declaration sought because it "adds nothing to the plan but is effectively an exercise in tautology". The Court was not prepared to make a declaration that a 'communication cable' has a 'plain and ordinary meaning'. "A declaration if made by the Court must specify the meaning to be attributed to those words not leave it open." Furthermore, a declaration must fit within the jurisdiction under s310 and the Court could not find any jurisdiction to grant even an amended declaration of the type sought. The Court was of the opinion that the third declaration was essentially seeking an 'interpretation' of a certificate of compliance and there was no jurisdiction to do this under s310.

Omaha Beach Residents' Society (Inc) v Townsend Brooker Ltd [2010] NZCA 413

The Omaha Beach Residents' Society (OBRS) sought declarations to establish whether a restrictive covenant granted at the time of the original subdivision was enforceable against current owners. However, there was no live controversy between parties and OBRS effectively sought guidance for future.

The Court of Appeal dismissed the OBRS appeal and considered it was not appropriate to rule on enforceability of the covenant against the background of possible future application and that it was preferable to leave issue to be decided in context of an actual controversy.

Re Coromandel Marine Farmers Association Inc [2006] (HC, Auckland, CIV-2006-419-000877)

Coromandel Marine Farmers Association (CMFA) sought a declaration (under the Declaratory Judgments Act 1908) and appealed the Environment Court’s decision not to make a declaration that a marine farming permit under the Fisheries Act 1983 was a deemed coastal permit under the RMA.

The High Court considered the scope of the Environment Court’s powers to make declarations under section 310 of the RMA. In particular, the Court considered subsection 310(a), which provides that the Environment Court may declare the existence or extent, amongst other things, of any right or duty under the RMA.

In this case the question of whether or not CMFA had an effective coastal permit granted under the RMA was plainly a question arising about a right under the RMA but the question could not be addressed without reference to other statutory provisions. The Court held that if, in order to make a declaration on a matter which is plainly within one of the paragraphs in s310 of the RMA, it is necessary for the Environment Court to refer to any other statutory or regulatory provision, it may do so. Indeed, where another statutory provision is relevant to an application for declaration, the Court will have a duty to do so.

Palmerston North City Council v New Zealand Windfarms Ltd [2012] NZEnvC 133

Partially successful application by the Council for declarations concerning whether a wind farm operation was complying with resource consent conditions. New Zealand Windfarms, the windfarm operator argued that declarations were beyond the jurisdiction of the Court because the declaration process is limited to interpretive issues and is generally not appropriate where there are contested facts.

The Court held that there was nothing in the provisions of s310-313 RMA which preclude the Court from making findings as to disputed facts in any declaration proceedings. Whether or not it is necessary to determine disputed issues of fact in order to make a declaration is something which will turn on the circumstances of any given case. The Court had no difficulty with the proposition that it is preferable that declaration proceedings come before the Court on the basis of agreed facts, however, that may not be possible in any given instance for any number of reasons.

Wellington Regional Council v Burrell Demolition Ltd [2000] W98/00, [2001] HC AP25/01, and [2002] CA 161/01

The Wellington Regional Council applied for declarations as to the correct interpretation of consent conditions granted to Burrell Demolition Ltd. The Wellington Regional Council had brought three prosecutions against Burrell Demolition Ltd but these had not yet been determined.

The Environment Court (W98/2000) declined to grant the declarations sought, mainly because the Court found the declarations "very precise and in the light of the evidence too restrictive. They also may form the basis for further prosecutions" (paragraph 88).

On appeal to the High Court ( 30/04/01, Doogue S, HC, Wellington, AP25/01) the Court noted at paragraph 25 that "the absence of any statement of principles as to the basis on which the discretion is to be exercised under s313 RMA points to the intention to confer a broad judicial discretion". The High Court referred to the Court of Appeal's decision in Electoral Commission v Tate ([1999] 3 NZLR 174) which dealt with the interpretation of statutes. The High Court held at paragraph 32 that "unless there was a sound reason why a declaration should be refused in the present case the Environment Court was obliged to determine the meaning of the conditions in dispute." The High Court considered the exceptions from Electoral Commission v Tate and found none applied. The High Court made a declaration. The decision was appealed to the Court of Appeal (CA 161/01, 18 March 2002).

Referring to Electoral Commission v Tate, the Court of Appeal said Tate does not undermine the discretion to grant relief (at paragraph 5). The Court of Appeal said at paragraph 12:

Although discretionary in nature, the power given to the Environment Court to make declarations is a useful tool in the administration of the Act. We agree with Doogue J that particularly when parties who are faced with a live issue, as these parties were, combine to seek declaratory assistance, the Environment Court should be slow to decline relief. It is not appropriate to seek to compile an exhaustive list of circumstances when it may be right nevertheless to refuse declaratory relief. We also agree with Doogue J that the fact that the Environment Court Judge found the formulation of the declaration sought too precise and restrictive was not a sufficient reason of itself to decline to make any declaration at all.

Further at paragraph 16 the Court said:

We wish to make it clear for the future that the fact that parties may consent to the seeking of a declaration under s313 in a case where there are pending or potential criminal proceedings involving the same issues should not of itself be regarded as carrying much weight in the exercise of the discretion.