Environment Court Guidance: Second Star Ltd v Queenstown Lakes District Council

The Environment Court decision in Second Star Ltd v Queenstown Lakes District Council¹ was an appeal against the Queenstown Lakes District Council (the Council) decision to decline resource consent applications for a luxury visitor accommodation lodge at Damper Bay between Wānaka Township and Glendhu Bay. Ultimately, the appeal was dismissed. However, the Court provided some helpful guidance for Councils appearing before the Court on appeals against their decisions.

Typically, when a Council delegates decision-making on a resource consent application to Commissioners, the Commissioners' decision becomes the Council's decision. If appealed, the Council, as respondent, is expected to defend this decision. The Council’s role in an appeal is not comparable to that of a private litigant due to its regulatory and quasi-judicial functions under the RMA, and its statutory responsibility includes enforcing its district plan.

However, the Court commented that when the Council cannot support its decision with initial evidence, it is expected to do some or all of the following:

• Maintain a neutral stance, while providing assistance to the Court with information on the decision under appeal and the relevant planning framework.
• Avoid calling expert evidence in support of its decision.
• Make the initial expert authors available to other appeal parties upon request.

If intending to call evidence in support of an opposite position, as the Court found that the Council did in this occasion, the Council’s duty is to act with fairness and full transparency to all participants in the process as to the justification for its changed position, including parties joining under section 274.

The Court was particularly critical that the Council in this case had not taken a neutral role and had instead actively supported the applicant by presenting planning and landscape evidence in their favour. The Court also noted that the Council engaged in discussions with the appellant’s representatives without involving or informing the section 274 parties, commenting that:²

By agreeing to attend meetings with representatives of the appellant, without extending an invitation, or insisting that an invitation be extended to s274 parties, the Council was in breach of a duty to be fair and fully transparent to all parties to the proceeding.

The Court also did not accept the suggestion of the Council that the Court should focus on unresolved issues from the original hearing, without being burdened by evidence that was already presented at the first instance hearing. The Court was not prepared to proceed on that basis and decided to base its judgment on all evidence presented, not just in relation to unresolved issues, adhering to its de novo jurisdiction.

This case clearly demonstrates the Court's expectations of Councils as consent authorities, when their resource consent decisions are appealed.