The High Court has granted an application made by West Coast ENT for leave to appeal its decision on Buller Coal's declaration on climate change issues to the Court of Appeal.
As outlined in our earlier newsletter which you can view here, the High Court's decision confirmed the conclusions of the Environment Court that the Resource Management (Energy and Climate Change) Amendment Act 2004 removed the jurisdiction of local authorities to consider the effects on climate change of the discharge of greenhouse gas emissions from the end use of coal, including as a result of coal mining operations, at least until there is further national guidance on the matter. In that decision, Whata J left open the question as to whether diffuse, non-point emissions could be amenable to district level control, depending on the particular facts of the case.
The High Court has a broad discretion as to whether it grants leave to allow a further appeal and may grant leave if, in its opinion, the question of law involved is one which, by reason of its general or public importance or for any other reason, ought to be submitted to the Court of Appeal for decision. If leave is refused, the Court of Appeal is also able to grant special leave to hear the question of law.
In this case, West Coast ENT's application was not opposed by the other parties (ie Royal Forest and Bird Protection Society of New Zealand Incorporated, Buller Coal Limited and Solid Energy New Zealand Limited). As the leave application was unopposed, Whata J was able to decide the application on the papers. He cites the lack of opposition as a basis for leave being granted, as well as a conclusion that the questions of the declarations are matters of general public interest. It is not clear why the application was not opposed by the other parties. However, Bathurst Chief Executive Hamish Bohannan has said Bathurst, which owns Buller Coal Limited, remains confident the declaration will be upheld by the Court of Appeal