Aokautere Land Holdings Limited v Palmerston North City Council

[2022] NZHC 453

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2021-485-510

[2022] NZHC 453

IN THE MATTER

of an appeal against Environment Court Decision [2021] NZEnvC 122

BETWEEN

AOKAUTERE LAND HOLDINGS LIMITED

Appellant

AND

PALMERSTON NORTH CITY COUNCIL

Respondent

Hearing:	2 March 2022
Counsel:	G J Woollaston for Appellant N Jessen for Respondent
Judgment:	14 March 2022

JUDGMENT OF SIMON FRANCE J

Introduction

[1]                   The appellant, Aokautere Holdings Ltd, applied for a subdivision resource consent. Subsequently, pursuant to s 168A of the Resource Management Act 1999 (the Act), the Palmerston North City Council issued a Notice of Requirement (NOR). This is a notice that a territorial authority wishes or intends to designate land for a public work. The proposed public work would use much of the subdivision land for a road. The two proposals are accepted by everyone to be incompatible – both cannot happen.

[2]                   The NOR was referred to an independent commissioner for determination under s 168A. Prior to completion of that process, the subdivision consent application

AOKAUTERE LAND HOLDINGS LTD v PALMERSTON NORTH CITY COUNCIL [2022] NZHC 453

[14 March 2022]

came up for hearing. I am advised the Council suggested to Aokautere Land Holdings Ltd the consent application be deferred, but this was not agreed to.

[3]                   At issue before the Hearings Committee of the Council,1 then the Environment Court by way of an application for a declaration,2 and then this Court by way of this appeal against an alleged error of law,3 is the relevance of the existence of the NOR to the resource consent determination. The position of Aokautere Land Holdings Ltd is that the NOR must be ignored and the consent considered in the normal way. The Hearings Panel did not agree, nor did the Environment Court. The Environment Court’s holdings are:

(a)the presence of a NOR is not an impediment to proceeding with the resource consent application;4

(b)the presence of a NOR can be a relevant “other matter” to be considered under s 104(1)(c) of the Act when determining the application;5

(c)if the conclusion of the Hearings Panel is that the NOR is a matter the consideration of which is “relevant and reasonably necessary” to determining the application, then the opening words of s 104 then make it a mandatory consideration;6 and

(d)the weight to be attached to the NOR is a matter for the decision maker.7

[4]                   No one contests the correctness of the first point which need not be further considered. Aokautere Land Holdings Ltd contests that the NOR is or can be a “relevant and reasonably necessary” matter to consider in relation to the consent hearing. It submits that the NOR procedure is a discrete self-contained process. The NOR procedure contains its own safeguards, and is a notice of intended designation

1      Decision dated 8 May 2020.

2      Aokautere Land Holdings Ltd v Palmerston North City Council [2021] NZEnvC 122. The declaration procedure is found at s 311 of the Act.

3      Resource Management Act 1991, s 299. The appeal power is limited to questions of law.

4      Aokautere Land Holdings Ltd, above n 2, at [17].

5      At [15]

6 At [15].

7 At [17].

which may never occur. It should not impact the workings of the Act. If consent is granted, the NOR provisions contain their own limits on what may be done to any land subject to a NOR.

Validity of appeal

[5]                   I accept the issue of whether a NOR can ever be  an “other matter” under      s 104(1)(c) of the Act is a question of law.

[6]                   Mr Woollaston submits the Environment Court further erred in appearing to endorse the weight which the Council placed on the existence of the NOR in this case. I do not consider that to be a question of law. Further, it was an obiter comment by the Court based on a contestable assessment by the Court of the weight which the Hearings Panel had given the NOR. To engage with the inquiry would be to confer a right of general appeal where none exists.

[7]                   A secondary issue is the ongoing utility of this appeal. The NOR in question was withdrawn, amended by the Council in a minor way, and then reissued. It has now been confirmed. Aokautere Land Holdings Ltd has filed an appeal against that decision which is limited in scope. The reality is that there is now a designation which will soon be part of the Plan, there is no appeal against the original subdivision decision, and any renewed subdivision application will need to contend with a designation and will not be affected by a NOR.

[8]                   I am far from convinced about any general public interest in this proceeding. It seems not to be a matter to have arisen previously, presumably because pragmatism inevitably wins the day. However, having heard from counsel, I will proceed to issue what can be relatively brief reasons which agree with the conclusion of the specialist Court.

Reasons

[9]Three provisions are relevant:

[10]               Section 104 of the Act concerns the determination of a resource consent application. The relevant parts for present purposes provide:

104     Consideration of applications

(1)When considering an application for a resource consent and any submissions received, the consent authority must, subject to Part 2 and section 77M, have regard to—

(a)any actual and potential effects on the environment of allowing the activity; and

(ab) any measure proposed or agreed to by the applicant for the purpose of ensuring positive effects on the environment to offset or compensate for any adverse effects on the environment that will or may result from allowing the activity; and

(b)any relevant provisions of—

(i)a national environmental standard:

(ii)other regulations:

(iii)a national policy statement:

(iv)a New Zealand coastal policy statement:

(v)a regional policy statement or proposed regional policy statement;

(vi)a plan or proposed plan; and

(c)any other matter the consent authority considers relevant and reasonably necessary to determine the application.

At issue is whether a NOR fits within “any other matter” in subs (c).

[11]               Sections 168A and 178 are relevant to the NOR. There are two NOR issuing provisions. Section 168A applies when a territorial authority itself wants the designation. Section 168 covers the situation where any other approved entity wishes to designate land. Section 168A applied here because it was the Council that wished to extend an existing road across the subdivision land to join another existing road.

[12]               Section 178 provides that until the designation to which the NOR relates is included in the District Plan or is otherwise withdrawn or cancelled:

… no person may do anything that would prevent or hinder the public work, project, or work to which the designation relates unless the person has the prior written consent of the requiring authority.

[13]               It is this provision that Mr Woollaston relies on as providing the necessary safeguards, and thereby making the existence of a NOR irrelevant to the consent application. The proposition is that there is efficiency in this approach. With a subdivision there is much to be done other than the actual impeding earthworks, and the issuing of the consent can allow a developer to proceed with reports, promotion and financing. It is emphasised that a NOR creates a transitional status which may not eventuate into a designation. Section 178 adequately protects the proposed work but need not impede parallel processes.

[14]               An aspect of this approach is that it places responsibility on the consent holder to comply with s 178. The concept of “hinder” a work is not precise and there is obvious scope for dispute. Of this potential situation the specialist Court in the decision under appeal observed:8

… the proposition that a consent authority might rely on voluntary forbearance by a consent holder is so highly problematic as to be irresponsible.

It is appropriate for this Court to recognise the experience underlying the observation.

[15]               More generally, one is left with the simple question as to why the legislation would require a consenting authority to ignore a status, transitional or otherwise, that applies to the land it is considering. There is no sound policy reason. It is to be emphasised that what the Environment Court does is confirm the NOR is something that can be, and if relevant should be, considered in the mix. The extent to which it influences matters will no doubt be influenced by the extent to which there is an incompatibility. In some cases the inter-relationship may be minor such as to be readily managed. Here it was at the other end of the spectrum, leading the Hearing Panel to view the NOR as a complete impediment.

[16]               The concept of the NOR being transitional should not be overstated. A requiring authority has indicated that it wants a designation over the land. It is a formal

8      Aokautere Land Holdings Ltd, above n 2, at [16].

step that initiates a process and applies a hold to contrary works until confirmed (or withdrawn). How likely it is that the designation occurs will no doubt be influenced by the scope of the work, but I do not accept the idea of transitional provides a reason to ignore it all together. Again, as noted, these are matters that can be considered.

[17]               The appellant’s proposition gives too little weight to the first finding of the Environment Court which is that a NOR does not prevent a consent application progressing. In my view, that is the key conclusion. The Court’s second finding that the NOR will be relevant to the extent it appears to the consenting authority to be so, having considered its relationship to the consent applications, seems somewhat inevitable and obvious.

[18]               Other matters were raised but I consider the reasons given adequately respond to the appellant’s case and explain why, as in the Environment Court, it is not accepted. It is counter-intuitive to suggest that a proposed designation over land which is the subject of a resource consent hearing must be ignored. There is nothing in the scheme or language of the legislation to require such a counter-intuitive approach. The decision of the Environment Court confirms an orthodox position – the NOR can and should be considered to the extent it is relevant to the specific nature of the consent application being determined.

[19]               The appeal is dismissed. Costs memoranda may be filed, but that should be unnecessary.

Simon France J

Solicitors:

Dewhirst Law, Palmerston North for Appellant

Cooper Rapley Lawyers, Palmerston North for Respondent