Fraser v Central Hawke's Bay District Council
[2021] NZHC 2981
•4 November 2021
IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY
I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE
CIV-2020-441-14
[2021] NZHC 2981
BETWEEN JILLIAN MARGARET FRASER
Applicant
AND
CENTRAL HAWKE’S BAY DISTRICT COUNCIL
First Respondent
SUSAN JOANNA CALDER and JOSHUA PARKER CALDER
Second Respondents
Hearing: 14 June 2021 with further submissions on 3 September 2021 Counsel:
M J E Williams for the Applicant
L E J Bielby and J J-Y Magrath for the First Respondent M B Lawson for the Second Respondents
Judgment:
4 November 2021
JUDGMENT OF PALMER J
Counsel/Solicitors:
M J E Williams, Barrister, Napier Gifford Devine, Hastings
Lawson Robinson, Napier Rice Speir, Auckland
FRASER v CENTRAL HAWKE’S BAY DISTRICT COUNCIL [2021] NZHC 2981 [4 November 2021]
Summary
[1] Mr Joshua Calder and Ms Susan Calder, the second respondents, run a top- dressing business in the rural hinterland of Central Hawke’s Bay. They built an airstrip on their property near Ōtāne. The Central Hawke’s Bay District Council (the Council) granted them two certificates of compliance under the Resource Management Act 1991 (RMA). In December 2018, the Council granted the first certificate, on the basis of a bare application. In April 2020, the Council declined an application for a second certificate that was supported by more information, on the basis of non-compliance with noise emission standards. In June 2020, it granted a second certificate on the basis of further information about frequency and timing of use of the airstrip in terms of noise emissions. Ms Jillian Fraser, a neighbour, applies for judicial review of the Council’s decisions to grant certificates. Although its submissions were helpful here, as a decision-maker, the Council should seek the leave of the Court before filing written submissions or making oral submissions that take an active role in a judicial review of such decisions.
[2] The first certificate of compliance was granted on the basis of manifestly inadequate information including regarding noise effects about which the Council had no information. It was invalidly granted. I quash the first certificate. The Calders’ proposed use of the airstrip is not a Recreational Activity or Farming Activity under the Central Hawke’s Bay District Plan (the Plan). But it is a Service Activity because it is used for the primary purpose of the transport of fertiliser, a good. Alternatively, it would be Commercial Activity because it involves the use of land and buildings for the provision of a service. So use of the airstrip is a permitted activity under the Plan and the Council’s second certificate of compliance is valid. The Calders can use it as long as they comply with the noise standards in the Plan. I decline the application in relation to it.
What happened?
The first and second decisions
[3] The Calders operate a top-dressing business near Ōtāne in Central Hawke’s Bay. Their property is zoned “Rural” under the Plan. Initially, they kept their aircraft
at the Waipukaurau aerodrome but they wished to reduce the time they had to spend commuting there. In her affidavit, Mrs Susan Calder says that they were advised from the outset that it was a permitted activity. In communications with the Civil Aviation Authority (CAA), the Calders were advised that they did not require CAA authority to proceed with their proposal and that the CAA did not have any air safety concerns. The Calders commenced construction of the airstrip in late September to early October 2018 and it was largely complete by January 2019.
[4] In a meeting on 1 November 2018, the Council staff again confirmed the activity was permitted and encouraged the Calders to apply for a certificate of compliance. On 6 November 2018, the Calders applied for a certificate of compliance in relation to the airstrip under s 139 of the RMA. The application here was for an “Aircraft airstrip 450 metres long x 12 metres wide”. The application contained no details other than a plan of its location on the property and the certificate of title for the property.
[5] On 13 December 2018, in its first decision, the Council granted the certificate on the basis the airstrip was a permitted use of the land for a Recreational Activity and/or Commercial Activity” in the Rural Zone. The Council’s consent planner had advised the activity would not exceed the noise requirements of r 4.9.11 of the Plan and the proposal complied with all relevant rules. On 31 January 2019, in its second decision, the Council granted a replacement certificate, correcting the title references to extend over a second property of the Calders.
The Council’s request for more information
[6] In October 2018, Ms Fraser noticed earthworks being carried out on the Calders’ property. She became aware the works were being conducted for the purpose of establishing an airstrip. She and her daughter requested information about this from the Council, which she received on 4 March 2019. Later that month, Ms Fraser sought legal advice about the situation and on 27 March 2019 she and her legal advisor sent the Council a letter of opinion.
[7] On 3 May 2019, the Council wrote to the Calders advising that Ms Fraser proposed to challenge the certificates. It invited the Calders to surrender their
certificate and make a fresh application with further information, particularly in relation to aircraft noise emissions.
[8] The Calders did not surrender the certificate. But, on 21 June 2019, they sought a further certificate on the basis that there would be an average of 120 aircraft landings per month during daylight hours. They explained that the airstrip would be their “home base from which we leave to undertake contract work on client’s (sic) airstrips and farms and then returning”. Attached to the application was an expert acoustic report by Malcolm Hunt Associates, which advised that the noise limits in r 4.9.11 do not apply to aircraft using a rural airstrip. That was said to be because the specified noise assessment standard cannot be applied to noise from aircraft associated with airports, which require special techniques.
[9] On 31 July 2019, the Council rejected the inapplicability of the noise rule and sought further information from the Calders, including an expert acoustic assessment of the airstrip’s compliance with r 4.9.11. In August 2019, the Calders advised the Council about aspects of the operation of the airstrip. They planned to store two aircraft on the site, along with fuel, oil and lubricants. They confirmed fertiliser was not stored at the site and trucks were not used to load the aircraft there. The Calders did not provide an acoustic assessment. The Council commissioned its own expert acoustic report from Marshall Day Acoustics.
The third decision
[10] In January 2020, Ms Fraser noticed more regular use of the airstrip and requested information from the Council. Hearing nothing, she commenced these proceedings in March 2020.
[11] In April 2020, the Council received the Marshall Day report confirming the ability of the airstrip activity to meet the noise limits in r 4.9.11 except at night (between 11 pm and 6 am) Monday to Saturday and on Sundays. Mr Day expressed his opinion that:
Rule 4.9.11 uses the measurement parameter L10 which is the noise level that is exceeded for 10% of the measurement period. MDA is of the opinion that L10 is not an appropriate parameter to be used for the measurement of the
aircraft noise. However, in the absence of a specific aircraft noise rule we have been informed that rule 4.9.11 is to be used for the assessment of compliance for this activity.
[12] The Calders have provided an affidavit from the residents where the Marshall Day measurements were taken. They have no issue with noise or the proposed use of the airstrip.
[13] Mr Philip McKay, a consultant planner retained by the Council to review the application, advised the Council the airstrip activity is consistent with the definitions of Commercial Activity and Service Activity in the Plan but not consistent with the definition of Recreational Activity and not consistent with the noise standards under r 4.9.11 of the Plan. On 17 April 2020, in its third decision, the Council declined the second application on that basis.
The fourth decision
[14] In May 2020, the Calders formally lodged their third application for a certificate of compliance, dated 21 April 2020. It was similar to the second application but also provided that aircraft movements would only occur on Monday to Saturday 6 am to 11 pm. On 10 June 2020, in its fourth decision, the Council granted the application, having received advice from Mr McKay that this application met r 4.9.11 of the Plan. Subsequently, the Council granted BP Oil New Zealand Limited a resource consent for the establishment of a 30,000 litre aircraft refuelling facility on the Calders’ property.
[15] Ms Fraser applies for judicial review of the Council’s decisions to grant the certificates of compliance. The Calders, oppose the application. The Council abides the Court’s decision on the first certificate but opposes the application in respect of the second certificate.
The role of a decision-maker in judicial review of RMA decisions
[16] It is well-established that, in judicial reviews and appeals, the decision-maker should not to become a protagonist and enter the fray, but should abide the Court’s
decision.1 That is particularly the case when the decision-maker has exercised a judicial or quasi-judicial function in deciding between competing submissions of two or more parties. Those parties then carry the argument in the judicial review proceeding. The adversarial system relies on the heightening of contradictions in this way, to facilitate decision-making.2 The decision-maker is impartial, speaks through its decision, and does not seek to justify it further. That has obvious benefits where the decision-maker is required to consider the decision again.
[17] There is an exception, where “considerations of public interest and the effective administration of an Act arise”.3 This may occur particularly where there is no contradicting party, as the adversarial system then loses balance and the Court lacks assistance with one side of the issues.4 As the Court of Appeal in Secretary for Internal Affairs v Pub Charity put it:5
Exceptionally, the court may allow a decision-maker to appear where the court considers it may benefit from the decision-maker’s assistance, for example in matters relating to the administration of the legislation at issue. A court will also sometimes hear from a decision-maker on questions of jurisdiction.
[18] Here, the Council abides the decision of the Court in relation to one ground of challenge but actively contests the other ground. The question of the propriety of its active participation arose at the hearing. I invited the parties to file further submissions on that issue after the hearing. Only the Council did so.
[19] First, Mr Speir and Ms Bielby submit, in written submissions for the Council, that ss 9 and 10 of the Judicial Review Procedure Act 2016 (JRPA) suggest the starting point is that a decision-maker may take an active role. Those provisions require the decision-maker be named as a respondent in an application for judicial review and, unless otherwise directed by a judge, file a statement of defence.
1 Goodman Fielder Ltd v Commerce Commission [1987] 2 NZLR 10 (CA) at 13; Secretary for Internal Affairs v Pub Charity [2013] NZCA 627, [2014] NZAR 177 at [27]; and see Fonterra Co-Operative Group Ltd v The Grate Kiwi Cheese Company Ltd (2009) 19 PRNZ 824 (HC). Although a decision-maker in an appeal in the High Court has a right under r 20.17 to be represented and heard, the Supreme Court has observed that should be exercised sparingly: Environment Defence Society Inc v New Zealand King Salmon Co [2014] NZSC 41, [2014] 1 NZLR 717 at [12] and footnote 10.
2 Shand v Legal Complaints Review Officer [2019] NZHC 3105 at [12].
3 Goodman Fielder Ltd v Commerce Commission, above n 1, at 20.
4 Shand v Legal Complaints Review Officer, above n 2, at [13].
5 Secretary for Internal Affairs v Pub Charity, above n 1, at [27].
[20] There is little in the legislative history to shed light on the rationale for the initial adoption of the predecessor to ss 9 and 10 of the JRPA, in s 9 of the Judicature Amendment Act 1972. But it appears to have been modelled on ss 9 and 10 of Ontario’s Judicial Review Procedure Act of 1971.6 The purpose of that legislation was not to create a rule that required decision-makers to take an active role in proceedings. Instead, it aimed to create a clear process for judicial review of decisions of Tribunals and “…avoid technicalities arising as to who are the proper parties”.7
[21] The requirements of ss 9 and 10 of the New Zealand JRPA apply to all decision- makers. They ensure the decision-maker is notified of the challenge to its decision. They enable the Court to seek, and the decision-maker to provide, assistance if required with a minimum of technical difficulty. They do not require or entitle the decision-maker to take an active role in the proceeding if the Court would not be assisted by that.
[22] Second, Mr Speir and Ms Bielby submit that the general principle that a judicial decision-maker abides an appeal or review has not generally been applied to local authorities’ consenting function under the RMA. That appears to be correct. Counsel have been unable to find any case in which a court has denied a local authority the ability to be heard. And Mr Speir and Ms Bielby cite a number of cases where decision-making councils under the RMA take an active role in judicial reviews in the High Court despite the presence of two contradicting parties.8
[23] Councils have a central role in RMA decision-making and have an ongoing interest in the workability and enforcement of the resource management regimes and the layers of planning instruments involved. This may well mean that the active involvement of a council as decision-maker in a judicial review will often assist the Court. This would be consistent with the exception to the general rule.
6 See Public and Administrative Law Reform Committee Administrative Tribunals: Constitution, Procedure and Appeals (18 January 1971) at 6; and Judicial Review Procedure Act SO 1971 c 48.
7 James C McRuer Royal Commission of Ontario Inquiry into Civil Rights: Volume 1 (Frank Fogg, 1968) at 329.
8 Frost v Queenstown Lakes District Council [2021] NZHC 1474; Enterprise Miramar Peninsula Inc v Wellington City Council [2021] NZHC 549; Lysaght v Whakatane District Council [2021] NZHC 68; NZ Southern Rivers Society Inc v Gore District Council [2020] NZHC 1996; and O'Keeffe v New Plymouth District Council [2020] NZHC 3099.
[24] But I can see no reason why the general rule should not apply unless the exception applies. The Environment Court often appears to leave the choice to the council as to whether to abide or actively participate in appeals of their own decisions, but it reserves the right to intervene.9 In the High Court, when judicial review is sought of a council decision under the RMA and the Court has the benefit of full argument about the issues from two contradictors, the council should seek the leave of the Court to make written and oral submissions, explaining its reasons for so doing.
[25] Here, the Council appropriately abided the Court’s decision on the first issue. It decidedly entered the fray in relation to the second issue. Aspects of its submissions have been helpful and I have had regard to them. But, in future, the Council should seek the leave of the Court before filing written submissions or making oral submissions in a judicial review of its decision on an RMA issue, consistent with the rule and exception explained above.
The relevant law of certificates of compliance
[26] Section 139 of the RMA allows a person to request a certificate of compliance for an activity which could be done lawfully in a particular location without a resource consent. If those conditions are satisfied, the local authority is required to issue the certificate. A certificate is then treated as a resource consent. Under s 139(4) the authority has a discretion to require an applicant to provide further information if it considers that necessary for the purpose of deciding the request.
[27] In 2019, in Vipassana Foundation Charitable Trust Board v Auckland Council, the Court of Appeal observed:10
[27] We think it appropriate to emphasise the requirement that the Council have sufficient information to enable it to make the appropriate comparison of the proposal with the applicable rules. Since the certificate can only be issued if the activity for which it is sought can lawfully be carried out without a resource consent, it is necessary for the Council to form a view on which rules in the relevant planning instruments apply to the proposal. It must have sufficient information to enable it to do that, desirably in the application as presented but, failing that, as might be provided in response to requests for further information prior to the issue of the certificate. Unless or until the
9 Edenz Ltd v Hastings District Council EnvC Napier W020/2002, 18 June 2002 at [39]–[42].
10 Vipassana Foundation Charitable Trust Board v Auckland Council [2019] NZCA 100, [2019] NZRMA 380 (footnotes omitted).
Council has sufficient information for this purpose, the certificate should not be issued.
[28] Further, the issue is compliance, or non-compliance, of the activity for which the certificate is sought, with the rules in the relevant plan or plans. Once the Council has ascertained which rules apply to the proposal it must then ask whether the proposal complies with the rules for permitted activities. The effect of the proposal is not relevant to that issue, unless compliance with a relevant rule turns on presence or absence of a particular effect. The latter situation ought to be unusual, as good drafting practice will have the consequence that permitted activities will be clearly specified, without the uncertainties inherent in assessing effects for the purposes of activity classification. It is clear in any event that the Council must be satisfied that the proposal complies with every relevant rule; if not, then resource consent would be required and, in accordance with s 139(1), there would be no power to issue a certificate. As this Court said in Mawhinney v Waitakere City Council, s 139:
… makes plain that a certificate of compliance will only be issued where the activity in respect of which it is sought could lawfully be carried out without a resource consent, and that means that an application must satisfy the council that every aspect of the activity (positively) conforms with the relevant rules …
[28] In that case, the Court held that the Plan’s intention that gunfire be regulated by a noise standard prevailed, even though the specified Standard stated that the assessment of gunfire sound was outside of its scope.11
[29] In Royal Forest and Bird Protection Society v Waitaki District Council, in relation to s 139 with no material differences to the current version, the High Court held that a consent authority does not have a discretion whether or not to issue a certificate.12 If the activity can be carried out lawfully in the location without a consent, it must issue the certificate. If not, it must not issue a certificate. French J said:13
A thorough comparison of the proposal with the applicable rules “requires the authority to undertake a point by point scrutiny of the proposal against the rules pertaining to it. Every aspect of the activity must be in conformity with the relevant rules.
11 At [48]–[50].
12 Royal Forest and Bird Protection Society v Waitaki District Council [2012] NZHC 2096, [2012] NZRMA 507.
13 At [49] (footnotes omitted).
Issue 1: Was the first certificate of compliance granted on the basis of inadequate information?
[30] Mr Williams, for Ms Fraser, submits that the Council’s first and second decisions, on the first application, were wrong in law because they were based on manifestly inadequate information. Mr Lawson, for the Calders, submits the Council had sufficient information to be able to consider the proposal and advise the Calders its proposal was a permitted activity and to grant the application. He submits we do not know what other information was held, or discussions had, with the council official who undertook the assessment. The Council concedes in its statement of defence that the original certificates were granted on the basis of inadequate information. Ms Bielby, for the Council, accepts the Council could have benefitted from further information in making its first and second decisions. The Council abides the Court’s decision on this cause of action.
[31] The first application contained no details as to the timing and frequency of aircraft movements or assessment of the noise from aircraft movements. Nor did it contain any information demonstrating the airstrip’s compliance with the transport or storage of hazardous substances requirements for the Rural Zone. There is no evidence that information was provided to the Council in its initial discussions with the Calders or in subsequent email exchanges with the CAA that Mr Lawson pointed to. The lack of this information meant the Council was not in a position to assess whether the noise requirements of r 4.9.11 were satisfied. The planner’s blithe suggestion that the noise requirement rules were satisfied lacked foundation in fact and, as I explain below, in law. I uphold the challenge to the Council’s first and second decisions, and the first certificate of compliance. This conclusion applies irrespective of the categorisation of the airstrip as an activity.
Issue 2: Was the use of the airstrip a permitted activity?
Relevant provisions of the RMA and the Plan
[32] Section 9(3) of the RMA prohibits use of land in a manner that contravenes a district rule unless the use is expressly allowed by a resource consent. Section 9(5) provides:
This Section applies to overflying by aircraft only to the extent to which noise emission controls for airports have been prescribed by a national environmental standard or set by a territorial authority.
[33]Part 2 of the Plan defines the following terms:
AERODROME means any defined area of land or water intended or designed to be used whether wholly or partly for the landing, departure, movement or servicing of aircraft.
COMMERCIAL ACTIVITY means the use of land and buildings for the display, offering, provision, sale or hire of goods, equipment, or services, and includes shops, markets, showrooms, restaurants, takeaway food bars, professional, commercial and administrative offices, service stations, motor vehicle sales, the sale of liquor and associated parking areas; but excludes recreational, community and service activities, home occupations or visitor accommodation.
FARMING ACTIVITY means the use of land and buildings for the primary purpose of the production of vegetative matter (including horticulture) and/or livestock, but excludes residential activity, home occupations, factory farming and forestry activity.
NOISE means, where standards for noise are specified, the sound level or maximum level measured and assessed in accordance with:
· NZS 6801: 1991 Measurement of Sound;
· NZS 6802: 1991 Assessment of Environmental Sound;
· NZS 6805: 1992 Airport Noise Management and Land Use Planning;
· NZS 6807P: 1994 Noise Management and Land Use Planning for Helicopter Landing Areas;
· NZS 6803P: 1984 The Measurement and Assessment of Noise from Construction, Maintenance and Demolition Work;
as applicable, and any subsequent amendments to these standards.
RECREATIONAL ACTIVITY means the use of land and/or buildings for the primary purpose of recreation and/or entertainment. It includes the sale of food and beverage for consumption on the site provided it is ancillary to the recreational activity. Recreational activities includes (sic) sport clubs, art, craft and hobby clubs (i.e. painting, pottery, bridge, chess, photography clubs), aerodromes, and outdoor recreation pursuits, but excludes any recreational activity within the meaning of residential activity.
SERVICE ACTIVITY means the use of land and buildings for the primary purpose of the transport, storage, maintenance or repair of goods and includes aerodromes but excludes relocatable building depots.
[34] Part 4.2 of the Plan is entitled “Protecting the Rural Amenity and Quality of the Rural Environment”. Its objective, in r 4.2.1 is stated to be:
A level of rural amenity which is consistent with the range of activities anticipated in the rural areas, but which does not create unpleasant conditions
for the District’s rural residents; or adversely affect the quality of the rural environment.
(a)Policy 12 under r 4.2.2 is not directly applicable here but is relevant context:
To provide for the effective operation and development of Waipukurau Aerodrome while avoiding or mitigating adverse noise effects form the airfield operation.
(b)The explanation and reasons for the policies include:
Waipukurau aerodrome is used by aircraft for recreational or agricultural work. In its busy periods, it is realistic to expect some moderate aircraft noise beyond its boundary, potentially at levels that could adversely impact on people living nearby. The District Plan introduces specific noise and building provisions to allow the airfield to operate in an effective manner subject to the necessary constraints to protect the health and amenity of adjacent residents.
[35] Part 4.8 of the Plan deals with Activities. Rule 4.8.1 provides, relevantly, that Farming, Commercial, Service and Recreational Activities (with irrelevant exceptions) are permitted activities provided that they comply with all of the Performance Standards. Any other activity (with irrelevant exceptions) is a discretionary activity, which requires a resource consent to be lawful.
[36] Part 4.9 deals with Performance Standards. Rules 4.9.14 and 4.9.15 deal specifically with noise from, and buildings by, Waipukurau Aerodrome. Otherwise, r 4.9.11 provides, relevantly:
On any site, activities shall be conducted such that the following noise levels are not exceeded at nor within the notional boundary of any residential unit, other than residential units on the same site as the activity:
· 55dBA L10 – 6.00am -11.00pm Monday to Saturday
· 45dBA L 10 – at all other times
· 75dBA Lmax – at all other times Exemptions
i. Residential, Farming and Forestry Activities shall be exempt from the above provided that the activity shall comply with the requirements of Section 16 of the [RMA].
…
Submissions
[37] The Council’s first and second decisions were made on the basis that the airstrip activity was a Recreational or Commercial Activity under the Plan. The third and fourth decisions were made on the basis that the airstrip activity fell within the definitions of Commercial Activity and Service Activity.
[38] Mr Williams, for Ms Fraser, submits that the Council’s decisions were wrong in law because the airstrip was not a permitted activity under the Plan as a Recreational, Service, Commercial or Farming Activity. Mr Lawson, for the Calders, submits the airstrip is all of those sorts of Activity. Ms Magrath, for the Council, submits the airstrip is most appropriately categorised as a Service Activity though, alternatively, it could be a Commercial Activity. She submits it is not a Recreational or Farming Activity. Mr Lawson submits the noise limits in the Plan do not apply to the airstrip. Mr Williams and Ms Magrath submit that they do. I deal with each issue in turn.
The approach to interpretation
[39] As Ms Magrath submits, a purposive and contextual approach to interpretation of the Plan is required. Mr Williams submits there is no hint in the Plan’s objectives and policies that an airstrip should be a permitted activity. But Ms Magrath submits the Plan recognises a diverse range of activities will occur within the Rural Zone, which need to be balanced against amenity values including noise. I accept her submission.
[40] The definition of aerodrome in the Plan is not limited to Waipukurau Aerodrome. The definitions of both Recreational Activity and Service Activity explicitly include “aerodromes”. So the Plan clearly anticipates aircraft activity in the Rural Zone. Aircraft noise, generated by airstrips and aerodromes, is anticipated as forming part of the rural acoustic environment. Whether this airstrip is a permitted activity or requires a resource consent depends on whether its use falls within any of the definitions of permitted activities.
Is it a Recreational Activity?
[41] Mr Lawson submits the airstrip is Recreational Activity. He says from the bar that, when the first certificate was granted, the Calder family were partly wanting to use the airstrip to travel to see relatives in South Canterbury. Mr Williams and Ms Magrath both submit that use of the airstrip is not a Recreational Activity because is not for the primary purpose of recreation or entertainment. They are correct. That is a requirement of the definition and it is not the basis on which the second certificate was applied for or granted.
Is it a Service Activity?
[42] Mr Williams submits use of the airstrip is not a Service Activity because the site and hangar are not for the primary purpose of the transport, storage, maintenance or repair of goods. No fertilisers or other agrichemicals, which are the relevant goods, are transported to or from, or stored on, the site. It is the planes, not the goods, which are stored at, and transported to and from, the airstrip which is a garage and driveway for the owners who provide a top-dressing service elsewhere.
[43] Mr Lawson submits the airstrip activity falls within the definition of Service Activity which explicitly include aerodromes. Travel to and from the airstrip is part of provision of the service of top-dressing. He submits it would be absurd if the presence of fertiliser on the site was required to make it a Service Activity. Ms Magrath submits the airstrip is most appropriately categorised as a Service Activity because the land and hangar is used for the primary purpose of transporting fertiliser, a good, to various farms.
[44] The airstrip is used for the primary purpose of facilitating the aircraft which are based there to transport fertiliser from where it is stored to the farms which are top-dressed. The fertiliser is a good. The fact fertiliser is not stored on site does not affect the fact the fertiliser is transported by the planes based there. That is the primary purpose of the planes and the airstrip. Aerodromes are expressly included as examples of the type of activity that can be a Service Activity. I conclude the airstrip meets the Plan definition of aerodrome.
Is it a Commercial Activity?
[45] Mr Williams submits that, as in Saville v Queenstown Lakes District Council, the airstrip itself is not directly used for the provision of the services offered by the Calders, so is not Commercial Activity.14 The service here is provided on the farms that are top-dressed. The planes are not goods. Convenient storage of the planes, which he characterises as like a garage and driveway for the planes, with no fertiliser stored there, is not a Commercial Activity.
[46] Ms Magrath submits, if the airstrip is not a Service Activity, it could be categorised as a Commercial Activity because the use of the airstrip forms an integral part of delivery of the top-dressing service. The airstrip is being operated as a base for a commercial agricultural aviation business. Mr Lawson also submits that use of the airstrip could fall within the category of Commercial Activity.
[47] The airstrip is used for the provision of top-dressing services, as I held above. But because the definition of Commercial Activities specifically excludes Service Activities, it is excluded from this definition. If it did not fall within the definition of Service Activity, use of the airstrip would constitute a Commercial Activity, as the Council submits.
Is it a Farming Activity?
[48] The Calders did not plead this point, but Mr Lawson submits that aerial top dressing is an integral part of the farming use of land through the Hawke’s Bay District and the whole of New Zealand. Accordingly, it falls within the definition of Farming Activity, which is exempt from the noise standards. He points to evidence by Mr Matthew Holder that there is no reasoned basis to distinguish between aerial top dressing and ploughing and tilling a paddock. Mr Lawson submits it is one or two steps closer to being permitted under the definitions than in Saville.
[49] Ms Magrath submits the airstrip also does not fall within the definition of Farming Activity because the use of the land as an aviation base for top-dressing
14 Saville v Queenstown Lakes District Council [2019] NZENvC 90 at [46]–[47].
cannot be described as use for the primary purpose of producing vegetative matter. If it were Farming Activity the planes could operate all day, every day. Relying on Saville, the top-dressing activity itself is a Farming Activity but the use of land here for the taking off and landing of aircraft is not, though it may be ancillary to it. Mr Williams supports the Council’s submissions on this issue.
[50] Strictly speaking, I do not need to deal with this issue because it was not pleaded and no application to amend the pleadings was made. For the avoidance of doubt, however, I consider it is clear that use of an airstrip does not fall within the definition of Farming Activities in the Plan. The primary purpose of the airstrip is to support the transport of fertiliser in the course of provision of a top-dressing service. Its primary purpose is not the direct production of vegetative matter. Saville does not assist the Calders. The closest it gets is the observation that use of helicopters for spraying the property there fell within farming activities.15 But that concerned whether helicopters transporting farming materials on a farm were ancillary to farming. It did not concern the taking off and landing of aircraft used to fertilise other properties. Unlike the obiter suggestion by the Environment Court in Saville, the Calders are not using the airstrip to fertilise their own land. They are not engaged in farming. They are providing a service.
Do the noise limits apply?
[51]In more submissions which, strictly, were not pleaded, Mr Lawson submits:
(a)The Plan here does not have specific noise emission controls for rural airstrips, so no rule is contravened for the purposes of s 9 of the RMA.
(b)The effect of s 9(5) of the RMA is that, unless noise emission controls for airports are specified in the Plan (and they are not), the noise from aircraft movements must be disregarded in considering compliance with the Plan.
15 At [43].
(c)This is reinforced by the definition of “noise” in the Plan which says “as applicable”. The controls specified in the Plan are entirely unsuitable for regulating aircraft noise.
(d)Ms Fraser and the Council are attempting to apply to aircraft noise a general noise standard that expressly excludes application to aircraft noise.
(e)The entire field of overflying aircraft is properly the subject of the Civil Aviation Act 1990, as noted by the High Court in Dome Valley Residents Society v Rodney District Council.16 Ms Fraser is complaining about the noise of overflying above her property, rather than the noise from the airstrip itself.
(f)If the general noise limits do apply, the Calders’ aircraft comply on Monday to Saturday but not on Sunday, due to lower noise limits.
[52] Mr Williams submits that an airstrip involving up to 120 aircraft movements per month, with no control over hours of activity or noise effects is not common in a rural area and gives rise to a significant amenity issue. Ms Fraser’s evidence is that aircraft movements have sounded like a loud explosion. She is concerned a certificate of compliance means expanded use of the airstrip cannot be restrained. Mr Williams submits that, where the Plan intends to make provision for a frequently used aerodrome, it does so expressly. If the airstrip is a permitted activity, r 4.9.11 must apply to limit its noise. The absence of an appropriate noise limit, other than in relation to the Waipukurau Aerodrome, supports that. Mr Williams submits s 9(5) of the RMA applies to overflying aircraft not the taking off from and landing at an airstrip, and it does not displace application of the Plan.
[53] Ms Magrath submits noise from the airstrip is regulated by r 4.9.11 of the Plan and that s 9(5) is not appropriately applied because it applies to overflying aircraft.
16 Dome Valley Residents Society v Rodney District Council [2008] 3 NZLR 821, [2008] NZRMA 534 (HC) at [59].
[54] This issue assumed a greater importance in argument than it warrants. I need not deal with it because it was not pleaded. But because it was fully argued, and for the avoidance of doubt, I deal with it anyway. Rule 4.8.1 of the Plan requires that all permitted activities must comply with all performance standards. Rule 4.9.11 provides noise performance standards. The noise performance standards apply to the airstrip as a permitted Service Activity. In so providing, the Plan overrides the provisions of the New Zealand Standards that suggest that other noise standards would be more appropriate for aircraft noise. The Court of Appeal made that clear in Vipassana Foundation Charitable Trust Board.17 Whether the standards should be changed can be dealt with by the Council in considering the new Plan, as it is doing.
[55] Section 9(5) of the RMA, and Dome Valley Residents Society v Rodney District Council are not relevant as they deal with overflying aircraft. The issue here is noise from aircraft that are using the airstrip by taking off and landing.
[56] I note that the certificate of compliance only protects the Calders when they use the airstrip on the basis on which the certificate was granted, which is consistent with the noise standards in the Plan. The certificate of compliance does not entitle them to use the airstrip outside those hours.
Relief
[57] Ms Fraser seeks orders setting aside the decisions and certificates of compliance, and a declaration that the airstrip is not a permitted activity under the Plan. Mr Williams submits that the delay in filing proceedings was because Ms Fraser did not know the Council had received the further information it had requested. He submits it is unrealistic to expect proceedings to have been filed when Ms Fraser understood the Council was still waiting for information. He notes construction of the airstrip commenced before the certificate was obtained and the hangar was constructed after the proceedings were filed, which was before the second certificate was granted. The Court should not assume the outcome of a consent application process in considering relief.
17 Vipassana Foundation Charitable Trust Board, above n 10, at [48]–[50].
[58] Mr Lawson submits Ms Fraser has not explained the 17-month delay between becoming aware of construction of the airstrip in October 2018 and issuing these proceedings in March 2020. He submits the Calders have spent more than $680,000 in constructing the airstrip in reliance on the Council’s advice and the certificates of compliance. He also notes that the Council is in the process of preparing a new District Plan. It would require a resource consent for the airstrip activities because of proximity to houses and would amend the noise guidelines for aircraft. He submits that if Ms Fraser is granted relief in these proceedings, the Calders would suffer from commercial uncertainty. He also submits that any resource consent application would inevitably be granted so the process would be entirely academic. On that basis, relief would serve no useful purpose.
[59] The Council abides the Court’s decision on whether the first and second certificates were validly granted. It supports a declaration that the airstrip is not a Recreational Activity and opposes a declaration that the airstrip is not a permitted Commercial or Service Activity. Ms Magrath submits the Council’s third and fourth decisions should be upheld.
[60] The time Ms Fraser took to file proceedings was entirely reasonable in the circumstances. She held off on legal action while she understood the Council was awaiting further information. I have concluded that the first certificate was not lawfully granted. I quash it and issue a declaration to that effect. Given my conclusion that the second certificate was granted lawfully, I decline the application for judicial review of that decision.
[61] Ms Fraser has succeeded in her first cause of action challenging the first certificate. It is difficult to see why that was resisted. The Calders have succeeded in the second cause of action challenging the second certificate. Because each party has enjoyed some success, and unless some circumstance exists of which I am unaware, costs will lie where they fall. If there is such a circumstance (and only if there is), and if the parties cannot agree on costs, they have leave to file written submissions of no more than 10 pages each on costs within 10 working days of this judgment.
Result
[62] The first certificate of compliance of 13 December 2018, reissued on 31 January 2019, is quashed. I declare that it was invalid. The application for judicial review in relation to the second certificate is declined. Costs lie where they fall unless I decide otherwise, pursuant to the process in the preceding paragraph.
Palmer J
10
9
0