Karmarkar v Auckland Council

[2022] NZHC 1119

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2022-404-350

[2022] NZHC 1119

IN THE MATTER OF

Section 310 of the Resource Management Act

BETWEEN

MADHAV HARI KARMARKAR

Appellant

AND

AUCKLAND COUNCIL

Respondent

Hearing:

12 May 2022

Appearances:

Appellant in person

No appearance by the respondent

Judgment:

20 May 2022

JUDGMENT OF POWELL J

This judgment was delivered by me on 20 May 2022 at 3.30 pm pursuant to R 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

Copy:

M Karmarkar, Auckland Auckland Council (FM Wach)

Transpower New Zealand Ltd (D Nightingale/A Eccleshall)

KARMARKAR v AUCKLAND COUNCIL [2022] NZHC 1119 [20 May 2022]

[1]                   The appellant, Madhav Karmarkar, has appealed a decision of Judge J A Smith in the Environment Court, striking out Mr Karmarkar’s application for a declaration under s 310 of the Resource Management Act 1991 (“RMA”). Judge Smith concluded Mr Karmarkar’s application was frivolous or vexatious and/or disclosed no reasonable or relevant case and/or would otherwise be an abuse of the process of the Environment Court to allow the matter to be taken further.1

[2]                   Although the Auckland Council is listed as a party both in the Environment Court and on appeal, it has taken no steps in either Court. In relation to the appeal, it has confirmed that while it has been named as a respondent by Mr Karmarkar it was not a party in accordance with s 302 the RMA, and as a result did not intend to take part in the present appeal.

The Environment Court decision

[3]                   In making his decision to strike out Mr Karmarkar’s application for a declaration it is clear Judge Smith had difficulty understanding exactly what type of declaration Mr Karmarkar was seeking or indeed what part of s 310 of  the RMA   Mr Karmarkar was relying upon. Judge Smith was unable to identify any purpose served by the application for the declaration and thus concluded it was “frivolous or vexatious, serving no purpose”.2 Likewise Judge Smith concluded that the “assertions [made by Mr Karmarkar] do not seem to support any reasonable or relevant case before the Environment Court. It would be an abuse of process to allow it to continue further”.3 Finally, Judge Smith noted:4

It would be an abuse of the process of this Court to allow the procedural mechanisms of this Court to be utilised when there is no arguable or legitimate case for the Court to decide. Quite simply, Mr Karmakar accepts that the requiring authority has a designation over his property. He also accepts that he requires a consent from the district council. To attempt to subvert or circumvent those processes would be an abuse of the Court’s declaratory powers. Accordingly, it would be an abuse of process of the Environment Court to allow these proceedings to continue.

1      Karmakar v Auckland Council [2022] NZEnvC 023 at [1].

2 At [15].

3 At [16].

4 At [19].

Discussion

[4]                   Mr Karmarkar’s ability to appeal Judge Smith’s decision is as set out in s 299 of the RMA. It is limited to an appeal on a question of law.

[5]                   Like Judge Smith I found it difficult to understand what Mr Karmarkar was attempting to do with his application for a declaration and indeed the nature of the declaration he had sought, let alone the basis upon which Mr Karmarkar submitted Judge Smith had erred in law.

[6]                   Based on what Mr Karmarkar advised  me  at  the  hearing  it  appears that Mr Karmarkar is the owner of a property on White Swan Road in Auckland. At some point in or around 2017 Mr Karmarkar sought to further develop his property with the addition of two further residential dwellings. At a pre-hearing meeting with the Auckland Council Mr Karmarkar was advised that both dwellings fell within the “National Grid Yard”, a corridor 12 metres either side of existing Transpower power lines which form part of the national electricity grid. As a result, Mr Karmarkar was referred to Transpower where he  spoke  about  his  proposed  development  to  Jenna McFarlane, a senior environmental planner. Following the conversation Ms McFarlane advised Mr Karmarkar by email that Transpower could not support his proposal for the new dwellings as proposed, and noted in particular:

Because the proposed additional dwellings would be located inside the 12m National Grid Yard and require non-complying activity consent under the [Auckland Unitary Plan], Transpower cannot support such a proposal or an application for resource consent. Transpower cannot support housing development that occurs within the National Grid Yard.

As mentioned, whether you apply to Council to build on this site is entirely your decision. Transpower is not the decision maker on resource consent applications – including for your proposal. However, Transpower does have the right not to provide its affected party approval. The final decision is made by Auckland Council, and it has the discretion whether to grant consent without affected party approval should you wish to pursue the application.

[7]                   According to Mr Karmarkar, when faced with Transpower’s opposition he ultimately modified his proposal to remove any proposed construction from the National Grid Yard, and as a result was able to obtain consent for one further dwelling on his property, which has since been constructed.

[8]                   Mr Karmarkar now wishes to construct a further dwelling, this time within the National Grid Yard. Although he has not approached Transpower about his current proposal, he has concluded, based on Ms McFarlane’s earlier email, that Transpower would oppose the construction of any additional dwelling in this location. To preempt the type of opposition identified by Ms McFarlane he therefore filed the application for a declaration in the Environment Court, essentially as an attempt to prevent Transpower from objecting to his proposed development.

[9]                   As Judge Smith noted, Mr Karmarkar’s application for a declaration was therefore an “attempt to subvert or circumvent” the processes of the RMA. It is not what the declaration process as set out in s 310 of the RMA was intended to encompass. The scope of any declaration is limited to the matters set out in s 310(a)-

(h) of the RMA. Mr Karmarkar himself accepts that s 310(a)-(g) are not wide enough to give jurisdiction for the declaration he was seeking, and he ultimately relied on s 310(h) which provides for declarations to be made on:

… any other issue or matter relating to the interpretation, administration, and enforcement of this Act, except for an issue as to whether any of sections 95 to 95G have been, or will be contravened.

[10]               Quite clearly even s 310(h) of the RMA is not wide enough to provide the sort of declaration that Mr Karmarkar was hoping to obtain. Indeed, no question of interpretation, administration or enforcement of the RMA has been identified whatsoever by Mr Karmarkar. It follows there was no jurisdiction for the Environment Court to make the declaration sought and accordingly no error of law on the part of Judge Smith for striking out Mr Karmarkar’s application. As a result, Mr Karmarkar’s appeal cannot succeed.

[11]               As Ms McFarlane had advised Mr Karmarkar in 2017, Transpower is not the decision maker and there is nothing to stop Mr Karmarkar from applying for a resource consent to construct a dwelling in the National Grid Yard as a non-complying activity. At that point however Transpower is entitled to object and it would clearly be inappropriate to restrict the ability of Transpower to object when there is no statutory basis for doing so.

Decision

[12]               The appeal is dismissed. As there is no other party there is no issue as to costs. A copy of this decision is to be sent to both the Auckland Council and Transpower.

Powell J