Marlborough District Council v Franklin
[2013] NZHC 1391
•12 June 2013
IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY
CIV 2012-406-226 [2013] NZHC 1391
IN THE MATTER OF an appeal under s 299 of the Resource
Management Act 1991
BETWEEN MARLBOROUGH DISTRICT COUNCIL
Appellant
ANDIAN ROBIN FRANKLIN and IAN FRANKLIN BOATBUILDERS LIMITED Respondents
Hearing: 13 May 2013
(Heard at Wellington)
Counsel: R J B Fowler with P J Radich for Appellant
M J Hunt for Respondents
Judgment: 12 June 2013
JUDGMENT OF THE HON JUSTICE KÓS
[1] Under the Resource Management Act 1991 land may be used so long as the use (1) does not offend a rule in a plan, or (2) is permitted by a resource consent, or (3) is an existing use.
[2] An existing use does not require a resource consent. But existing use rights lapse if the use is discontinued for more than 12 months after the rule the use would otherwise offend becomes operative.
[3] The Act now provides in s 139A for existing use certificates to be issued by a council. How is that provision to be construed? What is the “use” referred to in each part of s 139A(1)? And if the use has been discontinued, must it have been
resumed before the certificate is issued?
MARLBOROUGH DISTRICT COUNCIL v FRANKLIN & ANOR [2013] NZHC 1391 [12 June 2013]
[4] A summary of my conclusions on these questions is to be found at [57].
Background
[5] A boatyard has operated at 323-325 Waikawa Road, Picton, since 1960 or so. The land is within the Residential Zone in the Marlborough Sounds Resource Management Plan. The plan became operative in 2002. It prohibits industrial uses in such a zone. But existing use rights have applied hitherto to protect the boatyard activity.
[6] Originally it was known as the “Jorgensen Boatyard”. It was run by Finn and Harry Jorgensen. The Jorgensen family operated a boat building, maintenance and repair business on the site. The site includes three slipways and a jetty. On the landward side there is a boatyard, woodworking shop, two boat repair and painting sheds and an engineering workshop. The whole site is 0.4852 hectares in area.
[7] Then Finn Jorgensen died and Harry Jorgensen moved to Auckland. In about
1998 the land was sold to its current owners.
[8] After the sale of the property by the Jorgensen family, John Cooper leased the site from the owners. He took over the operation of the boatyard. He does not seem to have built any boats there. But he continued to undertake boat storage and boat maintenance and repair work at the site.
[9] The maintenance and repair work at the yard began to wind down at the end of 2009. For the purposes of this appeal, it is accepted that boat repair and maintenance continued at the yard until the end of November 2009. The appellant Council does not accept that it continued thereafter. The respondent Mr Franklin, on the other hand, maintains that boat storage and limited maintenance work continued after that date.
[10] The respondents, Mr Franklin and his company, were involved in a substantial way in boat building and repair in Christchurch. The former aspect of their business suffered a serious setback in the Christchurch earthquakes. But they also had a presence in Picton: a yard at Waikawa Marina and a travel lift for taking
boats out of the water. They wished to expand the Picton operation. As a result they negotiated a lease of what had been the Jorgensen, and then Cooper, yard. Entering the lease seems to have been a protracted business. As early as February 2010 they slipped a large sailing catamaran for servicing. They also built some slipway equipment on the site in 2010 in anticipation of the lease. The respondents took possession of the site in August 2011, and executed the lease on 1 September 2011.
Application for existing use certificate
[11] On 26 July 2010, long before entering the lease, the respondents applied for an existing use certificate under s 139A of the Act. The certificate sought confirmation of existing use rights to “continue all existing operations of boat building, repair and maintenance on the site”. In fact boat building had ceased on the site in about 2002. The application, which was prepared by a resource management consultant, said:
The information supplied with this application confirms that there has been a continued use of the site as a boatyard from the 1960s until as recent as November 2009.
It is that statement the Council relies on in saying the existing use was discontinued at the end of November 2009.
[12] Mr Franklin has sworn an affidavit. In it he says that that statement was wrong. He had not noticed the error at the time of the application. He points to the continuing activity referred to in [10] above. He says that shows that the existing use was not discontinued in November 2009.
[13] At the end of the day that is not a matter I need to resolve in this appeal. The appeal concerns a question of law, rather than fact.
[14] On 29 September 2010 the Council issued an existing use certificate. Before setting it out in full, I note that the use described was limited to “commercial storage, repair and maintenance of boats”. The certificate did not confirm existing use rights in relation to boat building. No issue is taken with that. Boat building disappeared from the yard, and disappears from this decision, accordingly.
[15] The certificate states, in full:
Certificate of Existing Use Pursuant to S139A of the Resource Managements Act 1991
File Reference: U100463
1. Applicant
Ian Franklin Boat Builders Limited
2. Location of Activity
323-325 Waikawa Road, Waikawa – the land legally described as Lot 2
DP 2932 and Section 9E Waikawa Village Māori Block.
3. Description of Land Use
Use of the land as 323-325 Waikawa road for the commercial storage, repair and maintenance of boats.
4. Character, Scale and Intensity of the Land Use
(a) The subject allotments together cover approximately 3,543 square metres in area.
(b) The land use is comprised of the following key built elements:
(i) A primary repair and painting workshop with a footprint of approximately 315 square metres.
(ii) A secondary repair and painting workshop with a footprint of approximately 85 square metres.
(iii) A woodworking shop with a footprint of approximately
90 square metres.
(iv) An engineering workshop with a footprint of approximately 65 square metres.
(v) A two-storey office/staffroom building with a footprint of approximately 32 square metres.
(vi) An ablution block with a footprint of approximately 9 square metres.
(vii) A boat hardstand area covering approximately 800 square metres.
(viii) A car parking area covering approximately 700 square metres.
(ix) An outdoor boat cradle yard covering approximately
1,100 square metres, with three associated rail iron slipways and a winch house.
(c) Five regular staff work at the site on up to six vessels sized between approximately six metres and fifteen metres in length.
(d) The hours of operation of the land use are 8.00 am to 5.00 pm, Monday to Friday.
(e) The operations undertaken at the site consist of the surveying, repair and maintenance of boats, and associated storage of boats awaiting such works. Repairs and maintenance include stripping, painting, fibre-glassing and wood-working, except for any associated discharge of contaminants to land, air or water.
5. Certification
On the date of issue of this certificate, the above described use of the land was a use of land allowed by section 10 of the Resource Management Act 1991.
6. Limitations
(i) This Certificate does not apply to the land legally described as PT RD JOINING PT SEC 9 WAIKAWA MĀORI VILLAGE AND SECS 9F 9G1 WAIKAWA VILLAGE MĀORI BLOCK.
(ii) This Certificate does not apply to any discharge of contaminants to land, air or water arising from the use of the land at 323-325
Waikawa Road, Waikawa.
Abatement notices
[16] The revived fortunes of the yard in 2011 do not seem to have been popular with some of its neighbours. They complained to the Council about noise, dust and other discharges.
[17] On 20 December 2011 abatement notices were issued by the Council. The notices said:
The existing use certificate that was issued for this property on the 29th of September 2010 is considered by Council to have expired as at the end of November 2010. Section 10(2) of the Resource Management Act 1991 stipulates that: existing use rights are lost if the use is discontinued for a continuous period for more than 12 months.
[18] So the Council was saying that the existing uses certified were still subject to lapse under s 10(2) if discontinued for a continuous period of 12 months at any time.
Obviously, on the Council’s argument, that time could begin before the date of the certificate, with some of the period of discontinuance preceding certification, and some after. Once the 366th day is reached, the existing use rights are lost and a resource consent would have to be obtained to carry on. In the present case that would be a notified land use consent. It might or might not be granted. That is the Council’s position.
An appeal, and an application for stay
[19] The respondents immediately appealed to the Environment Court. They also sought a stay. On 7 February 2012 the Court issued a decision staying the abatement notices.
[20] A preliminary point was raised by the respondents as to whether the certificate had the effect of confirming existing use rights on an indefinite basis (without risk of lapse).
[21] The Environment Court ruled on that issue on 23 August 2012. This appeal is from that decision. Before summarising the decision, I will set out the statutory framework.
Statutory framework
[22] The most relevant provisions on this appeal are ss 10, 139A and 123 of the
Act. So far as relevant they provide:
10 Certain existing uses in relation to land protected
(1) Land may be used in a manner that contravenes a rule in a district plan or proposed district plan if—
(a) either—
(i) the use was lawfully established before the rule became operative or the proposed plan was notified; and
(ii) the effects of the use are the same or similar in character, intensity, and scale to those which existed before the rule became operative or the proposed plan was notified:
(b) or—
(i) the use was lawfully established by way of a designation; and
(ii) the effects of the use are the same or similar in character, intensity, and scale to those which existed before the designation was removed.
(2) Subject to sections 357 to 358, this section does not apply when a use of land that contravenes a rule in a district plan or a proposed district plan has been discontinued for a continuous period of more than 12 months after the rule in the plan became operative or the proposed plan was notified unless—
(a) an application has been made to the territorial authority within 2 years of the activity first being discontinued; and
(b) the territorial authority has granted an extension upon being satisfied that—
(i) the effect of the extension will not be contrary to the objectives and policies of the district plan; and
(ii) the applicant has obtained approval from every person who may be adversely affected by the granting of the extension, unless in the authority's opinion it is unreasonable in all the circumstances to require the obtaining of every such approval.
(3) This section does not apply if reconstruction or alteration of, or extension to, any building to which this section applies increases the degree to which the building fails to comply with any rule in a district plan or proposed district plan.
...
139A Consent authorities to issue existing use certificates
(1) A person may request the consent authority to issue a certificate that—
(a) describes a use of land in a particular location; and
(b) states that the use of the land was a use of land allowed by section 10 on the date on which the authority issues the certificate; and
(c) specifies the character, intensity, and scale of the use on the date on which the authority issues the certificate.
(2) A person may request the consent authority to issue a certificate that—
(a) describes an activity to which section 10A or section 20A
applies; and
(b) states that the activity was an activity allowed by section
10A or section 20A on the date on which the authority issues the certificate; and
(c) specifies the character, intensity, and scale of the activity on the date on which the authority issues the certificate; and
(d) describes the period for which the activity is allowed under section 10A or section 20A.
(3) The consent authority may require the person to provide any further information that the authority considers it needs to determine whether it must issue the certificate.
(4) The consent authority must issue a certificate under subsection (1) if it—
(a) is satisfied that the use of the land is a use of land allowed by section 10 on the date on which the authority issues the certificate; and
(b) receives payment of the appropriate administrative charge.
(5) The consent authority must issue a certificate under subsection (2) if it—
(a) is satisfied that the activity is an activity allowed by section
10A or section 20A on the date on which the authority issues the certificate; and
(b) receives payment of the appropriate administrative charge.
(6) A consent authority that must issue a certificate must do so within 20 working days after the latest of the following dates:
(a) the date on which the authority receives the request; and
(b) the date on which the authority receives all the information required under subsection (3); and
(c) the date on which the authority receives the payment of the appropriate administrative charge.
(7) Subsection (8) applies if a consent authority that issued a certificate becomes aware that the information that a person provided in order to obtain the certificate contained inaccuracies.
(8) The authority must revoke the certificate, if it is satisfied that the inaccuracies were material in satisfying the authority that it must issue the certificate.
(9) An existing use certificate is treated as an appropriate resource consent. The provisions of this Act apply to the certificate, except for sections 87AA to 119 and 123 to 150.
(10) Sections 357A and 357C to 358 apply in relation to the issue or revocation of an existing use certificate.
123 Duration of consent
Except as provided in section 123A or 125,—
...
(b) subject to paragraph (c), the period for which any other land use consent, or a subdivision consent, is granted is unlimited, unless otherwise specified in the consent:
…
[23] It is not overstating things to say that the drafting of s 139A is a triumph of confusion over clarity. Its purpose and effect could have been set out so much more simply. Or, at least, clearly. Difficulty arises in aligning it with s 10.
Decision appealed from
[24] Judge Jackson started by clarifying the meaning of s 10(1)(a)(ii). As he put it:1
The effect of section 10(1) and (2) is that land may be used for an activity that otherwise contravenes a rule if:
(1) the activity was lawfully established before the rule became operative;
and
(2) the effects of the use at the time they are being questioned are the same or similar in character, scale and intensity as they were at the date the rule became operative; and
(3) the use has not been discontinued (between those two dates) for a continuous period of more than twelve months.
(Original emphasis).
[25] The Judge considered that the use described in s 139A(1)(a) and in
1 Franklin v Marlborough District Council [2012] NZEnvC 175 at [16].
s 139A(1)(b) was the same. The use described in (a) had to be a use allowed by s 10 on the date of issue of the certificate. Thus:2
In order to certify as to the matter in section 139A(1)(b) the consent authority must be satisfied as to the three matters in section 10 identified ... above. If one of those three requirements of section 10 is not made out, then the consent authority will not be able to certify under section 139A(1)(a) and (b) that the described use “was” an existing use under section 10 of the RMA.
[26] What then was the “use” in s 139A(1)(c)? On a literal view, the Judge thought, it required the Council “to describe the use actually taking place at the date of the certificate”. Further, “only if that use is of the same character and/or the same or lesser intensity in scale as the use described in paragraphs (a) and (b) of s 139A(1) may the certificate then be issued”. The Judge did not think it was simply an elaboration of the activity described in (a). If that was so “it would come before paragraph (b)”.
[27] The Judge therefore concluded that s 139A expressly required identification
of “two states of affairs” on the land as at the date of the certificate:
(a) the activity authorised by ss 10, 139A(1)(a) and (b); and
(b) “the actual activity being carried on” at that time: s 139A(1)(c).
As to the second, the Judge accepted there might be no actual activity occurring on the site on certification date, in which case the certificate should say that.
[28] The importance of discrimination between (a) and (b) on the one hand, and (c) on the other was that the Council was bound by its specification under (c) of the activity actually being carried on.3 Here the Council had specified character, scale and intensity of land use including physical plant, the presence of “five regular staff”, hours of operation between 8.00 am and 5.00 pm and the other activities
described in clause 4(e) of the certificate.4
2 At [24]. The matters “identified ... above” are set out in [24] above.
3 At [33].
4 See [15] above.
[29] The Judge held that the Council could not resile from the statement in its certificate that boat repair and storage was being conducted on 29 September 2010. It followed that those uses could then be discontinued for up to twelve months without being lost. That is, up to 29 September 2011. Activity of full scale and intensity had resumed by 1 September 2011. Those existing use rights remained,
therefore, at the time the abatement notices were issued.5 The abatement notices
were struck out.
Issues on appeal
[30] This appeal raises two issues of law:
(a) Issue 1: What is the “use” in each of s 139A(1)(a), (b) and (c)?
(b)Issue 2: To obtain a certificate of existing use under s 139A, must the use have resumed?
Issue 1: What is the “use” in each of s 139A(1)(a), (b) and (c)?
[31] As we have seen, s 139A(1) contains three paragraphs, each referring to “a use of land” or “the use of land”.
Section 139A(1)(a)
[32] Section 139A(1)(a) requires the description of “a use of land”. This is exactly what it says it is: a description of the use6 the applicant seeks certification of. The legitimacy of that use (as at the date of the certificate) will then be addressed in s 139A(1)(b). The “use” referred to in s 139A(1)(a) may be co-extensive with the whole suite of existing uses permissible, or it may be a subset of those uses. There
was no disagreement between the parties on this.
5 Franklin v Marlborough District Council, above n 1, at [41]–[43].
6 Plainly it may encompass more than one use.
Section 139A(1)(b)
[33] The use described in s 139A(1)(b) (where both “the use” and “a use” are referred to) was, according to the Judge, the same use as described in (a). Both counsel for the Council and the respondents agree with that interpretation.
[34] I too accept that that is correct. “The use” must relate to the use described in
(a).
[35] As the Judge said, in order to certify as to the matter in s 139A(1)(b), the consent authority must be satisfied as to the three matters described in [24] above. These are the three requirements of s 10(1) and (2).
[36] First, that the use was lawfully established before the rule became operative. As the Court of Appeal has made clear, that requires an assessment of the activity immediately before the current plan came into force.7 But it is not a snapshot taken on a single day. It is accepted that uses may be intermittent, or may vary in extent:8
In this context an existing use is to be assessed on the basis of the normal year-round operation, not the point in the operational cycle existing on the day the new rule takes effect.
[37] Secondly, that the effects of the use as at certification date are the same or similar in character, scale and intensity as they were at the date the rule became operative. That means, simply, that the effects are not greater than they were when the rule became operative. The effects may be less than then, but they cannot be greater.
[38] Thirdly, the “use” has not been discontinued for a continuous period of more than twelve months between the date the rule became operative and certification date. What that means is that if the use has been discontinued for 365 days, the certificate might still be granted. If the use has been discontinued for 366 days, it
cannot. “Discontinuance” for these purposes also encompasses compliance with the
7 Rodney District Council v Eyres Eco-Park Ltd [2007] NZRMA 320 (CA) at [14].
8 At [18]. See also Springs Promotions Ltd v Springs Stadium Residents Association Inc [2006] NZRMA 101 (HC) at [47].
plan. That is because the relevant use is one that contravenes a rule. If the use diminishes to the point of compliance, the contravening use will have discontinued.9
Section 139A(1)(c)
[39] The real question under Issue 1 is whether the use referred to in s 139A(1)(c) is the same as the use described in s 139A(1)(a) and (b), or (as the Judge thought) a description of the actual use on certification date. That would mean that, if the specified use had been discontinued, and was still in a state of discontinuance as at that date, then nothing might be specified under s 139A(1)(c).
[40] For the Council, Mr Fowler submits that the Judge was wrong, and that the “use” referred to in that paragraph is intended to be a detailed enlargement or particularisation of the use being certified, which might be described quite briefly under s 139A(1)(a).
[41] Mr Fowler’s construction appears to be the way in which the Council actually proceeded in this case, if one looks at the certificate.10 It is unlikely that the description given in clause 4 of the certificate is of the activity current as at
29 September 2010. For instance, there is no suggestion on the evidence that five men were actually employed at the site at that time. Rather, it seems to be what the Judge described as an elaboration of the former use described in clause 3 (for the purposes of s 139A(1)(a)) and certified in clause 5 as allowed under s 10 as at the date of the certificate (for the purposes of s 139A(1)(b)).)
[42] Mr Hunt’s position on this was somewhat equivocal. Initially in argument he appeared to take the same view as Mr Fowler. On further reflection however he reverted to the argument he had advanced before the Environment Court that s 139A(1)(c) required the authority to specify character, intensity and scale of the
activity on certification date.
9 Rodney District Council v Eyres Eco-Park Ltd [2007] NZRMA 320 (CA) at [28]; Springs
Promotions Ltd v Springs Stadium Residents Association Inc [2006] NZRMA 101 (HC) at [57].
10 See [15] above.
[43] It was accepted by both parties that a certificate may be issued in the case of a use that has been discontinued, so long as discontinuance had not exceeded 12 months.11 On one view that might mean there is no current “character, intensity and scale”. The Judge thought so.12 Another view, which is supported by the Council, is that s 139A(1)(c) refers to the character, intensity and scale of the generally
allowable use certified in s 139A(1)(a) and (b). That is, the permissible, resumable use, even if currently discontinued.
[44] I do not accept the latter view.
[45] I do not think it can be said that the words “on the date on which the authority issues the certificate” can be read down. The provision is plain that the character, intensity and scale described are those “on the date on which the authority issues the certificate”. Similar wording appears in s 139A(2)(c). That is not directly relevant here. But it suggests deliberation on Parliament’s part.
[46] The real question is what purpose the description of character, intensity and scale required by s 139A(1)(c) on that date is supposed to serve. The answer, I think, lies in s 139A(9). The certificate “is treated as an appropriate resource consent”. The elements of the certificate – description, character, intensity and scale – serve to describe the parameters of the equivalent consent. Section 10(1)(a)(ii) requires that “the effects of the use are the same or similar in character, intensity and scale to those which existed before the rule became operative…” It is that requirement to which both s 139A(1)(b) and (c) are addressed.
[47] Regardless of s 139A and any certificate sought and obtained, existing use rights may be exercised in full so long as s 10 is met. Discontinued uses may revive, subject to two constraints. First, not more than 12 months’ discontinuance has occurred since the contrary rule in the plan became operative. Secondly, the effects of the resumed use are no greater in character, intensity and scale than those existing
before the contrary rule became operative.
11 See discussion of Issue 2, beginning at [52].
12 Franklin v Marlborough District Council, above n 1, at [33].
[48] But the certificate adds something to these s 10 rights. Most importantly, it is “treated” as a resource consent for an activity which otherwise would be unlawful: s 139A(9). It cannot readily be impeached.13 What is described within it may be done. Enduringly, because these are the equivalent of land use consents. Existing use rights run with the land in any case.14 There is a live question as to whether the effect of s 139A is also to confer rights that do not expire in the event of a discontinuance of more than 12 months. This point was argued briefly before me. There are arguments available either way. It is not directly in issue in this appeal and I set it to one side accordingly.
[49] I do not think that a s 139A certificate was intended by Parliament to describe a notional activity, not yet resumed, the permissible parameters of which might remain debatable. Instead it describes, and in effect consents, what the planning officer can see when he or she inspects the site at the time of certification. That may conceivably include some intensity or scale not current at the date of the certificate, but which is uncontroversial: a “snapshot” approach is not taken with fluctuating
existing uses.15 But that point, too, was not directly before me and will need to be
determined on another occasion than this.
[50] In the present case the certificate described generally the existing use for the purposes of s 139A(1)(a). It certified that that was allowed by s 10 for the purposes of s 139A(1)(b). And then it provided a description of character, intensity and scale of use for the purposes of s 139A(1)(c). The latter might not have been accurate as at certification date, but if anyone was at fault for that it was the Council in completing the certificate. Whether the Council might revoke the certificate because of its own error, as opposed to inaccuracies in the application as contemplated by s
139A(7), is not a question before me today.
13 Resource Management Act 1991, s 139A(7) and (8) permit revocation where the application contains material inaccuracies.
14 Springs Promotion Ltd v Springs Stadium Residents Association Inc [2006] NZRMA 101 (HC)
at [53].
15 See [36] above.
[51] The “use” described in s 139A(1)(a) and (b) is the same: the exisiting use right permitted, for which certification is sought, regardless of whether it is actually being conducted at certification date. But the “use” in s 139A(1)(c) is the use in fact being conducted at certification date, specified by character, intensity and scale.
Issue 2: To obtain a certificate of existing use under s 139A, must the use have resumed?
[52] There is consensus between counsel that the answer to this question is “no”. The use need not have resumed before the certificate is granted.16 The Judge below reached the same conclusion, although holding that in such a case the s 139A(1)(c) specification of character, intensity and scale would in effect be “nil”.17
[53] I accept that that may be so.
[54] However, a certificate issued without resumption of the permitted use would serve little practical purpose unless there is merit in the issue noted at the end of [48]. The function of the certificate is not to provide official confirmation of the existence of latent but resumable existing use rights. It is to furnish the equivalent of “an appropriate resource consent”. That consent-equivalent depends on an approved specification of character, intensity and scale of present activity not exceeding the constraints stated in s 10(1)(a)(ii). It is not a consent to continue to undertake “commercial storage, repair and maintenance of boats” generally or without limit. What is recognised as if consented is the activity specified under s 139A(1)(c). That specification is directly dependent on the activity being conducted at the time of certification. That is the “existing use” certified.
[55] Anything more than that depends on rights under s 10, not s 139A.18
16 Assuming, of course, that discontinuance has not exceeded the 12 month limit in s 10(2).
17 Franklin v Marlborough District Council, above n 1, at [33].
18 See [47] above.
[56] The answer to Issue 2 is, “no” technically, but “yes” practically. A certificate issued without resumption of the permitted use would serve little practical purpose as a “resource consent” for the purposes of s 139A(9).
Summary
[57] In summary:
(a) The “use” described in s 139A(1)(a) and (b) is the same: the existing use right permitted, for which certification is sought, regardless of whether it is actually being conducted at certification date.
(b)The “use” described in s 139A(1)(c) is the use in fact being conducted at certification date, specified by character, intensity and scale.
(c) A certificate of existing use may be obtained under s 139A even where the use is currently discontinued.
(d)However, a certificate issued without resumption of the permitted use would serve little practical purpose as a “resource consent” for the purposes of s 139A(9).
Result
[58] I have not been persuaded that the Judge below erred. [59] The appeal is, therefore, dismissed.
[60] If costs are in issue, I will receive brief memoranda.
Stephen Kós J
Solicitors:
Radich Law, Blenheim for Appellant
Hardy-Jones Clark, Blenheim for Respondent
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