Matukituki Trust v Queenstown Lakes District Council HC Christchurch CIV 2006-412-000733

[2007] NZHC 1876

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV 2006-412-000733

BETWEEN  MATUKITUKI TRUST Plaintiff

AND  QUEENSTOWN LAKES DISTRICT COUNCIL

Defendant

Hearing:         8 November 2006

Appearances: C N Whata and T L Hovell for Plaintiff

G M Todd for Defendant

Judgment:      20 June 2007

JUDGMENT OF FOGARTY J

Introduction

[1]      The plaintiff is a Trust which is the owner  of property located on Roys Peninsula, West Wanaka.  The defendant is the local territorial authority and also the consent authority under the Resource Management Act 1991 (RMA).  The plaintiff’s property is in an area covered by the partially operative Queenstown Lakes District Plan (district plan).

[2]      There  is  a  related  judgment  dated  19  December  2006  providing  more background  information  as  to  the  Trust  proposals  for  the  development  of  the property, and the content and status of the district plan.

MATUKITUKI TRUST  V QUEENSTOWN LAKES DISTRICT COUNCIL HC CHCH CIV 2006-412-000733

20 June 2007

[3]      These  proceedings  concern  an  application  by  the  plaintiff  for  land  use consent to establish, use and maintain two farm implement and vehicle storage sheds on the Trust property.   This application was made on or about 31 May.

[4]      This application has to be seen in its context.

District plan context

[5]      On or about 20 December 2002 the Environment Court directed the Council to modify its proposed district plan (as it was at the time) by inserting rules to provide for farm buildings in the Rural General Zone, including land identified as an outstanding natural feature (ONF).  The rules were to provide for farm buildings as controlled activities.

[6]      Following the direction of the Environment Court the Council did modify its proposed  plan providing  for  farm buildings as controlled  activities  in  the  Rural General Zone, including on ONFs.

[7]      On and around 22 September 2003 the Environment Court made orders that parts of the district plan become operative, including relevant provisions relating to farm buildings.

[8]      In November 2003 the Council lodged with the Court an ex parte application under s 292 of the RMA seeking that the status of farm buildings on ONFs changed from controlled to discretionary on the basis that ONFs had been omitted “in error” from site standard 5.3.5.1(xi)(a).

[9]      On 16 September 2004 the Environment Court found there was no clear error and declined to make the orders sought by the Council.

[10]     Some time after that Environment Court decision declining the application, the Council commissioned a report to consider the merits of a proposed plan change

9 (PC 9) to provide greater control over farm buildings on ONFs.  This is known to the parties as the Bashford report.   This report was produced with public input.  On

9 February 2005 the Council met in private to consider the report.  On 10 February the Council commissioned a s 32 report on PC 9 to assess the effectiveness, costs and benefits, and appropriateness of a range of options for closing what the Council saw as a loophole that allows farm buildings to be constructed on outstanding natural features as a controlled activity.   There is no record of the Council resolution to notify PC 9.  There was a public notice of the change advertised in the Queenstown Mirror on or about 9 March.    This s 32 report was produced without public input. The Bashford report and the s 32 report were relied on to prepare PC 9.  It was for the reasons set  out  in the Bashford  report  and the s 32  report  that  the  Council resolved in private to introduce PC 9.

[11]     Neither the Matukituki Trust nor any other directly affected ratepayers or other persons were served with a public notice of the PC 9 in accordance with cl 5(1A) of Schedule 1 of the RMA.

The application for farm buildings

[12]     So it was in this context that on or about 31 May the plaintiff applied for land use consent for two farm implement and storage sheds.  The application was made on the basis that the farm buildings would be processed as a controlled activity and challenged the PC 9 to be flawed unlawful and of no effect.

Withdrawal and re-notification of Plan Change 9

[13]    On or about 8 June 2005 the Council resolved to withdraw PC 9 and immediately re-notify a plan change to change the activity status of farm buildings in ONFs from a controlled activity to a discretionary activity (“June Resolutions”).

[14]     On or about 9 June 2005, the Council through its solicitors wrote to the Matukituki Trust confirming that the arm Buildings Application would be processed as a controlled activity.

[15]     On or about 15 June 2005, the public notice of the withdrawal of the PC 9 and notification of notified PC 9 was given in the Queenstown Mirror, recording, among other things, that the PC 9 had no effect and therefore council has resolved to withdraw it and notify Re-notified PC 9 as of 10 June 2005.

Processing of the Farm Buildings Application

[16]     On or about 11 October 2005, the Council’s planner produced a planning report in relation to the Farm Buildings Application (“Planner’s Report”).

[17]     The Planner’s Report recommended that the Farm Buildings Application be processed as a controlled activity.

[18]     A  meeting  to  determine  the  matter  of notification  of the  Farm  Building Application was held on 17 October 2005, before a Commissioner appointed by the Council.

[19]     The Commissioner resolved that the resource consent  be notified  for  the reasons set out in the Commissioner’s decision, including:

(a)      Section 83 of the RMA precluded the Commissioner from enquiring into the validity of the Original PC 9;

(b)      It was not appropriate in the context of a notification determination for him to consider arguments that the Original PC 9 was ultra vires;

(c)      The fact that the Original PC 9 was subsequently withdrawn did not suggest that it lacked any legal effect before its withdrawal; and

(d)      That  the  application  should  be  dealt  with  on  the  basis  that  farm buildings   were   discretionary   and   not   controlled,   even   if   the applications were for farm buildings.

Re-notified Plan Change 9

[20]     The hearing of submissions on the re-notified PC 9 were held on 6 and 7

November 2005, before commissioners appointed by Council.

[21]     The Commissioners resolved to amend re-notified PC 9 as follows:

“Site standard (xi) Farm Buildings

(a)      No farm building shall be replaced, extended or constructed: (i)  On any holdings (as defined) less than 100 hectares in area;

or

(ii) At a density of more than one farm building per 50 hectares;

or

(iii) On any land above 600 masl; or

(iv) Within  the  Outstanding  Natural  Landscape  –  Wakatipu Basin or Outstanding Natural Features (district wide, including the Wakatipu Basin) or an Outstanding Natural Feature within the Wakatipu Basin as defined in the appropriate schedule of the District Plan; or

(v) On an Outstanding Natural Feature outside of the Wakatipu Basin as identified in the appropriate schedule of the district plan, if

•there  is  already  a  farm  building  within  that  holding  (as defined) or if there is land within that holding (as defined) that is not on an Outstanding Natural Feature; or

•the site containing all or  part of the Outstanding Natural Feature was not contained in a separate certificate of title prior to 10 June 2005.

(b)       The existence of a farm building approved under rule 5.3.3.2(i)(d) shall   not   be   considered   part   of   the   permitted   baseline   for development within the Rural General zone.

Relief

[22]     The  Council  now  accepts  that  notice  was  not  served  on  the  Trust  in accordance with the requirements of s 5 of the First Schedule of the RMA and to that end accepts that the original PC 9 is invalid.

[23]     Section 88A (1A) applies.  The section provides:

88A     Description of type of activity to remain the same

(1)     Subsection (1A) applies if—

(a)      an application for a resource consent has been made under section 88; and

(b)     the type of activity (being controlled, restricted, discretionary, or non-complying) for which the application was made under section

88, or for which the activity is treated under section 77C, is altered after the application was first lodged as a result of—

(i)    a proposed plan being notified; or

(ii)     a decision being made under clause 10(3) of Schedule 1 or

(iii)     otherwise.

(1A)      The application continues to be processed, considered, and decided as an application for the type of activity that it was for, or was treated as being for, at the time the application was first lodged.

[24]     The Court makes the following orders:

(a)      A declaration that original PC 9 is invalid;

(b)      A declaration that notification of original PC 9 be set aside;

(c)      A declaration that  the  farm  buildings  application by  the  Trust  be processed, considered and decided as an application for the type of activity that it was under s 77B, s 88 and s 88(1A) of the RMA as at

31 May 2005 and unaffected by original Plan Change 9 and as a controlled activity.

Solicitors:
Russell McVeagh, Auckland, for Appellant
Macalister Todd Phillips Bodkins, Queenstown, for Respondent

Preston Russell Law, Queenstown, for Justice One Life Limited (Counsel: A C Hughes-Johnson QC)