Mawhinney v Auckland Council

[2013] NZHC 3566

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2011-404-2143 [2013] NZHC 3566

IN THE MATTER             of an appeal under s 299 of the Resource

Management Act 1991

BETWEEN  PETER WILLIAM MAWHINNEY AS TRUSTEE OF THE WAITAKERE FOREST LAND TRUST, AND SUCCESSORS

Appellant

ANDAUCKLAND COUNCIL Respondent

Hearing:                   23 October 2013

Appearances:           Appellant in Person

D K Hartley and C L Faesenkloet for Respondent

Judgment:                23 December 2013

JUDGMENT OF COOPER J

This judgment was delivered by Justice Cooper on

23 December 2013 at 4.00 p.m., pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date:

Solicitors:

Simpson Grierson, Auckland

MAWHINNEY AS TRUSTEE OF THE WAITAKERE FOREST LAND TRUST, AND SUCCESSORS v

AUCKLAND COUNCIL [2013] NZHC 3566 [23 December 2013]

[1]     The appellant, Mr Peter Mawhinney, appeals against a decision of the Environment Court made under s 91 of the Resource Management Act 1991 (“the Act”).

[2]      The Environment Court’s decision was made in relation to an application for an order directing revocation of a determination that two applications for subdivision consent  be  deferred  pursuant  to  s 91  of  the  Resource  Management  Act  (“the RMA”).1   The applications for subdivision consent were made in the name of Alex Simpson Ltd and Peter Mawhinney as Trustees of the Waitakere Forest Land Trust. Alex Simpson Ltd is no longer in existence as the company has been struck off the Companies Register.

[3]      The respondent, Auckland Council, is the statutory successor to the Waitakere City Council whose decision under s 91 was appealed to the Environment Court.  I will refer to both the respondent and the Waitakere City Council as “the Council”.

The applications for subdivision consent

[4]      The  appellant  lodged  two  applications  for  subdivision  consent  with  the Council on 7 April 2008.   The first of those applications was referred to in the Council’s records as SUB 2008-570 (which I will refer to as SUB 570) and was for an 18-lot subdivision of four titles.  The second application, which had the reference number  SUB  2008-571  (which  I  will  refer  to  as  SUB  571)  was  an  alternative proposal which would subdivide the land into 77 lots.

[5]      Both applications related to the same land area which is in the foothills of the

Waitakere Ranges.  It comprises 79.9253 hectares.

Deferral under s 91 of the RMA

[6]      The  Council  engaged  a  consultant,  Mr  Peter  Reaburn  of  Cato  Bolam

Consultants, to process the two subdivision applications.  On 16 May 2008 he wrote to the applicants about the applications.  In his letter, he advised that the applications

1      Alex Simpson Limited and Peter Mawhinney as Trustees of the Waitakere Forest Land Trust v

Auckland Council (formerly Waitakere City Council) [2011] NZEnvC 58.

had been accepted for processing, but placed on hold until other matters raised in the letter were addressed.  For present purposes, the important parts of the letter were headed “Application Clarity”, “ARC Consents” and “Further Information”.

[7]      Comments under the former heading included the following:

2.Our  assessment  is  that  all  versions  of  the  applications  are  non- complying by reference to the transitional district plan.  References to limitations assuming controlled or limited discretionary activity status should therefore be deleted.

…

4.Parts  of  the  application  are  confusing  and/or  incorrect.     The Description of the Proposal and Assessment of Effects states that the applicant has no intention to carry out the subdivision, or to erect buildings, or to “construct anything”, with further statements that dwellings  are  permitted  activities  and  that  there  will  be  no earthworks.   There is analysis, amongst other matters, of road widening, driveway construction and stormwater disposal.   It is Council’s determination that all of these matters need to be covered in the subdivision applications.  For instance, Foothills Assessment Criterion 7(b) refers to vehicle access and 7(o) and 7(p) refer to stormwater disposal.  It is necessary to have regard in the application to development that will be necessary to establish the subdivision, and to provide for development following subdivision.   Dwellings will be permitted activities subsequent to subdivision, but are not (other than one per existing site) at present.   These parts of the application should be amended accordingly.

[8]      Under the heading “ARC Consents”, Mr Reaburn recorded the Council’s

current view that:

…on the grounds that the subdivision proposal is extensive and intensive, and in an area not covered by an approved catchment management plan, consents are likely to be required from the Auckland Regional Council, in the least for stormwater disposal, and probably also for earthworks.  Please provide confirmation from the ARC that these consents are not regarded as being necessary.   This application will not be proceeded with unless that confirmation is received (see s 91 of the Resource Management Act).

[9]      Mr Reaburn also advised the applicants that if it was confirmed that ARC consents were required, a combined hearing of the applications would be likely pursuant to s 103 of the RMA.

[10]     In the part of the letter headed “Further Information”, Mr Reaburn set out a

detailed request for further information, including:

topographical (contour) plans

details as to the earthworks necessary for driveways,  roadways,  building platforms and infrastructure works

information  from  an  appropriately qualified  person  in  sufficient  detail to confirm that each proposed new site would be capable of accommodating a wastewater disposal system of sufficient capacity to serve probable future

development of the site

information  from  an  appropriately qualified  person  in  sufficient  detail to confirm the means by which stormwater would be disposed of and treated from each site and access driveway/road given probable future development

of the land

information  from  an  appropriately qualified  person  in  sufficient  detail to confirm the means by which, given probable future development following subdivision, there would be no change to the rainwater run-off in the subject

land

information  from  an  appropriately qualified  person  in  sufficient  detail to confirm that each site would be capable of accommodating probable future

development following subdivision

an assessment from an appropriately qualified person assessing the effects of the subdivision, and probable future development following subdivision, on

indigenous vegetation, fauna and streams

an assessment from an appropriately qualified person assessing the effects of the subdivision, and probable future development following subdivision, on landscape character and natural character.  The assessment required was to be on a site by site basis for future development above the 130 metre contour and it was requested that the assessment make it clear what measures were to be taken to avoid, remedy or mitigate effects of the subdivision and probable

future development following subdivision on natural character and landscape character.

[11]     The further information was sought pursuant to s 92 of the RMA.

Section 91 of the RMA

[12]     Section 91 of the RMA provides as follows:

91       Deferral pending application for additional consents

(1)       A  consent  authority  may  determine  not  to  proceed  with  the notification or hearing of an application for a resource consent if it considers on reasonable grounds that—

(a)       other resource consents under this Act will also be required in respect of the proposal to which the application relates; and

(b)       it is appropriate, for the purpose of better understanding the nature of the proposal, that applications for any one or more of those other resource consents be made before proceeding further.

(2)      Where a consent authority makes a determination under subsection

(1), it shall forthwith notify the applicant of the determination.

(3)       The applicant may apply to the Environment Court for an order directing that any determination under this section be revoked.

The Environment Court decision

[13]     The Environment Court decision was made as long ago as 16 March 2011. The application for revocation of the deferral under s 91(3) was dealt with by Judge Whiting sitting alone.

[14]     The  Judge  recorded  the  background,  and  the  key  submissions  made  by Mr Mawhinney   that   no   additional   resource   consents   were   required   for   the subdivision application.  In particular, Mr Mawhinney submitted that the applicants did not propose any kind of discharge under s 15 of the RMA, nor did they propose to  divert  water so  as  to  require a water permit  under s 14  of the Act.    It  was Mr Mawhinney’s submission to the Environment Court, repeated here, that since the

land was simply to be subdivided and sold there was no justification for a deferral under s 91.

[15]     The Judge recorded Mr Mawhinney’s further submissions that:2

[a]      There is no proposal to carry out any physical activity, neither discharging nor earthworks, nor installation of impervious surfaces.

[b]       There is no duty on the part of a person who intends to offer land for sale to obtain resource consents for unknown future occupiers.

[c]       There is no proposal to otherwise contravene the other restrictions in

Part 3 of the Act, being those restrictions in section 9, 12, 13, 14, 15,

15A and 15B.

[d]       The Council cannot defer subdivision applications on the basis of consents which are not required to be obtained now or when the properties are developed.

[16]     Judge Whiting noted the Council’s submissions in support of the deferral

under s 91.  In particular he recorded the Council’s stance that:3

(a)      It had requested information to enable it to  adequately assess the environment effects of the proposed subdivisions, including matters relating to the provision of adequate plans, earthworks information, wastewater, stormwater (for the proposed sites and the whole of the area of the land), land stability, ecological information and landscape effects.

(b)It  had  reasonable  grounds  for  considering  that  regional  consents would be required in respect of the proposal and these were necessary for “best understanding the nature of the proposal”.4

(c)      Once subdivision consent is granted it would be possible following the issue of new titles to undertake significant permitted development on each new site including erection of a dwellinghouse and associated

activities.     It  was  not  appropriate  to  discount  such  effects  when

2 At [7].

3      At [8]-[11].

4      The Judge used the word “best”.  The statute refers to “better understanding”.  The error has no

significance.

considering the subdivision application on the basis that the applicants suggested.

(d)The applicants’ argument that there would be no effects arising from new impervious areas because no works were proposed other than the creation of new titles should be rejected.  Once new titles were issued impervious areas would be able to be installed as of right on new sites without any form of control under the Auckland Regional Air, Land and Water Plan.  That Plan made it clear that the expected extent of any new impervious areas following subdivision or development should be taken into account when assessing the need for a regional consent.

[17]     The Judge then addressed s 91, holding that subs (1) provided a conjunctive test, so that both paragraphs (a) and (b) must be satisfied.  On the first of those limbs, he said:5

While the applicants maintain that regional consents are not required, if subdivision consent is granted it is logical that development will then occur. Accordingly, it follows that there is a possibility that regional consents will be required in association with these development activities.

[18]     He also recorded that he thought both “tiers” of s 91 were satisfied.6     In summary, this was because:

(a)      SUB-571 was large in scale and it was appropriate that the Council should have access to all the relevant information before making a decision on whether to grant it.  Provision of additional information as sought by the Council would provide it with a better understanding of the nature of the proposal.

(b)If development occurred, there was a “distinct possibility” that further consents “will be required”.   He accepted the Council’s contention

that the subdivision was “extensive and intensive” and said that its

5 At [14].

6 At [16].

concerns that additional regional consents  might be required were justified.

(c)      The RMA promotes integrated decision making and all related applications should be considered at the same time.  In this respect the Judge  quoted  from  the  Environment  Court’s  previous  decision  in Affco NZ Limited v Far North District Council (No.2)7 in which it was observed that:

Good resource management practice requires that in general all resource consents required should be carefully identified from the outset and applications made so that they can be considered together jointly.

(d)It was the responsibility of the applicants to provide all the necessary details and information with an application.   This would enable appropriate  assessment  not  only  by  the  consent  authorities,  but persons potentially interested in making a submission.

[19]     For these reasons, the Judge upheld the Council’s determination to place the

applications on hold, and declined the application for revocation.

[20]     I note that Mr Reaburn swore an affidavit for the purpose of the Environment Court hearing.   In that affidavit he recorded in some detail his opinions that substantial works would be required if the subdivisions were implemented.  While stating that accurate plans had not been received, he calculated on an approximate basis that there would be up to 4,000 metres of roading/shared accessways, and additional requirements for individual driveways to building sites.  Then, individual building platforms would need to be created.   He set out his opinion as to why consents would be required under the proposed Air, Land and Water Plan of the then Regional Council and noted that that Plan required that the expected extent of new impervious areas following subdivision or development would need to be taken into account in assessing the subdivision.  He expressed the opinion that the 5,000 square metre  upper  threshold  for  permitted  activity  status  under  the  plan  would  be

exceeded.

7      Affco NZ Limited v Far North District Council (No.2) [1994] NZRMA 224 (EC).

[21]     Similarly, he expressed the opinion that the likely extension of provision of accessways required would exceed the threshold requirement of the Auckland Regional Plan:  Sediment Control for permitted activities.  He noted that earthworks between one and five hectares had the status of a controlled activity under Rule 5.4.2 of that Plan and expressed the view that the earthworks would be at least of that extent.

[22]     Mr Reaburn’s affidavit essentially gave the factual background that the Judge accepted in upholding the Council’s decision to defer the applications under s 91.

The appeal

[23]     Mr Mawhinney’s right of appeal is one that is limited to questions of law, under s 299 of the RMA.

[24]     In this Court, he has essentially repeated the submissions rejected in the Court below which take as a starting point that the applicants proposed nothing apart from the creation of new titles.   This approach has previously been referred to in other  litigation  involving  Mr Mawhinney  as  the  “lines  on  a  plan”  argument. Essentially, he maintains that if no works are proposed to implement a subdivision, the environmental  effects  of implementing the subdivision cannot  be taken  into account.  Being limited to the paper exercise of creating new titles, the subdivision can be granted consent without regard to works that might be carried out when the new titles are sold to purchasers.  Any effects of works that might be carried out in the future on the individual sites so created would fall to be considered at the time they were carried out, which might, of course, vary from new owner to new owner.

[25]     In Mr Mawhinney’s argument, the primary issue as he described it, is the interpretation of the word “required” in s 91(1)(a).   He submitted that no further resource consents were “required” because:

(a)       A resource consent is a consent to do something that would otherwise contravene the duties and restrictions in Part 3 of the RMA.

(b)The requirement to obtain a resource consent related to the person who would otherwise contravene Part 3, and not the appellant in the present case (because the appellant proposed to carry out no activity on the land).

(c)      The proposal to offer part of an allotment for sale, which would be the limit to which the applicant implemented the consents sought, would not require any consent other than the bare consent to subdivide.

(d)The scheme of the RMA is that any concerns of the consent authority as to future activities that might follow subdivision of the land were to be dealt with by either refusal of subdivision consent, or by conditions imposed on the subdivision consent under ss 106, 108 and 220 of the RMA.  Where such conditions are required to be complied with on an ongoing basis a consent notice may be imposed under s 221 of the RMA.  Thereafter, a breach of any consent notice could be the subject of  enforcement  orders  under  s 316,  or  an  abatement  notice  under s 322.    Underpinning  this  regime  is  the  offences  provision  under s 338.

(e)      Obtaining  regional  consents  such  as  water  permits  or  discharge permits would serve no useful purpose at the subdivision stage, because such consents would not run with the land, but instead are issued to the consent holder.   Mr Mawhinney submitted that it was unlikely such resource consents would be transferred to new owners because it was almost certain that the consents would be for activities of a different character, scale, location, and timeframe than would be intended by a new owner.  New owners would prefer to obtain their own resource consent tailored to their own proposed activities if such a resource consent was in fact required.

[26]     Although Mr Mawhinney presented additional written submissions alleging that the deferral decision had been made by Mr Reaburn without proper delegated authority, and that the deferral was in fact out of time having regard to time limits for

processing applications contained in the RMA, these arguments were not pursued at the hearing.

Discussion

[27]     Mr Mawhinney’s argument that consideration of applications for subdivision consent can be limited to the exercise of the creation of new lots on paper has been previously advanced by him and rejected by this Court.

[28]     In Waitakere City Council v Kitewaho Bush Reserve Co Ltd (Kitewaho)8 the High Court had to consider an argument by Mr Mawhinney along similar lines to that which he has presented in this case.  Randerson J summarised his views on the appropriate approach to s 91 of the RMA as follows:9

[26]      I have been assisted by the thorough examination of the approach to s  91  by  the  Environment  Court  (presided  over  by  Judge  Jackson)  in Waitakere Forestry Park Ltd v Waitakere City Council. The position may be summarised as follows:

(a)       A consent authority may determine not to proceed with the notification  or  hearing  of  an  application  for  a  resource consent only if it considers on reasonable grounds that both limbs of s 91(1) are made out.

(b)       It is for the consent authority to satisfy itself on the balance of probabilities about both those matters.

(c)       Reasonable grounds are required which import an objective standard.  Nevertheless,  a  consent  authority  is  entitled  to bring its own judgment and experience to bear on the issue and it is proper that some weight be given to those factors.

(d)       In  respect  of  s  91(1)(a),  the  consent  authority  must  be satisfied that other resource consents will (not may) be required in respect of the proposal. But, it is sufficient if the consent authority is satisfied on the balance of probabilities.

(e)       In relation to s 91(1)(b), the consent authority is concerned with understanding the essential features of the proposed activity to the extent that those features bear upon the effects of the proposed activity on the environment. A consent authority must be of the view that it is appropriate for the purpose of better understanding the nature of the proposal that applications be made for any one or more of the other resource consents required before it proceeds further. If the

nature of the proposal can be sufficiently understood without requiring the other applications to be made at that stage, then the consent authority is not entitled to make a s 91 determination.

[29]     The Judge rejected an argument that had been advanced, similar to one of Mr Mawhinney’s arguments in the present case, that the imposition of conditions on consent could deal with issues relating to stormwater.  He said:10

[36]      As to the second ground of appeal, I accept the submission made by Mr Enright on behalf of the WCC that if a council concludes on reasonable grounds that the two limbs of s 91(1)(a) and (b) are made out, then it may exercise its discretion under s 91 whether or not it might have been possible to address the stormwater issues as conditions of the subdivision consent. Apart from possible issues of vires where a territorial authority imposes stormwater conditions on a subdivision consent, the existence of such conditions would not have avoided the need for a resource consent from the ARC if one was in fact required. If a resource consent is needed, then it cannot properly be described as cumbersome and unnecessary. It is required by law.

[30]     Randerson J said he was satisfied that the “lines on a plan” argument is “an entirely artificial construct” which does not “conform with the practical realities of the subdivision”.  His reasoning is captured in the following passage:11

…First, it is well recognised that the subdivision of land enables a more intensive use of the land than previously existed. Ordinarily, one dwelling is permitted on each new lot. The WCC's district plan and proposed district plan so provide. There are other physical effects of subdivision which are routinely the subject of consent conditions imposed under ss 108 and 220 of the RMA. These ordinarily include provisions for roading and other infrastructure: see the useful discussion by the Environment Court in Lakes District  Rural  Land  Owners  Society  Inc  v  Queenstown  Lakes  District Council (Environment Court, Queenstown, C 100/01, 21 June 2001, Judge Jackson) para [34] onwards) and the wide definition of “effects” under s 2. Secondly, there will often be a need for other resource consents as discussed already  in  relation  to  the  s  91  issue.  Thirdly,  the  Court  of Appeal  has accepted (at least in the case of non-complying subdivision applications) that precedent effects may be relevant: Dye v Auckland Regional Council [2002]

1 NZLR 337 (CA). Fourthly, there are other provisions in the legislation which recognise that the subdivision of land may have adverse effects. For example, s 106 provides that a consent authority shall not grant a subdivision consent if it considers that insufficient provision has been made to avoid material damage by erosion, falling debris, subsidence, slippage, or inundation. As well, there are the transitional provisions in s 406 already identified which expressly recognise that subdivision of certain land may not be suitable or in the public interest and may not be appropriate where

inadequate provision is made for stormwater drainage, disposal of sewage, or the supply of water or electricity.

[31]     Subsequently, the Judge expressed his view that the relevant provisions of the RMA established that subdivision of land is not merely an exercise of drawing lines on a plan, but had environmental ramifications which were properly to be considered under District Plans and in decisions made under the RMA.  Mr Mawhinney sought leave to appeal to the Court of Appeal from Randerson J’s decision, but the High Court refused leave and the Court of Appeal rejected an application for special leave

under s 114 of the Summary Proceedings Act 1957.12

[32]     The Court of Appeal, in declining the application for special leave, expressly endorsed Randerson J’s approach to s 91, but did not discuss the “lines on a plan” argument.   In another case involving Mr Mawhinney, a different subdivision application affecting the same land was discussed:   Mawhinney v Waitakere City

Council.13    Heath J did not specifically refer to the “lines on a plan” argument, but

held that the applications before him did not address a “fundamental flaw” in the procedure adopted by Mr Mawhinney.   The flaw arose from the need to obtain resource consents to carry out the proposed subdivision and to “comply with all relevant rules in the relevant operative plan in doing so”.14

[33]     I respectfully agree with the approach adopted by Randerson J in Kitewaho, and by Heath J in Mawhinney v Waitakere City Council. Adoption of their reasoning leads inevitably to the dismissal of the present appeal.   Dealing with the essential elements of Mr Mawhinney’s argument, I observe:

(a)      It is, as Randerson J held, completely artificial to confine the concept of “subdivision” to the paper exercise that is involved in creating new titles.  While the definition of “subdivision of land” in s 218(1) of the RMA uses language that suggests it is related to the steps necessary to create  new  titles  under  the  Land  Transfer  Act  1952,  and  s 11

proscribes subdivision of land  “within the meaning of s 218”, s 91 of

12     Mawhinney v Waitakere City Council and Auckland Regional Council CA109/04, 23 September

2004.

13     Mawhinney v Waitakere City Council [2009] NZRMA 230 (HC).

the  RMA  applies  both  in  relation  to  particular  applications  for resource consent and other resource consents that may be required “in respect of the proposal”.   I do not consider that, where there is a proposed subdivision, the “proposal” needs to be limited to the narrow meaning of the word “subdivision” contended for by Mr Mawhinney.

(b)Such an approach would, in my opinion, rob s 91 of its evidently intended scope.  It is clearly inherent in the drafting of the provision that the “proposal” might involve resource consents other than those for which application has been made.  Mr Mawhinney’s approach is to assert that because he does not intend to implement the subdivision the proposal to which the application relates does not include its implementation.   I consider this proposition to be self-evidently fallacious.

(c)      Mr Mawhinney himself acknowledges that the owners of the new lots would need to carry out works to construct dwellings on the properties that they acquire.   The individual properties will need access and stormwater and wastewater facilities.   Given that the subdivision proposals are extensive and will result (especially in the case of SUB-

571) in the creation of a large number of new lots, it is plainly desirable that the consent authority is in a position to assess the effects of implementation of the subdivision because it is inevitable that various effects on the environment will follow.

(d)The  argument  that  relevant  effects  can  be  dealt  with  by  way  of conditions on the subdivision consent is wrong.  If regional consents for example are required it would not have been competent for the Waitakere City Council to grant those consents.   Although the Auckland Council now exists as a unitary authority, there would still need to be an application for the relevant consents.  A consent cannot be granted by means of a condition of consent to some other application.

(e) Contrary to Mr Mawhinney’s submission that obtaining regional consents such as water permits or discharge permits would “serve no useful purpose”, unless those issues are addressed at the subdivision stage an opportunity to provide for them in a planned and comprehensive manner might be lost if the methodologies to be chosen were left to individual land owners seeking to meet their needs in a series of separate applications for the relevant consents. The purpose achieved by requiring all necessary consents to be considered at the same time is the very purpose set out in s 5(1) of the RMA, promoting the sustainable management of natural and physical resources. The matters on which Mr Reaburn sought further information (set out at [10] above) adequately illustrate the potential environmental issues arising out of so extensive a proposed subdivision.

(f)      The other point made by Mr Mawhinney about regional consents not running with the land is unpersuasive.  To the extent that the regional consents relate to matters that relate to works necessary to implement the subdivision relevant provisions can be repeated in the subdivision consent, with the result that future owners would be bound.  That is another benefit of hearing all relevant matters together:  Mr Reaburn’s letter of 16 May 2008 made the point that a combined hearing of the applications would be likely if regional consents were required.

[34]   The evidence before the Environment Court was that implementing the subdivisions   would   require   consents   under   regional   planning   instruments. Mr Mawhinney’s argument seeks to avoid the implications of that by suggesting that he would not be the person who needed to obtain any consent involved in implementing the approved subdivision.  However, s 91 focuses on the “proposal to which the application relates” and as already explained, that term is wide enough to embrace not only the subdivision on paper, but also the works necessary to carry it out.

[35]     In the circumstances, I reject Mr Mawhinney’s argument that consideration of the applications for subdivision consent could properly exclude the environmental effects of the works necessary to implement the subdivision.

[36]     Mr Reaburn’s affidavit clearly justified a finding that other resource consents under the RMA would be required in respect of the proposal to which the application relates and that it would be appropriate for the other resource consent applications to be made for the purpose of better understanding the nature of the proposal. Consequently, it was appropriate for the “Environment Court to uphold the Council’s decision.

[37]     In one respect only I consider that the Environment Court erred.   Judge Whiting held that if development occurred there was a “distinct possibility that further consents will be required”.15     The statutory test under s 91A(1)(a) is that other  consents  “will”  also  be  required.    However,  as  Mr  Reaburn’s  evidence provided  ample  justification  for  a  conclusion  that  further  consents  would  be required, I am satisfied that this error ought not to affect the outcome of the appeal.

Result

[38]     The appeal is dismissed.

[39]     The Council is entitled to its costs on a category 2B basis.

15     At [16](b).