North Canterbury Clay Target Association Incorporated v Waimakariri District Council
[2014] NZHC 3021
•28 November 2014
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CIV-2014-409-371 [2014] NZHC 3021
BETWEEN NORTH CANTERBURY CLAY TARGET
ASSOCIATION INCORPORATED Appellant
AND
WAIMAKARIRI DISTRICT COUNCIL Respondent
Hearing: 22 October 2014 Appearances:
P A Stevens QC for Appellant
A J Prebble and A J Shulte for RespondentJudgment:
28 November 2014
JUDGMENT OF MANDER J
[1] The North Canterbury Clay Target Association Incorporated (the Association) operates a shooting facility in the Rural Zone of the Waimakariri District Plan (the plan). It has been operating at that location for some 22 years.
[2] In October 2007, the Association applied to the consent authority, the Waimakariri District Council (the Council), for a certificate of compliance. It requested confirmation that 52 shooting meetings and 52 practices could lawfully be held each year without a resource consent. Under the plan there are restrictions on noise levels which are measured from a point within the “notional boundary of any dwelling house” in the Rural Zone.
[3] The Association’s request was accompanied by a noise assessment, taken at the dwelling nearest to the shooting facility, which at that time was 1.2 kilometres away. Those noise measurements were within the permitted activity noise limits for the Rural Zone. The Council therefore accepted the Association’s shooting activity
was permitted under the plan and issued the requested certificate of compliance.
NORTH CANTERBURY CLAY TARGET ASSOCIATION INCORPORATED v WAIMAKARIRI DISTRICT COUNCIL [2014] NZHC 3021 [28 November 2014]
[4] In more recent times, the land in the vicinity of the Association’s facility has been subdivided for lifestyle blocks. A number of dwellings have been built closer to the shooting facility and, from 2011, the Council has received complaints from these residents about the noise caused by gunfire.
The Waimakariri District Plan
[5] As a preliminary matter I observe that the version of the plan tendered before me post-dates the hearing of the matter in the Environment Court and the delivery of its judgment. Counsel explained that the difference between the version as provided and the version before the Environment Court is numbering. The references in this judgment are to the earlier iteration of the plan unless noted otherwise.
[6] A permitted activity is one which complies with all the conditions and provisions for permitted activities set out in the relevant chapters of the plan.1 In order for the Association’s land use to be a permitted activity compliance is required with the relevant noise condition. Rule 31.11.1.2 provides as follows:2
Activities in any zone, other than the Business 3 Zone, shall not exceed the following noise limits within measurement time intervals in the time-frames stated at any point within the notional boundary of any dwelling house in the Rural Zone, or at any point within any Residential Zone.
There then followed specified noise limits at various times.
[7] The plan defines “notional boundary” as follows:
Notional boundary means a line 20 metres from any part of a dwelling house, or the legal boundary of any site where this is closer to the dwelling house.
[8] Compliance with the noise condition is therefore dependent upon a measurement of noise taken within the notional boundary of any dwelling house in the Rural Zone. At the time the Association obtained its certificate of compliance it
met the noise condition in respect of the nearest dwelling that existed at that time.
1 Waimakariri District Plan, r 31.11 now r 3.12.
2 Rule 31.11.1.2, now r 31.12.1.2.
The Council’s application
[9] The Council applied to the Environment Court for declarations relating to whether the sound levels of gunfire were capable of being measured and assessed against the standards provided for in the plan. The Council submitted that the Association’s activities should be considered as discretionary.
[10] The Environment Court held that the activity had been correctly assessed as a permitted activity.3 In the absence of evidence regarding noise levels at the sites of new dwellings constructed closer to the shooting facility since the certificate of compliance was issued, the Environment Court declined to make any declaration as to whether or not the activity currently complies with the plan.
[11] The Environment Court however raised with the parties the issue of whether the certificate of compliance operates to allow “for exceedance of the noise limits in rule 31.11.1.2 for any dwellings that have come into existence after the date the certificate of compliance was applied for”.4 After receiving further submissions, the Environment Court held that the certificate of compliance did not have that effect and that the Association was required to comply with the noise limits set out in the rules in respect of dwellings that had come into existence since the date of the certificate.5 It is against this finding that the Association appeals.
Question of law
[12] Appeals to this Court from the Environment Court are limited to questions of law under s 299 of the Resource Management Act 1991 (the Act). The question of law framed by the Association for determination is as follows:
Did the Court err in its interpretation of r 31.11.1.2 of the Waimakariri District Plan in concluding that it continues to apply to an activity in the face of changing factual circumstances over time, such as the latter establishment of dwellings closer to the source of an established activity.
3 Waimakariri District Council v North Canterbury Clay Target Association [2014] NZEnvC 114.
4 At [66].
[13] The Association submitted that the Environment Court erred in its interpretation of the relevant rule and in its assessment of the legal effect of the 2008 certificate of compliance. The question of law gives rise to the following two issues:
(a) Whether the reference to “any dwelling house in the Rural Zone” in the noise condition is limited to a dwelling house existing at the time of the commencement of the permitted activity; and
(b)Whether the certificate of compliance obtained by the Association as a deemed resource consent under the Act exempts it from compliance with the noise limitation rule as a result of changing circumstances in the receiving environment.
The Environment Court’s approach
[14] The Environment Court considered it significant that the noise condition used the words “activities” and “dwelling house” in an unqualified way.6 If the rule was only to have application at a single point in time in respect of an incumbent activity in the face of changing factual circumstances, such as the establishment of dwellings closer to the noise source, it would have expected those terms to be qualified by words such as “existing” or “established”. Further, the Environment Court did not
consider that the wider provisions of the plan indicated any intention to limit noise protection to dwellings that were in existence at the time the noise producing activity commenced.7 The Court referred to the following relevant issues, objectives and policies of the plan:8
(a) Issue 12.1:
… the adverse effect on the health, safety and wellbeing of the community arising from a loss in the amenity values and/or quality of the environment as a result of inappropriate subdivision, land use, and development;
(b) Objective 12.1.1:
Maintain the amenity values and a quality of environment appropriate for different parts of the District which protects the
6 At [79].
7 At [80].
health, safety and wellbeing of present and future generations, and ensure that any potential adverse environmental effects from buildings and structures, signs, glare, noise and hazardous substances are avoided or mitigated.
(c) Policy 12.1.1.7:
Control noise to a level that is not unreasonable, measured against the character and circumstances of the zone;
(d) Policy 12.1.1.8:
Avoid noise adversely affecting the amenity values and health and safety of people on neighbouring sites or zones.
[15] While acknowledging that the reference in issue 12.1 to a loss in the amenity values and/or quality of the environment could suggest a focus on the position of incumbents in the receiving environment, that did not provide a sufficient indication when read in the context of related objectives and policies to support the Association’s argument that compliance was to be assessed at the time the activity commenced.9
[16] The Association’s concern is that the Environment Court’s approach means the noise condition effectively becomes more demanding as the receiving environment changes. As each new dwelling is erected closer to the gun club the noise condition becomes more onerous. The Environment Court’s response was that the objectives and policies of the plan contemplated that if, as a result of a changing receiving environment, a breach of the rule occurred, the resource consent process would provide sufficient “management and control” by which amenity values and reasonableness of noise can be addressed and a balanced outcome achieved between the Association and the occupiers of dwellings within the receiving environment. The Association however is concerned that there can be no certainty that a consent would be granted to allow its previously complying incumbent activity to continue, and that in the wider context of the plan that cannot have been the intended effect of the condition.
The interpretation of the district plan
[17] A prerequisite to the correct interpretation of the noise condition is the identification of the proper approach to the interpretation of the plan. In Powell v Dunedin City Council,10 the Court of Appeal accepted that the orthodox approach to the construction of statutes applies to the interpretation of a district plan. That approach requires meaning to be ascertained from the words of a rule and in light of the objectives and policies of the relevant plan. O’Regan J observed:
[35] In this case, the appellants argued that the Court should look to the plain meaning of the access rule and, having found that there is no ambiguity, interpret that rule without looking beyond the rule to the objectives, plans and methods referred to in the earlier parts of section 20 of the plan. While we accept it is appropriate to seek the plain meaning of a rule from the words themselves, it is not appropriate to undertake that exercise in a vacuum. As this Court made clear in Rattray, regard must be had to the immediate context … and, where any obscurity or ambiguity arises, it may be necessary to refer to the other sections of the plan and the objectives and policies of the plan itself. Interpreting a rule by a rigid adherence to the wording of the particular rule itself would not, in our view, be consistent with a judgment of this Court in Rattray or with the requirements of the Interpretation Act.
[18] This contextual and purposive approach to interpretation was neatly summarised by the Environment Court in Queenstown River Surfing Ltd v Central Otago District Council.11 Relevant factors to consider include:12
Ÿ the text of the relevant provision in its immediate context;
Ÿ the purpose of the provision;
Ÿthe context and scheme of the plan and any other indications in it;
Ÿ the history of the plan;
Ÿ the purpose and scheme of the Act;
Ÿ any other permissible guides to meaning.
10 Powell v Dunedin City Council [2004] 3 NZLR 721 (CA) at [35].
11 Queenstown River Surfing Ltd v Central Otago District Council [2006] NZRMA 1 (EnvC).
12 At [7]. See also Official Bay Heritage Protection Society Incorporated v Auckland City Council
[2008] NZRMA 245 (CA) at [34].
[19] The Association submitted that the text of the rule and the scheme of the plan could support either party’s interpretation of the words “any dwelling house” as being referable to a structure existing at the time of the commencement of the activity or to a subsequently erected dwelling. It therefore followed that other more fundamental policy considerations ought to be taken into account to determine the issue.
[20] As authority for this approach, the Association relied upon Nanden v Wellington City Council,13 where Ronald Young J found that both parties had made “telling submissions” in favour of their particular interpretation of the proposed district plan.14 This necessitated an assessment of issues of policy associated with the alternative meanings. These included the need to adopt an interpretation which avoided absurdity or anomalous outcomes; an interpretation likely to be consistent with the expectations of property owners; and one that took into account the practicality of the administration of the rules by Council officers.15
[21] The Council submitted that it is not necessary to resort to the wider policy consideration of the type referred to in Nanden. It was not a case of two competing interpretations of equal strength which might require such further analysis. Rather, on the application of orthodox principle of interpretation, the Environment Court’s conclusion that the noise limit was to be measured by reference to any dwelling house within the Rural Zone, whatever its vintage, was readily apparent from the unqualified use of the term “any dwelling house” in the rule.
The Association’s argument on the interpretation of the noise condition
[22] While the Association acknowledged that a district plan is “ambulatory” in the sense that it is a “living” document speaking to the circumstances prevailing at the time, it submitted that if the words of the rule provide otherwise, or the context of the enactment requires a different interpretation, it does not follow that the
provision ought necessarily be interpreted as applying to circumstances as they
13 Nanden v Wellington City Council [2000] NZRMA 562 (HC).
14 At [47].
15 At [48].
arise.16 In the present case, the potential effect of applying the rule in such a way is that an incumbent activity may be required to cease as a result of changes in its surrounding environment, over which it has no control. It would render the activity a “non-conforming” use in the absence of obtaining a resource consent.
[23] The Association emphasised that the plan’s “effects-based” approach means that noise generating activities wherever sited within the district will be subject to a noise limit set depending upon the location of the receptor. Compliance will turn not on the nature and intensity of the activity but the varying points at which a measurement may be taken over time. Other similar noise conditions also adopt a point of reference in the receiving environment to determine compliance. The noise rules therefore have wide application throughout the district, and the difficulties for an incumbent activity as a result of a changing receiving environment are not confined to the Rural Zone.
[24] Against that background, the Association submitted the Environment Court failed to take into account relevant policy considerations when interpreting the rule. Because the rules have a regulatory effect they should be clear and precise and provide certainty for those who administer the plan or are affected by it. This is required in order to allow firm decisions to be made about resources spent on establishing permitted activities in reliance upon the rules. Landowners ought to be able to develop land in the knowledge that in the absence of any changes to that activity its compliance status will not alter. This can only be achieved if compliance is assessed in the surrounding environment at the time the activity is established. A rule that requires an assessment of the unknown development of the receiving environment in order to determine compliance in the future is too nebulous.
[25] Secondly, the Association argued that the Environment Court’s approach to the rule will lead to anomalous results. There is an inherent incongruity that a dispensation for a non-conforming activity pursuant to a resource consent would provide greater protection than is afforded to an established permitted activity under a certificate of compliance. The expectation of a property owner is, that having
secured formal acknowledgement of compliance, it would not lose its compliance
16 Art Deco Society (Auckland) Inc v Auckland City Council [2006] NZRMA 49 (HC) at [49].
status because of changes made to the receiving environment. The Association sought to contrast the position of a land user who has the benefit of an existing use right or the benefit of a resource consent with that of a land user undertaking a permitted activity. In the present case, the incumbent cannot invoke existing use rights because that will only avail a landowner where a non-conformity arises because of a change to the rules, and not as a result of a change to the receiving environment. The Association submitted there was no reason to treat rights enjoyed by a person engaged in a permitted activity as being inferior to those enjoyed by an activity operating under existing use rights or as a result of a resource consent.
[26] Finally, on behalf of the Association it was submitted that the Environment Court’s interpretation of the rule will cause practical difficulties to those responsible for the administration and enforcement of the plan. The Environment Court’s approach to the rule requires a permitted activity to be monitored for compliance, and will inevitably create highly contestable applications for resource consents as the physical environment changes. The Council will have to balance and manage the incumbent’s legitimate expectations that its previously permitted activity continue, against the interests of those coming to the receiving environment on the basis of a perceived amenity value relating to the control of noise.
[27] Had the Environment Court had regard to these wider policy considerations when interpreting the rule, the Association submitted it could only have concluded that the activity’s compliance was to be measured at the time of its establishment and that the reference in the condition to “any dwelling house” was to those structures that existed at the time the activity within the zone commenced.
The Council’s position on the interpretation of the noise condition
[28] The Council submitted that if compliance with the noise condition was to be limited to dwelling houses present within the zone at the time of the commencement of the activity, the rule would have been explicit. If it had been intended that an incumbent activity would be immune from compliance with noise levels measured at the site of dwellings built after the commencement of the activity, the condition would have qualified the terms “activities” and “dwelling houses”. The Council
cites examples where the plan expressly uses such qualifying language, such as “proposed activity” or “proposed dwelling house”.17 Similarly, the plan refers to an “existing” or “established” activity or dwelling house.18
[29] In terms of the objectives and policies of the plan, the Council submitted that no contrary meaning is indicated from the plan’s wider provisions than is apparent from the text of the noise control condition itself. The Council emphasised its position by reference to the Supreme Court’s decision in Environmental Defence Society Inc v New Zealand King Salmon Co Ltd.19 It submitted that the effect of the Court’s judgment was that directive language, such as “avoid”, when used in planning instruments should be adhered to and applied strictly.
[30] The Council submitted that the Association’s more restrictive interpretation of the noise condition, limiting its application only to an existing or established dwelling house, is inconsistent with policy 12.1.1.8 of the plan which seeks to “avoid noise adversely affecting the amenity values and health and safety of people on neighbouring sites or zones.” Relying on the Supreme Court decision, the Council argued that where strongly worded directives were to be found in planning policies, which are the product of an intense process of evaluation and public consultation,
they should be given effect to.20 The Association’s interpretation would limit the
application of the rule and therefore its effectiveness in avoiding noise which affects amenity values, and would be inconsistent with the policy requirement to avoid such an adverse result.
Interpretation of the noise condition
[31] I accept that the Environment Court’s interpretation means that the noise standard in practical terms will become increasingly onerous on the Association as dwellings are constructed closer to the site of its incumbent activity. The rule however was designed to have continuing application across a dynamic receiving
environment. The rule itself does not change, yet it must have been contemplated
17 Waimakariri District Plan (11 August 2014 version), r 31.12.1.4.
18 Rules 31.12.1.5, 31.17.1.1. I also note that r 31.17.1.4 refers to “all new dwelling houses”.
19 Environmental Defence Society Inc v New Zealand King Salmon Co Ltd [2014] NZSC 38, [2014] 1 NZLR 593.
20 At [150]-[154].
that the physical environment within the Rural Zone would change over time, as is anticipated and encouraged by the plan itself.
[32] The unqualified reference to “any dwelling house” in the condition creates an ongoing obligation on an incumbent to control its noise levels. The plan’s objectives and policies do not suggest a more restricted meaning. To the contrary, if the Association’s argument is correct, protection from the adverse effects of noise would be dependent on the chronological order in which activities were established. To take an extreme example, if an exceedingly noisy activity was compliant at the time it commenced because the nearest dwelling house was very distant, by default noise restrictions would be set artificially high, if not rendered redundant for the rest of the zone. This would considerably reduce the efficacy of the rule as a means to maintain the amenity values and the quality of environment of the zone as a whole.
[33] Inevitably the receiving environment within the zone will change. It is unsurprising therefore that the noise condition did not qualify the term “any dwelling house” so as to artificially set noise limits based on the order in which permitted activities within the zone were created, and thereby skew the noise standards needed to maintain the character of the zone.
[34] I am not satisfied any ambiguity or obscurity arises in terms of the correct interpretation of the noise condition upon application of the orthodox rules of construction, however, even applying the wider policy considerations of the type considered in Nanden, it is not apparent that a contrary interpretation is required.
[35] An incumbent land user ought to be cognisant of the ongoing regulatory effect of the noise condition. As already observed, such rules have continuing application, and a district plan is required to have regard to the future state of the environment in which its rules may be required to operate.21 The environment, as that term is used in the Act, may include its future state as modified by the utilisation of rights to carry out permitted activities under a district plan.22 Inevitably some
uncertainty will arise as a result of compliance being measured at a point where the
21 Resource Management Act 1991, s 76(3).
22 Queenstown Lakes District Council v Hawthorne Estate Ltd (2006) 12 ELRNZ 299, [2006] NZRMA 424 (CA).
noise is received which may change over time. That is the product of the forever evolving physical environment, not the rule.
[36] Insofar as the Environment Court’s interpretation may be considered inconsistent with the expectations of a property owner that presently complies or has obtained a certificate of compliance, the Council submitted that such an expectation is founded on a misapprehension as to the different functions of a certificate of compliance and a resource consent. The effect of s 139 of the Act is considered later in this judgment as a discrete issue. For present purposes it is sufficient to note that a certificate of compliance is designed to protect a land user who presently complies
with the conditions of a plan from subsequent changes to that plan.23 That is to be
contrasted with an application for a resource consent where a dispensation is being sought to allow a breach of the plan.
[37] The process by which a resource consent is obtained involves detailed assessment and judgment relating to the individual circumstances and merits of the application. It does not follow that an inconsistency necessarily arises from the rights enjoyed by a land user who has obtained a resource consent being superior to those enjoyed by a person operating pursuant to a certificate of compliance. A certificate of compliance is declaratory of compliance with the conditions of the plan, whereas a resource consent follows the exercise of an issuing authority’s discretion after a detailed assessment process, requiring a balancing of conflicting rights and interests.
[38] I do not accept that a consent authority’s duties to monitor and enforce its plan are rendered impractical as a result of the Environment Court’s interpretation of how the noise limitation rule is to be applied. The Council emphasised that in large part the requirements of the plan are self-monitored through the receipt of complaints from residents and others with environmental concerns. Noise complaints are commonly referred to local authorities for investigation. It is not therefore anticipated that the administration and enforcement of the rule will be
affected.
23 Kelvin Grove Residents Association Inc v Palmerston North City Council [1999] NZRMA 497 (HC).
The United Seadown case
[39] The parties referred to the Environment Court’s earlier decision in United Seadown Inc v Canterbury Regional Council,24 where a broadly similar interpretation issue arose. A certificate of compliance had been issued regarding the activity of gravel extraction. The applicable rule required a resource consent where the excavation either exceeded five metres or would be deeper than the highest groundwater level that could reasonably be expected to occur at the site, based on the
available groundwater data.
[40] The land user agreed on a depth contour beyond which it would not excavate in order to maintain compliance with the rule. A certificate of compliance was issued on the basis of historical information relating to the highest depth of groundwater at the location of the extraction activity consistent with the agreed depth contour.
[41] The highest groundwater level changed. As in the present case, the land user argued that determination of compliance required a “snapshot in time” approach, and that it was sufficient that the excavation complied with the existing groundwater depth at the time the certificate of compliance was requested. The Council took the view that the certificate would authorise gravel extraction to the agreed depth at the time the certificate was sought unless groundwater levels subsequently changed, in which case excavation would have to comply with the applicable rule.
[42] The Environment Court in that case rejected the “snapshot in time” approach, observing that the certificate of compliance was effective until such time as new relevant groundwater data became available which placed the highest reasonably expected level above the “agreed level” set out in the certificate.
[43] The Association argued that the United Seadown case was distinguishable from the present situation because it was implicit in the rule describing the permitted activity, that changing circumstances to the natural environment over time could
reasonably be expected to occur. That is to be contrasted to the “static” situation,
24 United Seadown Ltd v Canterbury Regional Council [2011] NZEnvC 359.
whereby the Association’s activities, in the sense of the noise generated by gunfire, remains the same, though the impact on the receiving environment may potentially change. The distinction is best encapsulated by reference to the United Seadown case as one involving a changing natural environment at the site of the activity compared to a change in the physical receiving environment in the present case.
[44] The factual difference between the cases was acknowledged by the Council. It submitted that the Environment Court had been cognisant of the distinguishable facts in United Seadown and expressly noted its different factual context when referring to that decision for assistance.
[45] The Environment Court did not seek to apply the case as being factually analogous, and I do not consider its reference to the case caused it to fall into error. The United Seadown case however does illustrate how a district plan’s rules may require ongoing compliance notwithstanding changing circumstances beyond the control of those undertaking the incumbent activity. It demonstrates how a certificate of compliance will remain subject to applicable rules and cannot lock in alternative standards from those contained in the plan itself.
The legal effect of a certificate of compliance
[46] The Association argued that a certificate of compliance issued under s 139 of the Act is a deemed resource consent and therefore has the effect of permitting the continuation of an activity that may otherwise no longer be compliant with a condition of the plan.
[47] Section 139(6) was in force at the time the certificate was requested.25 It provided as follows:
(6) Subject to ss 10, 10A, and 20A(2), a certificate of compliance shall be deemed to be an appropriate resource consent issued subject to any conditions specified in the plan, and the provisions of this Act shall apply accordingly, except that, with the exceptions of 120, 121,
122, 125, 134, 135, 136, and 137, this Part does not apply.
25 Section 139 as it currently stands was inserted by the Resource Management (Simplifying and
Streamlining) Amendment Act 2009, s 99.
[48] Section 139(6) was substituted by s 139(10) as a result of amendments introduced in 2009. The provision now in force provides:
(10) A certificate is treated as if it were an appropriate resource consent that –
(a) contains the conditions specified in an applicable national environmental standard; and
(b) contains the conditions specified in an applicable plan.
The parties are agreed that the amendment has no material effect.
[49] A certificate is therefore to be treated as a resource consent, although with the exception of a small number of specific provisions, pt 6 of the Act does not apply. Those provisions have no application in the present case.
[50] A certificate can issue pursuant to s 139 only after the consent authority is satisfied there is compliance with the plan. The authority is required to undertake a “point by point scrutiny” of the proposal against the rules pertaining to it.26 There is an onus on an applicant to satisfy the consent authority that every aspect of the activity is in conformity with the relevant rules,27 and that the activity can be carried out lawfully in the location without a resource consent.28 In such a case the authority must issue the certificate. It does not have any discretion once compliance with the district plan has been established.
[51] It is axiomatic that the analysis required by s 139 is to be undertaken at the time the request for the certificate of compliance is made. The Association submitted that it therefore follows that the effect of the certificate as a deemed resource consent would endure provided there is ongoing compliance by the activity described in the certificate assessed against the rules in force at the time the certificate was sought. The reference in s 139 to the certificate being treated or deemed to be an appropriate resource consent that contains the conditions specified
in the applicable plan, it was argued, must be a reference to the conditions as they
26 Culpan v Vose (1993) 2 NZRMA 380 (PT) at 383.
27 Wawatai v Hamilton City Council PT Hamilton W17/96, 26 February 1996.
28 Resource Management Act 1991, s 139(5).
applied at the time the request for the certificate was made, and must be assessed in light of the prevailing circumstances of the receiving environment at that time.
[52] The Association also relied upon the effect of s 9 of the Act. This presently provides as follows:29
9 Restrictions on use of land
…
(3) No person may use land in a manner that contravenes a district rule unless the use –
(a) is expressly allowed by a resource consent; or
(b) is allowed by s 10; or
(c) is an activity allowed by s 10A.
[53] The effect of s 9 is that no person may use land in a manner that contravenes a district rule unless it is expressly allowed by a resource consent. The Association argued that a resource consent in that context is not restricted to a resource consent sought under s 88 of the Act, noting that the statutory definition of a resource consent in s 87 refers back to s 9. It provides:
87 Types of resource consents
In this Act the term resource consent means any of the following:
(a) A consent to do something that otherwise would contravene s 9 or s 13 (in this Act called a land use consent).
…
[54] The Association submitted that a reference in s 9 to a resource consent includes a deemed a resource consent issued under s 139.30 Therefore, if at any point
in time subsequent to the issue of a certificate of compliance, s 9 would otherwise be
29 I note that s 9(3)(a) as it stood as at 2008 provided as follows:
9 Restrictions on use of land
…
(3) No person may use any land in a manner that contravenes a rule in a regional plan or a proposed regional plan unless that activity is-
(a) Expressly allowed by a resource consent granted by the regional council responsible for the plan; or
…
30 Cooke v Auckland City Council [1996] NZRMA 511; (1996) 2 ELRNZ 271 (PT).
contravened, for example, where the receiving environment has changed, then, as the holder of a resource consent, the Association has statutory authority to continue its activity notwithstanding its contravention of the relevant rule.
[55] The Council in reply argued that the Association’s approach ignores what it describes as the fundamental purpose of the certificate of compliance, which ordinarily is to prospectively confirm compliance of an activity which has not yet been established. Section 139 protects the activity against changes to the district plan after the compliance certificate has issued by treating it as a deemed resource consent.31
[56] The Council argued that the Association’s approach would extend the function and effect of a certificate of compliance so as to furnish its holder with the equivalent rights enjoyed by a resource consent holder. This would entitle the Association to use a certificate of compliance as if it was a fully fledged resource consent obtained under s 88 of the Act. The Council submitted that the effect of a certificate of compliance can be no more or less than to protect an incumbent activity against a future change or changes in the district plan. There has been no change to the noise condition and the certificate cannot extend to immunise compliance with the plan’s unaltered rule because of changes in the receiving environment.
[57] As was observed by the Council, with the advent of effects-based district plans a new hybrid of certificate of compliance may be emerging. Many plans around the country contain rules which have an ongoing application and manage or control activities by reference to a natural environment which may change or fluctuate over time, or which seek to regulate activities according to their effect within a physically changing receiving environment. In most cases however a certificate under s 139 will be issued in respect of rules which are static and not dependent on measurement against what may be changing natural or physical environments.
[58] I do not accept that in the present context a certificate of compliance can be construed as the equivalent of a resource consent issued under s 88 of the Act. A
31 Kelvin Grove, above n 23.
request for a certificate of compliance does not require compliance with the considerable procedural requirements of Part 6 of the Act, which an application for a resource consent must meet. The mandatory considerations of s 104, including consideration of the purpose and principles set out in pt 2 of the Act, which require examination upon application for a resource consent would be bypassed. Whereas the determination of an application for a resource consent is a matter of evaluation, judgment and discretion, a certificate of compliance is required to issue if the activity can be done lawfully without a resource consent.
[59] Importantly, s 139 provides that the certificate is to be treated as if it were an appropriate resource consent which contains the conditions specified in the applicable plan. The certificate of compliance cannot provide for more than the plan allows. In the present case, the certificate always remained subject to the noise limitation condition. To the extent therefore that the certificate is to be treated as if it was an appropriate resource consent, it still remains subject to this condition. The “deemed” consent must therefore be taken to “contain” the applicable conditions specified in the plan, including the applicable rule governing noise limitations.
[60] As I have observed, application for a resource consent requires wider considerations than can be taken into account upon a request for a certificate of compliance. These include a balancing of the interests of competing classes of users and whether the proposed activity can be accommodated having regard to the principles and purposes of the plan and the Act. A resource consent which permits contravention of a plan is in contradistinction to a compliance certificate which, pursuant to s 139, imports the very conditions contained in the plan from which the Association effectively seeks to be exempted.
[61] The statutory function of the resource consent is to enable a consent holder to breach the rules of a district plan and engage in an activity that was otherwise prohibited. The extent and detail of the exemption is specific to the individual application and, as mentioned, takes into account and balances the competing interests of various land users, including potential future users of the land. Generally, the purpose of requesting a certificate of compliance is to assess
compliance by the activity (usually a future activity) with the plan.32 It was not intended that, by deeming a certificate to be a resource consent, it would sanction non-compliance with the existing rules of the plan. To the contrary, a certificate of compliance was premised on future compliance with the rules.
[62] I do not find the Association’s argument based on s 9 of the Act persuasive. Section 9 prohibits use of land in a manner that would contravene a district rule unless the use is expressly allowed by a resource consent. The certificate of compliance obtained in 2008, while protecting the land user from subsequent changes to the plan, was declaratory of compliance with the rule at the time. Whatever may have been considered to be the implicit effect of the certification in terms of future compliance with the noise condition, the certificate could not be construed as an explicit exemption from the effect of the condition, at least as I have interpreted the term “any dwelling house” as including both present and future dwellings. More importantly however, as I have already observed, the “resource consent” relied upon by the Association continues to contain and require compliance with the very condition which it seeks to be exempted from.
[63] A certificate of compliance must be issued where the applicant establishes that at a particular given time the activity or proposed use complies with the district plan. Therefore, even where an issuing authority can foresee the activity conflicting with a predictable or anticipated permitted use of land within a particular zone, the issuing authority is unable to prevent the certificate from issuing. On the Association’s argument, the certificate of compliance will have the same effect as a resource consent. Having avoided the requirements of Part 6, and in particular s 104 of the Act, and notwithstanding the foreseeable and predictable detrimental effect on the quality of the zone’s environment and its amenity values, the land user will have secured the full benefit of a resource consent purely by dint of chronological precedence. That cannot have been Parliament’s intention.
[64] The Association’s interpretation of the effect of a certificate of compliance
would lead to anomalous results. In the context of the present noise limitation condition, a dwelling would receive the benefit of the rule depending on whether the
32 See Kelvin Grove, above n 23.
person undertaking the activity had requested a certificate of compliance. The Act does not require a certificate of compliance to be obtained in order to undertake a permitted activity, and therefore the rule would apply in an unpredictable and random fashion, according to whether the person undertaking the activity had obtained a certificate of compliance. The rule would operate in an entirely uneven manner, depending on how the existing user sought to document their permitted use.
Conclusion
[65] I have found that the term “any dwelling house” in the noise condition is not limited to structures that existed at the time the certificate of compliance was sought in respect of the Association’s incumbent activity. The rule continues to apply to the activity in the face of changing physical circumstances over time, such as the establishment of dwellings closer to the noise source of the activity.
[66] The certificate of compliance, while a deemed resource consent under the Act, remains subject to the conditions specified in the plan. Applying my concluded interpretation of the noise condition, it follows that the Association is subject to a continuing obligation to abide by the noise limitations specified in the condition, notwithstanding the changing surrounding physical environment.
[67] The appeal is dismissed.
Costs
[68] Costs are reserved. The parties should confer on the question of costs. In the absence of agreement, counsel are to exchange and file memoranda not exceeding five pages within 15 working days of this judgment.
Solicitors:
Corcoran French, Kaiapoi
Cavell Leitch, Christchurch
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