Queenstown Lakes District Council v Hensman
[2024] NZHC 2493
•2 September 2024
IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY
I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE
CIV-2024-425-37
[2024] NZHC 2493
BETWEEN QUEENSTOWN LAKES DISTRICT COUNCIL
AppellantAND
G H, L M and P J HENSMAN
Respondents
Hearing: 23 July 2024 Appearances:
B H Dickey and D J Collins for Appellant
M R Walker and B B Gresson for Respondents
Judgment:
2 September 2024
JUDGMENT OF DUNNINGHAM J
This judgment was delivered by me on 2 September 2024 at 3 pm, pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
QUEENSTOWN LAKES DISTRICT COUNCIL v HENSMAN [2024] NZHC 2493 [2 September 2024]
Contents
Introduction........................................................................................................... [1]
Background........................................................................................................... [4]
The Environment Court hearing.......................................................................... [25]
Legal principles applying on appeal.................................................................... [35]
The grounds of appeal......................................................................................... [39]
First ground of appeal – no jurisdiction to make an enforcement order............. [41]
Appellant’s submissions[41]
Respondents’ submissions[51]
Discussion[59]
Second ground of appeal – erroneous interpretation of scope of consent [68]
Appellant’s submissions[70]
Respondents’ submissions[72]
Discussion[74]
Third ground of appeal – erroneous interpretation of condition 8 [80]
Appellant’s submissions[80]
Respondents’ submissions[87]
Discussion[91]
Fourth ground of appeal – erroneous interpretation of the SCOP standards [97]
Appellant’s submissions[97]
Respondents’ submissions[109]
Discussion[113]
Fifth ground of appeal – compliance with condition 19(b) not reasonably
available on the evidence.................................................................................. [124]
Appellant’s submissions[124]
Respondents’ submissions[128]
Discussion[129]
Sixth ground of appeal – failure to apply the correct onus of proof [133]
Appellant’s submissions[133]
Respondents’ submissions[138]
Discussion[140]
Seventh ground of appeal – failure to consider residual discretion [144]
Appellant’s submissions[144]
Respondent’s submissions[146]
Discussion[149]
Concluding observations................................................................................... [154]
Result................................................................................................................. [157]
Costs.................................................................................................................. [160]
Introduction
[1] On 15 March 2024, the Environment Court issued an enforcement order requiring the Queenstown Lakes District Council (the Council) to sign a certificate pursuant to s 224(c) of the Resource Management Act 1991 (RMA), confirming that the conditions of a subdivision consent granted to the respondents had all been complied with to its satisfaction.1
[2] The Council appeals this decision submitting, first, that the Environment Court had no jurisdiction to make an enforcement order in respect of this Council function. In addition, even if there was jurisdiction, the decision to make the enforcement order rested on:
(a)an erroneous interpretation of relevant documents, including the conditions of the subdivision consent;
(b)a finding which was not reasonably available on the evidence;
(c)a failure to apply the correct onus of proof; and
(d)a failure to consider the issue of residual discretion when deciding whether to make the enforcement order.
[3] At issue is whether the Environment Court was wrong in law in any of the ways alleged by the Council. If so, the Council says the decision should be quashed. However, whether it is remitted back to the Environment Court depends on this Court’s finding on whether the Environment Court has jurisdiction to consider the application for an enforcement order.
Background
[4] On 1 June 2021, the respondents obtained a subdivision consent (RM210066) allowing them to subdivide two residential lots in Queenstown into three lots. Two of the lots would retain the existing access from Angelo Drive on the upper boundary of
1 Hensman v Queenstown Lakes District Council [2024] NZEnvC 37.
the site, while the lower lot (Lot 3) required an accessway to be formed to it from Perkins Road at the lower end of the site, across a sloping section of road reserve.
[5] The Council decided that the vehicle crossing to Lot 3 should be constructed as part of the subdivision due to its proximity to a shallow stormwater drain within the road reserve. Furthermore, property access and roading was identified as a relevant consideration under r 27.5.7 in the Queenstown Lakes Proposed District Plan (PDP) in deciding whether to grant the application for subdivision. Accordingly, the application for subdivision consent submitted to the Council included plans for the construction of the accessway to Lot 3. It was to be formed predominantly on the road reserve, although the plans showed it extending a short distance into Lot 3.
[6] The subdivision consent was granted on a non-notified basis and subject to a number of conditions, some of which were volunteered by the respondents, and some of which were imposed by the Council. Of particular significance to the current proceedings are Conditions 8, 11, 15 and 19:
[7] Condition 8, which was proffered by the respondents, refers to the Council’s Land Development and Subdivision Code of Practice (SCOP) which, as Mr Vermaas explains, is a “set of minimum standards and good practice guidelines for developers undertaking a subdivision.” It is derived from NZS 4404:2010 – Land Development and Subdivision Infrastructure Standard, and compliance with the SCOP is a standard condition imposed on subdivision consents issued by the Council.
[8]Condition 8 reads as follows:
Engineering – General
8.All engineering works, including the construction of retaining walls, shall be carried out in accordance with the Queenstown Lakes District Council’s policies and standards, being QLDC’s Land Development and Subdivision Code of Practice adopted on 8th October 2020 and subsequent amendments to that document up to the date of issue of any resource consent.
Note: The current standards are available on Council’s website via the following link: https:// is the condition relied on by the Council to require additional work to be done prior to issuing a s 224(c) certificate.
[9] Condition 11 requires the consent holder to submit detailed engineering designs for review prior to construction. The parties referred to this as the Engineering Review and Acceptance (EA) process. This condition specified the works which were subject to the EA process and this included the provision of the sealed vehicle crossing to Lot 3 as specified at condition 11(d). Condition 11 reads as follows:
11.Prior to commencing works on the site, the consent holder shall obtain ‘Engineering Review and Acceptance’ from the Queenstown Lakes District Council for development works to be undertaken and information requirements specified below. The application shall include all development items listed below unless a ‘partial’ review approach has been approved in writing by the Manager of Resource Management Engineering at Council. The ‘Engineering Review and Acceptance’ application(s) shall be submitted to the Manager of Resource Management Engineering at Council for review, prior to acceptance being issued. At Council’s discretion, specific designs may be subject to a Peer Review, organised by the Council at the applicant’s cost. The ‘Engineering Review and Acceptance’ application(s) shall include copies of all specifications, calculations, design plans and Schedule 1A design certificates as is considered by Council to be both necessary and adequate, in accordance with Condition (8), to detail the following requirements:
a)The provision of a water supply to Lots 1 – 3 in terms of Council’s standards and connection policy. This shall include an Acuflo GM900 as the toby valve and an approved water meter as detailed in QLDC Water Meter Policy (Appendix A), dated June 2017. The costs of the connections shall be borne by the consent holder.
b)The provision of a foul sewer connection from Lots 1 – 3 to Council’s reticulated sewerage system in accordance with Council’s standards and connection policy, which shall be able to drain the buildable area within each lot. The costs of the connections shall be borne by the consent holder.
c)The provision of a connection from all potential impervious areas within Lots 1 – 3 to the Council reticulated stormwater disposal system. The individual lateral connections shall be designed to provide gravity drainage for the entire area within each lot.
d)The provision of a sealed vehicle crossing that shall be constructed to Lot 3 to Council’s standards, in accordance with the stamped as approved plans. This shall include concrete capping of the existing stormwater main where it is beneath the access formation.
e)The provision of Design Certificates for all engineering works associated with this subdivision submitted by a suitably qualified design professional (for clarification this shall include all Water, Wastewater and Stormwater reticulation). The certificates shall be in the format of the QLDC’s Land Development and Subdivision Code of Practice Schedule 1A Certificate.
[10] The parties agree that the purpose of staging approval of the subdivision consent in this way is to allow developers to obtain resource consent for a development, ensuring it is feasible, before spending significant money on detailed engineering advice and design. At the resource consent stage, every subdivision will include a condition that requires the development to occur in accordance with the SCOP. Detailed design documentation is then submitted to the Council with confirmation that it conforms with the resource consent conditions (including the SCOP), or identifying where it does not. During the EA process, the SCOP can be departed from if that is agreed in writing, but that would, it seems, also require a variation to the consent conditions.
[11] Condition 15 imposed a requirement on the formation of batter slopes. This is relevant because there is a dispute over whether this governs all batter slopes and ousts the application of the SCOP requirements. Condition 15 provides:
15. No permanent batter slope within the site shall be formed at a gradient that exceeds 1(V):2(H), except where inspected and confirmed in writing as being permanently stable by a suitably qualified geotechnical professional.
[12] Finally, condition 19 specified a range of requirements to be met before s 224(c) certification could issue. The relevant parts of this condition read as follows:
19.Prior to certification pursuant to section 224(c) of the Resource Management Act 1991, the consent holder shall complete the following:
a)The submission of ‘as-built’ plans and information required to detail all engineering works completed in relation to or in association with this subdivision at the consent holder’s cost. This information shall be formatted in accordance with Council’s ‘as-built’ standards and shall include all Water, Wastewater and Stormwater reticulation (including private laterals and toby positions).
b)The completion and implementation of all works detailed in Condition (11) above.
…
f) Allearthworks, geotechnical investigations and fill certification shall be carried out under the guidance of suitably qualified and experienced geotechnical professional as described in Section 2 of the Queenstown Lakes District Council’s Land Development and Subdivision Code of Practice.
…
h)The submission of Completion Certificates from the Contractor and the Engineer advised in Condition (2) for all engineering works completed in relation to or in association with this subdivision/development (for clarification this shall include all Roads, Water, Wastewater and Stormwater reticulation). The certificates shall be in the format of a Producer Statement, or the QLDC’s Land Development and Subdivision Code of Practice Schedule 1B and 1C Certificate.
i)All earth worked and/or exposed areas created as part of the subdivision shall be top-soiled and grassed, revegetated, or otherwise stabilised.
…
[13] In due course the respondents applied for EA as required by condition 11 and the EA issued on 24 November 2021 with plans attached. It advised as follows:
Note: This engineering review and acceptance is the final acceptance letter for assessable engineering works under this resource consent, excluding future minor design amendments (if required).
In respect to your application for Engineering Review & Acceptance under the RM210066 Subdivision Consent, the following conditions have been reviewed and accepted by Council:
· Condition 11(a) – Water supply
· Condition 11(b) – Foul sewer connections
· Condition 11(c) – Stormwater disposal
· Condition 11(d) – Vehicle crossing to Lot 3
· Condition 11(e) – Design certificate
STOP AND NOTE: There may be additional “prior to commencement of works” conditions within your Resource Consent decision that are beyond the scope of this Engineering Review and Acceptance (including
Environmental Management Plans). It is the Applicant’s/Consent Holder’s sole responsibility to ensure that all “prior to commencement of works” conditions have been suitably addressed prior to the commencement of any works on site. …
The proposed works have been reviewed and accepted subject to the following conditions and on the basis that all works are in accordance with Councils standards unless specifically detailed below: …
[14] The EA also stated that none of the engineering works were identified as not meeting Council’s standards and no “alternative design standards or exemptions requested”. The EA went on to record at condition 11 under the heading “General Conditions”:
Work shall be undertaken in accordance with QLDC Land Development & Subdivision Code of Practice (2021) … Where ambiguities or inconsistencies exist between Councils adopted standards and the accepted documents, the adopted standards shall take precedence unless prior agreement in writing has been obtained from Council.
[15] On 3 May 2022, following the issue of the EA, and after works commenced on site, an inspection was undertaken of the vehicle crossing and accessway prior to pouring concrete. The two issues raised by the Council were that there was no Council approved EA variation to lay the vehicle crossing and accessway in concrete instead of asphalt (which was what was now proposed), and the measured gradient of the accessway was 1:4.8, which the inspection notice records “does not comply with Council’s standards”.
[16] In respect of the first issue, the respondents had already applied on 20 April 2022 to vary the approved plans to allow for the vehicle crossing and accessway to be constructed in concrete rather than asphalt, and that change was subsequently approved on 23 May 2022. However, the question of whether the accessway was being constructed to the appropriate gradient took more time.
[17] When advised that the Council officer’s position was that no inspection would be passed unless the vehicle crossing was constructed at a 1:6 gradient, Ms Tock, the surveyor engaged by the respondents, replied on 9 May 2022 saying that there had previously been discussion about the gradient of the driveway and:
… Since it was decided that this was the only practical access route for Lot 3, it was decided that a gradient steeper than 1 in 6 was feasible. … This is explained and shown in the attached Resource Consent Decision.
The inspection report says that the driveway is at a gradient of 1 in 4.8. To make this driveway comply at a maximum gradient of 1 in 5 as per the Code of Practice, a small adjustment at the bottom will be made.
[18] The attached plan contained a long section of the driveway which showed the lower portion of the driveway being raised a maximum of 500 mm to achieve an average slope of 16 per cent, or 1:6, which was the gradient specified on the drawing, but with a maximum slope of 1:5 at the steepest point of the driveway.
[19] On 27 July 2022 the Council advised the respondents’ consultants that the driveway plan could be amended as shown in the drawing submitted on 9 May 2022 saying:
In response to your request for a minor variation to works, the amended drawing as attached is deemed an acceptable solution …
All engineering work shall be undertaken in accordance with the attached plan, the previously issued Engineering Acceptance letter (excluding any superseded drawings) and the relevant QLDC Land Development and Subdivision Code of Practice, which is specified under the ‘General Conditions’ section within the Engineering Acceptance letter.
[20] An inspection of the subdivision works was subsequently undertaken on 5 August 2022. This included a pre-pour inspection of the concrete accessway to Lot 3. The Council inspector noted that the gradient “was averaging up to 1 in 5 as per revised and approved EA design … I am generally satisfied this work has been completed in accordance with the approved EA document.” The inspection outcome was therefore recorded as a “pass”, although in fact the revised design required an average gradient of 1:6 and a maximum of gradient 1:5.
[21] The remaining works which the respondents understood were required by the subdivision consent and EA were then completed, and an application for a s 224(c) certificate was made on 9 September 2022.
[22] On 28 September 2022 an inspection took place with a Council subdivision inspector, Mr Warren Vermaas, who advised that a number of additional requirements were needed to be addressed before s 224(c) certification could be considered. These
additional requirements included the specific design and installation of a vehicle safety rail, expert reporting from a geotechnical engineer about batter stability, and a report from a traffic engineer regarding the raised edge of the vehicle crossing within the road boundary.
[23] The respondents, through Ms Tock, queried what authority Mr Vermaas was relying on to support these additional requirements. Correspondence on this issue followed in which the Council, in substance, relied upon condition 8 and the need to comply with the SCOP to justify the further work, pointing out that no exemptions from the SCOP were ever requested in any EA application. In particular, Council relied on cl 2.3.10 of SCOP relating to formation of batter slopes, cl 3.2.7, which allows Council to require a road safety audit, even post construction, and cl 3.3.4, which requires safety barriers where “vehicular access … whether public or private, runs parallel with land that drops away to a height of greater than 1.0m within 2.0m of the road.”
[24] It is unclear when the concern about the non-compliance with gradient requirements was identified but, by the Environment Court hearing, the Council also identified that the average 1:6 gradient requirement had not been complied with and the maximum gradient of 1:5 was exceeded, with a maximum gradient of 1:4.68 being measured, relying on the survey undertaken by Mr Ryan Mulligan, a licensed cadastral surveyor.
The Environment Court hearing
[25] The respondents, dissatisfied with the Council’s stance, applied for an enforcement order requiring the Council to issue a s 224(c) certificate.
[26] The grounds on which the order was sought were, in summary, that none of the additional engineering works that the Council required to be completed formed part of the conditions of consent, nor were they expressly required by the SCOP and so they could not be said to be required under condition 8, the general engineering condition. As a consequence the respondents said there was no reasonable basis on which the Council could refuse to certify the subdivision under s 224(c) of the Act.
[27] The respondents’ case was supported by an affidavit and reply affidavit from Mr Christopher Hansen, a surveyor from the surveying firm engaged by the respondents to prepare the subdivision consent application and supporting documentation. His evidence outlined the history of the subdivision consent application process. It also gave opinion evidence on the appropriateness of the Council’s reliance on condition 8 to (as he described it), “require additional conditions to the subdivision consent at any time following the issue of the consent …”. In his view, this was “a flawed and incorrect approach as it is my understanding that the applicant is entitled to certainty, specificity, and clarity within the conditions as to their obligations when the consent decision and Engineering Acceptance are issued.”
[28] He went on to state that the EA process “is a compliance check with [the SCOP] specifications” and expressed his opinion that the fact a consent holder has little alternative but to agree to additional requirements imposed at the s 224(c) stage enables the Council to use that as “leverage” to achieve engineering outcomes that are “without any foundation in terms of the [proposed District Plan], resource consent conditions, EA, or the [SCOP].”
[29] The Council’s evidence was from Mr Warren Vermaas, a senior subdivision engineer employed by the Council, Mr Robert Bond, a geotechnical engineer, Mr Michael Smith, a transport engineer with specific expertise in road safety, and Mr Mulligan, the surveyor, whose evidence has already been referred to.
[30] After hearing evidence (which included cross-examination of Mr Vermaas, Mr Bond and Ms Smith), the Environment Court found that:
(a)it had jurisdiction to grant an enforcement order under s 314 RMA;2 and
(b)condition 8 did not permit the Council to revisit what is required of the consent holder at s 224(c) stage except to the extent that works governed by the SCOP, and addressed through the EA process, are
2 Hensman v Queenstown Lakes District Council, above n 1, at [69].
incorporated into the terms and conditions of the relevant resource consent.3
[31] In terms of the three key issues which appeared to be in dispute in relation to the provision of a s 224(c) certificate, the Environment Court found:
(a)Issues pertaining to the batter slopes below the accessway cannot justify withholding the s 224(c) certificate, as slope stability was addressed in condition 15 and the provisions of cl 2.3.10 of the SCOP were reflected in the drafting of consent conditions so that that clause “cannot now be invoked to require further or other works in relation to the batter slope not required in the Consent conditions”.
(b)The gradient issues did not preclude the issue of a s 224(c) certificate. First, the Environment Court distinguished an accessway from a vehicle crossing. It then said the consent holder could have constructed the accessway as a permitted activity and so it was not authorised “through the consenting process”.4 In any event, while there was uncontested survey evidence that the driveway exceeded the requirements of the rule in the SCOP, the Environment Court said that “an average gradient of 1:5 was approved by the Council,” and referred to the oral evidence of Mr Smith who thought, if Council had approved a 1:5 gradient, he would not have any concern in relation to what was described by the Court as a “small area of non-compliance”.5
(c)In respect of the safety barrier which was required in reliance on cl 3.3.4 of the SCOP, the Environment Court again referred to its understanding that the accessway was a permitted activity and therefore was not “authorised” through the consenting process, and so this requirement did not apply.6 While acknowledging that resource
3 At [101].
4 At [146].
5 I note the Environment Court assumed the approved plans allowed an average gradient of 1:5, not 1:6, which is why Mr Smith was questioned on this basis by the Court at [182]–[183] of the decision.
6 At [146] and [175].
consent was required for the vehicle crossing in terms of sight lines, the Environment Court concluded that the requirement for a safety barrier, which relied on cl 3.3.4 of the SCOP could not be required on the “accessway” for the above reason.7 Accordingly, the Council could not require a safety barrier prior to the issue of a s 224(c) certificate.8
[32]As a consequence, the Environment Court concluded that:
(a)all relevant conditions required to be complied with as set out in consent condition 19 had in fact been complied with;9
(b)the further works required to be carried out by the Council were not justified based on any non-compliance with the relevant consent conditions;10 and
(c)consent condition 8 could not be relied on to trigger further provisions of the SCOP not accounted for during the resource consent process.11
[33] In those circumstances, the Environment Court held that “[t]he Council presented no valid legal or evidential basis for refusing to sign the s 224(c) certificate confirming that conditions of the subdivision consent have been complied with”12 and, accordingly, an enforcement order under s 314(1)(b)(i) was made requiring the Council to sign the certificate.
[34] For completeness, a stay of the enforcement order was sought and granted while this appeal was pursued.13
7 At [144] and [147].
8 At [175].
9 At [189].
10 At [190].
11 At [191].
12 At [192].
13 See minute of Eaton J dated 15 May 2024.
Legal principles applying on appeal
[35] The Council’s appeal is brought under s 299 of the RMA. That confines appeals against Environment Court decisions to questions of law only.
[36] The parties are agreed on the relevant principles applying. There is no right of appeal on the facts. The onus is on the appellant to identify a question of law arising out of the Environment Court’s decision and then to demonstrate that the question of law has been erroneously determined by the Environment Court.14
[37]A question of law arises where the Environment Court:15
(a)applied a wrong legal test;
(b)came to a conclusion without evidence, or one to which, on evidence, it could not reasonably have come;
(c)took into account matters which should not have been taken into account; or
(d)failed to take into account matters which it should have taken into account.
[38] Any error of law must materially affect the result of the Environment Court decision before the High Court should grant relief.
The grounds of appeal
[39]The seven errors of law identified by the appellant are as follows:
(a)the Environment Court erred in finding there was jurisdiction under s 314(1)(b)(i) of the RMA to issue an enforcement order against the
14 Guardians of Paku Bay Association Inc v Waikato Regional Council [2012] 1 NZLR 271, [2012] NZRMA 61 at [28].
15 Countdown Properties (Northlands) Ltd v Dunedin City Council (1994) 2B ELRNZ 150, [1994] NZRMA 145.
appellant due to its refusal to issue a certificate under s 224(c) of the RMA;
(b)the Environment Court erred in law by concluding that the respondents could construct the accessway at the site not in accordance with the subdivision consent RM210066 on the basis it was a permitted activity under the Queenstown Lakes District Council Proposed District Plan (PDP);
(c)the Environment Court erred in law in concluding that condition 8 of subdivision consent RM210066 was limited to the design of engineering works and had no residual legal effect in relation to the construction of engineering works at the site;
(d)the Environment Court erred in law in concluding that cls 3.3.4 (safety barrier provisions), 3.3.16.1 (plan and gradient design) and 2.3.10 (cut and fill batters) of the SCOP had no application to the certification process under s 224(c) of the RMA notwithstanding the requirement of condition 8 of subdivision consent RM210066;
(e)the Environment Court erred in law in concluding that the respondents had complied with condition 19(b) of subdivision consent RM210066 as the respondents were permitted to increase the maximum gradient of the driveway to 1:5 with an average gradient of 1:6 and the Court failed to have sufficient regard to the evidence of the appellant’s surveyor that the maximum 1:5 gradient provided for in the engineering variation was breached and/or it could not reasonably have concluded the driveway was compliant with condition 19(b);
(f)the Environment Court erred in law in imposing a reverse onus of proof on the appellant to prove the respondents had not complied with subdivision consent RM210066; and
(g)the Environment Court erred in law in failing to properly consider its residual discretion to assess whether it was necessary to issue an enforcement order having regard to the expert evidence on safety hazards relating to the engineering works.
[40]I deal with each of these pleaded errors of law in turn.
First ground of appeal – no jurisdiction to make an enforcement order
Appellant’s submissions
[41] Mr Dickey, for the Council, argued that there was no jurisdiction under s 314(1)(b)(i) of the RMA to issue enforcement orders against the Council due to its refusal to issue a certificate under s 224(c) of the RMA.
[42] Section 224 confers an administrative function or power on the Council which requires it to form its own view of compliance with subdivision consent conditions. If the appellant is not satisfied of compliance, this precludes a s 224(c) certificate being issued. The Environment Court erred in concluding that s 314(1)(b)(i) enables the Environment Court to review the Council’s underlying administrative decision making and then order it to grant a s 224(c) certificate, despite the Council not being satisfied of compliance.
[43] Mr Dickey was critical of the Environment Court’s reliance on the decision in Northlake Investments Ltd v Queenstown Lakes District Council to support a finding there was jurisdiction.16 The applicant in Northlake sought declarations and an enforcement order under ss 311 and 316 of the RMA requiring the Council to issue an EA under the subdivision consent where the applicant alleged a breach of a statutory duty under s 21 of the RMA to issue a timely decision on its application for an EA. The Environment Court in Northlake did not actually issue an enforcement order, it simply concluded it had jurisdiction to “entertain the application” on the facts before it.17
16 Northlake Investments Ltd v Queenstown Lakes District Council [2022] NZEnvC 5.
17 At [23].
[44]Mr Dickey submits that the Environment Court was wrong to rely on Northlake
given the following material distinguishing features:
(a)the applicant in Northlake did not seek orders requiring the issuing of a certificate under s 224(c) of the RMA;
(b)in Northlake the Environment Court only considered it had jurisdiction to grant orders requiring the Council to comply with its duty to avoid unreasonable delay under s 21 of the RMA; and
(c)in contrast to Northlake, there was no express statutory duty on the Council here that was engaged or identified by the Environment Court.
[45] In any event, the power conferred on the Environment Court under s 314(1)(b)(i) of the RMA is limited to requiring a person to do something that, in the opinion of the Environment Court, is necessary in order to ensure compliance with the RMA or the instruments specified in that section. Here, Mr Dickey argues that there is no mandatory duty on the Council to issue a s 224(c) certificate. Rather, the section contains a statutory constraint on the Registrar-General of Land preventing that individual from lodging a survey plan unless the provisions of s 224 have been complied with. Section 224(c) does not contain mandatory language such as “must” or “shall” and that can be compared with other sections within the RMA that do impose obligations on territorial authorities on those terms.18
[46] A territorial authority is entitled to refuse to issue a s 224(c) certificate where it is not satisfied all the subdivision consent conditions have been complied with to the Council’s satisfaction. It ought not face enforcement action for performing this administrative function, particularly when it is considered that the power to impose an enforcement order is the most serious measure available to achieve compliance with the RMA, and failure to comply with an enforcement order can expose the defendant to criminal prosecution and serious penalties.19
18 For example, s 221 on the issuing of a consent notice and s 223(1A), (2) and (3) regarding approval of a survey plan.
19 Ryan v de France [2015] NZEnvC 13 at [130].
[47] The limitation on the Environment Court’s powers to supervise the administrative actions of local authorities was noted in Trustees of Motiti Rohe Moana Trust v Bay of Plenty Regional Council, where Chief Judge Kirkpatrick held that the Environment Court did not have a general supervisory jurisdiction to make declarations under s 310 of the RMA with respect to the administrative actions of local authorities.20 That finding was upheld in the High Court, with Hinton J saying:21
[68] None of those subsections, nor s 310 read as a whole, on their face provide or even indicate that the Environment Court has a power of judicial review (for example as to legality) in respect of any Council decision relating to RMA matters.
[48] Mr Dickey submits that the scope of s 314(1)(b)(i) of the RMA is even narrower than s 310 and it was not intended to convey a de facto right of appeal, or to enable the Environment Court to conduct a wide-ranging review of the reasonableness of Council’s administrative decision making.
[49] Finally, Mr Dickey points out that if enforcement orders could be made in respect of such an administrative decision, it could potentially apply to a wide range of other decisions, including notification decisions,22 and consideration of applications for resource consent.23 That would potentially expose the Council to enforcement action being taken against many administrative decisions with a power to order a different outcome. That could not have been intended without express statutory wording.
[50] In Mr Dickey’s submission, the proper route would have been either to seek declarations on whether there was compliance with the conditions of resource consent, or judicial review if there were concerns as to the lawfulness or reasonableness of the Council’s decision. There was no reason here to believe that if the Council was found to be wrong in its understanding of what was required under the subdivision consent, that it would not revisit its decision in light of the Environment Court’s findings.
20 Trustees of Motiti Rohe Moana Trust v Bay of Plenty Regional Council [2020] NZEnvC 180 at [62]–[69].
21 Trustees of the Motiti Rohe Moana Trust v Bay of Plenty Regional Council [2022] NZHC 1846.
22 Resource Management Act, s 95–95C.
23 Section 104D.
Respondents’ submissions
[51] Mr Gresson, for the respondents, does not accept the Environment Court erred in concluding it had jurisdiction under s 314(1)(b)(i) of the RMA to order the Council to issue a s 224(c) certificate. He says the Environment Court was right to find it had jurisdiction to consider the application on the basis it related to the Council’s exercise of its functions under s 31 of the RMA. This section, relevantly, provides:
31 Functions of territorial authorities under this Act
(1)Every territorial authority shall have the following functions for the purpose of giving effect to this Act in its district:
(a)the establishment, implementation, and review of objectives, policies, and methods to achieve integrated management of the effects of the use, development, or protection of land and associated natural and physical resources of the district:
…
(2)The methods used to carry out any functions under subsection (1) may include the control of subdivision.
[52] When exercising its functions under s 31, the Council was also subject to duties under s 21 which requires the Council, when carrying out functions, powers or duties, under the RMA, to “do so as promptly as is reasonable in the circumstances”. The respondents consider the Court was correct to rely on the analysis in Northlake. While s 21 was not expressly referred to in this case, Mr Gresson argues that it is applicable here, as it was in Northlake, as a failure to issue a s 224(c) certificate when the conditions of subdivision consent have been complied with, is a failure to exercise a statutory function as promptly as is reasonable in the circumstances.
[53] In support of this submission, Mr Gresson also points out that there is an obligation on a local authority to act reasonably in accordance with its statutory functions.24 Applying this principle in the present case, s 224(c) provides a statutory power to certify compliance with the conditions of consent which is to be exercised by the consent authority. That power must be exercised for the purpose of fulfilling the territorial authority’s functions, which include the control of subdivision.
24 Re Ngati Tamaki Te Waipounamu Trust [2023] NZEnvC 157 at [154].
[54] The respondents also argue that the Council’s refusal to sign the s 224 certificate is a failure to observe its district plan which local authorities are required to observe pursuant to s 84 of the RMA. If a subdivision is authorised by a resource consent then a refusal to allow the subdivision to be implemented is a failure to observe the provisions of the district plan and this failure is enforceable under s 314.
[55] While the respondents accept that the language in s 224(c) is not expressed in mandatory terms, it says, nevertheless, that the Council is under a wider duty to exercise its s 31 functions promptly and observe the district plan in accordance with ss 21 and 84.
[56] The respondents are also critical of the Council’s reliance on the word “satisfaction” in s 224(c), saying it does not confer an unfettered discretion on the appellant to determine compliance with the conditions. The Environment Court can make determinations as to whether consent conditions have been complied with, relying on its declaratory powers under s 310(c).25
[57] The respondents note that they could have elected to seek a declaration under s 310(c) that the proposed subdivision was not in contravention of its conditions of resource consent and this would have involved the same enquiry. However, it would then have required the additional step to be taken in the event that conditions were found to have been complied with, in order to ensure the Council issued a s 224(c) certificate. The respondents say it cannot be the case that the Environment Court could determine there is compliance, but the appellant could still withhold the s 224(c) certificate on the basis it is not satisfied that they have been complied with.
[58] For completeness, the respondents acknowledge that the Environment Court does not have judicial review powers, but say that is not what it is being asked to do in this case, and to issue an enforcement order, as the Environment Court has done in the particular circumstances of this case, would not have wider policy implications.
25 Kapiti Island Watching Interest Inc v Kapiti Coast District Council (2004) 10 ELRNZ 277 at [30] and [32].
Discussion
[59] I accept, as the Council points out, that s 224(c) does not confer a statutory duty enforceable against the appellant. Rather, it sets out a statutory power or function of the Council as a consent authority.
[60] I also accept the Council’s submission that the duties in s 21 and 84 of the RMA do not transform that function into an enforceable duty in the circumstances of this case. Furthermore, the Environment Court did not rely on those sections to say it had jurisdiction to make an enforcement order under s 314(1)(b)(i) of the RMA.
[61] Section 84 relates to a duty on the Council to observe its own plan (here, the PDP). However, that is not what is engaged here. The Environment Court was looking at whether the subdivision works complied with the conditions of subdivision consent. While the PDP was the framework in which the subdivision consent conditions were imposed, it does not have relevance to the question of whether a s 224(c) certificate should issue because the conditions have been complied with.
[62] In terms of the duty under s 21 to avoid unreasonable delay, I also do not consider this is relevant here. The Council has made a decision under s 224(c) in a reasonable timeframe, it is just not the decision that the respondents think is correct.
[63] The real issue is whether the enforcement order procedure is the correct route to resolve the impasse over whether a s 224(c) certificate should issue. In my view, it is not. This is not a case of Council having a mandatory duty which has not been carried out. Section 224(c) requires the Council to undertake an evaluative exercise as to whether the conditions of consent have been complied with. If there is a dispute over whether an obligation arises under the conditions of consent, or, if it does, whether it has been complied with, that dispute can be the subject of an application for a declaration. Once the position has been clarified through that process, there is nothing to suggest that the Council would not reconsider the issue of the s 224(c) certificate in light of a final and binding decision of the Courts.
[64] If the dispute is really over whether the Council had been reasonable in its assessment of whether the consent conditions had been complied with, that is most
appropriately the subject of an application for judicial review. Again, there is no reason to think that the Council would not reconsider a decision in light of any finding the Court made in an application for judicial review. Indeed, Mr Dickey confirmed to the Court that if the considerations which the Council rely on to withhold the s 224(c) certificate are found to be incorrect, the Council would revisit its decision without the coercion of an enforcement order.
[65] I also accept that if this statutory function is held to be amenable to performance through an enforcement order, that would create a precedent in respect of other functions that the Council exercises under the RMA, allowing those who take issue with how Council exercises or carries out those functions to use enforcement orders as a means of reviewing the Council’s decisions. I do not accept that enforcement orders could have been intended to be used for that purpose.
[66] For all these reasons, I am satisfied there was no jurisdiction to issue an enforcement order requiring the Council to issue a certificate under s 224(c) and that constitutes an error of law which was material to the Environment Court’s decision.
[67] While, technically, that is enough to set aside the Environment Court’s decision, I go on to deal with the other alleged errors of law, in the event I am wrong on that issue, or in the event that these issues are reconsidered in the context of an application for declarations.
Second ground of appeal – erroneous interpretation of scope of consent
[68] The second appeal point is that the Environment Court erred in law by concluding that the accessway at the site did not have to be constructed in accordance with the conditions of the subdivision consent as it was a permitted activity under the PDP. Specifically, the Environment Court concluded at [142]–[146] that only the part of the driveway that qualified as a vehicle crossing had to comply with the resource consent. The remaining section of the driveway, which the Court referred to as an “accessway”, did not have to be constructed in accordance with the resource consent.
[69] On the basis of this determination, the Court held that the requirements in the SCOP to install a safety barrier, and to meet the gradient requirements, did not apply
to the accessway at all, as the accessway section of the driveway would be constructed in accordance with the permitted activity standard in the PDP rule 29.5.16. Because it was permissible for the respondents to construct a complying accessway without a resource consent, they did not need to comply with the conditions of the resource consent.
Appellant’s submissions
[70] Mr Dickey points out that it is clear that the subdivision requires a resource consent and here, condition 1 of the subdivision consent provides that the development must be undertaken/carried out in accordance with the plans submitted with the aplication. The plans which were approved under the subdivision consent provide for the construction of the entire driveway proposed to access Lot 3. Notwithstanding that a small part of the driveway may qualify as an accessway under the PDP, the consent holder cannot then elect to carry out part of the subdivision works not in accordance with the subdivision consent regardless of whether that part of the works would, if carried out in isolation, qualify as a permitted activity.
[71] In this case, the subdivision consent requires the appellant to ensure that the works shown on the plans are constructed in accordance with the approved plans and the SCOP. This requires it to meet the gradient requirements and have safety rails. Furthermore, private accessways are within the scope of the subdivision activity for which consent was granted. For example, the policies in ch 27 of the PDP relating to subdivision and development expressly provide for the Council to consider the appropriate design and amenity of both vehicle crossings and private accessways.
Respondents’ submissions
[72] The respondents acknowledge that the formation of an accessway within the road reserve which provides access to the boundary of the site was required under condition 11 of the consent in order to give effect to the subdivision and was governed by the conditions of consent. It is only the formed accessway within the site itself which they say is permitted under the PDP (subject to compliance with standards) and
did not form part of the consent. In saying this they rely on the Court of Appeal’s decision in Cable Bay Wine Ltd v Auckland Council, where it held:26
where resource consent is granted for a proposal which includes both permitted activities and those that require resource consent, the consent [does not grant] consent for the permitted activities. … All activities proposed in an application will be assessed holistically, to assess the effects of granting consent to the proposal. But the consent granted to the whole does not mean that those elements that are permitted activities are also granted consent.
[73] The respondents also submit that a condition of subdivision consent that purports to control permitted land use activities has been found to potentially offend the Newbury tests, on the basis it does not fairly and reasonably relate to the subdivision activity.27 Accordingly, the respondents say there was nothing from preventing them carrying out the construction of the accessway (as distinct from the vehicle crossing) in accordance with the permitted activity standards in the district plan, regardless of what the subdivision consent authorised.
Discussion
[74] The position of the respondents on this issue did not seem to take account of the practical reality that the part of the formed accessway which the Council claims is non-complying with the subdivision consent conditions falls within the definition of a “vehicle crossing” in the PDP and so, as the respondents acknowledge, could properly be the subject of consent conditions. The PDP defines a “vehicle crossing” as “the formed and constructed vehicle entry/exit from the carriageway of any road up to and including that portion of the road boundary of any site across which vehicle entry or exit is obtained to and from the site, and includes any culvert, bridge or kerbing.” “Access”, however, is defined as “that area of land over which a site or lot obtains legal vehicular and/or pedestrian access to a legal road.” Here, it is the section of the driveway which connects the formed carriageway on the road to the legal boundary of the site which the Council asserts is non-complying.
26 Cable Bay Wine Ltd v Auckland Council [2022] NZCA 189 at [16].
27 Lakes District Rural Landowners Society Inc v Queenstown Lakes District Council ENC Christchurch C100/2001, 21 June 2001.
[75] In the circumstances, where the Environment Court acknowledged that the resource consent was required for the vehicle crossing, there can be no complaint that the conditions of subdivision consent specified how that portion of the accessway was to be formed.
[76] In any event, as the appellant says, the subdivision consent was granted on the basis that it would be constructed in accordance with the approved plans, including those for the entire accessway. The consent holder cannot elect to carry out part of the subdivision works not in accordance with the conditions of the subdivision consent regardless of whether that part of the works would, if carried out in isolation, qualify as a permitted activity.
[77] Furthermore, while an issue was raised as to the possibility of a condition which governs the permitted activity being invalid, there was no determination to that effect, and so the subdivision must be carried out in accordance with the conditions of consent.
[78] However, I need make no determination on this asserted error of law as, to the extent the Environment Court concluded that the accessway formed on the site could be constructed without complying with the conditions of subdivision consent, that was not material to the outcome. The Council’s concerns about the construction of the accessway all related to the portion of it built on road reserve and which comprises a vehicle crossing, which the Environment Court accepted required resource consent.
[79] The real issue is whether the conditions of that consent allowed the Council to require a safety rail and changes to the gradient which are addressed next.
Third ground of appeal – erroneous interpretation of condition 8
Appellant’s submissions
[80] The Council argues the Environment Court erred in law in concluding condition 8 of the subdivision consent was limited to the design of engineering works approved through the EA process and had no residual legal effect in relation to the construction of engineering works as part of the subdivision consent.
[81] In submitting that, the Council says the Environment Court failed to have regard to the complete wording of condition 1 of the subdivision consent which requires the development to be carried out in accordance with the stamped plans, and the application as submitted, subject to an exception for amendments required by subsequent conditions of consent. Mr Dickey points out that this proviso was not referred to in the decision and the plain wording of condition 1 requires the engineering works both to conform to the EA (condition 19) and to be designed and constructed in accordance with the SCOP (condition 8).
[82] Mr Dickey points out that the High Court has previously upheld, as valid, resource consent conditions which require detailed engineering plans to be certified after consent is granted.28 Furthermore, the wording of condition 1 of the consent also expressly contemplated that some amendments to the approved plans may be required in order to ensure that the works were designed and constructed in accordance with the SCOP. Mr Dickey points out that the Council does not require infrastructure design and construction after the consent has been granted that exceed the requirements of the SCOP or the conditions of the consent. The purpose of the EA process is to ensure the proposed development is delivered in a way that meets the requirements of the SCOP and the subdivision consent. The Environment Court, therefore, erred in its conclusion that all the SCOP provisions had to be accounted for at the resource consenting stage (as the Court held at [149]) and could not be subsequently raised. Condition 8 of the consent clearly envisages that the Council will assess whether the physical works comply with the SCOP and the Environment Court was wrong to read down this condition as limited in its application to an earlier design stage when that was not specified.
[83] Mr Dickey also notes that condition 11 requires the consent holder to submit design certificates for the EA process in accordance with condition 8 and the onus is on the consent holder to certify that the design is in accordance with the SCOP or, alternatively, to disclose any deviations so that the Council can advise if a variation to the consent is required. This cross-reference to condition 8 does not relieve the
28 Aspros v Wellington City Council [2019] NZHC 1684 at [117].
consent holder of its obligation to ensure the physical works do in fact comply with the SCOP.
[84] Mr Dickey notes that condition 8 is an important safeguard to ensure that if the consent holder fails to disclose a deviation from the SCOP at the EA stage, the engineering works still have to comply with the SCOP before s 224(c) certification is given.
[85] For completeness, Mr Dickey also notes that the Environment Court’s discussion of the extent to which the SCOP was incorporated into the PDP was irrelevant to determining the scope of condition 8 of the subdivision consent.
[86] For these reasons, the Environment Court was in error when it determined that key standards in the SCOP, in particular, clauses 3.3.4, 2.3.10 and 3.3.16, were not applicable to the construction of the engineering works in this subdivision.
Respondents’ submissions
[87] The respondents support the Court’s interpretation of condition 8, which the Environment Court summarised as follows:29
(a)engineering works referred to in consent condition 8 are necessarily limited to works within the scope of the consent, being works involving construction of a three lot subdivision, associated earthworks, provision of services and the vehicle crossing to proposed Lot 3;
(b)more specifically, consent condition 11(a)–(e) sets out the engineering works for which an EA is required after the grant of subdivision consent;
(c)condition 11 also requires the consent holder to furnish specified information “… as is considered by the Council to be both necessary
29 Hensman v Queenstown Lakes District Council, above n 1, at [81].
and adequate, in accordance with condition 8” in relation to works listed in 11(a)–(e);
(d)notably works required to be completed before the issue of the s 224(c) certificate are set out in condition 19. Relevantly, this includes consent condition 19(b) which requires the completion and implementation of all works detailed in condition 11.
[88] Mr Gresson submits the Court was correct to find that condition 8, and its generic reference to the SCOP, did not provide the Council with some sort of catch all ability to refuse to issue a s 224(c) certificate by pointing to an engineering requirement in the SCOP that was never proposed or approved as part of the engineering work set out in conditions 11 or 19.
[89] Mr Gresson submits that this is an orthodox and logical interpretation of the condition and is the same approach as was taken by the Environment Court in Northlake, where it found:30
Condition 4 [being the equivalent of condition 8] sets a related standard for that design that effectively colours what Condition 11 intends. That is that the design is to accord, in performance terms, with [the SCOP].
[90] Applying that approach in the present case Mr Gresson says, condition 8 sets out a standard for the design of engineering works set out in condition 11. The consent holder then submits its plans for this work to the Council for certification. The Council then decides whether to certify the plans, including, under condition 8, by reference to the SCOP. Once that certification has occurred, all that is required is for the consent holder to ensure the completed work is in accordance with the certified plans. The Council cannot then revisit what is required of the consent holder under the guise of condition 8 or otherwise.
Discussion
[91] At issue is the scope of condition 8, and the duration of its effect; that is, can it be relied on to require additional design details that were not identified in either the
30 Northlake Investments Ltd v Queenstown Lakes District Council, above n 16, at [45].
original approved plans, or in the plans subsequently approved through the EA process?
[92] I consider this is a straightforward question of interpretation of the consent conditions. Condition 8 set out at [8] above, requires all engineering works to be carried out in accordance with the SCOP. There is nothing in that condition which suggests it is limited in any way, or that the requirement to comply with the SCOP is overtaken by the subsequent EA process. While, as the respondents submit, the SCOP is a large document, it is a publicly available document and the link to it is given in condition 8. Its terms therefore, are certain and are incorporated into condition 8.
[93] Furthermore, the fact that condition 8, and the requirement to comply with SCOP continues in force despite the EA process being completed, is made clear by the general conditions on which the EA was issued. It is reiterated in those conditions that work is to be undertaken in accordance with SCOP,31 and goes on to say “[w]here ambiguities or inconsistencies exist between Councils [sic] adopted standards and the accepted documents, the adopted standards shall take precedence unless prior agreement in writing has been obtained from Council”.
[94] Thus, the EA process recognised the continuing application of the SCOP standards through condition 8 of the subdivision consent even where plans had been approved through the EA process. While it was expected that the consent holder would submit detailed plans that complied with the SCOP or identify any deviations from the SCOP so they could be formally approved as a variation, it is made clear that if the plans did not comply, then the standards required by the SCOP would still prevail unless an express exception was sought.
[95] Furthermore, the ongoing relevance of the SCOP was acknowledged in respect of the required gradient for the accessway. The amendments sought in May, and approved in July, to the gradient of the driveway were intended to achieve compliance with clause 3.3.16.1 of SCOP.
31 Noting it incorrectly referred to the 2021 version but, as the Council’s evidence confirms, this was simply a typographical error.
[96] I therefore conclude that the Environment Court erred in law when it concluded that condition 8 had no residual legal effect in relation to the construction of engineering works at the site.
Fourth ground of appeal – erroneous interpretation of the SCOP standards
Appellant’s submissions
[97] The Council submits that the Environment Court erred in law in interpreting cls 3.3.4 (safety barrier provisions), 3.3.16.1 (plan and gradient design) and 2.3.10 (cut and fill batters) of the SCOP and in concluding they had no application to the certification process under s 224(c) of the RMA, notwithstanding the requirement of condition 8 of the subdivision consent.
[98] The Council relied on these provisions, and condition 8, to require the following before s 224(c) certification would issue:
(a)the installation of a safety barrier on the vehicle crossing;
(b)the remediation of the driveway gradient to achieve an average gradient of 1:6 and a maximum gradient of 1:5; and
(c)advice from a geotechnical engineer on the stability of the batter slopes below the driveway in the road reserve given they were steeper than 2 horizontal to 1 vertical and there was some visual evidence of erosion occurring.
[99]Clause 3.3.4 of the SCOP provides as follows:
Where roads, private ways or other vehicular accesses, where the target operating speed is 60 km/hr or less, whether public or private, runs parallel with land which drops away to a height of greater than 1.0m within 2.0m of the road or footpath, the side shall be provided with safety barriers to protect vehicular traffic.
[100] The Council says the Environment Court erred in two ways in deciding this clause did not apply. First, the Court found that the accessway was “beyond the scope of the subdivision consent granted by the Council. Accordingly the Council cannot
request construction of a safety barrier (if one is indeed required) prior to the issue of the s 224(c).”32 However, Mr Dickey reiterates the submission made on the third ground of appeal and says the accessway forms part of the subdivision works and must be carried out in accordance with the approved plans (as identified in the second ground of appeal), and condition 8 requires the construction of engineering works to comply with the SCOP.
[101] Secondly, the Council says the Environment Court misinterpreted the scope of cl 3.3.4 as limited to private accessways. However, cl 3.3.4 specifically states it applies to vehicular accesses “whether public or private”. Both vehicle crossings constructed over road reserve and private accessways are therefore within the scope of cl 3.3.4. Thus, even if the Court was correct (which is not accepted) that the section of the driveway on the respondent’s land could be constructed as a permitted activity, that did not relieve the respondents from the requirement to install a safety barrier with respect to the vehicle crossing section of the driveway which was the part which was of concern to the Council.
[102]Clause 3.3.16 of the SCOP provides as follows:
Access to all lots, dwellings or multi-unit developments shall be considered at the time of subdivision/development and should where possible be formed at that time.
…
Accesses shall be designed and constructed to the following requirements or in accordance with the TA’s specific requirements, unless alternative designs by the developer’s professional advisor are approved by the TA.
3.3.16.1 Plan and gradient design […]
Centre line grades should:
(a)Not be steeper than 1 in 6 for any private way used for vehicle access;
(b)In residential zones where a private way serves no more than 2 residential units the maximum gradient may be increased to 1 in 5 provided:
32 At [175].
(i)The average gradient over the full length of the private way does not exceed 1 in 6; and
(ii)The maximum gradient is no more than 1 in 6 within 6m of the road boundary; and
(iii)The private way is sealed with non slip surfacing.
[103] The Environment Court took issue with the appellant’s witnesses treating the driveway as a single feature rather than distinguishing between the private accessway within the site boundary and the vehicle crossing component located in the road reserve. However, the Council submits that even if the components of the driveway are treated separately in this way, there are still maximum gradient requirements that apply. Furthermore, as the Environment Court also noted in its judgment, cl 3.3.16 of the SCOP essentially replicates the requirements in r 29.5.16 of the PDP so whether under the resource consent, or as a permitted activity, the same gradient requirements apply.
[104] At the hearing, there was no expert evidence from the respondents that the SCOP standards were met in respect of the constructed vehicle crossing and there was uncontested survey evidence from the Council that they were not. Therefore, the Environment Court could not have reasonably concluded that it was compliant with the SCOP, or the conditions of subdivision consent.
[105]Clause 2.3.10 of the SCOP provides:
2.3.10 Cut and fill batters
A suitably qualified person shall provide a site-specific design (including benching if appropriate) for approval by Council where cut or fill batters:
· Are steeper than 2 horizontal to 1 vertical;
· Exceed 3m in height;
· Are constructed using moisture content susceptible soil; or
· Have features that Council deems to require specific engineering input.
[106] The Council sought comment from a geotechnical engineer in respect of the stability of the batters on the downhill side of the accessway because they were steeper than 2 horizontal to 1 vertical. The Council submits it was entitled to do this, relying
on the condition 8 of the subdivision consent and the fact that the criteria in cl 2.3.10 for triggering the need for a site specific design are alternatives, and not cumulative criteria as the Environment Court assumed. Specifically, the Environment Court stated:33
Clause 2.3.10 Cut and Fill Batters refers to the slope of the batter and identifies several requirements for any batter slope that has a slope of greater than 2m(H):1m(V) and exceed a height of 3m including site specific design for stability.
The Court concluded that as there was no evidence the slope exceeded the 3 m height limit, this clause could not apply. However, it only required one of these requirements to be exceeded to trigger the need for site-specific design.
[107] In addition, Mr Dickey submits the Environment Court erred in inferring that condition 15 of the subdivision consent already addressed the requirements of cl 2.3.10 because the criteria and requirements of condition 15 in cl 2.3.10 of the SCOP are different. Furthermore, it was noted that condition 15 only referred to permanent batter slopes which were formed within the site, raising a query as to whether it applied to the batter slopes formed on the road reserve. The Council’s geotechnical engineer, Mr Bond, confirmed that a site specific design for stability was required for the batter slopes adjacent to the accessway on road reserve and the 2021 Geosolve report provided to the Council by the respondents did not address the localised slope failure which was occurring in that area.
[108] For these reasons, the basis upon which the Environment Court concluded that cl 2.3.10 of the SCOP did not apply was flawed and the Council was entitled to conclude that cl 2.3.10 had not been complied with.
Respondents’ submissions
[109] The starting point for the respondents is to rely on their submissions in respect of grounds 2 and 3, that is, condition 8 had no residual legal effect once the Council had approved the detailed engineering plans for construction on the site through the EA process. However, for completeness, they submit that, if the Council sought to
33 At [136].
require a safety barrier be constructed it should have declined to approve the plans unless they showed the existence of a safety barrier. Having certified the plans, however, the Council could not seek to rely on cl 3.3.4 of the SCOP by the time the accessway had been built.
[110] The respondents take the same position with respect to the design and gradient of the accessway. If the driveway does not comply with the gradient requirements of the PDP, then the Council’s options lie under separate enforcement provisions of the RMA for that part of the driveway which the respondents say is a permitted activity. In any event, cl 3.3.16.1 does not apply to that part of the driveway built in the road reserve because the clause refers to “private ways, private roads or private accesses.” Finally, it says that the driveway was constructed to the Council standards in accordance with the approved plans which were duly submitted and certified by the Council pursuant to this condition.
[111] In respect of the application of cl 2.3.10, the respondents say the Environment Court was correct to find that this clause was already accounted for in condition 15. They say they had, as part of the consent application, already obtained the opinion of a geotechnical engineer who verified the batter slope as being stable. They say this is a factual finding that cannot be challenged on appeal.
[112] While the respondents do not dispute that the Environment Court erroneously treated the slope and height requirements in cl 2.3.10 as cumulative rather than separate, they say that to the extent the Court did so, it was immaterial and had no impact on the decision. The reason for the Council asserting non-compliance was in respect of the first limb of the clause, being that the slope requirement was exceeded. It did not refuse to issue the s 224(c) certificate in reliance on the height requirement.
Discussion
[113] It follows from my finding on the third ground of appeal, which is that, interpreted properly, condition 8 was not subsumed in the EA process but had continuing effect, that the Council was entitled to rely on non-compliance with the SCOP to withhold provision of a s 224(c) certificate.
[114] In respect of the distinction the Environment Court drew between the accessway on the site itself and the vehicle crossing which comprised the formed accessway over road reserve, I consider that distinction is irrelevant. It is clear that the SCOP provisions apply to any form of vehicular access “whether public or private”. Furthermore, the safety barrier the Council is requiring only applies to the section of the accessway formed on road reserve which comprises a “vehicle crossing”.
[115] While the approved plans do not show the requirement for a safety barrier, it was the responsibility of both the developer and the Council to submit and approve plans which did comply with the SCOP. That neither of them picked up the non-compliance is unfortunate, but does not relieve the developer from that requirement. As the EA process makes clear, where the accepted documents do not comply with the SCOP, the SCOP provisions must prevail, unless and until an exemption or variation to the SCOP standards is approved.
[116] Accordingly, interpreted correctly, the conditions of consent did allow the Council to require the provision of a safety barrier in accordance with cl 3.3.4 of the SCOP.
[117] In terms of the plan and gradient design for the accessway, the distinction the Environment Court made between the private accessway and the vehicle crossing, is, as I have already noted, irrelevant. The evidence supplied by the Council as to the survey gradient only considers that part of the accessway that is formed on road reserve and comprises a vehicle crossing. That evidence clearly shows that the accessway does not comply with the requirements of the SCOP or with the amended plans approved by Council on 27 July 2022. Those plans are quite clear in specifying that the average grade is to be 1:6 and the maximum grade 1:5.
[118] Regrettably, there appears to have been a misunderstanding, both on the part of the Council inspector when he signed off the works on 5 August 2022 and by the Environment Court, that the average grade was only required to be 1:5. That assumption clearly ignores the specifications on the approved plans.
[119] Accordingly, the Environment Court erred in failing to have regard to the requirements of the approved plans (which complied with the SCOP) and to the uncontested survey evidence that the vehicle crossing, as constructed, did not comply with these requirements, in that three adjacent measured sections had a gradient that was steeper than the maximum permitted of 1:5. As the Environment Court erred in failing to have regard to the requirement that the driveway must accord with the approved plans and did not, it was in error and I do not need to go further to discuss the relevance of the SCOP.
[120] Finally, in terms of the Council’s requirement for a geotechnical engineer to address soil stability on the steep batter slopes on the lower side of the formed accessway, again, this can be required pursuant to condition 8 and cl 2.3.10 of the SCOP. The Environment Court was wrong to say that this clause of the SCOP did not apply because it considered the requirements were cumulative. It is clear that any one of the four requirements could trigger the requirement for the Council to seek engineering input. Here, again, there is undisputed evidence that there are formed batters that exceed a gradient of 2 horizontal to 1 vertical and there is also evidence of some erosion in one area. This was sufficient to engage cl 2.3.10 of the SCOP.
[121] While the respondents suggested they only need comply with condition 15, I note it requires certification, post-construction, that the slope is permanently stable. In my view, the Council was entitled to seek engineering advice simply in reliance on this condition and to withhold a s 224(c) certificate until that advice was received, even if, contrary to my view, the SCOP requirements could not be invoked at this stage.
[122] A further point raised by the Council in oral submissions was that condition 15 applied only to batter slopes formed within the site (which is defined in the consent application as the two existing lots at 10 and 12 Angelo Drive), and so this condition did not apply to works in the road reserve. However, if that is the case, then clearly the SCOP provisions in cl 2.3.10 apply and, again, through that mechanism, the Council was entitled to request geotechnical advice on slope stability.
[123] Accordingly, I accept the Environment Court erred in law in interpreting the conditions of consent and the relevant provisions of the SCOP in the ways alleged by the Council.
Fifth ground of appeal – compliance with condition 19(b) not reasonably available on the evidence
Appellant’s submissions
[124] The fifth point of appeal relates to the issue discussed above regarding the gradient of the accessway. The Environment Court held that condition 19(b) of the consent had been complied with and the Council says this is a conclusion which was not reasonably open to it on the evidence.
[125] Condition 19(b) required the respondents to complete and implement all the works detailed in condition 11 prior to the issue of the s 224(c) certificate. As already discussed above, the plans which were approved under condition 11 required the accessway be constructed to an average gradient of 1:6 and, through the EA variation, to allow the maximum gradient to be 1:5. The EA variation was sought in May 2022 after an inspection report had failed the driveway because part of it had a gradient that was less than 1:5.
[126] The Council provided uncontested survey evidence to the Environment Court of the accessway gradients within the road reserve. It showed that in three adjacent sections, the accessway exceeded the maximum gradient authorised by the Council as they had gradients ranging from 1:4.68 to 1:4.8. In other words, there was uncontradicted expert evidence that the maximum gradient of 1:5 was breached in three locations and these breaches, in the Council’s view, formed a legitimate basis to decline the s 224(c) certificate for non-compliance with condition 19(b).
[127] Mr Dickey observes that the Environment Court erroneously conflated the maximum gradient of 1:5 and the average gradient of 1:6, with the Environment Court saying the works complied with the long section plan as they did not exceed a 1:5 average gradient. Based on this incorrect interpretation of the plans, the Environment Court concluded that condition 19(b) had not been breached. Had the Environment
Court applied the correct maximum gradient of 1:5 as shown in the approved plans, the Court could not reasonably have come to the conclusion that the driveway was compliant with the consent conditions.
Respondents’ submissions
[128] The respondents say, however, that this ground of appeal seeks to challenge the Environment Court’s factual findings and says that the evidence of Mr Mulligan, the surveyor, did not identify any breach of the 1:5 gradient in regard to any part of the vehicle crossing, nor did it differentiate between it and the accessway. Furthermore, the Environment Court was entitled to rely on the evidence of Mr Smith, the traffic engineer, in which he indicated he had no issues with the gradient of the driveway. The Environment Court also relied on the evidence in the form of correspondence between the respondents’ consultant and the Council’s officer that the bottom of the accessway would be lifted 500mm to achieve the gradient requirements of r 29.5.16 in the PDP. In any event, to the extent the Court may have mistakenly used the word “average” instead of “maximum”, this was immaterial, as its substantive findings were based on the correct position as asserted by the respondents.
Discussion
[129] As I have already said in discussing the previous ground of appeal, the Court’s conclusion that the accessway complied with the approved plans, the gradient requirements of r 29.5.16 of the PDP, and the SCOP, was not available to it in light of Mr Mulligan’s unchallenged evidence.
[130] First, it is clear that Mr Mulligan’s evidence only dealt with that section of the accessway located in road reserve and, contrary to the respondents’ submission, he did identify a breach of the gradient in relation to the vehicle crossing section of the accessway. Mr Smith’s responses in evidence did not go so far as to say that the gradient complied with the plans, the SCOP and r 29.5.16. His answers were given in response to questions that assumed the Council had approved an average gradient of 1:5 and asked whether the deviations were therefore material. His answers were not directed to whether there was compliance with the approved plans that reflected the
SCOP requirements. His evidence could not, therefore, have formed an evidential basis for making such a finding.
[131] The correspondence between the respondents’ consultants and the Council officer, which is relied on by the respondents, is not relevant to this question. All it does is confirm that the approved amended plans were intended to ensure the driveway would be complying. However, the as-built driveway, on Mr Mulligan’s uncontested evidence, did not comply. This was not a factual finding the Environment Court made on competing evidence. The Environment Court clearly approached the question on the mistaken assumption that an average gradient of 1:5 was approved when the approved plans clearly required an average gradient of 1:6 and a maximum gradient of 1:5.
[132] Again, the Court erred in making a finding that the accessway complied with the approved plans without an evidential foundation to support it, and this ground of appeal is upheld.
Sixth ground of appeal – failure to apply the correct onus of proof
Appellant’s submissions
[133] Mr Dickey submits that the respondents, as applicants for the enforcement orders, had the burden of proving, on the balance of probabilities, that the Council had acted in a way that was contrary to s 314(1)(b) of the RMA and the respondents accepted that was the case. However, the Environment Court then erred in law by imposing a reverse onus on the Council to justify why it had not issued the s 224(c) certificate.
[134] Mr Dickey points to questions from the bench to counsel for the respondents which were recorded as follows in the transcript:
Question:Well the Council has to justify why it hasn’t issued the 224, that’s – it’s been – that’s the basis of the enforcement order.
A:…No, that’s the basis of the application, that’s not a reflection of the statute. The statute requires proof by the applicant, not by the Council of anything–
…
And let’s just put it to you that we might not agree with you on that and we might take the view that the applicants asked for an enforcement order and alleged that the Council is acting unlawfully and refusing to issue the certificate, the Council’s issued a notice of opposition and the onus is then on the Council to explain why it says that it’s not able to issue the 224 so that an onus on the Council and that’s the approach we will take–
[135] Mr Dickey submits that this approach carried through to the decision. The Environment Court never acknowledged that the burden of proof was on the applicants or took account of the fact they had not filed expert evidence which assessed the engineering works as compliant with the SCOP standards. Instead, the Court focused on whether the Council had proven it had correctly refused to issue the s 224(c) certificate. Consistent with its approach, the Environment Court concluded that the Council had failed to meet its evidential burden saying:34
The Council presented no valid legal or evidential basis for refusing to sign the s 224(c) certificate confirming that conditions of the subdivision consent have been complied with.
[136] Mr Dickey takes issue with this statement for two reasons. First, it was not for the Council to present a legal or evidential basis justifying its decision not to issue a s 224(c) certificate. The onus was on the respondents to prove the conditions had been complied with. Secondly, the Council did provide evidential and legal support for its position. It presented evidence from four expert witnesses who attested that specific aspects of the engineering works had not been carried out in accordance with the subdivision’s consent and in particular, conditions 8 and 19.
[137] In Mr Dickey’s submission, the reversal of the burden of proof was a clear error of law that fundamentally distorted the Environment Court’s assessment of the matters in dispute and, furthermore, the error was clearly material. The respondents failed to present any expert evidence to demonstrate that the engineering works as constructed, complied with the SCOP, the EA and the approved plans and, given this failing, the Environment Court should have declined to make the enforcement orders.
34 At [192].
Respondents’ submissions
[138] The respondents deny that the Environment Court suggested or proceeded on the basis it was the Council which had the onus of proving a s 224(c) certificate should not issue and, in any event, they say this issue is a “red herring”. They say while the Council did not have to prove, on the balance of probabilities, that it was justified in refusing to issue the s 224(c), it did have to justify why it refused to issue that certificate. This did not reflect any legal onus, but simply the nature of what the Environment Court was being asked to determine.
[139] It did not change the fact that the Environment Court then undertook a legal and factual assessment of whether the conditions had been complied with and that did not presuppose an onus on either party. The fact the applicant did not adduce expert evidence did not change that inquiry. This was not a case of competing matters of expert opinion as the fundamental issues were legal ones, that is, the correct interpretation of the consent conditions and the application of those conditions to the facts as set out in the affidavits and other supporting documents.
Discussion
[140] I accept the Council’s submission that the Environment Court did err in law in suggesting there was an onus on the Council to justify why it did not issue the s 224(c) certificate, particularly when the Council provided expert evidence which identified the deficiencies in the constructed works and which precluded issue of the s 224(c) certificate.
[141] While I accept that on a number of issues, the arguments were legal so the respondents did not need to adduce factual evidence of their own, their failure to do so was particularly important on the question of whether the gradient of the driveway complied, as I have outlined in the discussion of the fifth ground of appeal.
[142] Thus, while most of the issues turned on the legal submissions and so this error of law was not material to the decision on those issues, it did feed into the issue regarding compliance with the gradient requirements in the approved plans. On that issue, the Environment Court simply disregarded the Council’s evidence
demonstrating non-compliance, and yet did not require evidence from the respondents which demonstrated compliance.
[143]Accordingly, this ground of appeal, too, is upheld.
Seventh ground of appeal – failure to consider residual discretion
Appellant’s submissions
[144] The final ground of appeal advanced by the Council is that the Environment Court erred in law by failing to consider the scope of enforcement orders available under ss 314 and 319 of the RMA, or whether discretion should be exercised not to grant the order. Mr Dickey says even if the Environment Court is satisfied there is a breach of the RMA, it was still required to assess whether it was appropriate to grant the order having regard to its residual discretion in s 319 of the RMA. It did not engage with this issue and the failure to do so was an error of law.
[145] In support of this submission, Mr Dickey points to the High Court’s decision in Russell v Manukau City Council, where the Court held that the Planning Tribunal had erred in law when it failed to consider whether an order was appropriate, particularly where there that was a point in issue between the parties.35 Here, the question of whether an enforcement order could appropriately be made was identified as one of the two main issues for the Environment Court’s determination. The Council had submitted that the making of an order was not appropriate because the Council had bona fide concerns regarding the subdivision works which included compliance, public interest and safety issues. As this issue was squarely addressed by both parties, as a matter in dispute, the Court should have, but did not, engage with this issue and it gave no reasons for saying why it considered in its discretion, it was appropriate to grant the order. This, too, was an error of law.
Respondent’s submissions
[146] Mr Gresson, for the respondents, submits that the Council has not identified any alternative order the Court should have considered. Having established the correct
35 Russell v Manukau City Council HC Auckland HC54/95, 29 November 1995.
interpretation of the consent conditions and determined they were complied with, it was logical that the Environment Court would then proceed to make the enforcement orders sought. The outcomes were essentially binary in the respondents’ submission.
[147] Mr Gresson also takes issue with the relevance of the decision in Russell v Manukau City Council. In that case there was a spectrum of relief available, and the Court needed to turn its mind to where on that spectrum relief should lie if it found there to be a breach of the District Plan. The question of alternate relief did not arise in this case. Once the Court found the conditions to have been complied with, the only appropriate order to make in the circumstances was the enforcement order sought by the respondents requiring the Council to issue the s 224(c) certificate.
[148] Finally, if the issue is whether the Court should have made any orders at all, notwithstanding the Court’s findings, the respondents do not accept that it would have been appropriate to make no order. If all the conditions of consent have been complied with, there is no room for other factors to be introduced to justify a refusal to issue the certificate.
Discussion
[149] While it is true that the issue of whether it was reasonable and appropriate to make the order was contested by the Council, its notice of opposition stated that this was because:
(a)[the Council] has not committed any breach of the [RMA] as anticipated under the scope set out at s 314 of the [RMA];
(b)[the Council] submit that the works undertaken do not meet the minimum standards and have the potential to create hazards that would impact on public safety, which is why it could not pass inspections for a s 224(c) certificate; and
(c)an order would fetter Council’s powers (now and in the future) to inspect works and require construction in accordance with minimum standards.
The notice of opposition also went on to say that “an enforcement order is an inappropriate tool in this case”.
[150] The Council’s response therefore opposed an order being made relying on both the jurisdictional argument as to whether an enforcement order is available to require a Council to issue a s 224(c) certificate, and the factual dispute over whether the works met the standards required under the conditions of the consent. I do not read that response as identifying an alternative option to issuing an enforcement order if the Environment Court found against the Council on those issues. The key issues were whether there was jurisdiction to issue an enforcement order and whether there was a proper factual and legal basis for Council’s decision.
[151] In the circumstances, I do not consider this was a case such as Russell v Manukau City Council where the question of what order was appropriate was live, even if there was jurisdiction to make an enforcement order. Here, if there was jurisdiction and a factual basis to make an order, no alternative form of relief was proposed by the Council. It simply resisted the application on those grounds.
[152] In Russell v Manukau City Council it was accepted that “[w]here grounds for an enforcement order are made out, as they are here … I accept that it would only be in unusual circumstances that an order to effect immediate compliance would be refused.” Once the Environment Court had determined it had jurisdiction to make an order and a factual basis for doing so, there was no real alternative proffered. I therefore do not consider the Environment Court erred in failing to consider its residual discretion.
[153]Accordingly, this ground of appeal is dismissed.
Concluding observations
[154] It was apparent to me that the key, albeit not all of the difficulties which gave rise to these proceedings were created because:
(a)the Council did not ensure that all the requirements of the SCOP were incorporated in the approved engineering plans; and
(b)the Council’s inspector approved the pre-pour inspection of the accessway on 5 August 2022 on the erroneous assumption that an average gradient of 1:5 was approved through the EA process when in fact an average gradient of 1:6 was approved.
[155] However, not all blame can be put at Council’s feet. I accept there was also a responsibility on the developer to ensure that relevant requirements of the SCOP were incorporated in the plans submitted for approval or that exemptions were sought. They were not, leading to the unfortunate position where, through the mechanism of condition 8, further issues were picked up at the final inspection stage that required expensive further works or expert reports.
[156] While the Council’s errors during its administration of the consent process do not change the legal requirements on the subdivision consent holder, it seems to me these issues could properly be reflected in a reduction in costs payable by the respondents to the Council on the successful appeal.
Result
[157] The appeal is allowed. The Environment Court erred in law in deciding it had jurisdiction to make an enforcement order requiring the Council to issue a s 224(c) certificate. It also erred:
(a)in its interpretation of condition 8 of the subdivision consent by determining it had no residual legal effect once approval of the plans had been given under condition 11;
(b)in interpreting cls 3.3.4, 3.3.16.1 and 2.3.10 of the SCOP and in concluding they have no application to this certification process under s 224(c);
(c)in finding that the accessway complied with the approved plans, without an evidential foundation to support that finding; and
(d)in law in imposing a reverse onus of proof on the appellant to prove the respondents had not complied with subdivision consent RM 210066.
[158] Accordingly, the enforcement order made by the Environment Court on 15 March 2024 is quashed.
[159] As I have found there was no jurisdiction to make an enforcement order, I do not refer the matter back to the Environment Court. It is expected that the application for the issue of a s 224(c) certificate can be reconsidered in light of the observations made in this judgment as to the continuing application of condition 8.
Costs
[160] Costs are reserved. If costs cannot be agreed, including in light of my comments at [156] above, then an application for costs can be made. Any application for costs must be made within 20 working days of the date of this decision, with any response to be filed within a further 10 working days, and any reply within a further five working days.
[161]Costs will be determined on the papers unless I need to hear from counsel.
Solicitors:
Meredith Connell, Auckland
Todd & Walker Law Limited, Queenstown
Copy to:
B H Dickey, Barrister, Auckland
3
1