Raukawa Charitable Trust v South Waikato District Council
[2023] NZHC 2534
•11 September 2023
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
I TE KŌTI MATUA O AOTEAROA
TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE
CIV-2022-463-108
[2023] NZHC 2534
UNDER the Judicial Review Procedure Act 2016 IN THE MATTER
of a certificate of compliance under Section 139 of the Resource Management Act 1991
BETWEEN
RAUKAWA CHARITABLE TRUST
Applicant
AND
SOUTH WAIKATO DISTRICT COUNCIL
First respondent
AND
J SWAP CONTRACTORS LIMITED
Second respondent
AND
WAOTU QUARRIES LIMITED
Third respondent
Hearing: 23 August 2023 (Heard at Hamilton) Appearances:
B R Arapere, MME Wikaira and R K Douglas for applicant J A Gregory for first respondent
M H Hill and J L Hollis for second and third respondents
Date of judgment:
11 September 2023
JUDGMENT OF JAGOSE J
This judgment was delivered by me on 11 September 2023 at 3.30pm.
Pursuant to Rule 11.5 of the High Court Rules.
………………………… Registrar/Deputy Registrar
Counsel/Solicitors:
Bernadette Arapere, Barrister, Whanganui Whāia Legal, Wellington
Tompkins Wake, Hamilton
Cooney Lees Morgan, Tauranga
RAUKAWA CHARITABLE TRUST v SOUTH WAIKATO DISTRICT COUNCIL [2023] NZHC 2534 [11
September 2023]
[1] Raukawa Charitable Trust, as authority for Raukawa iwi (Raukawa), seeks my review of the South Waikato District Council’s (the council) 30 March 1999 issue of a certificate of compliance under s 139 (as it then stood) of the Resource Management Act 1991 (the Act) for J Swap Contractors Limited’s (the contractor) quarrying activities at Waotu Quarry (the quarry), owned by Waotu Quarries Limited (the quarry owner).
Background
[2] The quarry has operated since the middle of last century. Raukawa’s area of tribal interest (takiwā) encompasses the land comprising the quarry, within which is Pirauiti Pā overlooking the Waikato River at Lake Arapuni.
[3] Pirauiti Pā was rediscovered on land survey in 2014 and is of significance to Raukawa. It is an archaeological site in terms of the Heritage New Zealand Pouhere Taonga Act 2014, meaning at least it may not be modified or destroyed without appropriate authority under that Act.1
[4] Raukawa comprehends the pā site is being damaged by the quarry’s operation. Extensive discussion between Raukawa and the contractor and quarry owner has not resolved Raukawa’s concerns. Over the longer term, the contractor and quarry owner intend developing operations away from the pā site. They have sought comprehensive resource consents accordingly, expressly amended in recognition of this proceeding to be sought without regard for any ‘legal baseline’ as may be thought established by the certificate of compliance. In the meantime, they rely on the certificate.
[5]The issues for my determination accordingly are:
(a)was the certificate of compliance lawfully issued by the council; and
(b)if not, what should be done about it?
1 Heritage New Zealand Pouhere Taonga Act 2014, s 43(1).
The Resource Management Act 1991
[6]The overall scheme of the Act relevantly is to regulate use of land.
[7] At the time the certificate of compliance was sought and issued, s 9 of the Act prohibited use of land in contravention of a rule in a district plan unless expressly allowed by a resource consent or as an existing use under s 10. The council’s district plan did not permit quarrying activity. No resource consent allowed quarrying activity at the quarry.
[8]At the time, s 10 relevantly provided:
Certain existing uses in relation to land protected
(1) Land may be used in a manner that contravenes a rule in a district plan or proposed district plan if—
(a)… —
(i) The use was lawfully established before the rule became operative or the proposed plan was notified; and
(ii) The effects of the use are the same or similar in character, intensity, and scale to those which existed before the rule became operative or the proposed plan was notified:
…
and s 139 provided:
Consent authorities … to issue certificates of compliance
(1) Where a plan describes any activity as a permitted activity, or the activity could be lawfully carried out without a resource consent, in respect of any particular location, the consent authority shall, upon request and payment of the appropriate administrative charge, issue to any person who so requests a certificate that a particular proposal or activity complies with the plan in relation to that location.
(2) A consent authority may require an applicant for a certificate of compliance to provide further information relating to the request if, in the opinion of the consent authority, the information is necessary to determine whether the particular proposal or activity complies with the plan.
(3) Subject to subsection (5), no certificate of compliance may be issued where a proposed plan has been notified and the proposal or activity is not a permitted activity, or could not lawfully be carried out without a resource consent, in relation to that location in the proposed plan.
(4) A certificate of compliance shall describe the particular proposal or activity and the location concerned and be issued within 20 working days
of the receipt by the consent authority of the request, or of further information requested under subsection (2), whichever is the later.
(5) A certificate of compliance shall state that the particular proposal or activity was permitted, or could be lawfully carried out without a resource consent, on the date of receipt of the request by the consent authority.
(6) Subject to sections 10, 10A, and 20(2), a certificate of compliance shall be deemed to be an appropriate resource consent issued subject to any conditions specified in the plan, and the provisions of this Act shall apply accordingly, except that, with the exceptions of sections 120, 121, 122, 125, 134, 135, 136, and 137, this Part does not apply.
Approach to judicial review
[9] The subject of judicial review is “the exercise, refusal to exercise, or proposed or purported exercise by any person of a statutory power”.2 ‘Statutory power’ is defined.3 On judicial review, this Court assesses if the power is exercised “in accordance with law, fairly and reasonably”.4 If not, there only is limited relief the Court may grant, and it generally is discretionary.5
Discussion
—was the certificate of compliance lawfully issued by the council?
[10] It appears a practice developed among councils by which pre-existing lawful uses of land contravening subsequent district plan rules were granted certificates of compliance under s 139.
[11]In Duncan v Dunedin City Council, Chisholm J observed:6
It is simply impossible to reconcile the closing words in [s 10(1)] “that a particular proposal or activity complies with the plan in relation to that location” with the proposition that a certificate can be issued for existing uses. Rather than issuing a certificate that the proposal or activity complies with the plan in relation to that location, the certificate would effectively indicate the very opposite.
2 Judicial Review Procedure Act 2016, s 4.
3 Section 5.
4 New Zealand Fishing Industry Association Inc v Minister of Agriculture and Fisheries [1988] 1 NZLR 544 (CA) at 552.
5 Judicial Review Procedure Act, ss 16–19.
6 Duncan v Dunedin City Council (2004) 10 ELRNZ 315 (HC) at [24].
and determined the council there lacked jurisdiction to issue such a certificate.7 Subsequently, s 139A was enacted to enable councils’ issue of “existing use certificates”. Such certificates were to state some specified use of the land was allowed by s 10 and were to be treated as an appropriate resource consent.
[12] Nonetheless, for the contractor and quarry owner, Mary Hill argues Duncan was wrongly decided — in particular, as not having regard for relevant statutory history. She argues every use of land is coextensive with some activity described in the plan; there is no use of land that is an activity not described in the plan. She points to 'innominate activities” — “an activity which is not permitted but which requires a resource consent, but where the particular activity status has not been specified in the plan” — and the plan’s then r 19.8 “[a]ctivities that are not Permitted, Controlled or Discretionary will be Non complying” for assessment on performance standards and criteria stipulated in the plan.
[13] In its original drafting, s 139 provided only for certification of proposals for land use or subdivision as a permitted activity under a district plan, and the certificate as deemed a land use or subdivision consent granted subject to any conditions specified in the plan. Section 79 of the Resource Management Amendment Act 1993 repealed the section and substituted it with the presently relevant words, at subs (1) expanding certification to any permitted activity under the plan and materially also to enable certification of activities that “could lawfully be carried out without a resource consent”. Ms Hill emphasises that additional concept also appears at subs (3) and (5), respectively prohibiting certification of activities that “could not lawfully be carried out without a resource consent” and requiring certification of what activity “could lawfully be carried out without a resource consent”.
[14] On its proper construction and with particular reference to s 139(6)’s “[s]ubject to s 10”, Ms Hill submits s 139 is to be understood as qualified by s 10, which prevails in circumstances of conflict.8 In other words, an ‘existing use’ as accommodated within s 10(1) is an activity that ‘could lawfully be carried out without a resource
7 At [39].
8 Relying on C & J Clark Ltd v Inland Revenue Commissioners [1973] 1 WLR 905 (Ch) at 911 and J F Burrows Statute Law in New Zealand (3rd ed, LexisNexis, Wellington, 2003) at 301.
consent’ for the purposes of s 139. She adds that reflects sound policy and actual practice, as endorsed by enactment of s 139A.
[15] I do not read s 139 as referring to any use of land that could lawfully be carried out without a resource consent. Rather, s 139 is referring only to activities described in a plan. Section 9’s initial concatenation is important: no land may be used in contravention of a rule in a plan unless “allowed” by resource consent or existing use. The obverse is land may be used in compliance with a rule in a plan without requiring to be ‘allowed’ by resource consent or existing use.
[16] Section 76(3) explained rules in a plan may provide for “permitted activities, controlled activities, discretionary activities, non-complying activities, and prohibited activities”. A ‘permitted activity’ is “an activity that is allowed by a plan without a resource consent if it complies in all respects with any conditions … specified in the plan”; ‘controlled’, ‘discretionary’ and ‘non-complying’ activities each are “allowed only if a resource consent is obtained in respect of that activity” (and a ‘prohibited activity’ is “an activity for which no resource consent may be granted”).9
[17] Although ‘resource consent’ was defined relevantly to mean “[a] consent to do something that otherwise would contravene section 9”,10 it does not by that back door eliminate s 9’s distinction between resource consent and existing use. Existing use allowed by s 10 is no ‘consent’. Section 139(1)’s new reference to activities that could lawfully be carried out without a resource consent thus appears superfluous, as only permitted activities may be allowed by a plan without a resource consent. But it is reference expressly to “the activity” (emphasis added), meaning the activity described in the plan, and not ‘any’ use of land.
[18] Section 139(1) anticipates an applicant may seek certification a particular proposal or activity complies with the plan. Subsection (2) enables determination if the particular proposal or activity complies with the plan. Subsection (3) prohibits certification of proposals or activities not allowed in notified proposed plans. Hence certification is the proposal or activity complies with the plan. Subsections (4) and (5)
9 Resource Management Act, s 2 (as at 1 March 1994).
10 Resource Management Act, s 87(a) (as at 1 March 1994).
are mechanical provisions, stipulating the content of the certificate to include a description of the particular proposal or activity at a location and to state it either was permitted or could be lawfully carried out without a resource consent. Subsection (6) then deems such certificate an appropriate resource consent to which the Act’s provisions apply (excepting pt 6, making provision for other than such deemed resource consents).
[19]Section 139 accordingly makes provision only for one of s 9’s two ‘allowances’
— resource consent, and not existing use — by which land may be used in contravention of a rule in a plan. Critically, s 139’s focus is on an activity’s compliance with a rule in a plan. Although the section does not expressly require a decision-maker to determine if a particular proposal or activity complies with the plan, that is its necessary inference: “an application must satisfy the council that every aspect of the activity (positively) conforms with the relevant rules”.11
[20] Conversely, s 10(1) applies to uses of land in contravention of a rule in a plan. Such use in contravention of a rule in a plan plainly cannot be an activity allowed by the plan, for certification either as a permitted activity or able to be carried out without resource consent. Neither does s 10(1) refer to any certificate of compliance for deeming as an appropriate resource consent (and s 139(6) deems the consent is “issued subject to any conditions specified in the plan”, reinforcing it only is certifying activities allowed by the plan).
[21] Section 139’s alternative of activities that “could be lawfully carried out without a resource consent” accordingly is surplusage to guard against the possibility compliance with a rule in a plan may be achieved without resource consent in respect of other than permitted activities. The alternative interpretation impermissibly would be to drag contravening activities for consideration under a section as if complying activities.
11 Mawhinney v Waitakere City Council [2009] NZCA 335 at [28], referring to Wawatai v Hamilton City Council PT Hamilton W17/96, 26 February 1996; endorsed by Vipassana Foundation Charitable Trust Board v Auckland Council [2019] NZCA 100, [2019] NZRMA 380 at [28] and see also [90].
[22] So, s 139(6) being ‘subject to’ s 10 only can relate to subs (6)’s application of the Act’s provisions to deemed resource consents. ‘Subject to’ then is, if clumsily, to qualify the Act’s provisions applicable to deemed resource consents for compliant activities do not apply to use of land in contravention of a rule if, relevantly under s 10(1)(a), lawfully established before the rule became operative and the effects of the use are the same or similar in character, intensity and scale to those which then existed.12
[23] That construction is reinforced by the explanatory notes to the Resource Management Amendment Bill 1992, which assert s 139(6) covers “all consents” and is “to ensure that these certificates do not create existing use rights”.13 The note more generally explains:
At present, section 139 provides that a person can apply to a territorial authority for a certificate of compliance for land use and subdivision. It is used for permitted activities and provides some assurance that an activity is permitted
The new section extends the issuing of such a certificate to cover all permitted activities, including activities which are allowed under section 11 to 15 without having to get a resource consent, which may not always be expressly specified in a plan. The fundamentals of the section will remain the same but it will be more general in application. It will also now refer to activities as well as proposals so the individual activities can receive certificates where they are contained in a proposal that includes activities which are not permitted.
[24] The council’s issue of the certificate of compliance to the contractor therefore was unlawful.
—what, if any, relief should follow the finding of unlawfulness?
[25]The Court of Appeal explains:14
The nature of certificates of compliance and their role under the RMA is such that where it is established a certificate has been wrongly issued, the issues
12 See North Canterbury Clay Target Assn Inc v Waimakariri District Council [2016] NZCA 305, [2016] 3 NZLR 764 at [34] and [36]. (The Court of Appeal’s generic references to ‘certificates’ must be read contextually as reference either to certificates of compliance or existing use certificates, and not certificates of compliance for existing uses: compare [33] with [37].)
13 Resource Management Amendment Bill 1992 (212-1) (explanatory note) at xiii.
14 Vipassana Foundation Charitable Trust Board v Auckland Council, above n 11, at [93]–[95] (footnotes omitted), citing Air Nelson Ltd v Minister of Transport [2008] NZCA 26, [2008] NZAR
139 and GDS Taylor, Judicial Review: A New Zealand Perspective (4th ed, LexisNexis, Wellington, 2018) at [5.29].
relevant to whether the certificate should be set aside will not properly be limited to an assessment of the position of the holder of the certificate and the party or parties who have raised a legal challenge. If left in place the wrongly granted certificate will be effective to establish a right to use the land and create a permitted baseline that might affect persons not before the court (there has been no process of public notification, nor is there any right of appeal for a person claiming to be adversely affected), or people subsequently coming to the area. The issue of the certificate is in this sense a public act, and in this context, the authority’s obligation to reach the correct decision about whether the proposal complies must have special emphasis.
As the Judge recognised in the present case, ordinarily errors of law will result in the grant of a certificate of compliance being set aside. However, he also observed that that was not an absolute rule. In Air Nelson Ltd v Minister of Transport O’Regan J, delivering the judgment of this Court, said:
“Public law remedies are discretionary. In considering whether to exercise its discretion not to quash an unlawful decision or grant another remedy, the court can take into account the needs of good administration, any delay or other disentitling conduct of the claimant, the effect on third parties, the commercial community or industry, and the utility of granting a remedy.
Nevertheless, there must be extremely strong reasons to decline to grant relief. For example, in Berkeley v Secretary of State for the Environment [2001] 2 AC 603 (HL), Lord Bingham described the discretion as being ‘very narrow’ (at p 608) whereas Lord Hoffmann said cases in which relief would be declined were ‘exceptional’ (at p 616).
In principle, the starting point is that where a claimant demonstrates that a public decision-maker has erred in the exercise of its power, the claimant is entitled to relief. … ”
In his text Judicial Review: A New Zealand Perspective, Dr Taylor refers to Air Nelson Ltd as having established the “default position”. Other cases have said that where an error of law is involved refusal of relief will be “rare” and “[i]f some form of relief could have a practical value then it ought to be granted.” Although Dr Taylor refers to three subsequent cases which are said to depart from this principle in favour of a wider discretion, those cases were decided in contexts far different from the present. In our view, having regard to the nature of the powers and duties conferred in s 139 of the RMA, the discretion issue should be approached on the basis of the normal Air Nelson Ltd test.
In principle then, given my finding the certificate’s issue was unlawful, relief should be forthcoming absent “extremely strong reasons” to decline it.
[26] In reliance on Colley v Auckland Council,15 in which this Court declined to set aside errant consents (not certificates of compliance, to which Vipassana has application), the contractor and quarry owner resist my quashing or setting aside the
15 Colley v Auckland Council [2021] NZHC 2366 at [128]–[135].
certificate. They argue they have relied on the certificate continuously over the near quarter-century since its issue to obtain insurance, secure loans and provide business assurance. That impact of that delay is exacerbated by Raukawa’s reliance on precedent nearly 20 years old. Absent the certificate of compliance, the contractor and quarry owner risk enforcement action in conducting activities in contravention of the plan without confirmation of any existing use right. The quarry’s continuing operation in local, regional and national roading and construction interests, taken together with the sought resource consents, means relief lacks utility.
[27] I disagree. The council’s issue of the certificate of compliance “as a certifier of a state of affairs” was not done either on “readily apparent” grounds or with the required “great care”.16 At least since enactment of s 139A on 10 August 2005, it has been open to the contractor and quarry owner to seek an existing use certificate, if they can satisfy the council “the use of the land is a use of land allowed by section 10 on the date on which the authority issues the certificate”.17 It is at least arguable if that is the standard to which the council is to be taken to have been satisfied for issue of the certificate of compliance, the application not directly evidencing the use’s lawful establishment or its comparative effects of character, intensity and scale. “Special emphasis” cannot be made of the council’s satisfaction.18
[28] Moreover, s 139 as applied at the date of issue contained no provision comparable to s 139A(8) for the certificate’s revocation if obtained on the basis of any material inaccuracy. Any immunity from challenge to their operations obtained by the contractor and quarry from the certificate only can be as good as the existing use right on which they rely. Any uncertainty in the right’s application to present operations does not offer ‘extremely strong reasons’ to refuse relief. Rather, maintenance of the certificate affords arguably improper advantage to the contractor and quarry owner if conferring something their existing use right did not;19 conversely, even without the certificate of compliance, they continue to have the benefit of their existing use right
16 Vipassana Foundation Charitable Trust Board v Auckland Council, above n 11, at [92].
17 Resource Management Act, s 139A(4)(a).
18 Vipassana Foundation Charitable Trust Board v Auckland Council, above n 11, at [93].
19 See Hojsgaard v Chief Executive of Land Information New Zealand [2019] NZCA 84, [2019] 2 NZLR 864 at [104]–[105].
in its terms.20 Either aspect may have implications in determination of the contractor’s and quarry owner’s applications for resource consent, notwithstanding their amendment.21
Result
[29] The council’s 30 March 1999 certificate of compliance for the contractor’s quarrying activities at the quarry is set aside.
Costs
[30] In my preliminary view — given the council’s longstanding error, justifiably relied on by the contractor and quarry owner — costs should lie where they fall or fell; that is, to be borne by the party incurring them. If that is not accepted by the parties and they cannot otherwise agree, costs are reserved for determination on short memoranda each of no more than five pages — annexing a single-page table setting out any contended allowable steps, time allocation and daily recovery rate — to be filed and served by Raukawa within ten working days of the date of this judgment, with any response or reply to be filed within five working day intervals after service.
—Jagose J
20 See North Canterbury Clay Target Assn Inc v Waimakariri District Council, above n 12, at [33], in which the Court of Appeal was diminutive about the utility of existing use certification.
21 See [4] above.
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