SAI 1 Trust v Auckland Council
[2019] NZHC 2808
•31 October 2019
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2019-404-299
[2019] NZHC 2808
IN THE MATTER of the Judicial Review Procedure Act 2016, the Judicature Amendment Act 1972 and Parts 5 and 30 of the High Court Rules. On an application for judicial review of a
decision under the Resource Management Act 1991BETWEEN
Madhav Hari Karmarkar, Siri Madhav Karmarkar and Jayashree Corporation Ltd as trustees of the SAI 1 TRUST
Applicant
AND
AUCKLAND COUNCIL
Respondent
Hearing: 29 October 2019 Appearances:
Applicants in person
A R Govind and F Mohammed for Respondent
Judgment:
31 October 2019
JUDGMENT OF LANG J
[on application for judicial review]
This judgment was delivered by me on 31 October 2019 at 3.30 pm, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar Date……………
SAI 1 TRUST v AUCKLAND COUNCIL [2019] NZHC 2808 [31 October 2019]
[1] The applicants in this proceeding are the trustees of the SA1 Trust (the Trust). In that capacity they own a residential property situated at 325 Mount Albert Road in Mount Roskill. They wish to convert an existing dwelling at the rear of the property into three units.
[2] In September 2018 the Trust lodged an application for a resource consent with the Auckland Council (the Council) to enable the development to proceed. The Council subsequently sought further information from the Trust regarding a variety of issues that the application raised. By 30 November 2018 all but one of these had been resolved.
[3] The outstanding issue related to a surveyor’s certificate the Council sought from the Trust so it could be satisfied the proposal did not infringe viewshaft restrictions contained in the Auckland Unitary Plan (AUP). This issue arose because the Trust’s property lies within an identified Volcanic View Shaft Overlay for the volcanic cone situated at Mount Albert. The AUP requires building works that are carried out in the vicinity of volcanic cones in the Auckland region to remain below a certain height so they do not obstruct the views of volcanic cones currently enjoyed by other properties in the area.
[4] By 30 November 2018 the Trust had not supplied the surveyor’s certificate. The Council advised the Trust on that date that its failure to provide the certificate meant the application for resource consent would need to proceed on a notified basis. The Trust seeks judicial review of that decision.
Background
[5] The proposed development was the subject of an earlier dispute between the Trust and the Council. This resulted in proceedings in the Environment Court. These were ultimately settled when the Council and the Trust entered into a settlement agreement on 30 May 2018. One of the terms of the agreement was that the Trust would lodge a fresh application for resource consent. This resulted in the application for resource consent that led to the present proceeding.
[6] The application for resource consent was processed by Ms Huda Majeed, a senior planner employed by the Council. She held delegated authority to make decisions in relation to resource consents on behalf of the Council. She was also the Council officer responsible for the decision requiring the application for the Trust’s resource consent to proceed on a notified basis.
[7] On 5 October 2018, Ms Majeed sent Ms Hailey Kim, an employee of the Trust’s planning consultant, a letter seeking further information under s 92 of the Resource Management Act 1991 (the Act). This letter raised the following issues in relation to compliance with the volcanic viewshaft provisions in the AUP:
Volcanic Viewshafts
3. Please provide a survey certificate to confirm compliance of the new addition with the viewshaft. The surveyor can rely on the coordinates of the viewshafts in Schedule 9 of the AUP for the purposes of providing accurate survey of the subject site in relation to the viewshafts. Please note that GIS maps in AUP(OP) contain indicative contour lines showing the height of the viewshaft above ground level. Please note non-compliance with the viewshaft would require public notification of your application under D14.5 and hence reliable information from a surveyor is required demonstrating compliance of this aspect of the proposal.
[8]The letter concluded:
Deadline for Response
You must provide this information within 15 working days being 26 October 2018. If you are unable to provide the information within 15 working days, then please contact the reporting planner named below so that an alternative timeframe can be mutually agreed.
If you do not respond within 15 working days, refuse to provide the information or do not meet an agreed alternative timeframe between Council and yourself, this application must be publicly notified as required by section 95C of the Resource Management Act 1991.
This deadline will be strictly enforced given the previous compliance
issues on this site and queries around the legal establishment of existingunits.
…
[9] On 18 October 2018, the Council agreed to a request by the Trust for an extension of time until 31 October 2018 to provide the information the Council had
requested. Section 37(1)(a) of the Act permits a consent authority to extend any time period prescribed by the Act.
[10] On 31 October 2018, the Trust provided the Council with a significant body of material responding to the issues Ms Majeed had raised in her letter dated 5 October 2018. This included a topographical survey plan and the following letter from the Trust’s surveyor dealing with the viewshaft issue:
Dear Ms Majeed,
BUILDING COMPLIANCE CHECKING FOR PROPOSED ADDITION
Site Address: 325 Mount Albert Road, Mt Roskill
Legal Description: Lot 8 DP 27258 Resource Consent Number: LUC60326659
As requested, we have checked the compliance of the design of the building from the view or proposed building height and the height of volcanic view shaft.
Topographical survey was carried out by Catobolam Consultants Limited and the ground levels are shown on the building plans. The heights of the building in all corners were calculated from the surveyed ground level and rolling height of volcanic view shaft is also shown [on] the plan.
Based on the building height assessment against the volcanic view shaft, the following infringements are identified;
- The access area for roof terrace, which has walls on four sides and mono pitch roof.
- The sizes of infringement; 1291mm high, 6.0m length and 2.2m width.
We can certify on reasonable ground that the infringement identified on the plans can be kept to the sizes identified in attached plan if the building is constructed in accordance with these plans with high accuracy.
…
[11] Ms Majeed responded to the information provided by the Trust in an email dated 14 November 2018. This contained the following comments regarding the material the Trust had provided:
…
Point 3:
Point 3 in sec 92 letter dated 5/10/2018 required the following:
Please provide a survey certificate to confirm compliance of the new addition with the viewshaft. The surveyor can rely on the coordinates of the viewshafts in Schedule 9 of the AUP for the purposes of providing accurate survey of the subject site in relation to the viewshafts. Please note that GIS maps in AUP(OP) contain indicative contour lines showing the height of the viewshaft above ground level. Please note non-compliance with the viewshaft would require public notification of your application under D14.5 and hence reliable information from a surveyor is required demonstrating compliance of this aspect of the proposal.
My comments:
This point is not satisfied.
You have provided a topographical plan prepared by Catobolam Consultants Ltd, that shows the contour lines based on the ground levels, but not the viewshafts. Please note that these are two different topics, as the viewshaft (plural viewshafts) is a gap between buildings or other visual obstructions that allows a view of something scenic, while the contour lines are used to determine elevations and are lines on a map that are produced from connecting points of equal elevation (elevation refers to height in feet, or meters, above sea level).
As mentioned in my letter dated 5/10/2018, your surveyor will need to rely on the coordinates of the viewshafts in Schedule 9 of the AUP for the purposes of providing accurate survey of the subject site in relation to the viewshafts.
Please provide a plan showing accurate viewshafts based on the coordinates in Schedule 9 of the AUP and reflect this in your plan entitled “Side Elevation of Unit 325, 325A & B”, to proper line in the sky based on the accurate viewshafts and confirm compliance with the view shafts.
I have also noted that the above plan has shown 9m Rolling Height, which is not right, as the building height limit is 11m in Mixed Housing Urban zone. Refer to H5.64. Please correct this accordingly.
[12]The email sent on 14 November 2018 concluded with the following advice:
Please note that if the information required above is not provided to Council [sic] satisfaction by Friday 23 November 2018 this application will be publically [sic] notified under s95C and s95A(3)(b) [of the Resource Management Act 1991].
[13] On 23 November 2018, Ms Kim forwarded further material to the Council in response to this email. There is no dispute that this resolved all outstanding issues other than that relating to the surveyor’s certificate. On the latter point, Ms Kim advised:
We are still awaiting the surveyor’s response and will send you [sic] as soon as we get the response.
[14] Ms Majeed did not respond to this email. On 30 November 2018, however, she sent the following email to Ms Kim:
Hi Hailey
Further to my email below (dated 14/11), the timeframe for responding to s 92 requests has expired.
As such, the application must now proceed on a publicly notified basis. Please find attached the letter relating to this.
An invoice will be sent in due course.
[15]The letter to the Trust that accompanied this email was in the following terms:
Dear Hailey
Resource consent application – no response to further information request – public notice
Application number: LUC60326659
Applicant: Madhava Corporation Limited
Proposed activity(s): Land use consent to convert the existing dwelling into
seven units by adding or altering the existing dwelling and legalising units in front dwelling.
Site Address: 325 Mount Albert Road, Mt Roskill, Auckland, 1041
An email was sent to you on 14 November 2018 advising of the public notification of your application if you failed to provide the information requested under section 92 of the Resource Management Act 1991 (the RMA).
As you have not provided satisfactory information by Friday 23 November 2018 as requested in the email above, please be advised that (under sections 92 and 95C of the RMA) your application must now proceed on a publicly notified basis.
Before your application can be publicly notified, council requires the payment of the notification deposit of $20,000. Until the required payment is received, processing of your application will cease, as provided for under section 36(7) of the RMA.
…
[16] Over the next two weeks further correspondence ensued between the Council and the Trust’s planning consultant but matters were not resolved. The Trust subsequently filed this proceeding on 21 February 2019.
Grounds of review
[17]The Trust advances three broad grounds of review.1 They are:
1.The Council should have used its own resources to determine that the proposed development would not infringe the volcanic viewshaft requirements imposed by the AUP.
2.The Council was wrong to decide that the proposed development failed to comply with the viewshaft requirements of the AUP; and
3.The Council failed to give the Trust adequate time to respond to the issues the Council raised in its letter dated 14 November 2018.
Should the Council have used its own resources to determine whether the proposed development infringed the viewshaft requirements imposed by the AUP?
[18] The Trust contends it provided the Council with sufficient information to enable it to determine whether the proposed development infringed the viewshaft requirements of the AUP. The Trust relies for this submission on the fact that the Council “is a public organisation; having enough resources to carry out this task”.
[19] Before a consent authority such as the Council can consider whether an application for resource consent should be notified, it must be in possession of sufficient reliable information to be able to make that decision on an informed basis.2
1 The statement of claim also contained a ground of review based on the fact that the Council sent a copy of its decision to Mr Madhav Karmarkar’s company Madhava Corporation Ltd and not to the individual trustees. The Trust did not advance submissions on this ground at the hearing and I take it to have been abandoned. The argument could not succeed in any event because the Council’s letter was addressed to Ms Kim, the Trust’s planning agent who handled the application for the Trust.
2 Discount Brands Ltd v Westfield (New Zealand) Ltd [2005] NZSC 17, [2005] 2 NZLR 597 at [114] per Blanchard J; Auckland Council v Wendco (NZ) Ltd [2017] NZSC 113, [2017] 1 NZLR 1008, at [84] per Glazebrook and Arnold JJ.
Issues of practicality and policy suggest the onus is on the applicant to provide that information. In practical terms the information will generally be held by the applicant and not the consent authority. In terms of policy, it is appropriate that the cost of providing the information should be borne by the applicant and not the ratepayer.
[20] Consent authorities nevertheless have the ability to ensure they obtain sufficient reliable information through the exercise of their powers under s 92 of the Act to require an applicant to provide further information within 15 working days. Where such a request is made, the period within which the authority is required to determine the application is suspended.3
[21] In the present case the topographical plan that the Trust provided to the Council on 31 October 2018 did not in any event allow the Council to determine whether the development complied with the viewshaft provisions of the AUP. As the Council pointed out in its letter dated 14 November 2018, survey work needed to be undertaken to determine that issue. The topographical plan relied upon contour lines based on ground levels rather than the viewshaft coordinates set out in Schedule 9 to the AUP. For the reasons I have given the Council was under no obligation to meet the cost of undertaking its own survey to determine whether the proposed development complied with the restrictions imposed by the AUP. That exercise needed to be undertaken by the Trust. This ground of review fails as a result.
Was the Council wrong to contend the proposed development failed to comply with the viewshaft requirements of the AUP?
[22] Chapter D14 of the AUP governs the Volcanic Viewshaft and Height Sensitive Area Overlay. As I have already observed, the purpose of the overlay is to protect significant views of volcanic cones in the Auckland region through the use of viewshafts and height sensitive areas. Under Chapter D14, buildings that intrude into a regionally significant viewshaft require restricted discretionary activity consent up to nine metres in height, beyond which they constitute a non-complying activity. Where an application for resource consent relates to a building that does not comply
3 Resource Management Act 1991, s 88C(2).
with this standard, Chapter D14.4.1 (A6) requires the application to be publicly notified.
[23] In practical terms the Council endeavours to ensure compliance with the viewshaft restrictions by requiring an applicant for resource consent to provide a surveyor’s report or certificate in cases where the activity for which consent is sought will occur within a zone subject to those restrictions. Without such a report or certificate the Council cannot undertake an appropriate assessment of the activity status. The report or certificate is therefore essential to enable the Council to determine whether the proposed activity will breach or comply with the requirements set out in Chapter D14.
[24] The Trust contends the evidence now available demonstrates the Council was wrong to determine that the proposed development exceeded the height requirements imposed by the AUP for volcanic viewshafts. It has provided evidence by two planning experts setting out their opinions on this issue. I put to one side the evidence of Mr Visvanathan Ragunathan because, although his affidavit purports to be filed in reply to the Council’s evidence, that is plainly not the case. Mr Ragunathan’s affidavit also contains hearsay evidence about events that occurred between 23 and 30 November 2018.
[25] The Trust has also filed an affirmation by Mr Hamish Hey, a senior planner employed by a land development consultancy group. I accept Mr Hey has relevant planning experience and expertise to give expert evidence about the issues raised in his affidavit.
[26] Mr Hey deposes that the Trust’s development will not be in breach of the maximum height requirements for residential properties in the Residential-Mixed Housing Urban Zone of the AUP in which it is located. More importantly, he provides the following evidence about compliance with the viewshaft requirements of the AUP:
10.Field work was conducted using modern digital surveying equipment and calibrated to the Mt Eden Datum. Once downloaded into a CAD program, the CAD file of the buildings from the architect was added in a 3D format enabling the topo[graphical] survey with contours to be illustrated around the existing building with additions (Exhibit C).
Of note is the ground level surveyed is deemed to be the ground level as existed on 23 November 23013 in accordance with the Definitions of Ground Level from Page 49 of the AUP Definitions.
11.A 3D Terrain shape was created of the Volcanic View Shaft Plain using the reference datum points of the View Shaft A7-Mt Albert from the AUP and added to the CAD file. This enables Exhibit D to document the clearance of the proposed building additions (and its upper stair bulkhead extension) at the four corners of the roof structure. The clearance of these from the view shaft is detailed on two cross section lines (A-A and B-B) being the roof eaves and dimensions the clearance at the upslope and downslope corners.
…
17.Exhibit D (CLC Ref: 20556-L103A) demonstrates the clearance of the building below the specified Volcanic View Shaft Plain created by the datum points from Schedule 9 of the Plan at a distance of:
·Section A-A: A clearance of 0.50m-0.51m on the South West side of the structure
·Section B-B: A clearance of 0.45m on the North East side of the structure.
These figures are rounded to two decimal places
[27] The Council may well have been prepared to accept that the proposed development complied with the viewshaft requirements of the AUP if the Trust had provided it with Mr Hey’s findings in response to the issues raised in the Council’s letter dated 14 November 2011. It appears to be the type of information the Council was seeking from the Trust to ensure the proposed development complied with those requirements.
[28] Unfortunately, however, the Council was not aware of Mr Hey’s conclusions until the Trust filed his affirmation in support of its application for judicial review. Mr Hey does not say when his firm carried out the surveying work to which he refers in his affidavit. He affirmed his affidavit on 30 April 2019, however, so it is likely the work was carried out at some stage between the date on which the Trust filed this proceeding and 30 April 2019. This means it took place several months after the Council had determined the application needed to proceed on a notified basis.
[29] The fact that the Trust may now be able to establish that the development complies with the viewshaft requirements in the AUP has no bearing on the issue to
be decided in this proceeding. The sole issue in this proceeding is whether the Council was able to require the application for resource consent to be publicly notified because the Trust had failed to supply it with the required information by 30 November 2018.
[30]This ground of review fails as a result.
Did the Council fail to give the Trust adequate time to respond to the matters raised in its letter dated 14 November 2011?
[31]Section 92(1) of the Act provides as follows:
92 Further information, or agreement, may be requested
(1) A consent authority may, at any reasonable time before the hearing of an application for a resource consent or before the decision to grant or refuse the application (if there is no hearing), by written notice, request the applicant for the consent to provide further information relating to the application.
…
[32]Section 92A then relevantly provides:
92A Responses to request
(1)An applicant who receives a request under section 92(1) must, within 15 working days of the date of the request, take 1 of the following options:
(a)provide the information; or
(b)tell the consent authority in a written notice that the applicant agrees to provide the information; or
(c)tell the consent authority in a written notice that the applicant refuses to provide the information.
(2)A consent authority that receives a written notice under subsection (1)(b) must—
(a)set a reasonable time within which the applicant must provide the information; and
(b)tell the applicant in a written notice the date by which the applicant must provide the information.
…
[33] Section 95A of the Act sets out the steps a consent authority is required to follow in determining whether to publicly notify an application for resource consent. The first step includes a requirement that an application be publicly notified where public notification is required under s 95C. Section 95C(2) requires an application to proceed on a notified basis if a consent authority has requested the applicant to provide further information under s 92 but the applicant does not provide the information prior to any deadline imposed by the authority.
[34] In the present case the Council initially gave the Trust until 26 October 2018, or the required 15 working days, to provide the information requested in its letter dated 5 October 2018. As I have already recorded, it subsequently agreed to the Trust’s request for an extension until 31 October 2018. Following receipt of further material from the Trust on that date the Council required the Trust to provide the information sought in its letter dated 14 November 2018 by 23 November 2018. This amounted to seven working days.
[35] The Trust contends that the information sought by the Council in its letter dated 14 November 2014 was confusing or ambiguous. I make two points about that submission. First, the Trust’s planning consultant and surveyor did not question the nature or scope of the information sought by the Council when they received the Council’s letter. Secondly, I consider the letter to set out quite clearly the Council ’s requirements in relation to the surveyor’s certificate. In particular, it described the process the surveyor would need to undertake in order to produce an acceptable certificate.
[36] I acknowledge that the time for compliance imposed in the letter dated 14 November 2018 was not a lengthy period, but the Trust had already had 27 working days within which to provide the information sought in the Council’s letter dated 5 October 2018. It also needs to be borne in mind that the information sought by the Council on 14 November 2018 was not new. It was the same as that sought in the Council’s letter dated 5 October 2018.
[37] Furthermore, the time limit imposed in the letter dated 14 November was obviously sufficient to enable the Trust to provide information that satisfied all of the
Council’s other outstanding queries. In addition, another four working days passed before 30 November 2018, when the Council ultimately advised the application would need to proceed on a notified basis. In total, therefore, the Trust had 31 working days within which to supply the information the Council initially sought in its letter dated 5 October 2018.
[38] The only issue that gives cause for potential concern arises out of the fact that the Trust was plainly still waiting for a response from its surveyor as at 23 November 2018. To that extent its ability to comply with the 23 November deadline may therefore have been outside its control.
[39] I consider, however, that the Trust must bear primary responsibility for what subsequently occurred. It was on notice that it needed to provide all outstanding information by 23 November 2018 if it was to prevent the Council from requiring the application to proceed on a notified basis. The Trust should therefore have ascertained from its surveyor when the outstanding certificate was likely to be available. The Trust would then have been able to seek a further extension from the Council until that date. It would have been unreasonable, in my view, for the Council to have refused a further short extension given the difficult background to this matter and the fact that all other matters had been resolved. With the benefit of hindsight it was therefore unwise for Ms Kim to have left the issue of when the surveyor’s certificate would be available on such an uncertain and open-ended basis.
[40] I also accept it would have been a relatively simple matter for the Council to make enquiries of the Trust to ascertain when it expected the surveyor’s certificate to be available. It could then have granted a further extension of time until that date provided it was not too far in the future.
[41] If the Trust had produced an acceptable surveyor’s certificate within a short period of time after 30 November 2018 I may therefore have found that the Council acted unreasonably in requiring the application to proceed on a notified basis. Such a finding is precluded, however, because the Trust never produced the surveyor’s certificate that the Council sought. Instead, it immediately argued that the Council
had acted precipitately in requiring the application to be publicly notified. It never addressed the issue of when the certificate might be available.
[42] It follows that the Trust did not provide the information sought by the Council within the stipulated time. The Council was accordingly required under s 95C(1) and
(2) to publicly notify the application for resource consent.
Result
[43]The application for judicial review of the Council’s decision is dismissed.
Costs
[44] The Council has succeeded in defending the application and is therefore entitled to an award of costs in its favour. The parties agreed in a joint memorandum filed on 29 April 2019 that costs should be categorised on a 2B basis. My tentative view is therefore that the Council should receive costs calculated on that basis together with disbursements as fixed by the Registrar. If either party takes a different view it should file a concise memorandum (ie no more than three pages in length) and I will give further directions for the filing of a memorandum in response. I will then deal with the issue of costs on the papers.
Lang J
Solicitors:
Auckland Council, Auckland Copy to Applicant
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