Salis v Dunedin City Council
[2017] NZHC 2281
•20 September 2017
IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY
CIV-2017-412-000023 [2017] NZHC 2281
BETWEEN SERGIO SALIS AND
CHRISTOPHER ROBERTSON Appellants
AND
THE DUNEDIN CITY COUNCIL First Respondent
FILLEUL APARTMENTS JV LIMITED Second Respondent
Hearing: 18 July 2017 Appearances:
L A Andersen for Appellants
R J Brooking for First Respondent
C S Withnall QC for Second RespondentJudgment:
20 September 2017
JUDGMENT OF GENDALL J
Introduction
[1] This is an appeal against a decision of the Environment Court. That decision upheld the granting by the Dunedin City Council (the Council) of a resource consent to the second respondent Filleul Apartments JV Limited (Filleul) to construct and use a non-complying apartment building on a property in central Dunedin, being 19
Filleul Street (the site). The appellants, Sergio Salis and Christopher Robertson, own a neighbouring property immediately to the North and uphill of the site, out of which they operate a specialist dental practice. This property (34 London) is at 34 London Street, Dunedin and is known as Vero House. The essence of the dispute and the appellants’ main opposition to Filleul’s proposals here are that the development includes excavation up to the boundary with the appellants’ property at 34 London.
The appellants’ objection chiefly raises concerns that the proposed excavation works
SALIS v DUNEDIN CITY COUNCIL [2017] NZHC 2281 [20 September 2017]
on the boundary between the properties will cause damage to their building Vero House and/or their car parks. They also have a complaint, not pursued in this appeal with any vigour however, over what is said to be the loss of natural light to their building.
[2] Resource consent is required here for earthworks generally because the proposed earthworks exceed the limits under r 17.7.3 of the Dunedin City District Plan (the City Plan) as a permitted activity, and therefore Filleul’s application is subject to r 17.7.5 for a restricted discretionary activity.
Background
The proposal
[3] Filleul in its proposed development wishes to build what is a four storey residential apartment building on the site. The apartment building will contain 15 one bedroom and 10 two bedroom apartments. The development proposal includes excavation up to the boundary with 34 London. There are retaining walls supporting the appellant’s property on or adjacent to the common boundary. Vero House on
34 London is adjacent to and uphill of the site.
[4] Filleul’s proposed apartment building would have two blocks linked by a centralised courtyard accommodating stairwells and a lift. The floor configuration is proposed to be:
(a) The Lower Ground Level (level 1) of the complex is designed to accommodate 10 car parks and a number of storage lockers available for use by the owner-occupiers of the apartments. Vehicle entry to the basement level car parks is to be provided off Filleul Street. Five apartments will be located on the basement level. There is also pedestrian access to George Street via Cambria Place.
(b) Level 2 accommodates 10 single bedroom apartments.
(c) Levels 3 and 4 accommodate 10 split level maisonette and two bedroom apartments. For each apartment, living areas are located om Level 3 and the bedrooms located in Level 4.
[5] As I have noted, Vero House on the appellants’ property at 34 London sits uphill on the northern boundary of Filleul’s site and the proposed development. It is cantilevered over the steep decline of Filleul Street. The base of the Vero House building is propped up by piles and stabilised by the retaining wall on the northern side of the proposed development. The existing retaining wall encroaches into the Filleul property so it cannot be removed without the appellants’ consent. The appellants have not consented to any intrusion onto their property at 34 London or to the replacement of the existing retaining wall.
The Council’s decision to grant consent
[6] On 21 April 2016, the Consent Hearing Committee of the Council (“the Committee”) granted consent to Filleul’s proposed development. The decision was based on this consent being granted for a residential activity. On issues of earthworks, the Committee said it was satisfied with the level of information provided. It considered there had been sufficient information provided to allow an adequate assessment of the implications of the work, and to satisfy it that adverse effects could be adequately managed through detailed design and supervision by an engineer. The Committee was of the view that appropriate engineering supervision during the construction process was adequate here and could be secured through the consent conditions it had imposed.
[7] In relation to the appellants’ concerns over what was said to be unlawful delegation of its powers, the Committee decided that, rather than plans being submitted to its Resource Consent Manager for approval, a report on proposed methods to manage site stability would first be peer reviewed and then provided to the Council instead. The Committee considered that this would ensure that stability of adjoining sites would be given proper consideration during the construction phase.
[8] The initial consent was subject to 21 Conditions, many of which were imposed to address issues of earthworks and to ease concerns expressed by the
appellants. Minor amendments, however, were made to the conditions later, including the adding of new conditions. I set out the relevant conditions later.
The Environment Court Decision
[9] The appellants appealed the 21 April 2016 decision of the Committee, a decision given on behalf of the Council, to the Environment Court. In a judgment delivered on 2 March 2017, the Environment Court confirmed the decision of the Committee.1
[10] In giving its decision, the Environment Court addressed the issue of what were the likely and less likely effects of Filleul’s proposal. In doing so, it considered the effects it would have on the Vero Building and 34 London Street.2 The Environment Court noted that construction of the basement floor level of Filleul’s proposed building required the excavation of some 150 cubic meters of material from the north-western corner with 34 London and along much of the northern boundary with the appellants’ property and also along some of the western boundary with Filleul Street. Originally there were three construction options referred to:
Option 1:temporary sheet pile retaining located in the neighbouring driveway;
Option 2: build the new building wall in front of the existing wall; and
Option 3:tie back the existing walls and progressively excavate the new wall.
[11] On these aspects, the Environment Court held:
[44] The proposed development requires the excavation of up to 2 meters in the northwestern corner adjacent to the street and to the neighbouring property at 34 London Street. The developer proposes to replace the existing retaining walls with new ones located on the northern and western boundaries. We were not provided with the designs for these new walls nor with the details of the proposed construction methodology. However, in a joint witness statement the professional engineers for the applicant and the
City Council, Messrs Macknight and Paterson, respectively agreed that “any of these retaining wall options could safely be engineered” and that “normal approval of the engineering behind the retaining wall and foundation options would be anticipated through the building consent process.
[12] However, a fourth option was developed by Mr Robinson, a professional engineer who gave evidence for the appellants. He suggested that there was a further construction option that would not intrude into the appellants’ property and would allow the construction of the retaining wall on the boundary. The methodology involved a number of steps. First, this would involve bracing the existing walls from the site. Secondly, it would require sequentially removing a section of the existing retaining wall and replacing it with a precast section of a new wall temporarily braced from Filleul’s property. And thirdly, this would enable progressive construction of the foundations for the new wall. Significantly, all three professional engineers who gave evidence agreed that this fourth construction option was practicable.
[13] On these issues, in its decision the Environment Court accepted first, that engineering design for the retaining walls was required to be undertaken by a professional engineer experienced in the work and secondly, that details would be checked by the Council when exercising its responsibilities under the Building Act
2004.3 As to questions over the temporary construction effects of the earthworks, the
Court found also that:4
… a method of construction that allows a new wall to be constructed on the northern boundary without intruding into the neighbouring property at
34 London Street is practicable. To ensure that a condition prohibiting any significant effect on, intrusion into or reliance on the neighbouring property
at 34 London Street would be appropriate. Similarly, the construction methodology for retaining the wall on the western boundary with Filleul Street must prevent disturbance to services in the footpath and provide for
reinstatement of any damage to the footpath.
[14] In evaluating concerns the appellants had expressed, the Environment Court went on to hold:
[71] While we have careful regard to what these witnesses said, the question of adequacy of the design of the walls for the purpose of considering FAJVL’s application, is ultimately an issue for the engineering
witnesses and of proportionality for the court to decide. We have recorded that none of them had concerns. The question is: does the court have sufficient information to be able to determine the relevant effects of the application? In this case, we find that there is sufficient information on which the engineers can base their opinions and we in turn can rely on those. Further, we accept the submissions of counsel for the City and for FAJV that the City Plan’s discretion rather duplicates the requirements of the Building Act 2004, so we place little weight on the absence of designs for the retaining structures.
[15] In the Environment Court’s concluding remarks, it noted that the Resource Management Act 1991 (the RMA) is not a risk-free statute.5 While the Court acknowledged that there are minimal risks from Filleul’s development proposal for the site, the risks were aptly mitigated by the conditions imposed, including the need for Filleul to take out public liability insurance. The Environment Court also cited MacLaurin v Hexton Holdings Limited where the Court of Appeal held that “what consent authorities are concerned with is the proposed activity’s effect, not the nature of the applicant’s legal rights or interest in the particular land.”6 Focussing on the potential effects of the proposed activity, the Environment Court concluded in its decision that the Council and its Committee did not err in granting the consent.
[16] In giving its 2 March 2017 decision, the Environment Court stated specifically:
[81] Weighing all the relevant considerations including the amendments to conditions proposed by Ms Brooking, counsel for the City Council, we conclude that the objectives and policies of the City Plan would be better achieved by granting (subject to the proposed conditions) than refusing consent and will make orders accordingly.
[17] Later, on 19 June 2017, The Environment Court issued a Final Decision confirming proposed amendments to the conditions imposed in granting the consent.7 In the end, the consent was granted subject to 24 conditions. Almost half of these appear to be related to addressing the appellant’s concerns. The conditions largely relevant to this appeal would seem to be:
1.The proposed activity shall be undertaken in general accordance with the site plan, elevations and the information provided with the revised resource consent application received by the Council on
5 Above n 1 at [78].
6 MacLaurin v Hexton Holdings Ltd [2008] NZCA 570 at [47].
3 February 2016, and the evidence and submissions provided at the resource consent hearing on 18 and 23 March 2016 and the evidence before the court on 21 December 2016, except where modified by the following conditions.
2.The consent holder shall undertake all construction related activities in accordance with the Construction Management Plan attached as appendix 1 of this consent. In addition the consent holder shall provide the following construction related information:
…
c)Details of consultation undertaken with the owners and occupiers of 95 Filleul Street, 34 London Street and the car park at 333A George Street in relation to the Construction Management Plan and the responses to any issues raised regarding the report required under Condition 3 below.
3Prior to any development works commencing on the site the consent holder shall submit a geotechnical/engineering report to the Resource Consent Manager prepared by a suitability qualified professional. The report shall confirm the foundation depth of existing structures on adjoining sites and assesses the potential for instability on adjoining properties during construction works. The report shall detail a best practice specification for managing the construction works to ensure the stability of adjoining sites throughout the construction period included the management of temporary excavation slopes.
4.Prior to any development works commencing on the site the report required in Condition 3 above shall be subject to an independent peer review from a suitably qualified professional. The report and the independent peer review are to be provided to the Resource Consent Manager, and the owners and occupiers of 95 Filleul Street,
34 London Street and 333A George Street.
5.The best practice specification identified in the report required under condition 3 shall be implemented as specified in the report throughout the construction period and the works are to be supervised by appropriately qualified persons.
6.All construction activities are to be implemented in a manner that maximises the protection of adjoining properties and shall provide:
(i) maintenance of uninterrupted access to 34 London Street;
(ii) instability and slumping of adjoining properties is avoided through the adoption of engineering design solutions implemented in accordance with engineering best practice;
(iii) any significant effect on, intrusion into or reliance on the neighbouring property at 34 London Street is prohibited;
(iv) accepting responsibility for remediation on terms acceptable to the adjourning property owner whose property is damaged if there is any ground disturbance on adjoining properties, including restoration of asphalt surfaces;
(v) any construction activities that have the potential to disrupt the functioning of adjoining properties, including the replacement of existing retaining walls on the northern boundary, shall be undertaken at times and using methodology that minimises direct impacts upon the use of adjoining properties;
(vi) measures necessary to protect owners and occupiers of adjoining properties and users of Council owned road reserve through the adoption of necessary health and safety responses during all construction activities;
(vii) all retaining structures should be wholly on 97 Filleul Street, Dunedin.
7The Construction methodology for the retaining wall on the western boundary with Filleul Street must prevent disturbance to services in the footpath and provide for reinstatement of any damage to the footpath.
8No earthworks may be undertaken until building consent has been granted.
9Third party liability insurance which identifies and protects nearby structures shall be obtained and a letter of confirmation form the insurer must be forwarded to the adjoining landowners and the Council’s Resource Consent Manager at least five working days prior to commencing any excavations.
10All measures (including dampening of loose soil) shall be undertaken to ensure that dust, resulting from the proposed earthworks, does not escape the property boundary.
11 Detailed design plans for the on-site parking area must be prepared by a suitably qualified person, and be submitted to the Resource Consent Manager for approval. The plans must show adequate on- site manoeuvring for an 85th percentile design motorcar such that this class of vehicle can drive onto and off the site in a forward direction, while undertaking no more than two reverse manoeuvres when manoeuvring into or out of any provided parking space.
…
Approach on Appeal
[18] This appeal is brought under s 299(1) of the RMA, which provides:
299 Appeal to High Court on question of law
(1) A party to a proceeding before the Environment Court under this Act or any other enactment may appeal on a question of law to the High Court against any decision, report, or recommendation of the Environment Court made in the proceeding.
[19] In Countdown Properties (Northland) v Dunedin City Council, this Court outlined the essential principles of what constitutes “a question of law” in the context of a resource management appeal:8
… This Court will interfere with the decision of the Tribunal only if it
considers that the Tribunal:
(a) Applied a wrong legal test; or
(b) Came to a conclusion without evidence or one to which, on evidence, it could not reasonably have come; or
(c) Took into account matters which it should not have taken into account; or
(d) Failed to take into account matters which it should have taken into account.
[20] In Hutt City v Mico-Wakefield Ltd, Doogue J cited with approval the approach taken in Countdown Properties (Northland) v Dunedin City Council and further added that:
(e) The Tribunal should be given latitude in reaching findings of fact within its area of expertise; and
(f) Any error of law must materially affect the result of the Tribunal’s
decision before this Court should grant relief.
[21] It follows therefore, that litigants will not be permitted to use an appeal as an occasion to revisit the merits of a decision under the guise of a question of law.9 The weight that should be given to the evidence or to conflicting considerations is a
matter for the Environment Court, and does not raise a question of law in the High
8 Countdown Properties (Northlands) Ltd v Dunedin City Council [1994] NZRMA 145 (HC) at
153.
9 Sean Investment v MacKellar (1981) 38 ALR 363; Parkinson v Waimairi District Council (1988)
13 NZTPA 244 (HC).
Court.10 As to the second consideration listed in Countdown (where the Court came to a conclusion without evidence or one to which, on the evidence, it could not reasonably reach), the Court will only interfere where the true and only reasonable conclusion contradicts the determination.11
The appellant’s Notice of Appeal
[22] Here, the appellants filed their formal Notice of Appeal in this Court on
21 March 2017, alleging specifically that the Environment Court erred in law because:
(a) The resource consent granted by the Environment Court authorising the excavations adjacent to the Appellant’s property was unlawful as it was granted without the consent authority having sufficient information to properly assess the effects of the application;
(b) The Environment Court simply asked whether a method of construction of a new retaining wall “is practicable” and did not make the required assessment of the proposed excavation or construction methodology;
(c) The Environment Court breached the Appellants’ right as landowners not to have their property damaged by activities authorised by a resource consent;
[23] And, in this Notice of Appeal the appellants noted specifically the questions of law they said were to be resolved as:
(a) Did the Environment Court have sufficient information to determine the relevant effects of the application as it did not have the design or methodology of the excavations proposed to be carried out by the Applicant when it granted a resource consent for a restricted discretionary activity pursuant to Rule 17.7.5 of the Dunedin City District Plan?
(b) Does a landowner have a right to require that earthworks on adjoining land will not cause any intrusion or slumping of its land?
(c) In exercising its discretion under Rule 17.7.5 of the Dunedin City District Plan, is the consent authority required to ensure that the earthworks will not cause any slumping or damage to adjoining land?
10 West Coast Regional Abattoir Co Ltd v Westland City Council (1983) 9 NZTPA 289 (HC);
Auckland Acclimatisation Soc v Sutton Holdings Ltd [1986] 2 NZLR 94 (HC).
11 Skinner v Tauranga District Council HC Auckland AP98/02, 5 March 2003.
(d) Is the consent authority required to make a determination under Rule
17.7.5 of the Dunedin City District Plan that is separate and in addition to the requirements of the Building Act 2004?
[24] Finally, in their Notice of Appeal, the appellants set out the following specific supporting grounds:
(a) [The Environment Court] did not have jurisdiction to grant a resource consent for a restricted discretionary activity pursuant to rule 17.7.5 of the Dunedin City District Plan when the Applicant had failed to identify the design or methodology proposed for the earthworks;
(b) It did not have the necessary information to be able to determine the relevant effects of the application without any detailed design or methodology being provided and erred in determining it was sufficient that an appropriate design could be provided;
(c) It acted unlawfully in delegating the approval of the design and methodology of the proposed earthworks to the Dunedin City Council when exercising its responsibilities under the Building Act
2004; and
(d) It exceeded its jurisdiction by breaching its obligation to recognise the Appellants’ ownership right not to have earthworks on the adjoining land cause any damage to their land by issuing a consent that authorised some damage and trespass by only “prohibiting any significant effect on, intrusion in or reliance on [the Appellant’s property]”.
[25] However, in the appellant’s written submissions before me, it became apparent that generally only two primary grounds of appeal were advanced. These were that:
(a) The consent authority failed to carry out the required assessment under r 17.7.5(iii); and
(b)The Environment Court erred in delegating its RMA decision-making obligations.
[26] I will therefore focus primarily on these issues advanced in the appellants’ written submissions. But, in doing so, I note that a High Court appeal is not a forum for revisiting a general opposition to a neighbour’s development, particularly a development which arguably would be a relatively straightforward development on
any other comparable site. Substantive factual issues are not justiciable under s
299(1) of the RMA.
The Dunedin City District Plan
[27] Relevant to this appeal obviously are the earthworks necessary to establish the building platform on the site. The proposed earthworks are a restricted discretionary activity under r 17.7.5 of the City Plan. This is because r 17.7.3(ii) of the City Plan allows only up to 100m3 to be excavated, with a maximum depth cut of up to 1.5m of the property. The present application exceeded these limits as it is for a cut that would change the ground level of the site by up to 3.76m and would excavate approximately 150m3.
[28] Under s 87A(3) of the RMA, if an activity is described as a restricted discretionary activity, a resource consent is required for the activity and –
(a) The consent authority’s power to decline a consent, or to grant a consent and to impose conditions on the consent, is restricted to the matters over which discretion is restricted; (whether in its plan or proposed plan, a national environmental standard, or otherwise); and
(b)If granted, the activity must comply with requirements, conditions, and permissions, if any, specified in the Act, regulations, plan or proposed plan.
[29] Therefore, in order for the Council to grant or decline a consent, or to impose conditions on the consent, it must, in the particular circumstance of this appeal, have regard to the circumstances outlined in r 17.7.5 of the City Plan. This provides:
Rule 17.7.5 Discretionary Activity (Restricted)
Except as specified in Rule 17.7.1 and 17.7.2(i), earthworks shall be a discretionary (restricted) activity in the following circumstances:
…
(ii) The earthworks do not comply with either Rule 17.7.3(ii) Scale
Threshold of Rules 17.7.4(iii).
The Council’s discretion under this rule is restricted to:
(a) Adverse effects on the amenity of neighbouring properties. (b) Effects on visual amenity and landscape.
(c) Effects on any archaeological site and/or any cultural site.
(d) Effects on the transportation network, caused by the transport of excavated material or fill.
(e) Effects from the release of sediment beyond site boundaries, including transport of sediment by stormwater systems.
(f) Cumulative effects relating to any of these matters.
For earthworks that were not granted an earthwork permit prior to 1 July
2010 and that do not form part of a project that was granted building consent on or after 1 July 2010, the Council’s discretion will also extend to the
following matters:
(g) Design and engineering of retaining structures and earthworks. (h) Effects on the stability of land and buildings.
(i) Effects on the surface flow of water and on flood risk. (j) Effects on underground utilities
In assessing the effects, the Council will have regard to the matters in 17.8.1 to 17.8.6.
[30] The relevant part of r 17.8 provides:
In assessing any application, in addition to the matters contained in the Fourth Schedule of the Act, the Council will have regard to, but not be restricted by, the following matters:
17.8.1 Effects on stability and flood risk
(a) whether excavation, fill and retaining structures are to be designed, and the work undertaken in accordance with engineering standards.
Grounds of appeal as advanced in submissions
[31] Mr Anderson, for the appellant, submits that the Environment Court erred in confirming the grant of consent to Filleul here without considering the design and engineering of the earthworks retaining structures and whether or not the design and engineering plans were in accordance with engineering standards. The appellants’ case is that, for the Council to grant consent, an applicant must first provide proper
details of the design and engineering for these retaining structures and earthworks. The appellant submits that Filleul has not met the requirements of r 17.7.5(ii) here as it has not provided these details with appropriate plans.
[32] The appellants do not accept that r 17.8.1 allows for the detailed design plans to follow after the granting of consent. Mr Anderson refers to r 17.7.5(ii)(g) relating to earthworks, which requires an assessment of the design and engineering of retaining structures and earthworks. In undertaking that assessment, the appellants submit that regard must be had to r 17.8.1(a), requiring the design to be in accordance with engineering standards. On this point, the appellants conclude that r 17.8.1. does not allow for future designs. If it did, then they argue the assessment in r 17.7.5(ii)(g) would be rendered unnecessary.
[33] The appellants further submit that the Environment Court erred in delegating its RMA decision-making obligations. They cite Turner v Allison as authority for the proposition that the relevant consent authority (and thus the Environment Court) is not permitted to delegate these RMA decision-making obligations.12 Furthermore, Mr Andersen for the appellants referred the Court to Director-General of Conservation v Marlborough District Council where McKenzie J said:13
The issue is whether there has been an unauthorised delegation of a judicial function. Where the judicial function has been delegated in terms which require an adjudication to be made by the delegate, then it will normally be readily apparent that it is a judicial function which has been delegated.
[34] The appellant maintains that in particular conditions 3 to 6, as listed at [17] above, constitute an unlawful delegation from the relevant consent authority to the Council’s Resource Consent Manager.
Analysis
Did the Environment Court err in not requiring specific engineering designs?
[35] The focus of this ground of appeal seems to be that the Environment Court erred in not carrying out an assessment under Rule 17.7.5(ii) of the City Plan. The
12 Turner v Allison [1971] NZLR 833 (CA).
13 Director-General of Conservation v Marlborough District Council [2004] 3 NZLR 127.
appellants allege that for the discretion of the consent authority to be properly exercised, detailed plans needed to have been provided by Filleul, and it did not do so here. Despite the argument that this may not in any event be correct factually, I reject this contention for other reasons. I accept the submissions advanced before me for Filleul and the Council that in this circumstance there was sufficient information before the Committee to make a proper assessment, but in any event, detailed designs are only required after the formal consent has been granted by the consent authority. I reach this view for four main reasons.
[36] First, the regulatory wording of Rule 17.8 anticipates that final design will only occur post resource consent. In particular, Rule 17.8.1(a) states that the Council will have regard to “whether excavation, fill and retaining structures are to be designed, and the work undertaken in accordance with engineering standards.” (Emphasis added.) The earthwork rules under Rule 17.8.1 contemplate and give effect to a common sense and practical approach that detailed design is the province of the Building Act and relevant building codes, as opposed to resource management applications which deal generally with effects on the environment. The RMA is concerned with what may be done and the effects of doing it, and how development is to be construed within the terms of a local authority’s plan. The minutiae of detailed implementation conditions for any consent are not the principal concern of the RMA but are the province of the Building Act.
[37] Secondly, I find that the assessment matters in r 17.7.5(ii) are not a checklist of things that must be completed before consent can be granted. They are issues that are to be considered by a consent authority in deciding whether or not to grant resource consent. In my view, the appellants have misinterpreted these assessment matters. They seek to rely on them in a way that was not, and could not have been, intended by the Council. As I have noted above, the rule is formulated with language that demonstrates it is intended that plans will be prepared following the granting of consent, not before. Therefore, I accept Mr Withnall’s submission advanced for Filleul that the information requirement for a restricted discretionary activity would simply be set too high if full engineering plans and specifications had to be submitted before a resource consent was granted. Mr Paterson, the expert
engineer for the Council, gave oral evidence at the Environment Court hearing consistent with this approach:
So rather than on specific engineering details, it is almost always handled through a set of conditions to achieve a desirable outcome because we don’t want to prejudice any particular contractors having a particular method for undertaking the work and obviously don’t want an application to have to go through a very detailed and expensive design process when he’s actually operating at risk at this particular stage.
[38] Mr Paterson’s opinion leads on to my third point. This is simply that, in my view, it makes no sense to require applicants in this particular circumstance to prepare and submit detailed and final designs only to have consent rejected at the first stage. Until it is known whether consent will be granted, detailed final design is premature. It would involve developers incurring unnecessary and substantial cost producing designs and specifications, which ultimately may not end up being compatible with the final terms of any resource consent which is granted.
[39] Lastly, it is clear from the finalised conditions of the Council consent here that some care has been taken to ensure that the appellants’ property is protected from possible adverse effects identified by the appellants as their concerns (i.e. effects that have the potential to impact upon the stability of the Vero House building, slumping and/or damage to tarseal).
[40] Overall, I find that the Environment Court properly exercised its discretion and acted within its statutory powers to grant the consent subject to the extensive conditions imposed. The conditions themselves required also that building consent was to be obtained prior to undertaking earthworks. They required engineering input into the design, a peer review and the implementation of best practice, all under the supervision of an appropriately qualified person. As I see it, this would ensure the structural integrity of any earthworks and construction near the boundary with the appellants’ property. I am satisfied all this is an appropriate response to the assessment of “effects on the stability of land and buildings” under r 17.7.5(ii)(h) of the Plan, and the Environment Court was entitled and justified on the basis of the suite of conditions imposed to reach this conclusion.
Did the Environment Court err in delegating its RMA decision-making obligations?
[41] In his submissions before me, as I have noted, Mr Andersen for the appellants referred to Turner v Allison14 He did so suggesting this decision was authority to support the contention that the relevant consent authority (and thus the Environment Court) is not permitted to delegate its RMA decision-making obligations.
[42] Turner v Allison was decided under the Town and Country Planning Act
1953, the predecessor to the RMA regime. In Turner v Allison, the applicant had applied for a specified departure to use their residential land for commercial purposes, a supermarket complex. The application was ultimately approved by the Town and Country Planning Appeal Board subject to certain conditions. One of the appeal grounds raised by a party who challenged the consent was that three of the conditions attached to the consent amounted to unlawful delegation. These conditions concerned the requirement to seek the approval of a professional consultant as to the appearance, suitability and landscaping of a proposed supermarket design.
[43] On appeal to the High Court, Wilson J quashed the decision of the Board. One of the reasons given was that the conditions attached contained an unlawful delegation to the consultant which invalidated the whole decision. However, his Honour’s decision was reversed on further appeal by the Court of Appeal. While the Court of Appeal held that, “a tribunal entrusted with judicial as opposed to merely administrative duties cannot delegate the performance of such judicial duties to someone else,” it held that requiring the approval of professionals does not
amount to delegation. Richmond J for the Court of Appeal concluded on this point:15
In my view the effect of conditions 2,5, and 7 is to impose conditions whereby the external appearance of the supermarket and landscaping and planting are required to be carried out to standards set by Miss Northcroft by reference to her own skill and experience. They do not purport to confer upon her an arbitral status. In my opinion therefore those three conditions cannot be attacked upon the basis that they purport to confer on Miss Northcroft a judicial function.
14 Turner v Allison, above n 12.
15 At 857.
[44] Applying this reasoning of the Court of Appeal in Turner v Allison to the present situation, I find that the conditions of consent imposed and their compliance here do not involve any unlawful delegation. Conditions 3, 4 and 5 (noted at [17] above) impose obligations on Filleul to design and build in such a manner as will avoid, remedy or mitigate any adverse effects of construction as identified in the evidence before the Court. The texts of these conditions do not determine whether consent should be granted. But instead, essentially, they address how construction works are to be managed, including management of excavation on the site boundary. In my view, the conditions of consent do not unlawfully confer on the Resource Consents Manager or anyone else any delegated substantive decision-making power, judicial or otherwise.
[45] Further, I find that the Environment Court did not err in deciding that any adverse effects can be appropriately avoided, mitigated, or remedied here. The conditions imposed merely provide a mechanism to ensure this occurs. Requiring Filleul to engage qualified professionals to design a best practice specification, and to ensure it is peer-reviewed and implemented, does not delegate any decision- making process. Neither does the requirement to provide a copy of that specification. It simply gives to the Council as the local authority here and to the appellants evidence that the condition or conditions have been met.
Appeal grounds not addressed in written and oral submission
[46] For completeness, I will briefly address two other matters raised by the appellants in their Notice of Appeal that were not specifically advanced at the hearing.
[47] First, the appellants allege that the Environment Court “simply asked whether a method of construction of a new wall ‘is practicable’ and did not make the required assessment of the proposed excavation”. However, this fails to recognise that the Environment Court considered the expert evidence of three engineers before finding that the construction method was practicable. Furthermore, and in any event, this allegation deals generally with findings of fact as opposed to a question of law. To
this extent, this Court does not have jurisdiction to consider the issue under s 299 of the RMA.
[48] Secondly, the appellants contend that the Environment Court failed to consider the appellants’ rights as landowners “not to have their property damaged by activities authorised by a resource consent.” However, affirming the principles set out in MacLaurin v Hexton, as cited by the Environment Court, what consent authorities are concerned with is the effect of the proposed activity, and not the
nature of an appellant’s legal rights or interests.16 In relation to any potential effects
on neighbouring property, the Court’s evidential finding was that first, there was only minimal risk of damage occurring to the driveway and carpark; secondly, that the proposed construction methodology was practicable; and thirdly, that the appellants had full opportunity to conduct a due diligence investigation to identify the likely effects of any future development on neighbouring land.
[49] And, as to the appellants’ complaint that they should have been provided with plans to show that with the earthworks there will be no trespass on 34 London, first, there simply is no right to trespass on private property pursuant to the Trespass Act
1980 and secondly, and in any event, new condition 6 imposed on the consent on
19 June 2017 specifically prohibited intrusion onto neighbouring land, including
34 London.
[50] In conclusion, I find that there was no error of law in the decision of the
Environment Court. It was appropriate for it to confirm the resource consent.
Result
[51] The appeal is dismissed
[52] Costs are reserved. If the parties are unable to agree upon the issue of costs between them, then they may file memoranda on costs (the respondents within
20 working days of today and the appellants within a further 10 working days
thereafter) which are to be referred to me and, in the absence of any party indicating
16 MacLaurin v Hexton, above n 6, at [47].
they wish to be heard on the matter, I will determine the issue of costs based upon the material then before the Court.
...................................................
Gendall J
Copies to:
Leonard Andersen, Barrister, Dunedin
Anderson Lloyd, Dunedin
Colin Withnall QC, Dunedin
0
2
0