Shanks v Auckland Council
[2017] NZHC 745
•13 April 2017
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2017-404-438 [2017] NZHC 745
UNDER the Judicature Amendment Act 1972, the
Judicial Review Procedure Act 2017 and
Parts 5 and 30 of the High Court Rules
2016IN THE MATTER
of the Resource Management Act 1991
BETWEEN
JENNIFER SHANKS, PETER SHANKS, ROSS TAYLOR, YVONNE AND MICHAEL BOX AND WARREN AND TANIA GOUGH
Applicants
AND
AUCKLAND COUNCIL First Respondent
DAVID VUJANIC AND DANKA VUJANIC
Second Respondents
Hearing: 12 April 2017 Appearances:
A Webb for the Applicants
B Watts for First Respondent
J Dawson for Second RespondentsJudgment:
13 April 2017
JUDGMENT OF GORDON J
This judgment was delivered by me
on 13 April 2017 at 11.30 am, pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Date:
Solicitors: Franklin Law, Pukekohe
Meredith Connell, Auckland
Daniel Overton Goulding, Onehunga, Auckland
Counsel: A Webb, Auckland
J Dawson, Whangarei
SHANKS v AUCKLAND COUNCIL [2017] NZHC 745 [13 April 2017]
Introduction
[1] This is an application for interim relief to stop construction of a 300 m2 shed on the second respondents’ rural property at 4 Sawyer Road, Bombay, Auckland (the site) pending the hearing of the substantive application for judicial review.
[2] The second respondents, Mr and Mrs Vujanic, oppose the grant of interim relief. The first respondent, Auckland Council, makes submissions regarding the activity status of the proposed construction work but abides the decision of the Court in respect of interim relief.
Background
[3] By an application dated 30 June 2016 the second respondents applied to the Council1 for a land use consent to establish a home occupation and a subsidiary dwelling2 on the site.
[4] The application for a home occupation related to the second respondents’ mould-making business called Universal Pattern and Mould Makers. The business is currently located on an industrial site at Otahuhu. The second respondents wish to relocate the business to a new 300 m2 shed to be built on the site.
[5] The applicants live on properties either adjacent to or in the vicinity of the site. One of the applicants, Mr Shanks, deposes that he and persons from other households surrounding the site opposed the applications even before they were lodged, trying to make their concerns heard to the Council through various calls, emails and letters to the Council staff.3
[6] Following receipt of the applications, Council staff apparently undertook a notification assessment and determined that the applications did not need to be publicly notified, or notified to any party on a limited basis. The Council staff issued
a report containing recommendations to that effect. The Council staff also prepared a
1 The Council is a territorial authority and is a consent authority for the purposes of Part VI of the
Resource Management Act 1991.
2 The judicial review and this application for interim orders are not concerned with the subsidiary dwelling.
3 Affidavit of Peter Douglas Shanks dated 17 March 2017 at [8].
separate report recommending that the applications for resource consent be approved.
[7] A Duty Commissioner received both recommendations. On 28 September
2016, the Duty Commissioner issued two decisions determining, first, that the applications would not be notified; and second, that the applications should be granted (together, the decisions).
[8] The timing of these events meant that the applications were considered under both the (then operative) Auckland Council District Plan (Franklin Section) and the proposed Auckland Unitary Plan (decision version).
[9] All of the maps and rules of the Auckland Unitary Plan (AUP) that are relevant to the subject matter of this proceeding are now operative. They have superseded the maps and rules that previously applied under the Auckland Council District Plan (Franklin Section).
Application for judicial review
[10] The applicants now seek judicial review of the Duty Commissioner’s
decisions on the grounds that:
(a) The decision not to notify the application for resource consent was unlawful;
(b) The decision granting resource consent was unlawful; and
(c) The Council acted unreasonably in (inter alia) failing to give the applicants an opportunity to participate in the process of making the decisions.
[11] The substantive review application seeks (inter alia) a declaration that the decisions are invalid; a declaration that the particular home occupation is not a permitted activity in the relevant zone; a declaration that the proposed 300 m2 shed
to house the home occupation is not a permitted activity under the AUP, and an order setting aside and quashing the decisions.
[12] By an amended application dated 27 March 2017 the applicants seek interim orders:
(a) Restraining, pending the resolution of this proceeding, or the further order of the Court, the second respondents from implementing the resource consent being the subject of this proceeding;
(b)Restraining, pending the resolution of this proceeding, or further order of this Court, the second respondents from erecting a 300 m2 shed as an accessory building for a home occupation, farming or a dwelling at the property at 4 Sawyer Road, Bombay, Auckland.
[13] Subsequent to the filing of the amended application for interim relief, the parties agreed that for the purposes of this hearing the issues would be restricted to a consideration of whether the shed is a permitted activity under the provisions of the Auckland Unitary Plan (operative in part). Issues in relation to its use for the proposed home occupation would be addressed at the substantive hearing.
[14] Mr Dawson says the second respondents are prepared, in reliance on the undertaking as to damages given by the applicants, to give the following undertaking:
“They will not undertake their mould-making business, classified as a “home occupation” and will use the shed only for permitted activities listed in rule H19.8.1 of the AUP until the judicial review proceedings have been determined or until 31 August 2017, whichever occurs first.”
[15] Mr Dawson says that, should the proceedings not be determined by
31 August 2017, then a further undertaking could be sought, or if necessary, the applicants could seek further orders.
The law regarding interim relief
[16] In considering whether the application should be granted, the Court must assess whether there is a serious question to be tried, must weigh the competing interests and assess the balance of convenience.4 In doing so the Court must have regard to the adequacy of damages as a remedy available to the applicant. The final decision must be in the overall interests of justice.
Is there a serious question to be tried?
[17] The first matter which this Court must determine is whether there is a serious question to be tried regarding the shed. In other words, is it arguable that the shed is not a permitted activity under the AUP?
Submissions
[18] All parties are agreed that the shed will take its activity status from one or more of the activities set out in rule H19.8.1 of the AUP. In other words if the activity is permitted, then the shed is permitted.
[19] They also agree that the shed complies with the bulk and location requirements for the zone as set out in rr H19.10.2 and H19.10.3 of the AUP.
[20] But this is where counsel part company.
[21] Mr Webb, who appears on behalf of the applicants, submits that the shed is not a permitted activity. He notes that the AUP provides a new building will be permitted only if it “will accommodate or [is] needed to facilitate”5 a permitted activity.
[22] He says that not only does the building need to be for a permitted activity, but the activity or purpose then defines the size or scale of the building. He says it is not sufficient that the building complies with the bulk and location requirements for the
zone. The size of the building needs to be commensurate with its use. In that regard
4 Klissers Farmhouse Bakeries Ltd v Harvest Bakeries Ltd [1985] 2 NZLR 129 (CA).
5 Rule H19.8.
he says that while the second respondents have provided an affidavit which refers generally to the interim use of the shed, they have not explained why those uses require a shed of the size proposed. He says that a purposive interpretation of rule H19.8 is necessary thus requiring an assessment to ensure the scale of the shed accords with the particular permitted use.
[23] Finally, if the second respondents maintain their position that the shed is permitted under the AUP, Mr Webb says, then the appropriate procedure would be for them to obtain a certificate of compliance for the shed from Auckland Council.
[24] Mr Watts appears on behalf of the first respondent, Auckland Council. He submits that the ultimate purpose for which the second respondents hope to use the shed is irrelevant. The shed will be a permitted activity if the use to which it will immediately be put is a permitted activity. If the second respondents later wish to use the shed for a new activity, a separate resource consent may be required. However, Mr Watts says, that does not create any barrier to the construction of the shed at the present time.
[25] In relation to the size of the building, Mr Watts submits that r H19.8 is clear. There is no requirement to consider the scale of the building in relation to the use proposed. He says there is no ambiguity that would require recourse to the policies and objectives of the AUP. He says the evidence is that the building will accommodate interim activities which fall within the permitted activities in Table H19.8.1 and accordingly the shed is a permitted activity.
[26] Mr Dawson appears on behalf of the second respondents. In summary, Mr Dawson says that shed is a permitted activity under the AUP for which no resource consent is required and which can therefore be undertaken lawfully. He says the interim uses proposed fall within the farming, conservation planting and residential categories. These are all listed in r H19.8.1. He says it is only the future use of the shed as a home occupation which is at issue in the substantive proceedings; however no question arises if the shed is used for the indicated activities in the meantime.
[27] He agrees with Mr Watts’ submissions regarding the size of the building, and says that the permitted activity complies with the rules and there is no basis for the objectives and policies of the AUP to come into play.
Analysis
[28] Rule H19.8 of the AUP provides:
Tables H19.8.1 and H19.8.2 specify the activity status of land use and development activities pursuant to section 9(2) and 9(3) of the Resource Management Act and subdivision pursuant to section 11 of the Resource Management Act 1991.
The activity status of the activities in the table below also applies to new buildings including accessory buildings that will accommodate or are needed to facilitate the activity.
In other words, the activity status of new buildings, including accessory buildings, will be determined by reference to the activity status of any activity that the building is intended to accommodate or facilitate. For example, farming is a permitted activity, and therefore a building that is intended to accommodate or facilitate farming activities will be permitted. In contrast, the establishment of an equestrian centre is a restricted discretionary activity, and therefore the construction of a building that is intended to accommodate or facilitate the carrying on of an equestrian centre will be a restricted discretionary activity.
[29] The first step, therefore, in determining whether the second respondents are permitted to construct the shed, is to establish the use to which the shed will be put, if constructed.
[30] Mr Vujanic has provided an affidavit in which he sets out the second respondents’ intentions for the shed. Their hope is that they will ultimately be permitted to operate their mould-making business from the shed. The shed will also be used to house the second respondents’ lawn mower, quadbike, trailer and other farming implements and equipment.
[31] As noted above, the second respondents have provided an undertaking that they will not use the shed for their mould-making business and will use it only for
permitted activities listed in H19.8.1 until the judicial review application has been determined.
[32] In my view, the use of the shed to store a lawn mower, quadbike, trailer and other farming implements and equipment can properly be described as accommodating dwelling and/or farming activities.6 Both dwelling and farming are permitted activities in the Rural Production Zone, where the site is located. Accordingly, the shed is a permitted activity if it is to be used for those purposes.
[33] I do not accept Mr Webb’s submission that a purposive interpretation of r H19.8 requires this Court to undertake an assessment of the scale of the shed measured against the particular activities. The shed complies with the bulk and location requirements for the zone. In other words, buildings of that size are anticipated in the zone. The wording of r H19.8 is clear and unambiguous. Provided the shed will accommodate one or more of the activities in r H19.8.1, then the shed is a permitted activity. To adopt Mr Webb’s approach would in fact create uncertainty. How big is too big and what standards are to be applied in making that assessment?
[34] Further, I consider that the clear meaning of that text is entirely consistent with the objectives of the AUP in respect of Rural Production Zones. The second respondents live on a rural property and wish to construct a shed. They will, for the time being, use the shed for storage of equipment. There is simply no basis for arguing that this outcome is inconsistent with the purposes of the AUP.
[35] I also reject Mr Webb’s submission that the second respondents are required to obtain a certificate of compliance from the Council in order to proceed with construction of the shed. Section 139(2) of the RMA states that “[a] person may request the consent authority to issue a certificate of compliance” (emphasis added). Although the word “may” can in some situations be interpreted to mean “must”, this case is not one of them. A certificate of compliance is deemed to be a resource
consent.7 An interpretation of s 139 that required a person to obtain a certificate of
6 See Auckland Unitary Plan, r J1.4, definitions of “dwelling” and “farming”.
7 Resource Management Act 1991, s 139(10).
compliance before proceeding with a permitted activity would therefore be entirely inconsistent with the direction in s 87A(1) of the RMA that a person is not required to obtain a resource consent in respect of a permitted activity.
[36] Accordingly I do not consider that there is an arguable case that the shed is not a permitted activity under the AUP if it is used for storage to house a lawnmower, quadbike, trailer and other farming implements and equipment.
Balance of convenience
[37] My determination that the shed, if it is to be used in the interim for the purposes indicated by the second respondents, is a permitted activity, effectively resolves the outcome of the application for interim relief.
[38] There is, however, a further practical consideration. Construction of the shed is underway. Mr Dawson has provided a letter dated 12 April 2017 from the company building the shed. It states:
We finished putting the roof on the shed on Monday [10 April 2017]. The steel framing is also complete and we are now beginning putting the steel cladding on the outside walls.
The stability of the shed structure is not complete until the build is finished. This is because the roof could be blown off or become loose without the walls in. The wind blows through the structure otherwise. The cladding provides additional support and there are bracing elements yet to be installed. I would be very concerned the building would be dangerous and unsafe if we left as it is without finishing it now.
At the moment, there are exposed flashings on the roof which need to be finished. There are steel sheets on site and all of your building materials as well as our equipment. Some of the unfinished steel work is sharp and could be blown around. There are lots of hazards on the site.
Until the shed is finished, I could not guarantee its stability or safety. I
would be really worried to leave the site as it is now and not finish it.
Having regard to the contents of this letter, the balance of convenience also favours the second respondents.
[39] I further note that if the applicants are successful in the substantive application for judicial review, the second respondents will not be able to use the
shed for the proposed ‘home occupation’ unless the home occupation is a permitted
use under the AUP or, if not, unless and until they obtain a resource consent to do so.
Result
[40] The application for interim relief to stop the construction of the second
respondents’ shed is refused.
[41] Further to the undertaking given by the second respondents, I direct that the second respondents are prohibited from undertaking their mould-making business in the shed and will use the shed only for permitted activities listed in rule H19.8.1 of the AUP until the judicial review proceedings have been determined or until 31
August 2017, whichever occurs first.
[42] Any consideration regarding the need for an extension of the undertaking can be addressed at the substantive hearing on 12 June 2017.
Costs
[43] If the parties are able to agree on costs, a joint memorandum should be filed by Friday 28 April 2017. If there is no agreement, the first and second respondents are to file their memoranda by Friday 5 May 2017 and the applicants by Friday
12 May 2017. Memoranda are not to exceed six pages.
Gordon J
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