Spackman v Queenstown Lakes District Council no.2 HC Dunedin CIV 2006-412-000843

[2007] NZHC 1880

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CIV 2006-412-000843

BETWEEN  MICHAEL SPACKMAN Applicant

AND  QUEENSTOWN LAKES DISTRICT COUNCIL

First Respondent

AND  RAYLENE JELLEY, WILLIAM JELLEY, AND LYALL WILLIAM JELLEY

Second Respondents

Hearing:         On Papers

Judgment:      20 June 2007

JUDGMENT NO. 2 OF FOGARTY J

[1]      By judgment  dated 4 April 2007  this Court  set  aside  the  consent  of the Council as to the subdivision creating Lot 2, leaving intact subdivision consent to Lots 3 and 4.

[2]      Second, it provided that in respect of Lot 3 the second respondent shall add cl

8(o) to the consent notice on the title.  Clause 8(o) is set out in paragraph [51] of the same judgment in the following terms:

(o)       Any building within the building platforms on Lots 2 or  3 within ten metres of the boundary between the Rural Lifestyle and the Rural General  Zone  will  require  a  Restricted  Discretionary  Activity Consent to allow the erection of those buildings.

[3]      The proposition contained in those terms is not a covenant.  It is a statement of the consequence of the application of the District Plan Lots 2 and 3.  As paragraph

[52] of the judgment records it operates as a notification to overcome the Court’s

SPACKMAN  V QUEENSTOWN LAKES DISTRICT COUNCIL  AND ANOR HC DUN CIV 2006-412-

000843  20 June 2007

concern that future purchasers may purchase Lots 2 or 3 without appreciating this planning restriction.

[4]     As is recorded in the judgment paragraph [64], counsel for the second respondents  filed  submissions  which  enclosed  condition  8(o)  set  out  above. Annexure 1 to those submissions is a copy of the decision of the Council under review which has been amended by pen to excise approval of Lot 2.  Annexure 1 is attached to this judgment.  So, for example, instead it saying “the provision of access to Lots 1 through 4” it would read:

The provision of an access to Lots 1, 3 and 4

It also excises a particular condition solely confined to Lot 2, in cl 6(vii) second bullet point:

Establish five clusters of native shrub species each containing five plants to the south of building platform on Lot 2.

[5]      Counsel for the applicant has taken issue with the proposed cl 8(o).  It treated the proposed “condition” as a covenant and submitted that pursuant to s 108(2)(d) of the Resource Management Act 1991 it cannot be imposed as a condition of consent when granting subdivision consent.   Counsel has also challenged the excising of parts of the Council decision.

[6]      It further submitted that the registration of such an encumbrance would not put the applicant back in the position it would have been if the first respondents had notified the resource consent application.   It complained that the effect of the resolution (Court decision) makes the boundaries of Lots 2 and 3 a fait accompli which is not the position that the applicants would have been in if the application was notified to it in the first place.

[7]      Thirdly,  it  is submitted  that the applicant’s submission  is that  the  issues arising with the location of the building platform within the ten metre setback on Lot

2  also  apply  in  respect  of  Lot  3.    This  in  turn  leads  to  a  question  of  the appropriateness of the  layout  of the  subdivision  as  the  location  of the  building

platforms in these lots may well have an influence on what boundaries (and indeed the Council has control over this).

[8]      There was a telephone conference of counsel on 20 April resulting  in  a minute which records that the Court drew to the attention of counsel the power in s 4(5B) and invited counsel to reconsider their positions appreciating the power of the Court which lay behind the directions in paragraphs [61] to [65] of the judgment.

[9]      Sections 4(1), (5) and 4 (5B) of the Judicature Amendment Act 1972 provide:

4     Application for review

(1)     On an application which may be called an application for review, the High Court may, notwithstanding any right of appeal possessed by the applicant in relation to the subject-matter of the application, by order grant, in relation to the exercise,  refusal to  exercise,  or  proposed  or  purported exercise by any person of a statutory power, any relief that the applicant would be entitled to, in any one or more of the proceedings for a writ or order of or in the nature of mandamus, prohibition, or certiorari or for a declaration or injunction, against that person in any such proceedings.

…

(5)       Without limiting the generality of the foregoing provisions of this section, on an application for review in relation to the exercise, refusal to exercise, or purported exercise of a statutory power of decision the Court [if it is satisfied that the applicant is entitled to relief under subsection (1) of this section, may, in addition to or instead of granting any other relief under the foregoing provisions of this section,] direct any person whose act or omission is the subject-matter of the application to reconsider and determine, either generally or in respect of any specified matters, the whole or any part of any matter to which the application relates. In giving any such direction the Court shall—

(a)     Advise the person of its reasons for so doing; and

(b)         Give to  him  such  directions  as  it  thinks  just  as  to  the reconsideration or otherwise of the whole or any part of the matter that is referred back for reconsideration.

…

(5B)     Where any matter is referred back to any person under subsection (5) of  this  section,  that  person  shall  have  jurisdiction  to  reconsider  and determine  the  matter  in  accordance  with  the  Court's  direction notwithstanding anything in any other enactment.

[10]     On 3 May, counsel for the applicant filed submissions which did not accept that the Court had jurisdiction under s 4(5B) to make amendments to the conditions

of the subdivision consent since that is a function reserved to consent authority under the Resource Management Act.  Rather, he submitted that the proper course under s 4(5B) is to formulate directions to guide the Council in its reconsideration in the light  of the  first  sentence  of paragraph  [61]  of  the  judgment.    The  appellant’s submission is that neither of the two proposals agreed by the respondents and put to the Court, cl 8(o) and proposed amendments to the consent to delete reference to Lot 2, are lawful under the Resource Management Act.    It is noted the Court might consider itself to be functus officio in respect of paragraphs [61] and [62] of the judgment.

[11]     He submitted that by reason of the leave reserved in paragraph [64] and[65] the  Court  cannot,  however,  replace  the  Council’s  subdivision  consent  with  a substitute set of conditions making mandatory orders, as such a course is not authorised by s 4(5B).

[12]     Essentially, the submission was that the directions that the Court makes to the original decision-maker must fall short of requiring a particular decision from the decision-maker.   The applicant relied on a number of decisions where that course was taken including three recent decisions of my own:   Barker v Queenstown Lakes District Council [2007] RNZMA 103;   Whangamata Marina Society v Attorney- General [2007] 1 NZLR 252; and Chesterfields Preschools Limited v Commissioner of Inland Revenue Department HC ChCh CIV 2004-409-1596 15 December 2006

Fogarty J.

[13]     In these judgments the Court has quashed a decision and sent it back for reconsideration.  There is nothing in the judgment of this Court in this case which requires reconsideration by the first respondent Council.  In that respect counsel for the applicant are correct that s 4(5B) cannot apply.

[14]     However, it does not follow that the judgment of this Court cannot be made efficacious.  The Judicature Amendment Act 1972 was remedial as to procedure not as to the extent of relief an applicant would be entitled to at common law.  This is made clear by s 4(1).

[15]     The relief given in this case was in the nature of certiorari and in request of proposed cl 8(o) in the nature of a declaration.  The writ of certiorari gives the Court the power to quash all or part of a decision.

[16]     Rule 626 of the High Court Rules provides:

626    Certiorari

(1)     This rule applies when an application is made to the Court to review all or part of a determination of—

(a)    An inferior Court; or

(b)    A tribunal; or

(c)    A person exercising a statutory or prerogative power; or

(d)    A person exercising a power that affects the public interest. (2)      When this rule applies, the Court may do 1 or both of the following:

(a)    Make an order for certiorari:

(b)    Make any other order that the Court thinks just.

[17]     Rules 626(2) confirms that the Court can make other orders such as here a declaration.    As  noted  in McGeechan on Procedure  626.08 the  power to  quash includes the power to vary if the defective part was severable.  That must include the power to make directions as to giving effect to severance.   The exercise of that power is not  calling  on  the  decision-maker  to  reconsider.    Rather,  it  is  simply exercising from the decision a part of it.

[18]     This Court has quashed that part of the subdivision decision which provides subdivision consent for Lot 2.   It is functus officio.    It is entirely appropriate for those parts of the decision which refer to Lot 2 to be amended by deletion.  That is what the second respondent’s counsel has done in the annexure to the submission dated 29 March.   The Council has not opposed the proposed revisions (which are in substance deletions).

[19]     Paragraph [64] of the  judgment, which reserves settling  the  detail of the consequential revision, was addressing the need for the subdivision consent to be amended to give effect to the quashing of the subdivision creating Lot 2.  It refers to

Annexure 1, which I have discussed above.     That annexure is approved, as giving effect to the first sentence in paragraph [61] of the judgment.

[20]     The purpose of cl 8(o) is declaratory of the law in the first instance and secondly to ensure that persons dealing with the land are aware of the declaration. The judgment of the Court in the second sentence of paragraph [61] refers to 8(o) as a “clause”.  Elsewhere in the judgment it is referred to as a “condition” that being the word chosen by the second respondents’ counsel.

[21]     The applicant is correct that this Court does not have the power either at common law or under s 4 of the Act to add conditions.    If there is any question of adding conditions the matter should be sent back for reconsideration.  However, the Court does have, alongside the remedy of certiorari the power to make a declaration. It has this power at common law and under s 4(1).

[22]     The context of the case is that the second respondent has volunteered that this declaration can be included in the consent notice of the Council placed on the title and the Council has agreed to its inclusion as well.

[23]     Declarations by the Court are intended to be efficacious and it is within the inherent jurisdiction of this Court to give directions as to the publication of such declarations.  If publication is volunteered by the parties the Court can approve it.

[24]     Section 221 of the Resource Management Act 1991 provides:

221     Territorial authority to issue a consent notice

(1)      Where a subdivision consent is granted subject to a condition to be complied  with  on  a  continuing  basis  by  the  subdividing  owner  and subsequent owners after the deposit of a survey plan (not being a condition in respect of which a bond is required to be entered into by the subdividing owner, or a completion certificate is capable of being or has been issued), the territorial authority shall, for the purposes of section 224, issue a consent notice specifying any such condition.

(2)     Every consent notice shall be authenticated by the territorial authority under section 252 of the Local Government Act 1974.

(3)     At any time after the deposit of the survey plan,—

(a)     the owner may apply to a territorial authority to vary or cancel any condition specified in a consent notice:

(b)     the territorial authority may review any condition specified in a consent notice and vary or cancel the condition.

(3A)       Sections 88 to 121 and 127(4) to 132 apply, with all necessary modifications, in relation to an application made or review conducted under subsection (3).

(4)     Every consent notice shall be deemed—

(a)     To be an instrument creating an interest in the land within the meaning of section 62 of the Land Transfer Act 1952, and may be registered accordingly; and

(b)     To be a covenant running with the land when registered under the Land Transfer Act 1952, and shall, notwithstanding anything to the contrary in section 105 of the Land Transfer Act 1952, bind all subsequent owners of the land.

(5)      Where a consent notice has been registered under the Land Transfer Act 1952 and any condition in that notice has been varied or cancelled after an application or review under subsection (3) or has expired, the District Land Registrar shall, if he or she is satisfied that any condition in that notice has been so varied or cancelled or has expired, make an entry in the register and on any relevant instrument of title noting that the consent notice has been varied or cancelled or has expired, and the condition in the consent notice shall take effect as so varied or cease to have any effect, as the case may be.

[25]     There is nothing in s 221 which precludes the consent notice containing an explanation or declaration.   The purpose of s 221 is to give public notice of the consequences following upon a subdivision consent.

[26]     As part of the relief of declaration, and exercising the power reserved to further direction under paragraph [65] of the judgment the terms of proposed clause/condition 8(o) shall be inserted at the end of cl 8 in a box border lined with a solid border with a sub-heading “Take Notice”.

[27]     Given the impasse between the parties, the applicant is currently seeking an interim injunction preventing the High Court judgment being given effect.  Partially for this reason, after discussion with counsel, this Court settles the form of the final order for sealing as per Annexure A to this second judgment.   Costs are reserved.

Solicitors:

Gallaway Cook Allan, Dunedin, for Applicant

Macalister Todd Phillips, Queenstown, for First Respondent

Anderson Lloyd Caudwell, Dunedin, for Second Respondents

ANNEXURE A

This proceeding coming on for trial on the 28th  day of March 2007, before the Honourable Mr Justice Fogarty at Dunedin, after hearing P J Page and C P Thomsen for the applicant, J E Macdonald for the First  Respondent  and F B Barton and M R Garbett for the Second Respondents, and the evidence then adduced,  it  is adjudged that:

1.The consent of the Council is set aside as to the subdivision creating Lot 2, leaving intact subdivision consent to Lots 3 and 4.

2.The subdivision consent of the Council is to be consequentially amended by deleting the references to Lot 2 as per the revisions in Annexure 1 of the supplementary submissions dated 29 March of counsel for the second respondents, now attached to this order.

3.At  the end of cl 8 of that  decision there  is to  be added the  following paragraph bounded by a solid border:

Any building within the building platforms on Lots 2 or 3 within ten metres of the boundary between the Rural Lifestyle and the Rural General  Zone  will  require  a  Restricted  Discretionary  Activity Consent to allow the erection of those buildings.

4.That   aforesaid  paragraph  is   a   declaration  of  this   Court   as   to  the consequences of the subdivision consent.

5.The Council is directed to reconsider the application for resource consent for Lot 2.  In this regard it should proceed on the basis either of treating the file as containing an application for subdivision consent for Lot 2 with the building platform in place as per the resource consent that has been set aside or receiving a new application by the second respondents in respect of Lot 2 (an option at the second respondents’ discretion).

6.Either way the Council is directed to start afresh its ss 93 and 94 analyses with a view to making a decision as to public notification and/or service of the application on persons who may be adversely affected.

7.The applicant is entitled to costs.  If the parties cannot agree costs they are to file submissions upon an agreed timetable.   Leave to apply for further directions is granted.

……………………….DATE

……………………………..(DEPUTY) REGISTRAR