Te Runanga-A-Iwi O Ngati Kahu v Carrington Farms Limited HC Whangarei CIV 2010-488-348
[2011] NZHC 1264
•29 September 2011
IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
CIV 2010-488-348
UNDER the Declaratory Judgments Act 1908
AND UNDER the Judicature Amendment Act 1972
IN THE MATTER OF an application for declarations in respect of settlement agreements dated 5 March 2001 and 16 May 2002
AND IN THE MATTER OF sections 93, 94, 94A-D and 104 of the
Resource Management Act 1991
BETWEEN TE RUNANGA-A-IWI O NGATI KAHU Plaintiff
ANDCARRINGTON FARMS LIMITED First Defendant
ANDCARRINGTON ESTATE LIMITED Second Defendant
ANDCARRINGTON RESORT LIMITED Third Defendant
ANDFAR NORTH DISTRICT COUNCIL Fourth Defendant
Hearing: 17, 18 and 23 March 2011
Counsel: J D K Gardner-Hopkins and J E C Fletcher for Plaintiff
R Brabant, I M Gault (on 17 and 18 March 2011) and R A Havelock for First, Second and Third Defendants
J Baguley and J G Day for Fourth Defendant
Judgment: 29 September 2011 at 2:15 PM
JUDGMENT OF WHITE J
This judgment was delivered by me on 29 September 2011 at 2.15 pm pursuant to Rule 11.5 of the High Court Rules. Registrar/Deputy Registrar
Date: ………………….
TE RUNANGA-A-IWI O NGATI KAHU V CARRINGTON FARMS LTD HC WHA CIV 2010-488-348 29
September 2011
Solicitors: Russell McVeagh, PO Box 10 214 The Terrace, Wellington 6143
Bell Gully, PO Box 4199 Shortland Street, Auckland 1140
Law North Limited, Private Bag 1001, Kerikeri 0245Contents
Para Introduction [1] The parties [7] Factual Background [10] The 1999 Resource Consents [10] The 2000 judicial review proceeding [13] The Carrington Estate Special Zone [14] The addition of waahi tapu sites [15] The 2001 settlement [16] Agreed consultation process [17] Tangata Whenua Protocols [19] The text of the 2001 settlement [20] The 2001 consent order [21] The amended settlement agreement [26] The Carrington Estate Special Zone [28] Other consents [29] 2008 dwelling house consent [30] 2009 subdivision consent [39] The appeal by Ngāti Kahu to the Environment Court [43] The appeals by Ngāti Kahu and Carrington to this Court [46] The present proceeding [49] The Declaratory Judgments Act 1908 cause of action [53] Submissions for Ngāti Kahu [56] Submissions for Carrington [57] Reply for Ngāti Kahu [61] The interpretation of the settlement agreement as amended [64] Relief [75] The Judicature Amendment Act 1972 cause of action [80] Submissions for Ngāti Kahu [87] Submissions for Carrington [89] Submissions for the Council [93] Reply for Ngati Kahu [95] Further submissions on “special circumstances” [98]
Scope of judicial review [100] Public notification of consent applications [106] The Council’s non-notification decision [108] Discretion to grant relief [121] Quantum of earthworks [129] Result [138]
Introduction
[1] On 22 December 2008 the Far North District Council (the Council) granted Carrington Farms Limited (Carrington), on a non-notified basis, a land use consent to construct residential dwellings on land owned by Carrington on the Karikari Peninsula adjacent to Carrington’s country club, golf course, accommodation units and vineyard (the country club development). The plaintiff, Te Rūnanga-ā-Iwi O Ngāti Kahu (Ngāti Kahu), has two claims:
(a) Ngāti Kahu seeks declarations that the 2008 land use consent was obtained in breach of settlement agreements dated 5 March 2001 and
16 May 2002 relating to a previous judicial review proceeding challenging resource consents granted by the Council in 1999 to Carrington in respect of the country club development; and
(b)Ngāti Kahu seeks orders setting aside the 2008 land use consent and referring the original application back to the Council for consideration on the grounds that the Council failed to seek further information in relation to the quantum of earthworks for the purposes of assessing the activity status of the proposed land use activity and also failed to notify Ngāti Kahu as an affected person of the application.
[2] The defendants, Carrington and the Council, dispute all of Ngāti Kahu’s claims. They also claim that the Court should not grant any relief because it would serve no useful purpose in view of the subsequent interim decision of the Environment Court on 3 November 20101 that the land, the subject of the 2008 consent, has no waahi tapu (a large burial cave) on it and because Ngāti Kahu delayed unduly in bringing its application for judicial review.
[3] Ngāti Kahu issued the present proceeding on 3 June 2010, approximately a year after apparently first becoming aware of the 2008 land use consent. At the same time Ngāti Kahu sought interim orders under s 8 of the Judicature Amendment Act
1972 restraining Carrington from exercising rights under the consent. Gendall J
1 Te Rūnanga-Ā-Iwi O Ngāti Kahu v Far North District Council [2010] NZ EnvC 372.
declined the application in a judgment delivered on 7 September 2010.2 There was no appeal.
[4] In the meantime Carrington had also sought and obtained from the Council on 7 October 2009 a subdivision resource consent to create 12 freehold lots on the land, which was the subject of the 2008 land use consent. The 2009 subdivision consent was processed on a notified basis. Ngāti Kahu opposed it and, when it was granted, lodged an appeal to the Environment Court. The appeal was declined in the interim decision delivered on 3 November 2010. The Environment Court decision is the subject of separate appeals by Ngāti Kahu and Carrington which were heard at the same time as the present proceeding. The appeals are the subject of a separate
judgment also issued today which should be read with this judgment.3
[5] At the conclusion of the hearing of the appeals and this proceeding on
23 March 2011, I sought further submissions from the parties on whether, if the judicial review proceeding was successful and the 2008 dwellings consent was set aside, the 2009 subdivision consent, the subject of the appeals, would also be
―unsound‖ and should be set aside. The further submissions received from the parties by memoranda dated 31 March and 1 and 4 April 2011 are referred to in my other judgment.
[6] I also subsequently sought further submissions from the parties on the separate question whether declarations of breach of the 2001 settlement agreement as sought by Ngāti Kahu would, if granted, have the effect of invalidating the 2008 dwelling house consent. The further submissions received from the parties by memoranda dated 13 and 20 May 2011 are referred to later in this judgment.
The parties
[7] Ngāti Kahu is an iwi authority registered under the Charitable Trusts Act
1957 and represents tangata whenua having kaitiakanga (guardianship) and mana whenua (trusteeship of land) over the Karikari Peninsula, its beaches, the coast and
2 Te Rūnanga-Ā-Iwi O Ngāti Kahu v Carrington Farms Ltd HC Whangarei CIV-2010-488-348,
13 September 2010.
3 Te Rūnanga-Ā-Iwi O Ngāti Kahu v Far North District Council HC Whangarei CIV-2010-488-766,
29 September 2011.
adjacent rural land. For Ngāti Kahu, the Karikari Peninsula is not only an attractive and unique environment with considerable cultural significance, it is also the location of Te Ana O Taite, an ancient burial cave.
[8] Carrington and its associated companies originally acquired some 800 to
1,000 hectares on the Peninsula for farming, subdivision and tourist facility purposes. Carrington has obtained various resource consents from the Council for its country club development.
[9] The Council is the local authority with responsibility for processing and determining applications for resource consents under the Resource Management Act
1991 (the RMA) within the area covered by the Operative Far North District Plan
(the District Plan) which includes the Karikari Peninsula.
Factual Background
The 1999 Resource Consents
[10] In March 1999 Carrington applied to the Council for three resource consents: (a) A subdivision consent to subdivide the country club development,
consisting of 384 proposed accommodation units and a lodge/golf club complex;
(b) A land use consent to establish a vineyard; and
(c) A land consent to establish a country club comprising a golf course, lodge, 384 accommodation units and ancillary buildings.
[11] With each application, Carrington provided plans indicating the location of each part of the country club development. Apart from the vineyard, the country club development was depicted on the plans within the boundary line of the proposed golf course. The golf course and vineyard were in turn shown as being well within the boundaries of the properties owned by Carrington and ranging from
1,160 to 1,950 metres from the coast line. As required by s 88 and Schedule 4 of the
RMA, the land use applications were accompanied by an assessment of environmental effects.
[12] The three applications were processed by the Council on a non-notified basis and were granted in May 1999. Each decision granting the resource consent referred to the legal descriptions of the Carrington properties, but made it clear that the resource consent itself related to the particular aspect of the country club development shown on the plans Carrington submitted with its application.
The 2000 judicial review proceeding
[13] In February 2000 Ngāti Kahu and the Environmental Defence Society (EDS) issued a judicial review proceeding in the High Court at Whangarei challenging the validity of the three resource consents. The grounds for the challenge were that the applications should not have been processed on a non-notified basis and that, in granting the consents, the Council had failed to have regard to relevant considerations. Such relevant considerations included adverse effects on the relationship of tangata whenua with their ancestral lands, the special significance of the Karikari Peninsula to tangata whenua, the patterns of use of the coast line of the Karikari Peninsula and the natural character and landscape values of the Karikari Peninsula. Carrington was named as a defendant to the proceeding. Ngāti Kahu’s statement of claim referred to the legal descriptions of the properties owned by Carrington, the applications by Carrington for the resource consents and the Council’s decisions granting the consents. But it did not make specific reference to the plans submitted by Carrington with its applications.
The Carrington Estate Special Zone
[14] On 1 April 2000 the Council publicly notified its proposed District Plan. On
21 July 2000 Carrington lodged a submission on the proposed district plan seeking inclusion of a special zone to be known as the ―Carrington Estate Special Zone‖. I refer to the outcome of Carrington’s submission later.
The addition of waahi tapu sites
[15] On 31 July 2000 Ngāti Kahu lodged a submission with the Council seeking to add waahi tapu sites to the proposed District Plan. The application was unsuccessful and Ngāti Kahu did not appeal against the Council’s decision.
The 2001 settlement
[16] Before these issues were resolved, Ngāti Kahu, the Council and Carrington negotiated a settlement of the 2000 judicial review proceeding relating to the validity of the three 1999 resource consents. The settlement was recorded in an agreement dated 5 March 2001. As the terms of the agreement are the basis of Ngāti Kahu’s current proceeding, it is necessary to set them out in full:
Whereas:
a)The parties to this agreement are parties to judicial review proceedings in the High Court at Auckland (M/404/45/01).
b) The parties wish to settle on the terms set out in this agreement.
The parties agree: Carrington Farms
1.Carrington Farms agrees to consult in good faith with EDS and Te Runanga concerning resource management matters of mutual interest relating to any part of the development site (including the parts referred to in the following paragraphs and the streams) which may arise in future. This commitment is to be incorporated, on a prospective basis, into the conditions of the consent granted by the FNDC.
2.Furthermore, Carrington Farms agrees not to develop the beach (including the dunes) and wetland areas of its property as identified on the attached plan, and to use its best endeavours to preserve and enhance those areas for the purpose of restoring the natural state of the wetland. The parties agree that this commitment is to be incorporated, on a prospective basis, into the conditions of consent granted by the FNDC.
3.The parties agree that protocols for dealing with any interference with any site or find of cultural (including koiwi, waahi tapu or other taonga) or heritage (including any archaeological sites) significance are to be incorporated, on a prospective basis, into the conditions of consent granted by the FNDC.
4.Carrington Farms agrees not to seek to expand the currently consented provision for accommodation (including hotel, villas or
any other form of accommodation), subject to any ―as of right‖ development that may be able to take place without the need for a resource consent at the time of this agreement and any re-siting of elements within the development site. Such re-siting shall not without the consent of the plaintiffs:
(a) involve the relocation of any building covered by the consents to a position closer to the coast than the nearest building permitted in terms of the resource consents which are the subject of this proceeding; and
(b) have any adverse effects on the environment having regard to what is contemplated by those resource consents.
Carrington Farms agrees that Te Runanga and EDS would be affected parties for the purposes of section 94(2) of the RMA in respect of any further development of the site subject to these proceedings.
5.The parties agree that it is not for the applicant for a resource consent to determine the status of a given hapu or iwi as tangata whenua or man whenua and if this has caused offence, it has not been deliberate. Carrington Farms acted in good faith and relied on advice, and it is regretted if offence has been caused or taken.
FNDC
6.Without limiting its statutory duties and obligations the FNDC agrees that Te Runanga and EDS would be affected parties for the purposes of s 94(2) of the Resource Management Act in respect of any further development of the site subject to these proceedings.
7.The FNDC agrees that for the purposes of consultation developers must be referred to relevant iwi groups, including local marae and runanga.
8.The FNDC acknowledges the particular interest of EDS in significant developments affecting the coast and of Te Runanga and local marae in significant developments affecting the coast within the rohe of Ngati Kahu.
9.The FNDC regrets any concerns which have been caused to any tangata whenua arising out of the processes which it has followed in this case. Such concerns have not been intended as the FNDC had attempted to ensure that consultation with tangata whenua took place on an appropriate basis.
10.The FNDC acknowledges that EDS’s strongly held view is that the consents should have been notified and acknowledges that public participation in significant projects is desirable.
11.The FNDC agrees to consider submissions EDS intents to make about its notification process and if it considers it appropriate shall undertake a review of those processes.
Media statement
12.The parties will issue a joint media statement in which the parties indicate a win-win-situation using a tone of co-operation with the stated objective of achieving a culturally and environmentally sensitive development. The agreed statement shall include a statement attributed to Dr Mutu to the effect that Te Runanga was acting on behalf of Te Whanau Moana of Karikari. The parties agree that no other public statement will be made which is inconsistent with the spirit of the agreed statement, of if no agreed statement is reached, which is inconsistent with this agreement.
13.The parties will use best endeavours to agree to the terms of the joint media statement for issue within 14 days of concluding this agreement.
Conclusion
14.All parties to this Settlement Agreement confirm that they shall in implementing the terms of this Settlement Agreement in all respects act in good faith including using best endeavours to achieve the alteration to the conditions of consent contemplated by this agreement within a reasonable time.
15.The parties agree that this Settlement Agreement settles all issues, concerns and disputes however arising out of the grant or exercise of all existing resource consents obtained for the development provided such exercise is in accordance with the conditions of the consents, including the conditions referred to in this agreement.
16. This agreement shall be attached to the FNDC property file.
17.In all respects the agreement concluded, including the further agreements in relation to an agreed consultation protocol and agreed tangata whenua protocols, has effect from the date hereof.
[17] As indicated in clause 2 of the agreement, a plan was attached identifying
―the beach (including the dunes) and wetland areas‖ of Carrington’s property. These areas were within the ―Outstanding Natural Landscape‖ in the Council’s District Plan Zone Map.
Agreed consultation process
[18] The agreed consultation process referred to in clause 1 of the settlement agreement was the subject of two separate agreements both dated 5 March 2001, one between Carrington and Ngāti Kahu and the other between Carrington and EDS. The separate agreement between Carrington and Ngāti Kahu provided:
Preamble: This consultation process is agreed pursuant to Clause 1 of the Settlement Agreement. It is not for Carrington Farms Limited to determine the status of a given hapu or iwi as tangata whenua or manua whenua.
1.When both parties consider it appropriate Carrington Farms and Te Runanga (on the instructions of the Kaumatua of the tangata whenua) will consult in order to:
fully explain the development authorised by the resource consents (―the development‖) including the methodologies applied and the rationale adopted;
review and discuss identified potential adverse effects of the development on the spiritual and cultural relationship that the tangata whenua have with their taonga, inclusive of their lands and waterways;
identify ways in which any adverse effects associated with the development might be avoided, mitigated or remedied;
identify relevant subject matters requiring the provision of additional information; and
review measures that could be included in the proposed
District Plan.
2.To this end, unless mutually agreed, to ensure that tangata whenua are properly informed as to the consent holder’s intentions for further development of the site during a forthcoming summer construction season, the following minimum consultation meetings shall be undertaken:
(a) At the conclusion of the present season on 30 April 2001 or as soon as can conveniently be arranged with Te Runanga a meeting on site or at another agreed location shall be held. The purpose of that meeting will be to explain in detail the programme of works contemplated for the next season 1
October 2001 – 30 April 2002. To facilitate that need the following steps shall be taken:
(i) a request will be made of the Secretary of Te
Runanga to establish a date for that meeting;
(ii) the Secretary of Te Runanga will estimate the number of representatives likely to attend that meeting to facilitate catering arrangements, and will advise Carrington Farms accordingly; and
(iii) the company will provide to the Secretary at least seven days before that meeting plans outlining in general terms the development contemplated for the relevant period.
3.A subsequent meeting conducted under equivalent arrangements will be held upon the site at a time to be agreed with the Secretary at the
beginning of the Summer period which will begin on 1 October
2001.
4.The same arrangements will prevail in each year when development work is to be undertaken on the site.
5.Both parties to this protocol agree to have further meetings should they be necessary and discuss important matters arising out of this protocol.
6.Carrington Farms agrees to meet the actual and responsible costs associated with the initial meeting but not to exceed $1,000 for that meeting and in respect of any subsequent meetings, the costs to be discussed and agreed.
Plans
7.All plans and proposed plans produced by Carrington Farms Limited directly related to the development project which are not protected by legal privilege but which are necessary for a full RMA understanding of the overall plan, will be forwarded by Carrington Farms to Te Runanga as soon as possible in every case where they have not already been provided.
Surveys and reports in relation to future work
8.If Carrington Farms and Te Runanga agree that further archaeological work should be carried out in respect of additional development on the company’s land not authorised by existing resource consents then such work should be undertaken for Carrington Farms by a mutually acceptable professional archaeologist.
9.Any archaeologist associated with this project must adhere to protocols agreed between Carrington Farms and Te Runanga for archaeological surveys.
10.A confidentiality protocol will be developed and agreed between Carrington Farms and Te Runanga to provide for the protection of tangata whenua interests in the event that any information from an archaeological survey pertaining to a site or sites is considered by them to be sufficiently sensitive to warrant confidentiality.
11. Any reasonable recommendations made by the archaeologist arising from the work referred to in clause 8 above, will be given proper consideration and, where practicable, implemented by Carrington Farms in consultation with Te Runanga.
Maori Values Assessment
12.Te Runganga will with reasonable endeavour produce a Maori Values Assessment (―MVA‖) associated with the development within two months of the date of signing this Memorandum of agreed consultation process.
13. Land to be the subject of the MVA is that portion of the company’s
land that is subject to the development permitted by the existing
consents and must taken into account the fact that a major portion of the contemplated development works have now already been undertaken.
14.Any reasonable recommendations made on the MVA will be given proper consideration by Carrington Farms after consultation with tangata whenua.
15.Carrington Farms recognises Te Runanga as the owner of the information provided through the MVA. Te Runanga agrees to authorise Carrington Farms to make available within the development but for reference only by persons visiting the development copies of the open sections of that report. Te Runanga will confirm on delivery of the MVA those points of it which shall remain confidential.
16. Carrington Farms recognises Te Runanga’s custodial rights to their
copy of the MVA report.
17.Carrington Farms undertakes to pay all the costs associated with the preparation of the MVA but not to exceed $5,000 plus GST provided that it is able to reach agreement with Te Runanga as to the authorship of the report.
Kaitiaki
18.Tangata Whenua have a traditional role as kaitiaki over the Karikari Peninsula (including the development area). This is recognised by Carrington Farms. Should conflict emerge between the parties regarding their respective interests, the parties agree to attempt to resolve it through an agreed process of mediation or negotiation.
Release of Information
19.The original or copies of this memorandum as to agreed consultation process and any archaeological survey or Maori Values Assessment reports shall not be realised by Carrington Farms to any third parties without the prior written consent of Te Runanga which consent shall not be unreasonable withheld.
Tangata Whenua Protocols
[19] The protocols referred to in clause 3 of the settlement agreement were also the subject of a separate agreement between Carrington and Ngāti Kahu dated
5 March 2001. The Tangata Whenua Protocols read:
Preamble: These protocols are agreed pursuant to Clause 3 of the Settlement Agreement executed contemporaneously with this documents. It is not for Carrington Farms Limited to determine the status of a given hapu or iwi as tangata whenua or mana whenua.
Koiwi protocol
Should any koiwi / human remains be uncovered on the project site, subject to the statutory requirements of relevant legislation, Te Runanga on the instructions of the Kaumata of the tangata whenua will be the sole determiner of the future of any koiwi uncovered.
In the event of any such discovery, the work shall cease immediately and the Secretary of Te Runanga, the Secretary of the Haititaimarangai Marae and the Northland Regional Council shall be notified within one working day. The area holding the koiwi shall be secured from interference or otherwise isolated. Te Runanga will ensure that the consent holder is advised as to the appropriate course of action to be taken within a reasonable time after receiving the notification.
If Te Runanga considers it appropriate, Te Runanga will remove the koiwi in an appropriate manner.
If Te Runanga does not consider that it would be appropriate to remove the koiwi, the koiwi shall be left untouched and such area as may reasonably be required to protect the koiwi made permanently secure from any further interference.
Other cultural finds
The consent holder shall, to the satisfaction of the Northland Regional Council, ensure that the exercise of this consent shall not disturb sites of spiritual or cultural significance to the tangata whenua.
To this end the consent holder and Te Runanga have entered into the arrangements for consultation recorded in the agreed consultation document executed contemporaneously with this protocol.
In the event that any archaeological sites, remains, artefacts, taonga are unearthed, dislodged, uncovered or otherwise found or discovered during the exercise of this consent, the Secretary of Te Runanga, the Secretary of the Haititaimarangai Marae and the Northland Regional Council shall be advised in writing by the consent holder within one day.
In the event of any discovery, the works shall cease immediately. Works may recommence when advised to do so by the Northland Regional Council. Such advice shall be given after the Northland Regional Council has considered:
Interests and values of the tangata whenua; and
The consent holder’s interests; and
The interests of the public generally; and
Any archaeological or scientific evidence
The NZ Police, Coroner and Historic Places Trust shall also be contacted as appropriate, and the work shall not recommence in the affected area until any necessary statutory authorisations or consents have been obtained.
The text of the 2001 settlement
[20] For present purposes the following features of the text of the settlement agreement may be noted at this point:
(a) Under clause 1 Carrington’s ―good faith‖ consultation obligation concerning ―resource management matters of mutual interest‖ related to any part of ―the development site‖.
(b)Although ―the development site‖ was not defined in the settlement agreement, it extended beyond ―the parts‖ expressly included, namely those parts ―referred to in the following paragraphs and the streams‖.
(c) The specific parts expressly included ―in the following paragraphs‖
were:
(i)clause 2 – the beach (including the dunes) and wetland areas of Carrington’s property;
(ii) clause 3 – any site or find of cultural or heritage significance;
(iii)clause 4 – the areas occupied by the hotel, villas and any other form of accommodation ―within the development site‖; and
(iv) clause 4 – ―the site subject to these proceedings‖.
(d)On this basis ―the development site‖ referred to in clause 1 extended to cover any part of Carrington’s property on the Karikari Peninsula that it might decide to develop in the future and was not limited to the site the subject of the judicial review proceeding.
(e) A broad interpretation of the expression ―the development site‖ would be consistent with the spirit of Carrington’s ―good faith‖ consultation obligation reflected in the terms of the separate agreement relating to the consultation process and the Tangata Whenua Protocols. The separate agreement relating to the consultation process referred to
both ―the development authorised by the resource consents‖ (clause 1)
and ―further development of the site‖ (clause 2).
(f) Under clause 4 of the settlement agreement Carrington agreed, subject to two exceptions, not to seek to expand ―the currently consented provision for accommodation‖. The two exceptions were:
(i)any ―as of right‖ development that might take place without the need for a resource consent at the time of the agreement; and
(ii) any ―re-siting‖ of elements within ―the development site‖, ie
the site the subject of the judicial review proceedings. Such
―re-siting‖ would, however, require the consent of Ngāti Kahu and EDS if subclauses (a) and (b) applied. Subclause (a) related to ―the relocation of any building covered by the consents‖ (ie the existing 1999 consents the subject of the judicial review proceeding).
(g)Consistent with the scope of Carrington’s ―good faith‖ consultation obligation, Carrington’s agreement under clause 4 not to seek to expand its accommodation related to any part of its property on the Karikari Peninsula that it might decide to develop in the future.
(h)The separate reference in the concluding sentence of clause 4 to ―any further development of the site subject to these proceedings‖ was to be distinguished from the scope of the other obligations under clauses
1 and 4.
(i)Subject to the Council’s statutory duties and obligations, the Council agreed under clause 6 that Ngāti Kahu and EDS would be ―affected parties‖ for the purposes of s 94(2) of the RMA in respect of ―any further development of the site subject to these proceedings‖. This specific agreement was narrower than Carrington’s ―good faith‖
consultation obligation which included, but was not limited to, development of the site the subject of the judicial review proceeding.
(j)The Council also acknowledged in clause 8 the ―particular interest‖ of Ngāti Kahu in ―significant developments‖ affecting the coast within the rohe (territory or region) of Ngāti Kahu.
The 2001 consent order
[21] The terms of the settlement agreement and the protocols were then inserted as conditions to the three resource consents by way of a consent order of this Court dated 14 March 2001 which read:
(a) For insertion in RC 1990480, RC 1990481 and RC 1990481A:
(i) “The Consent Holders shall act in accordance with the:
Consultation Protocol agreed between Carrington Farms Limited and Environmental Defence Society Incorporated dated 5 March 2001; and
Consultation Protocol agreed between Carrington Farms
Limited and Te-Runanga-a-Iwi O Ngati Kahu dated 5 March
2001.”
(ii) “The Consent Holder shall act in accordance with the Tangata Whenua Protocol agreed between Carrington Farms Limited and Te Runanga-a-Iwi ) Ngati Kahu dated 5 March 2001, regarding koiwi and other cultural discovery.”
(b) For insertion in RC 1990481 and RC 1990481A:
“The consent holder shall not develop the beach (including the dunes) and wetland areas of its property as identified on the plan attached and marked “A”, and shall use its best endeavours to preserve and enhance those areas for the purpose of restoring the natural state of the wetland.”
[22] The plan attached to the Court order was the same plan as had been attached to the settlement agreement dated 5 March 2001.
[23] On this basis Ngāti Kahu discontinued its 2000 judicial review proceeding.
[24] The Environment Court in its interim decision of 3 November 2010 in respect of the appeals by Ngāti Kahu and Carrington relating to the subsequent 2009 subdivision consent pointed out that:
[61] Both the Settlement Agreement and the consent order purported to vary the terms of the relevant resource consents to include the identified amended provisions as conditions of the relevant consents. There was no discussion before us as to the validity of such amendment process which clearly does not follow the provisions of ss 127 and 128 RMA, although we do not consider that anything necessarily turns on that in this case.
[25] Similarly, no party to the current proceeding or to the appeals suggested that the settlement agreement or the High Court consent order implementing it was invalid on any ground. I therefore proceed on the basis that both were valid.
The amended settlement agreement
[26] On 16 May 2002 Ngāti Kahu, the Council and Carrington entered into an
amended settlement agreement which read:
Introduction
A. The parties to this agreement are parties to a Settlement Agreement dated 5 March 2001.
B. The parties wish to amend the Settlement Agreement as set out in this agreement.
It is agreed
1. Landscape and ecological plan
(a) Carrington Farms has commissioned a landscape and ecological study (―the study‖) for the land titles encompassing the Carrington Club, winery/vineyards, wetlands and beach areas. The parties acknowledge that this is being undertaken on a voluntary basis by Carrington Farms and not in response to any outstanding contractual or regulatory violations. The purpose of the study is to identify procedures which will help to restore, enhance and maintain the environmentally sensitive wetlands and beach areas and to enhance the presence of native trees, bushes and flora throughout the overall site. Copies of the report have been provided to EDS and Te Runanga, and a copy is attached to this agreement.
(b) Carrington Farms will consider in good faith all such recommendations contained in the study, and implement such to the degree which it deems to be practicable. All practicable recommendations adopted will be commenced in a timely manner.
2. 800m setback
The parties agree to vary clause 4(a) of the Settlement Agreement to permit re-siting provided there remains an 800 metre setback from the beach (mean highwater) for the construction of any structures related to the Carrington Club and winery/vineyards.
3. Special zone
(a) The parties agree to support Carrington Farms’ special zone application for the Carrington Club and winery/vineyards project in relation to the FNDC’s proposed District Plan and its successors, and agree to co-operate with each other to the fullest extent possible to get the special zone implemented.
(b) In consideration of this support, Carrington Farms agrees that, upon the proposed District Plan becoming operative with the said special zone designation, Carrington Farm’s consented villa/condominium units will be reduced to 230 units, and its consented hotel/overnight accommodation units (including the winery bed and breakfast) will be reduced to 113 units. The foregoing reduced unit levels may be substituted between villas/condominiums and hotel/overnight accommodation units by Carrington Farms on a basis of one villa/condominium unit equalling three hotel/overnight accommodation units, such that Carrington Farms can (subject to the normal regulatory constraints for amending an existing consented building plan) construct three hotel/overnight accommodation units for each villa/condominium unit which it may surrender under this Agreement.
[27] For present purposes it is to be noted that clause 2 of the amended settlement agreement varied clause 4(a) of the original settlement agreement which related solely to ―the relocation of any building covered by the [existing 1999] consents‖. As the Environment Court pointed out in its interim decision of 3 November 2010:
[66] Para 2 of the Amended Agreement appears to contain a prohibition on the re-siting (whatever that means) of structures related to the Carrington Club and winery/vineyards within 800 metres of mean high-water. It was common ground before us that the subdivision site is within 800 metres of mean high-water.
The Carrington Estate Special Zone
[28] As the Council did not accept all aspects of the Carrington Estate Special Zone proposed by Carrington, Carrington filed an appeal to the Environment Court on 29 August 2003. The appeal was ultimately settled and the parties finalised the incorporation of the Carrington Estate Special Zone into the District Plan by a
consent order of the Environment Court on 21 August 2004. The Council then signed the amended settlement agreement on 26 August 2004.
Other consents
[29] In the period August 2003 to September 2008 Carrington applied to the Council for various other consents, but counsel were in agreement that none of these applications was material to the issues that arise in this proceeding.
2008 dwelling house consent
[30] On 24 January 2008 Carrington applied to the Council for a land use consent for the construction and use of 12 single residential units on land it owned adjacent to its country club development. The location of the site was described as:
Off Matai Bay Road, Whatuwhiwhi and has the legal description of Proposed Lots 5 to 15, Lots 17 to 21 containing 210.5ha authorised under RC 2040084.
[31] The information provided by Carrington in support of the application included the following further detail:
2.0 APPLICATION SITE and APPLICATION DESCRIPTION
2.1 The application involves the construction and use of twelve dwelling houses. The proposed dwelling houses are located within Proposed Lots 13,
14 and 15 approved under RC 2040084 on 28 September 2005 being the subdivision of Lots 1 – 11DP 201677, a copy of that scheme plan is attached.
The Survey Plan for approval under Section 223 of the Act for this subdivision has yet to be presented to Council. The three sites were part of some 22 lots approved under that subdivision consent which effectively
delineated the following components –
Winery – Lots 1, 2, 3 and 4 containing 101ha;
Country Club/Golf Course – Lot 16 containing 208ha;
Carrington’s farm – Lots 5 to 15, Lots 17 to 21 containing 210.5ha; and
Wetland area – Lot 22 containing 383ha.
2.2 For the purpose of this application we seek to rely upon this subdivision approval given the underlying appellations do not correspond with all the zones of the District Plan. In this regard Lots 5 to 15 and Lots
17 to 21 are applicable and deemed to establish a permitted baseline for this application.
2.3 The dwelling houses are yet to be designed but will comply in respect of all the bulk and location requirements of the District Plan. Given
that this application, if required, would relate to traffic movements it is considered that specific designs of the dwelling houses is not relevant at this point in time. Rather it is the traffic generated by the activity over which Council needs to assess.
2.4 We have therefore attached a plan prepared by Williams and King, Reference 20351-6, which depicts the location of the twelve dwelling houses. This plan also identifies the following components –
existing tracks to be revegetated;
a helicopter pad;
enhancement planting;
existing wetland to be enhanced;
proposed access; and possible alternative access.
2.5 Please note that at the time of undertaking the archaeological survey the development anticipated the creation of twenty sites. Those sites are depicted in Figure 4 of the Archaeological Report. However following consultation with the local Iwi it has been decided to reduce the number of dwellings from 20 to 12. This reduction has not however shifted the general location of the house sites. We have also attached a copy of DP 201677 with the extent of the aerial photograph contained with Figure 4 being identified.
3.0 ZONING
3.1 Under the District Plan the site is zoned Rural Production. There are no features depicted on the Resource Maps that apply to the application site. There are a number of archaeological sites, both previously recorded and additional sites now recently recorded, in proximity to the proposed dwelling houses however none of these sites are being disturbed by the application. In fact the application relocates the access drive away from such sites. A copy of the archaeological report for these sites is attached.
4.0 DEVELOPMENT STANDARDS
4.1 As noted within the Introduction this application is lodged for completeness given the manner in which the rules of the District Plan are written. To clarify the manner in which this situation has arisen the following summarises the Permitted Activity Rules of the Rural Production Zone with comments on the applicability of the development standard being discussed in italics below.
....
8.6.5.1.5 TRAFFIC INTENSITY
The Traffic Intensity Factor [Tif] in this zone for new activities is 60 one way movements with single residential units being exempt from the rule. Appendix 3A within Part 4 determines that a standard residential unit will create 10 movements.
The District Plan is silent in relation to this application as each dwelling house is for the purpose of a residential unit. It may therefore be considered to fall within the status of a Permitted Activity. However the District Plan is not clear on this issue. This
application is sought to detail the manner in the residential units attain the outcomes of the District Plan. In addition the effects of traffic movements would sit within the thresholds of the permitted baseline given the underlying subdivision consent. The consideration of the Tif is assessed under a separate heading to follow.
....
4.2 In addition to the Rural Production Zone Rules there are rules which apply across all zones. These are called the District Wide Rules and relate to the following –
.... Earthworks/Filling
This rule allows 2000m3 in any 12 month per providing no cut or fill is greater than 1.5m.
Each site would not require earthworks of this nature.
[32] The plan attached to the application showed that the 12 proposed dwelling houses would all be located on land owned by Carrington within the Rural Production Zone, but outside the area of the country club development for which the three 1999 resource consents had been obtained and the Carrington Estate Special Zone subsequently adopted by the Council. The sites for the 12 proposed dwelling houses were shown as located 410 metres from the coastline, ie within the 800 metre set-back referred to in clause 2 of the amended settlement agreement dated 16 May
2002. Although none of the proposed sites was within the beach, the dunes or the wetland areas of Carrington’s property referred to in clause 2 of the 2001 settlement agreement, they were adjacent to the ―Outstanding Natural Landscape‖ areas shown in the Council’s District Plan Zone Map.
[33] The reference in the information provided by Carrington to the Council to the reduction of the number of dwellings from 20 to 12 after consultation with the local iwi was not consultation with Ngāti Kahu in terms of clause 1 of the settlement agreement.
[34] The reference in the information provided by Carrington to the Council suggesting that the relevant earthworks rule allowed 2,000m3 in any 12 month period was an error. The correct figure was 5,000m3.
[35] Following further correspondence between the Council and Carrington, Carrington lodged an amended application for the land consent for the 12 dwelling houses on 30 September 2008. For present purposes there were no significant changes between the original and the amended application. The reference to the
earthworks rule retained the erroneous 2,000m3 figure.
[36] It does not appear that the application disclosed whether Carrington intended to retain or sell the proposed 12 dwelling houses. By the time the Environment Court heard the appeal against the subsequent subdivision consent, however, Carrington was suggesting that it intended to sell the 12 units: Environment Court decision at [102]-[109].
[37] The application was processed by the Council on a non-notified basis and granted on 22 December 2008 (RC 2080553). In reaching its decision to grant the application, the Council recorded that the adverse effects from the proposal, including the traffic intensity factor, were considered ―minor‖ and that no other parties were affected by the proposal. On the issues of adverse effects and the need for notification of the application, the Council’s notification decision recorded:
2B. If there are adverse effects, are these effects more than those permitted in the District Plan?
It is considered (as outlined earlier) that the activity will not result in adverse effects when considered against the relevant
criteria of the District Plan.
Section 94A of the RMA requires that Council disregard any adverse effects that does not relate to the matters specified in the
plan as a matter for which discretion has been restricted. As
such the only considerations relate to Traffic Intensity and the access.
3. Consent of Affected Persons (section 94B of the Act)
No other parties are considered to be affected by the proposal. It is noted that section 94B(3) of the RMA specifies that a person must not be treated as adversely affected if there are adverse effects that do not relate to matter[s] over which discretion has been reserved. As such no person is considered to be affected by such matters as residential intensity, design etc. As such it is considered that no other parties are affected by the traffic generation as the access and Matai Bay Road are considered to be of suitable standard to handle the traffic generated by the proposal. Similarly no other persons are considered to be affected by the non-provision of a public roda [sic].
Has the applicant consulted with iwi?
No, although the applicant has submitted an archaeological report as part of the underlying subdivision. Consultation is not
considered necessary as none of the matters over which discretion has been reserved relate to cultural matters.
4. Is limited notification considered appropriate?
No, as the effects are considered to be minor and no other parties are considered to be affected, such a course is not considered to be necessary
5.Public notification of proposal if requested by applicant or if special circumstances exist
Public notification has not been requested. Whilst previous developments in the area by the applicant have been subject to
scrutiny from iwi and the public, this is not sufficient reason to require public notification.
6. Conclusions
The proposal does not offend the matters over which Council has reserved its discretion and as such merits approval.
7. Recommendation:
That the application be approved and be processed without service or public notification.
RESOLUTION
That pursuant to Section 93(1)(b) and Section 94(2) of the Resource Management Act 1991, the Council considers that the Land Use Consent Application RC-2080553-RMALUC by Carrington Farms Limited will be processed without the need to serve notice (non-notified).
The reasons for this resolution are:
1.Taking into account the effect of the proposal, the adverse effects (when assessed against the matters over which Council has reserved its discretion) on the environment of the activity for which consent is sought will be no more than minor.
2.No other parties are considered to be affected by the matters over which Council has reserved its discretion.
3. Special circumstances requiring notification do not exist.
[38] Ngāti Kahu was aware of vegetation clearance on the site in April 2009, but
was not notified of the 2008 dwelling house consent until May 2009.
2009 subdivision consent
[39] In the meantime on 16 March 2009 Carrington applied to the Council for subdivision consent to create 15 allotments, one each for the 12 dwelling houses and three other lots which are not in dispute.
[40] On 29 May 2009 the Council notified Ngāti Kahu of Carrington’s application
for subdivision consent. The Council recorded that it considered that:
The adverse effect of the proposed activity will be minor and [the Council] is
processing the consent as a ―limited notification‖ method.
[41] On 30 June 2009 Ngāti Kahu lodged submissions in opposition to Carrington’s subdivision consent application on the grounds that the application was non-complying and its adverse effects were more than minor. Reference was made to the settlement agreement, the amended settlement agreement, the absence of consultation in terms of the agreements, and the adverse effects on the natural character of the coastal environment, including visual intrusion, rural character, public use of coastal resources, heritage values, land use compatibility, effect on the neighbourhood and community and cumulative effects on the environment.
[42] Following a Council report recommending that the consent be granted and a hearing before Commissioners on 7 September 2009, the Council granted the consent on 7 October 2009 subject to certain conditions.
The appeal by Ngāti Kahu to the Environment Court
[43] On 30 October 2009 Ngāti Kahu lodged an appeal to the Environment Court against the decision of the Council granting the subdivision consent. The principal grounds for Ngāti Kahu’s appeal were that the Council’s decision was contrary to the purpose and principles of the RMA and failed to recognise Ngāti Kahu’s status and role, to assess the effects of the consent on Te Ana O Taite, and to take into account Carrington’s obligations under the settlement agreement.
[44] The Environment Court heard Ngāti Kahu’s appeal, which was opposed by the Council and Carrington, on 30 April and 11-14 May 2010. The appeal was dismissed in the interim decision delivered on 3 November 2010. The decision was interim because the Environment Court proposed to impose certain conditions in respect of which it sought further submissions from the parties.
[45] The decision of the Environment Court is summarised in my other judgment issued today. The Environment Court was aware that the interpretation and effect of the settlement agreement and the amended agreement were vigorously disputed by Ngāti Kahu and Carrington and that these proceedings had been filed by Ngāti Kahu: at [67] and [125]-[126]. The Environment Court recognised the uncertainties involved as a result of the present proceeding, but considered that it would be inappropriate to make assumptions as to the likely outcome or to await the final
outcome: at [127]-[129]. The Environment Court recognised that if Ngāti Kahu was successful in upholding its interpretation of the settlement agreement, development on the subdivision site would be precluded in any event: at [130]. The Environment Court was satisfied that, subject to the outcome of the present proceeding, RC2080553 was likely to be implemented and that any uncertainties should be addressed by the imposition of appropriate conditions: at [131]-[133] and [215].
The appeals by Ngāti Kahu and Carrington to this Court
[46] Both Ngāti Kahu and Carrington have appealed to this Court against the decision of the Environment Court. The background to their appeals is set out in my other judgment.
[47] For present purposes it is necessary to note that Ngāti Kahu was not entitled to, and therefore did not, appeal against the factual findings by the Environment Court which led to the conclusion that the evidence heard by that Court did not establish that the burial cave Te Ana O Taite extended underneath Carrington’s subdivision site as contended by Ngāti Kahu.
[48] The impact of my decision in the present proceeding on the outcome of the appeals is dealt with in my other judgment at [149]-[156].
The present proceeding
[49] In the meantime Ngāti Kahu, following correspondence from Carrington, had issued the present proceeding on 3 June 2010 and had sought an order under s 8 of the Judicature Amendment Act 1972 restricting Carrington from implementing its land use consent for the 12 dwelling houses.
[50] As already noted, the application for the interim order was declined by Gendall J in his judgment of 13 September 2010. The reasons for his decision are set out in his conclusion:
[37] Balancing all factors as but I can, I have come to the view that the Court’s discretion should not be exercised in favour of Te Rūnanga [–ā-Iwi O Ngāti Kahu] to grant the interim orders sought under s 8. Essentially, the reasons for this are:
(1) The Court is not satisfied that an interim order as sought is reasonably necessary to preserve Te Rūnanga’s position, which can adequately be protected by other measures;
(2) If Te Rūnanga are successful in the substantive judicial review proceedings, the consent application would be remitted back to the Council to be determined on a notified basis, and despite whatever evidence is then adduced on the extent of the earthworks issue, the grant of the consents sought are unlikely to be prevented. Te Rūnanga cannot prevent what is permitted, nor insist on a condition as to excavation extent, because that is in the rule;
(3) The provisions of s 99 of the Historic Places Act 1993 are known to Carrington and its advisors and there is no suggestion that Carrington would act in breach of that section;
(4) So also, the provisions of the district plan earthworks restrictions are clearly known to Carrington and its advisors, the breach of which would lead to punitive and other sanctions;
(5) The delay in bringing this judicial review, and interim relief, application has not been satisfactorily explained so far, and if there was the urgency that Te Rūnanga now says exists it could have been expected to have brought these proceedings and sought interim orders many months ago;
(6) Carrington interests are not actioning the consent at the moment and will not do so at least until after the Environment Court delivers its decision and the outcome of that is in its favour. There is no reason why an early fixture cannot now be granted for the determination of the substantive proceedings on an urgent basis. That probably cannot be in the Whangarei High Court, but as Associate Judge Bell envisaged an early fixture should be able to be allocated in the Auckland High Court, given it now has a full complement of Judges and that Registry is being assisted from time to time by Visiting Judges from Wellington. I direct the Whangarei Registrar to liaise immediately with the Auckland Registry to secure an early fixture;
(7) Te Rūnanga has available to it the option of seeking an interim injunction under the Court’s equitable jurisdiction, founded upon its first cause of action being the allegations relating to the settlement agreement to pursue if it wishes. That, of course, would require the giving of the undertaking as to damages however.
[38] So, I have concluded that whilst there may be an arguable issue an interim order is not in my view reasonably necessary for the purposes of preserving Te Rūnanga’s legal or factual position under the [Judicature] Amendment Act 1972. Further, in the exercise of the Court’s discretion I weigh the advantages and detriments to the respective parties, the current
status quo, the public and private repercussions, delay in bringing the interim relief application and the overall justice.
[39] If circumstances should change before the substantive application is heard and sufficient grounds then exist Te Rūnanga, naturally, may apply again for an interim order under s 8, or it may pursue an application for interim injunction in the Court’s equity jurisdiction.
[51] Ngāti Kahu did not appeal against the decision or make any further application for an interim order. Nor did Ngāti Kahu seek an interim injunction under the court’s equitable jurisdiction.
[52] I propose to consider the two causes of action separately, noting that the Declaratory Judgments Act 1908 cause of action relates to Carrington and not to the Council.
The Declaratory Judgments Act 1908 cause of action
[53] In its statement of claim of 3 June 2010, Ngāti Kahu first alleges that Carrington has breached the ―No Further Accommodation‖ clause and the ―Re-siting and 800 metre Setback‖ clause in the settlement agreement and seeks declarations that:
(a) The accommodation site (the 2008 land use consent for the
12 dwelling houses) was subject to the ―No Further Accommodation‖ clause (clause 4 in the 2001 settlement agreement) and the ―800 metre Setback‖ clause (clause 2 in the amended settlement agreement); and
(b)The consents and certificates of compliance for vegetation clearance and the obtaining of the 2008 land use consent on a non-notified basis and the 2009 subdivision consent were in breach of the settlement agreement.
[54] Ngāti Kahu then sought injunctions restraining Carrington from taking any further steps to implement the certificates of compliance and the 2008 and 2009 consents, from seeking any further consents to enable accommodation on the Proposed Accommodation Site, and from disposing of its interests in the Proposed Accommodation Site without provision for compliance with the settlement
agreement. Ngāti Kahu now accepts, however, that the Court has no jurisdiction under the Declaratory Judgments Act 1908 to make the injunctions sought in the statement of claim and that separate proceedings for breach of the provisions of the settlement agreement would be necessary to seek and obtain such injunctions. Ngāti Kahu’s position is that if the declarations are granted it would then be able to obtain injunctions in the event that Carrington proceeded to implement the consents notwithstanding the declarations.
[55] The parties were agreed that the real issue in respect of the Declaratory Judgments Act 1908 cause of action was whether clause 4 of the settlement agreement, correctly interpreted, meant that Carrington had agreed not to seek to expand its accommodation on to the site which was the subject of its amended land use consent application dated 30 September 2008.
(a) the decisions of the Council relating to RC 2080553 and RC 2080553 itself are quashed;
(b)Carrington’s amended application for the dwelling house consent dated 30 September 2008 is referred back to the Council for
reconsideration with directions that:
32 Palmerston North City Council v Dury [2008] NZ RMA 90 at [62] – [65]. Leave to appeal to
Supreme Court declined: [2008] NZSC 17.
(i) the application is to proceed on a notified basis under s 94C(2)
as it stood in 2008 or under s 95A as it stands now; and
(ii)the application is to be considered with the subdivision application for the same site under s 91; and
(c) leave is reserved to any party to apply further if necessary for any amendment to the form of the orders made to give effect to the intent of the judgment.
[140] As Ngāti Kahu has been successful, I see no reason why it should not be entitled to an order for costs against both Carrington and the Council on a category 2 basis in accordance with Associate Judge Bell’s case management telephone conference minute dated 15 September 2010 at [5], with disbursements to be fixed by the Registrar. If the parties are unable to agree on costs, then Ngāti Kahu is to file a memorandum within 21 days of the date of this judgment, and Carrington and the
Council are to file memoranda in response within a further 21 days.
D J White J
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