Vipassana Foundation Charitable Trust Board v Auckland Council

[2017] NZHC 1492

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2016-404-3290 [2017] NZHC 1492

BETWEEN

VIPASSANA FOUNDATION

CHARITABLE TRUST BOARD Plaintiff

AND

AUCKLAND COUNCIL First Defendant

RAYMOND MYLES OʼBRIEN AND VICTORIA MEI SIEN PICHLER Second Defendants

AUCKLAND SHOOTING CLUB INCORPORATED

Third Defendant

Hearing:	On the papers
Counsel:	S J Ryan and S Cates for Plaintiff N Whittington for First Defendants J M Savage for Second and Third Defendants
Judgment:	30 June 2017

JUDGMENT OF WHATA J

This judgment was delivered by me on 30 June 2017 at 2.00 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date: ………………………….

Solicitors:           Cullen – The Employment Law Firm, Wellington

Meredith Connell, Auckland

Blackwells, Auckland

VIPASSANA FOUNDATION CHARITABLE TRUST BOARD v AUCKLAND COUNCIL [2017] NZHC 1492 [30 June 2017]

[1]      In my judgment of 28 June 2017, I resolved that a grant of a certificate of compliance to the second respondents was flawed in two respects: the application failed to record the existence of a building and the application contained no information about discharges of contaminants (lead) to the environment.   I foreshadowed that the application should be referred back to the Auckland Council (the Council) to reconsider in light of my judgment, but I did not propose to quash the certificate of compliance.  I wanted, however, to afford the parties an opportunity to be heard on relief as it was not fully addressed at the hearing and given the Council’s post-hearing change of position on the rules regarding discharges to the environment.

Submissions on proposed relief

[2]      Mr Ryan indicated that he had no instructions at this stage, but agreed with

the Council’s most recently stated position that the proposed activity defaults to rule

5.5.68 of the Auckland Council District Plan (Rodney section) (the District Plan) with  the  effect  that  the  discharge  of  contaminants  to  the  environment  is  a discretionary activity.   He submitted therefore that the certificate of compliance should in fact be quashed but accepted that any reconsideration of the application must be made on the basis of the status of the activity at the time that the application was made.

[3]      Mr Whittington, for the Council, indicated that any reconsideration of the application would require reassessment of the position in relation to contamination but at present the Council’s view was that the application did in fact default to rule 5.5.68.  He also agreed that the reconsideration will take place on the basis of the planning instruments at the date of the application.

[4]      Mr Savage does not agree that the activity defaults in the way suggested by Mr Whittington and Mr Ryan.   In his submission, the District Plan is seriously deficient if it disenables all activities with discharges of the very minor kind envisaged by the present activity.

[5]      In any event, for present purposes, Mr Savage submits that the certificate of compliance should  not  be quashed, because the two  identified  errors  are minor matters and that the applicants will immediately:

(a)      provide an undertaking not to use the building in association with the proposed activity; and

(b)lodge with the Council information as to the nature and level of the contamination associated with the proposed activity, including the expert evidence filed with this Court.

Assessment

[6]      Having afforded the parties an opportunity to  be heard, I am  content  to confirm the approach that I foreshadowed in my first judgment.  The matter shall be referred back to the Council to reconsider in light of my judgment but I do not quash the certificate of compliance.

[7]      I acknowledge the maintenance of the certificate pending reconsideration is an unusual, indeed rare course. But this is an unusual case. In addition to the matters set out at [74] and [75] of my judgment, it is relevant to note the concession made by the Council and the plaintiffs that the decision will be reconsidered on the basis of the planning instruments in play at the time of the application. This is relevant

because on the issues and evidence properly1 before me:

(a)      the proposed  activity does  not  contravene a  rule in  an  applicable planning instrument; and

(b)the  effects  of  the  activity  do  not  exceed  any  relevant  applicable permitted activity standards.

[8]      Furthermore, the shooting range owners have given an undertaking not to use the building in association with the proposed activity effectively eliminating the

significance  of  one  error  from  consideration.2   They  have  also  committed  to providing the information necessary to address the remaining alleged contamination immediately. The effect of all of this is that the period between this decision and the reconsideration will be small.

[9]      In all the circumstances therefore, the shooting range applicants, having acted in good faith in reliance on the grant, and given the largely procedural nature of the errors, should retain the benefit of the grant, pending reconsideration of the decision. Needless to say, as Mr Savage accepts, if the Council concludes that the default discharge rule applies, then the certificate of compliance will be of no ongoing legal effect.

[10]     For completeness, I have not considered the status of the proposed activity in light the Council’s belated change of position on the discharge rules.   It was not pleaded nor argued at any length before me. Nothing I say here or in the first judgment purports to rule on that position.

[11]     On the basis of the foregoing, I make the following final orders:

(a)       I direct the Council to reconsider the decision made under s 139 of the

Resource Management Act 1991 in light of my first judgment.

(b)Pursuant  to  s  4(5C)  of  the  Judicature Amendment  Act  1972  the decision to be reconsidered continues to have effect unless and until revoked or amended by the Council.

(c)      Leave is granted to the parties to seek further directions if necessary, including in the event that the reconsideration is unduly delayed.

Costs

[12]     The issue of costs was not canvassed further. My current position is set out in the first judgment. Nevertheless, leave is granted to file submissions, of no more than three pages in length.

Addendum

[13]   At [70] of my judgment, I commented that Mr Hegley’s view that NZS6802:1999 was inapplicable to gunfire was not a sound basis for declaring a planning regulation invalid, particularly one that had been through a thorough public process. I referred to, among other things, oversight by an Independent Hearings Panel.

[14]     In fact, the District Plan was promulgated under the Resource Management Act 1991, and would have followed the ordinary schedule 1 process, rather than that laid out in the Local Government (Auckland Transitional Provisions) Act 2010. Nevertheless, that process is rigorous and provides full rights of appeal to the Environment Court. As such, the substance of my comments holds: this Court should be slow to set aside such rules in review proceedings.