2018 Case Law Update - RMLA

29 November 2018

2018 Case Law Update

Bronwyn Carruthers

Method

• Q&A• Sli-do

• www.sli.do

• App store: sli.do

• Event• #K972: Case Law Road Show

29 November 2018 2018 Case Law Update 2

http://www.sli.do/

Cases:

RMA Appellant Court / Judge

s88 The NZ King Salmon Company HC, Clark J

s104 R J Davidson Family Trust CA, Cooper, Asher, Brown JJ

s104 Speargrass Holdings Ltd HC, Dunningham J

s104 Ngai Te Hapu Inc (RENA) HC, van Bohemen J

s125 Ngati Tama Ki Te Waipounamu HC, Thomas J

s139 Vipassana Foundation Charitable Trust Board HC, Whata J

s176 Titirangi Protection Group Inc HC, Lang J

s218 Spark New Zealand Trading Ltd CA, Kos, Brown, Gilbert JJ

s360 Brook Valley Community Group Inc HC, Churchman J


s88: King Salmon

• Turf war:• Blowhole Point:

• Marlborough Aquaculture: • Existing mussel farm

• Expansion plans

• NZKS:• Identified as new site for salmon farm

• Intended method:• Marlborough Aquaculture – resource consent

• NZKS – promulgation of regulations


s88: King Salmon

• Facts• Application submitted:

• 14 pages

• Drew upon Davidson report:• Over 2 years old

• Addressed only 1/3 of the site

• Accepted under s88

• At same time, s92 request:• Benthic survey and assessment of effects for other 2/3 of site

• Seen as “essential”


s88: King Salmon

• Judicial review of s88 decision

• Issues:• The nature of s88 decisions

• Whether s88 decisions amenable to JR

• Whether Council erred


s88: King Salmon

s88: Making an application

(1) A person may apply…

(2) An application must –

(a) Be made in the prescribed form and manner…

(3) A consent authority may, within 10 working days after an application was first lodged, determine that the application is incomplete if the application does not—

(3A) The consent authority must immediately return an incomplete application


s88: King Salmon

• A full discretion to determine incomplete:• Drafting careful and clear

• Legislative intent to distinguish

• Consistent with scheme of application process

The ability to rectify deficits in an application after it is accepted is consistent with a discretion to accept applications which the consent authority appreciates at the time will require to be supplemented with further information or detail

• To challenge on JR: unlawful exercise of discretion


s88: King Salmon

• A preliminary decision:• Reviewable:

• All exercises of public power are reviewable• No jurisdictional bar

• Uphold rule of law: act in accordance with powers conferred


s88: King Salmon

• A preliminary decision:• But not a “hard look”

• Unlike notification decisions:• No substantive impact, no person shut out

• Priority:• Consequence not function

• Insufficient to warrant intense scrutiny

• Merits not assessed

• Level of scrutiny:• Plainly wrong

• Plainly acted without power


s88: King Salmon

• No error by Council:• Absence of detail, rather than absence of information

• Deficits can be remedied through process

• Information sufficient for purpose• The who, what, where, when and how

• Processed and progressed as intended by Act


s88: King Salmon

…the compulsory nature of the obligation on applicants to ensure their applications comply with thestatutory requirements does not bear on the fully discretionary nature of the power conferred uponconsent authorities to determine whether or not an application is complete.

The consent authority’s power to determine whether an application is complete may be essentiallymechanical but that of itself does not shield it from judicial review. The question is not whether theexercise of power is reviewable but where the limits of review lie. The exercise of power must belawful and the courts will be concerned to ensure that public officials have acted in accordance withthe powers conferred on them.


s104: Davidson – Role of Part 2

104(1) When considering an application for a resource consent and any submissions received, the consent authority must,subject to Part 2, have regard to–(a) any actual and potential effects on the environment of allowing the activity; and(ab) any measure proposed or agreed to by the applicant for the purpose of ensuring positive effects on the environmentto offset or compensate for any adverse effects on the environment that will or may result from allowing the activity; and(b) any relevant provisions of—

(i) a national environmental standard:(ii) other regulations:(iii) a national policy statement:(iv) a New Zealand coastal policy statement:(v) a regional policy statement or proposed regional policy statement:(vi) a plan or proposed plan; and

(c) any other matter the consent authority considers relevant and reasonably necessary to determine the application.



Why the confusion?• King Salmon:

• Sought a plan change to Regional Coastal Plan• Needed to “give effect” to NZCPS• Tried to use Part 2 arguments to overcome NZCPS issues

• Supreme Court in King Salmon:• No resort to Part 2 in plan making unless:

• Allegation of uncertainty• Incomplete coverage• Uncertainty of meaning



Why the confusion?• Davidson:

• Sought a resource consent under Regional Coastal Plan• Section 104 specifically refers to Part 2• Tried to use Part 2 arguments to overcome NZCPS issues

• High Court in Davidson:• No resort to Part 2 in consent decisions unless:

• Allegation of uncertainty• Incomplete coverage• Uncertainty of meaning



As clarified by the Court of Appeal:

• Part 2 has a role in resource consent decision making:• Untenable to suggest otherwise

• Not the Supreme Court’s intent

• When appropriate:• Have regard when appropriate to do so

• Complying with the instructions in appropriate way



As clarified by the Court of Appeal:

• Clear when not appropriate to influence outcome:• Subverting a clearly relevant restriction in plan

• Justifying an outcome contrary to thrust of policies:• Where plan coherent

• Prepared having appropriate regard to Part 2

• Rendering a plan ineffective

• When planning documents furnish clear answer• Genuine consideration and application “may leave little room for Part 2 to influence the

outcome”



Implications:

• Particularly for non-complying activities:• Fail objectives and policies gateway as contrary to plan

• Pass effects gateway

• So entitled to consideration under s104:• Despite being contrary / repugnant to plan

• Arguably s104(1)(b) now elevated over other considerations:• Rendered ineffective must be more than contrary for scheme of Act to work


s104: Speargrass – environment & baseline

• Triangle:• Mounds and ponds

• Hawthorn

• Reflections

• Winton Partners:• 4 lots

• Defined platforms

• Speargrass

• Flax Trust:• 8 lots



• Flax Trust• Consent for 3m bund:

• Based on consented building platforms

• Ensure reciprocal privacy

• During construction:• Speargrass building 9m closer to boundary

• Increased bund height to over 5m• To achieve same screening

• Retrospective variation to consent for bund (EnvCt)



• Speargrass challenged:• JR of Council decision granting 3m consent

• Appeal of Env Ct decision approving increase

• Property Law Act order

• Case summary:• Appeal of Env Ct decision



• Speargrass situation:• 2010: RMA100318 – 4 lot subdivision• September 2011: Consent notice registered:

• Defined building platform

• December 2011: non-notified consent to vary platform:• Condition required variation of consent notice

• November 2012: • LUC for buildings on new platform• Variation of landscaping requirements• Condition required prior registration of variation

• November 2012: Consent granted to Flax Trust



• “Environment”:• Original building platform vs Actual building

• Environment Court:• Approved variations not actioned / registered

• Registered consent notice• Indefeasible

• Prevails

• Actual building not part of environment



• “Environment” includes the new building location:• Non-compliance with conditions:

• Not negate validity of consent• Not alter whether activity to be taken into account

• Registration of consent notice:• Gives notice bound by ongoing obligations• Supplements RMA regime• Easily rectifiable omission:

• Unrealistic to assume buildings be removed

• Not notification to world

• Indefeasibility not relevant



…the concept of the “environment” for the purposes of s 104 must reflect reality. If a resource consent has been granted and is being implemented on adjacent land, that would, almost inevitably, need to be taken into account as part of the environment when considering the effects of a later proposed activity. If there have been breaches of consent conditions …that must be assessed in a practical way. If the non-compliance is likely to be rectified, allowing the consented work to remain, then the effects of that activity would normally be taken into account. It is only if the consented activity is likely to be terminated or removed as a consequence of the breach, that the activity could sensibly be ignored as part of the existing environment.



• Permitted baseline:• PA: Line of evergreen trees

• But subdivision consent: • constrained what planted and where

• not overridden or amended by bund earthworks consent• Sit within and comply

• Relevant to discretion to apply permitted baseline• Court not turn mind to possibility not appropriate to apply

• Error to ignore when deciding to use discretion



• “unfairness” from non-notification irrelevant under s104:• Validity of Speargrass consents not at issue

• Not authorised to look behind

• McQuire – accept as lawful unless and until set aside

• Qualms about fairness of process irrelevant

• Not a comparison of whose effects worse:• Speargrass part of existing environment

• Objective assessment of effects on that environment



• Outcome:• Retrospective amendment to earthworks consent quashed

• Original earthworks consent fine:• JR :

• Established error

• No relief

• No need for order under PLA due to above


s104: Rena – jurisdiction & environment

• History:• Commissioners

• Environment Court• Interim decision indicating grant

• Final decision with conditions

• Appealed final decision• Sought waiver of security for costs

• April 2018: ordered to pay security

• Sought substitution• May 2018: refused



• Sought substitution:• Not successors:

• Requires interest or status formerly held by original party to have devolved

• Not that beneficiaries better placed to advance than Trust

• Applied for leave to appeal security of costs decision:• June 2018: Declined by CA

• Failed to provide security

• Applicant applied to dismiss:• July 2018: Appeals dismissed



• Points to note:• Decision to appeal

• If appeal has “real merit” can be saved:• Jurisdiction to require removal

• Past effects / environment



• No jurisdiction to require removal• Conceded before Env Ct• Frustrating but not determinative• Application to abandon:

• If declined:• Continued presence unlawful

• If grant:• Not impose condition requiring removal

• Would negate consent (Estate Homes)

• Not within power• Nor practical or appropriate (on merits)



• Past effects / environment• 1 April 2016:

• MTA notices ceased to operate

• RMA requirements applied

• Relevant date for assessing effects

• Wreck had occurred, adverse effects had ensued:• Reality not wished away in theoretical exercise

• All that could be done had been done

• Further work:

• Detrimental to reef

• Risk to human safety


s125: Kahurangi Virgin Waters

• Takaka water bottling:• Existing bore

• Take permit lapsed

• 2004 applied for take:• 30 year term

• Written approval from iwi:• No assessment of cultural or spiritual effects

• Processed non-notified

• Granted:• 15 year term (2019)

• 5 year lapse (2010)



• Takaka water bottling:• 2009: lapse extended to 2013

• 2012: lapse extended to 2016

• December 2015, applied:• Third lapse extension:

• Extended to 2018

• Judicially reviewed

• New bore• Granted

• Variation to take form new bore not consented• On hold due to JR



(1A) However, a consent does not lapse under subsection (1) if, before the consent lapses,—

(a) the consent is given effect to; or

(b) an application is made …and the consent authority decides to grant an extension after taking into account—

(i) whether substantial progress or effort has been, and continues to be, made towards giving effect to the consent; and

(ii) whether the applicant has obtained approval from persons who may be adversely affected by the granting of an extension; and

(iii) the effect of the extension on the policies and objectives of any plan or proposed plan.



• Progress or effort:• Not require physical progress

• Practical and economic realities relevant• Progress establishing bottling plant

• Must be “substantial”, not “sufficient”

• Change from “satisfied” to “take into account”• Must still ascertain whether substantial progress been and continues to be made

• Then decide whether or not to extend• “sufficient” may be relevant

• Material error



• Adversely affected by grant• Changed context:

• Settlement Act• Acknowledgment of association and iwi values

• Agreed protection principles relating to springs

• Claimed• Major and fundamental change to social, cultural and planning environment

• Significant relationship should have been taken into account



• Adversely affected by grant• Two stage process:

• Who may be affected by extension• Relatively low bar

• Must include why or in what way affected

• Any approval or absence of approval to extension

• Effects of extension:• Not effects of grant

• Not limited to those affected by grant



• Adversely affected by grant• Ngati Tama:

• Approved application out to 2034• With no knowledge or stipulation re lapse period

• Was Council who shortened term and imposed lapse

• Withdrawing approval now not put consent at risk

• Settlement Act• Reinforced position as party who may be adversely affected

• But not mean any new or particular adverse effects

• Its position should have been specifically considered



• Adversely affected by grant• Ngati Tama’s letter of objection focussed on effects of consent

• Not address any effects of extension

• Pivotal mistake of fact• Physical connection between point of take and springs

• Disregarded:

• spiritual or cultural effects

• Changed cultural and social circumstances

• Ngati Tama’s position not correctly analysed• Whether affected party

• Ways in which potentially affected



• Effect on policies and objectives

…plan changes are the predominant way in which a planning situation may change. Katz acknowledged that increased knowledge and shifting social and physical circumstances can also result in a changed planning situation. Moreover, the wording of the provision directs councils to consider the effect of the extension not on the plan itself, but on the “policies and objectives” of that plan. Changes to a planning situation which would result in extensions having an effect on policies and objectives might arise not only out of plan changes, but also from changes to the environment, social and cultural context, legislative background, and scientific or technical understanding.



• Effect on policies and objectives• No material change in planning documents

• None of the pleaded grounds of review made out

• But changed context from (ii):• Of relevance to planning situation

• May also properly fall to be considered under (iii)

• Used discretion• Set aside decision


s139: Vipassana

• Certificate of compliance:• Pistol shooting range

• Adjacent meditation retreat:• 10 day courses

• 11 hours mediation daily

• In silence


s139: Vipassana

• Insufficiency or misinformation:• Numbers, wastewater, earthworks

• No detailed plans

• Varied estimates of numbers

• Assurances not consistent with statements in separate application

• No material error or deficiency• Some cogent information to support conclusion

• Weight afforded to matter not amenable to review

• All readily capable of verification and enforcement


s139: Vipassana

• Misleading:• No reference to existing building of 84m2

• Initially to be included

• Repurposed for storage

• Could be removed if necessary

• Outdoor recreation:• Permitted if not involve building

• RDA if involve building over 25m2

• Objectively assessed, misleading:• Not transparently assessed


s139: Vipassana

• No reference to discharge rules• Likelihood of discharge of lead to land reaching water

• No assessment

• Small risk, but cannot be completely discounted

• Attempted to repair with letter from in-house:• Refers to reporting planner’s approach

• Reporting planner “not invited to own it” in evidence

• Report and decision provide most cogent evidence

• Musings not transparently recorded• Improper basis for establishing legality


s139: Vipassana

• Gunfire noise• Rules refer to NZS6802:1999

• NZS6802:1999:• Special techniques required for gunfire

• Standard not apply

• Absent invalidity or unreasonableness:• Alleged methodological inappositeness not give rise to issue of legality or improper

purpose

• Efficacy is evaluative matter for Council


s139: Vipassana

People order their lives based on strict adherence to these rules. The Council followed thatprocess as it was obliged to do. A certificate of compliance was obtained. While there may beexpert disagreement about the correctness of that evaluation, it provided a proper basis for theCouncil to conclude that the proposal would comply with the applicable noise standards. Tothis extent, the Council decision about compliance with the noise standards is not amenable toreview.


s139: Vipassana

• Gunfire noise• Not unreasonable:

• Adjustments

• Expert evaluation

• Cogency supported by expert of longstanding

• Invalidity:• Not entertain based purely on contestable expert opinion

• Disagree about efficacy

• Provisions through thorough process• Nothing to show Council got it wrong


s139: Vipassana

• Gunfire noise

• Rule includes residual discretion to control noise

“notwithstanding the above performance standards, the Council reserves the right to use its power

under the RMA to control any noise which contravenes the provisions of that legislation.”

• Available to Trust to try to persuade Council that noise effects not mitigated adequately by strict application


s139: Vipassana

• Result:• 2 material errors

• Misleading (building)• Remedied by removal or undertaking re use

• No information about discharge compliance

• Not:• Quashed• Satisfied unlawful

• But referred back:• Reconsideration• Potential to use different methodology for noise


s139: Vipassana

• Current state:• Appeal to CA

• Council quashed COC• Discharge consent required

• s357 objection• COC reinstated

• Discharge consent not required

• CA hearing• Awaiting decision

• Council argued no discharge consent required


s176: Huia water treatment plant

• Facts:• Waitakere Ranges water supply

• Four dams

• Nihotapu filter station• Huia water treatment plant

• Upgraded in 1990’s• Nihotapu decommissioned

• Storage only

• New plant to be built adjacent• Bulk of processes• Operate together as single facility



• Designation:

Water supply purposes – Huia and Nihotapu water treatment plant and associated structures

• Two interpretations of hyphen:• “being the” (applicants)

• “including the” (Watercare)

• Env Ct preferred latter

• Applicants appealed



• High Court:• Three alleged errors:

• Conclusion that constrained to existing facilities

• Scale and degree of activity outside scope

• Taking into account irrelevant matters• Regional consents

• OPW

• Provided assurance that still subject to significant controls



• Test:• What an ordinary, reasonable member of the public who is considering the

plan would have taken from the designation

• Hypothetical person must be taken to:• have the level of knowledge about the factual context

• have a reasonable knowledge of the manner in which designations operate

• who takes the trouble to examine a designation.



• Not constrained by words after hyphen:• ORP would not view “given effect to” as “spent”:

• Designation not just construction effects• Has a purpose

• Anticipates further works (OPW, E&SC, heritage)

• Given effect to simply means it will not lapse

• ORP:• Would not know facilities take names from dams that supply• Would know:

• Treatment requires number of steps

• Plants have finite working life

• Would anticipate eventual construction of new or replacement facilities



• Not constrained by words after hyphen:• ORP:

• Would know designated area was significantly larger than existing plant

• Would appreciate new plant likely in that area:• Proximity to source

• Efficiency

• Would understand the designation permitted that construction



• Scale and degree of activity not constrained:• Argument:

• Inevitably add substantially to scale and degree of activity

• Places outside scope of consent

• Rejected by Court:• Nature of the use not changed

• Increase in degree or scale fine• Provided activity within purpose of designation


s218: Spark v Clearspan

Approach in RMA

• Unless permitted activity, requires resource consent (s11)

• Defined term (s218)• Division of an allotment – ss(1)

• By disposition of fee simple to part of allotment - ss(1)(a)

• Rarely permitted activity:• Generally requires resource consent

• Time, cost, affected parties, opposition



Telco towers

• 4,000 around NZ

• Sites:• Generally <100m2

• Leased from a landowner

Clearspan

• Aggregated 85 sites

• More powerful negotiating position



Arrangement devised by Clearspan:

• Leased area calculated as percentage of total site

• Undivided interest in fee simple reflecting percentage

• Result:• Tenants in common to extent of respective shares

• Two new CTs• Clearspan – small share of fee simple with encumbrance

• Original owner – larger share of fee simple with encumbrance




• Encumbrance in favour of the other:• Binds future owners

• Reciprocal deed of covenant in favour of other TIC• “Exclusive use area” for each TIC

• Agreement that each entitled to exclusive use, occupation and enjoyment of EUA

• Allows each to grant rights over its EUA




Effectively, each agrees not to exercise their right of possession over the other’s covenantedarea.



Clearspan’s position:

• Not a subdivision

• No resource consent required

• No ability for Telcos to object / oppose

Court of Appeal agreed



Not a subdivision under RMA:• Text contains precise metes and bounds:

• Tight transactional language• More than mere creation of interest in an allotment

• Primary inference = deliberate:• Straight forward task to add:

• Non-exhaustive verb• Anti-avoidance clause• Inclusive clause• Deeming provision



Not a subdivision under RMA:

• Intended to capture some but not all transactions:• With potential for material environment implications

• Intensifying use of land and services

• Adversely impacting amenity values

• Issue: legal effect not purpose• Perceived purpose was to avoid s218

• But issue is legal effect of arrangement, not intent




• Legal effect• TIC:

• Undivided interest• Share of the fee simple to the whole

• Not to part of the land

• Encumbrance:• Charge on the land• Not dispose of fee simple to part

• Covenant:• Personal in nature, not run with land• Not dispose of fee simple to part




Regardless of the covenants, each remains owner of the entire undivided feesimple, in proportion to their share. As Mr Chisholm submitted, both remainjointly and severally liable to third parties in respect of the whole fee simple forlocal body rates, land taxes, common law nuisance, Rylands v Fletcher liability,and RMA and Building Act liabilities.



Implications:

• May be useful workable tool in other scenarios• Problematic to obtain consent

• More care with controls on built development• May not be able to rely on subdivision restrictions


s360: Brook Valley

• Use of brodifacoum to eradicate mammalian pests

• History:• 4 August 2017: HCt decision on JR

• Appealed to CA

• Heard but awaiting decision

• 15 August 2017: HCt refused to grant stay

• 31 August 2017: CA declined application for stay

• 6 October 2017: CA ordered security for costs

• 31 October 2017: HCt ordered costs on JR


s360: Brook Valley

• Brook Waimarama Sanctuary• Public land

• Local purpose reserve: wildlife sanctuary purposes

• Zoned: conservation

• Designated: water supply purposes

• Leased by Trust

• Surrounded by predator proof fence


s360: Brook Valley

• Approval history:• May 2016: s15 discharge consent

• Three aerial drops

• Before 30 September 2017

• February 2017: Regulations by OiC• Exempt from s15 if comply with regulations

• May 2017: part surrender of consent


s360: Brook Valley

• Challenge:• Validity of regulations

• Preliminary question:• Deposit vs discharge

• Regulations only refer to s15 discharge

• Is it also depositing substance in, on or under river bed under s13?• Discharge defined to include deposit

• Not defined

• Deposit

• Substance


s360: Brook Valley

• Preliminary question:• Not duplicated

• s13: action based context• Direct, physical actions

• s15: can be passive too• Based on effect on surroundings

• Substance• Physical effect on landscape / topography• But benign

• Contaminant• Effect on the condition

• Not same as affecting physical shape, topography


s360: Brook Valley

• Preliminary question:• Not duplicated

• Interpretation tools• Requiring duplicate consents not achieve purpose

• Designed to complement

• Regulation power relates to s15

• Nugatory if s13 also applies

• s13 not intended as secondary hurdle


s360: Brook Valley

• s360(1)(h)

The Governor-General may from time to time, by Order in Council, make regulations for all or any of the following purposes:

prescribing exemptions from any provision of section 15, either absolutely or subject to any prescribed conditions, and either generally or specifically or in relation to particular descriptions of contaminants or to the discharge of contaminants in particular circumstances or from particular sources, or in relation to any area of land, air, or water specified in the regulations:


s360: Brook Valley

• Determining validity:• Interpretation of scope of empowering provision

• Purpose of power determined by• Purpose of Act

• Specific power conferred

• Not opportunity to assess reasonableness of policy being promoted


s360: Brook Valley

• Valid:• Very wide power

• Hard to conceive how could be any broader

• Intentionally not ascribed consultation• Discretion and policy rests “absolutely” with GG

• Overrides democratically prepared plans

• No fundamental right of consultation in RMA• No right to be heard

• Policy decision

• Not involving individual rights and interests

• No provision requiring consultation


2018 Case Law Update - RMLA

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