/BEFORE THE ENVIRONMENT COURT I MUA I TE KOOTI TAIAO O AOTEAROA

IN THE MATTER

AND

BETWEEN

AND

Decision No. [2019] NZEnvC \ ·z. l\--of the Resource Management Act 1991

of an appeal pursuant to s 120 of the Act

HAINES HOUSE HAULAGE NORTHLAND LIMITED

(ENV-2018-AKL-125)

Appellant

WHANGAREI DISTRICT COUNCIL

Respondent

Court: Environment Judge J A Smith Environment Commissioner R M Dunlop Environment Commissioner S K Prime

Hearing: Whangarei, 10-12 December 2018, including site visit

Appearances: A J Webb for Haines House Haulage Northland Limited (HHH) G J Mathias for Whangarei District Council (the Council) JS Baguley for Mrs A Waldron (s 274 party, resident)

Date of Decision: 24 July 2019

Date of Issue: '; (! I >q·i··,9 (., ~ r l.

FINAL DECISION OF THE ENVIRONMENT COURT

A: Due to the placement of a residence by the applicant on Lot 1 DP 483749, we are

not satisfied it can now be utilised to mitigate the effects of the activity on the

amalgamated title of Lot 1 DP 483749 and Lot 2 DP 356529 given the application

evidence.

B: In such circumstances:

(i) A condition of consent cannot be imposed preventing the construction

of a building or other structures on the site given this has already

occurred ;

Haines House Haulage Northland Limited v Whangarei District Council

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(ii) We are not satisfied that the adverse effects of the activity in the rural

zone can otherwise be avoided as described in considerable detail in

our interim decision;

(iii) The application for resource consent should properly be refused .

C: The appeal is therefore dismissed and the resource consent refused.

D: Costs are reserved. Applications for costs are to be filed within 20 working days,

any reply within 1 0 working days and a final reply, if any, within five working days

thereafter.

REASONS

Introduction

[1] This decision follows from an Interim Decision of the Environment Court issued on 22

March 2019 and should be read in conjunction with it. It was clear the Court needed to

be satisfied as to the consent and conditions before it would allow the appeal.

[2] Annexed hereto and marked A is a copy of a Memorandum issued by the Court in

January 2019 subsequent to the hearing relating to the interconnection of the Lots being

on an amalgamated title . Fundamentally it appears that Lot 1 DP 483749 and Lot 2 DP

356529 were required to be amalgamated as a condition of subdivision in 2016. In those

circumstances the interrelationship of these lots and the conditions which might be

imposed by the Court are addressed in some detail in the Court's decision.

The outcome of the Court's interim decision

[3] The Court noted at paragraph 28:

... we are concerned at the way in which this application has morphed between the time it was filed and the time of our hearing. These changes show a form of incrementalism in relation to the use of Lot 1 and its eventual incorporation into the activity, notwithstanding that it was never part of the application.

And at paragraph 30:

We are satisfied that the conflation of Lot 2 DP 356529 and Lot 1 DP 483749 has led to an expansion of the application which is beyond jurisdiction . The difficulty appears to have arisen because the Council or the Court could have imposed conditions mitigating effects of the activity affecting both properties . However, the application cannot be expanded to include HHH-owned Lot 1 DP 483749.

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[4] Paragraphs 32 to 35 discuss the amalgamation , the joint certificate of title in respect

of those properties which was shown in the hands of TW Trustees, J Matich, Suzanna M

Matich-Hall and Titania Matich. It appears that the joint title for these two properties was

issued at the same time as the subdivision for the property now occupied by Mrs Waldron .

[5] The Court goes on at paragraph 34 to discuss the response from Mr Webb to the

Memorandum and identifies the factual matters which we take as read for the purposes

of this decision. In particular, we note the statement by Mr Webb:

[Bulletpoint 3] ... that Lot 1 DP 483749 was "creating an open space area incorporating landscaping between the buildings and Mrs Waldron's property".

Recent changes

[6] The Court members individually noted during visits to Northland for other cases that

a relocated house had been placed on Lot 1 some time prior to the middle of June 2019,

probably from about April. This was after the interim decision had been issued but the

Court is unclear as to the date on which the actual works were undertaken.

[7] Mr Mathias in his memoranda to the Court notes that a building consent was granted

for the building on 9 May 2019. We note that Mr Webb does not give a specific time

when the building was placed on the site.

[8] Ms Baguley asserts in her submissions that before the issuing of the interim decision

but after the hearing i.e. between December 2018 and March 2019, the applicant moved

the house onto the site and began works to establish foundations.

[9] Subsequently the Court's interim decision was issued on 22 March 2019 and Ms

Bagley asserts on behalf of her client that the applicant subsequently continued to carry

out more establishment works and moved the house into its permanent position . This

better accords with the Court's own understanding from observations passing this site

during this period . Mr Mathias is also silent on the topic of when establishment works

were undertaken on the site.

[1 0] We accept Mr Mathias' assertion that the applicant can place a home on Lot 1 as

of right. That is not the issue of concern to this Court or Ms Baguley. The issue is that

in doing so HHH have precluded the ability to fulfill the conditions of consent envisaged

by the Court in the interim decision.

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[11] Furthermore, it has to our mind, clearly established the Court's concerns as to

incrementalism in respect of the use of both properties jointly. The building was always

described to this Court as the manager's house. We note the plans attached to the

decision of the Court which clearly set out the areas shown in the drawings produced to

this Court, particularly Exhibit C where proposed landscaping trees were shown as being

included within Lot 1 and that part of Lot 1 was to be utilised as part of the storage area

for buildings on Lot 2. Furthermore, a proposed manager's house is clearly identified on

that plan . It appears the applicant has furthered this position notwithstanding that the

application only addressed Lot 2.

Conclusion as to ability to grant a consent

[12] In these circumstances the interim decision requirements cannot be fulfilled given

that the applicant has acted precipitously while the decision was pending and later

notwithstanding the clear terms of the interim decision.

[13] This gives concern to this Court as to whether the applicant would comply with

any conditions of consent. Although we must normally assume this is the case, where

there is clear evidence that the applicant has acted contrary to the Court's interim

decision we cannot with any confidence impose conditions requiring the building 's

removal. We also note the house is a permitted activity thus its removal is problematic.

[14) We acknowledge and accept that the building can be placed on this Lot 1.

However, the activity requiring resource consent cannot be granted consent if that activity

prevents the mitigation required. Our reasons include not only those of legal principle

but the inability to provide conditions that could satisfy us that the effects of the activity

itself could be sufficiently contained within the lots and that Lot 1 DP 4837 49 could be

free of buildings and utilised as rural pastural land to effectively manage the effects of

conducting the activity on the rest of the amalgamated site.

[15) This outcome is entirely of the applicant's own making . Preliminary works may

have been undertaken prior to any Council building consent being granted on 9 May

2019. The extent to which earthworks and the preliminary placement of the building are

permitted under the plan is not a matter we have examined and should be the subject of

further examination by the Whangarei District Council Compliance Team.

The appeal is refused and the Council decision confirmed.

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Costs

[17] Given our conclusion that consent should not be granted, we acknowledge that

Ms Waldron has been put to significant expense including in respect of the interim

decision memoranda and would normally make an application for costs. If any party

wishes to make an application for costs they are to do so within 20 working days, reply

within 10 working days and a final reply, if any, within a further five working days.

For the court:

I \

BEFORE THE ENVIRONMENT COURT I MUA I TE KOOTI TAIAO O AOTEAROA

Court:

IN THE MATTER

AND

BETWEEN

AND

of the Resource Management Act 1991

of an appeal under section 120 of the Act

HAINES HOUSE HAULAGE NORTHLAND LIMITED

(ENV-2018-AKL-125)

Appellant

WHANGAREI DISTRICT COUNCIL

Respondent

Judge JA Smith, sitting alone pursuant to section 37 4 of the Act

MEMORANDUM OF THE ENVIRONMENT COURT TO THE PARTIES (11 JANUARY 2018)

Introduction

[1] The Court held a hearing in respect of this matter and received final submissions

from Mr Webb for the applicant. In considering the scope of the application, and what is

currently sought, several issues have arisen.

The issues

[2] In the first instance the Court seeks commentary from the parties. The issues

are:

A. Who is the owner of Lot 1, DP 4837 49?

Two copies of Certificates of Title were produced to the Court:

• One attached to the consent application by Haines House Haulage

Northland Limited (Haines Haulage) dated 12 October2017 (page 5, item

1 bundle). This shows Lots 1 and 2 DP 483749 in common ownership as

Haines House Haulage Northland Limited

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at 20 April 2016, with proprietors J Maich, SM Maich-Hall, TT Maich and

TW Trustees Limited.

Lot 2 DP 4837 49 is the property occupied by Ms Waldron. Lot 1

DP 483749 is the property adjacent to the application site. There is no

evidence as to the ownership of Lot 2 DP 356529 attached to the

application, although there is an assertion of ownership by Haines

Haulage.

c The second Certificate of Title is attached to the evidence for Ms Waldron

as part of a registered valuation of the property. This includes a copy of a

title at Evidence pages 000144 and 145 showing ownership by Ms

Waldron of Lot 2 DP 483749 as at 20 April 2016. The attached map is the

same map as that attached to the Certificate of Title in the application of

Haines Haulage in the application. There is no assertion of ownership of

Lot 1 DP 483749, although the Certificate of Title was attached to the

application.

This appears to mean that the two properties, Lots 1 and 2 DP 4837 49

were created and subdivided on or about 20 April 2016 when we assume

Ms Waldron purchased the property. As already noted, the ownership of

Lot 1 DP 483749 is not stated, although a copy of the Certificate of Title is

attached to the application for consent by Haines Haulage.

There is no evidence that Lot 1 DP 4837 49 and Lot 2 DP 356529 are in a

single Certificate of Title, given it appears that Lots 1 and 2 DP 4837 49

were created by a subdivision of Lot 1 DP 356529. The ownership of Lot

1 DP 483749 is accordingly, at this stage, unknown.

B. Is there a Certificate of Title for Lot 2 DP 35529? Are Lots 2 DP 356529 and

Lot 1 DP 483749 in a common Certificate of Title? If so, a copy of that title is

required showing the registered proprietors thereof, and the land areas of each

has not been produced.

If the proprietors of Lots 1 DP 483749 and DP 356529 are different, but inter­

related, there is no evidence of that relationship.

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C. There is no evidence, on the file, showing that the application related to Lot 1

DP 483749. This is supported by reference to the previous consent issued to

Paul Brown Contracting Limited 2014 that only related to Lot 2 DP 356529.

D. There is no evidence that the applications filed included works on the houses

stored on the property or any activities at all in relation to Lot 1 DP 483749.

The red line delineating the application site appears to relate only to Lot 2 DP

356529.

E. What is the area, in square metres, identified in the application/plan as for hard

stand? This is shown as a dotted line on the application, but no area is given.

[3] A joint memorandum would be preferred. However, the Court is anxious to

proceed with its decision and welcomes information on these issues provided it is

circulated to other parties.

ent Judge

Issued: