Home | Databases | WorldLII | Search | Feedback Environment Court of New Zealand

Waitakere Resource Consents Limited and Successors v Waitakere City Council A039/2008 [2008] NZEnvC 93 (4 April 2008)

Last Updated: 26 June 2011

BEFORE THE ENVIRONMENT COURT

Decision No. A039/2008

IN THE MATTER of the Resource Management Act 1991 AND

IN THE MATTER of an appeal under s120 of the Act

BETWEEN WAITAKERE RESOURCE CONSENTS

LIMITED AND SUCCESSORS

Hearing at Auckland on 6 and 7 September 2007.

Court: Environment Judge R G Whiting (presiding)

Environment Commissioner H A McConachy

Counsel: Mr R Enright and Mr G Milner-White for the Council

Mr P Mawhinney for Waitakere Resource Consents Limited and Successors.

Decision Issued:

DECISION OF THE ENVIRONMENT COURT ON A STRIKE-OUT
APPLICATION

A. The application to strike-out the appeal is granted.

Introduction:

[1] This matter relates to an application for certificates of compliance for seventeen separate activities on the basis that they are permitted under the partially operative district plan in relation to four existing lots (lot 1 DP 320387, lot 323 DP 210991, lot 324 DP 210991, lot 933 DP 320 387 and part of lot 19 DP 168374).
[2] The Council refused the applications because it considered them to be a contrivance.
[3] The appellant filed an appeal against the Council's decision on 6 October 2005. The Council has applied to have the appeal struck out.

Appellant's application:

[4] The appellant essentially applies for a series of certificates of compliance which culminate in various property arrangements that result in barns and sheds becoming dwelling houses on small parcels of land. More particularly, the following is a summary of the certificates of compliance sought.

l. The creation of 59 barns;

2. The erection of 76 sheds;
3. The separate lease of the areas subject to individual forestry rights for a term of 34 years and 364 days;
4. Rentcharges;
5. Separate certificates of i any one or more of the pa s the subject of
   forestry rights;
6. The transfer of undivided shares in the subject land;
7. The cross lease of any one or more of the 76 sheds,
8. The erection of a further 14 barns;
9. The conversion of the 77 barns into dwe lings for countryside living including residential activities;
10. The erection of terraces, decks and pergolas;
11. The carrying out of earthworks;
12. The clearance of vegetation;
13. The creation of driveways;
14. The establishment of lawn / pasture;
15. The cross lease of the 77 barns;
16. The cross lease of the existing dwellings on Lot 933 DP 320 387 and Lot 19 DP 168374; and
17. The vesting of the land as road.

[5] The application in full is attached to this decision as annexure A.

Application to strike out:

[6] The Council's application is for an order that the appeal be struck out as a whole or in part on the grounds that:

• (a) The appeal discloses no reasonable or relevant case;
• (b) The appeal involves an abuse of the process of the Court;
• (c) The appeal involves flawed legal arguments as to the status of land use
  activities under the District Plan and asserts that certificates of compliance can issue for the establishment of buildings (barns and sheds) as permitted activities.
• (d) The appeal asserts that certificates of compliance should issue for
  various activities which the Council consider fall outside the definition of 'subdivision' under section 218 of the Resource Management Act 1991 ("the Act").

(e) Section 139 of the Act allows consent authorities to issue certificates of

compliance where it is satisfied that a 'particular proposal or activity' complies with the plan. It does not envisage the making of multiple applications which rely on the grant of previous certificates to achieve a subsequent outcome.

Certificates of Compliance:

[7] Section 139 of the Act provides for the issue of certificates of compliance.

Section 139: Consent authorities to qrant certificates of compliance

(1) Where [an] activity could be lawfully carried out without a resource consent, in respect of any particular location, the consent authority shall, upon request and payment of the appropriate administrative charge, issue to any person who so requests a certificate that a particular proposal or activity complies with the plan in relation to that location.
(2) A consent authority may require an applicant for a certificate of compliance to provide further information relating to the request if, in the opinion of the consent authority, the information is necessary to determine whether the particular proposal or activity complies with the plan.
(3) [Subject to subsection (5), no] certificate of compliance may be issued where a proposed plan has been notified and the proposal or activity is not a permitted activity, or could not lawfully be carried out without a resource consent, in relation to that location in the proposed plan.
(4) A certificate of compliance shall describe the particular proposal or activity and the location concerned and be issued within 20 working days of the receipt by the consent authority of the request, or of further information requested under subsection (2), whichever is the later.
(5) A certificate of compliance shall state that the particular proposal or activity was permitted, or could be lawfully carried out without a resource consent, on the date of receipt of the request by the consent authority.
(6) Subject to sections 10, 10A, and [20A(2)],a certificate of compliance shall be deemed to be an appropriate resource consent issued subject to any conditions specified in the plan, and the provisions of this Act shall apply accordingly, except that, with the exceptions of sections 120, 121, 122, 125, 134, 135, 136, and 137, this Part does not apply.

[(7)...

[8] A certificate of compliance may be issued under section 139 if the activity could be lawfully carried out without a resource consent.
[9] In Waitakere Forest Land Trust & Anor v Waitakere City Council[1] Judge Jackson set out the requirements of section 139 as follows:

A certificate of compliance must:

(a) relate to a proposal or activity on a particular location; and
(b) describe the particular proposal or activity (and the location) concerned; and
(c) state that the particular proposal or activity was permitted, or could be lawfully carried out with a resource consent, on the date of receipt of the request.

In the leading case Culpan v Vose2 the Court concluded from its analysis of those requirements that:

"...in examining a request to decide whether a certificate of compliance should be granted, the territorial authority is required to make a point-by-point scrutiny of the proposal by reference to all the applicable District Plan rules."

The requirement of particularity has been emphasised by the Court in other cases. In Waitutu Incorporation v Southland District Counce the Planning Tribunal stated:

"Section 139(1) makes it clear that the certificate is to state without limitation of any kind: ... that a particular proposal or activity complies with the plan in relation to that location. Nothing more and nothing less, It is important therefore to ensure that the description of the particular proposal or activity is itself clear and complete."

And

"There is nothing to be gained by issuing a certificate or a declaration that simply repeats the words of a district plan. A certificate has to be meaningful and section 139 makes that

clear, ..."

More recently in Wawatai v Hamilton City Council4 the Court said:

"There is an onus on an applicant for a certificate of compliance to satisfy the Tribunal that every aspect of the activity is in conformity with the relevant rules pertaining to it. It is not sufficient to leave the Tribunal with a view that it might be a complying activity..."

Subdivision of Land:

[10] Section 218 of the Act defines the 'subdivision of land'.

Section 218 Meaning of "subdivision of land"

(1) In this Act, the term subdivision of land means—

(a) The division of an allotment—

(i) By an application to a District Land Registrar for the issue of a separate certificate of title for any part of the allotment; or
(ii) By the disposition by way of sale or offer for sale of the fee simple to part of the allotment; or

[(iii) by a lease of part of the allotment which, including renewals, is or could be for a

term of more than 35 years; or]
'` 2 (1993) 2 NZRMA 380.

3. C 68/94. 4'W 17/96.

(iv) By the grant of a company lease or cross iease in respect of any part of the allotment; or
(v) By [the deposit of a unit pan, or] an appiication to a District Land Registrar for the issue of a separate certificate of title for any part of a unit on a unit pian; or (b) An application to a District Land Registrar for the issue of a separate certificate of title in circumstances where the issue of that certificate of title is prohibited by section 226,—

and the term subdivide land has a corresponding meaning.

(2) In this Act, the term allotment means—

(a) Any parcel of land under the Land Transfer Act 1952 that is a continuous area and whose boundaries are shown separately on a survey plan, whether or not—

(i) The subdivision shown on the survey plan has been allowed, or subdivision approval has been granted, under another Act; or
(ii) A subdivision consent for the subdivision shown on the survey plan has been granted under this Act; or

(b) Any parcel of land or building or part of a building that is shown or identified separately—

(i) On a survey plan; or
(ii) On a ilcence within the meaning of [Part 7A of the Land Transfer Act 1952]; or

(c) Any unit on a unit plan; or

(d) Any parcei of land not subject to the Land Transfer Act 1952.

(3) For the purposes of subsection (2), an allotment that is—

(a) Subject to the Land Transfer Act 1952 and is comprised in one certificate of title or for which one certificate of title could be issued under that Act; or
(b) Not subject to that Act and was acquired by its owner under one instrument of conveyance—

shall be deemed to be a continuous area of land notwithstanding that part of it is physically separated from any other part by a road or in any other manner whatsoever, unless the division of the allotment into such parts has been allowed by a subdivision consent granted under this Act or by a subdivisional approval under any, former enactment relating to the subdivision of land.

[(4) For the purposes of subsection (2), the balance of any land from which any allotment is being or has been subdivided is deemed to be an allotment.]

[ 11 ] Section 11 of the Act defines restrictions on the subdivision of land.

Section 11 Restrictions on subdivision of iand

(1) No person may subdivide land, within the meaning of section 218, unless the subdivision is—

(a) Expressly ailowed by a rule in a district plan [and in any relevant proposed district plan] or a resource consent, and a survey plan refating to the subdivision has in accordance with Part 10—

(i) Been deposited by a District Land Registrar or a Registrar of Deeds; or (ii)...

Relevant Plan

The Operative District Plan:

[12] The affected land is zoned as Foothills Environment in the partially Operative District Plan.

Transitional District Plan:

[13] The land is zoned as Rural Zone 3 of the Waitemata section of the Transitional District Plan. Part of the land in this appeal is included in the area that is currently subject to the Dilworth Structure Plan appeal on the Proposed District Plan. Therefore the Transitional District Plan is still relevant in relation to subdivision rules.

Power to strike out:

[14] Section 279(4) of the Act gives an Environment Judge the power to strike out an appeal in a variety of circumstances.

(4) An [Environment Judge] sitting alone may, at any stage of the proceedings and on such terms as the Judge thinks fit, order that the whole or any part of that person's case be struck out if the Judge considers—

(a) That it is frivolous or vexatious; or
(b) That it discloses no reasonable or relevant case in respect of the proceedings; or
(c) That it would otherwise be an abuse of the process of the [Environment Court] to allow the case to be taken further

[15] An appeal may also be struck out if it is a contrivance. In PW Mawhinney & Glorit Subdivision Ltd v Waitakere City Council5 the Court commented in striking out an appeal that:

" ...the appellants are seeking the Court's endorsement of a contrivance to circumvent the 10% limit in the subdivision rule in the PODP. In my opinion that is a misuse of the right to appeal to the Environment Court, and a misuse of the Court's process, because the Court should not be allowing its process to be used to assist in circumventing a district plan rule. I consider that the public interest lies in the
Environment Court upholding district plan rules, not assisting people to circumvent them."

[16] To be taken into account when considering an application to strike out an appeal is that public participation is encouraged in Resource Management processes and that part cipation by lay persons should not be bound by undue formality.6

5A 199/2005, 7 December 2005, Judge Sheppard para 129.

[17] Furthermore, the Court should not strike out a pleading where upon reasonable amendment the pleading is sustainable, and a viable course of action can be articulated.7

Merit of the appeal

[18] A certificate of compliance may be granted under section 139 if the Council is satisfied that a particular proposal or activity complies with the plan.
[19] The current applicat on requests a series of certificates for 17 different activities, some of which are reliant on previous certificates of compliance and various other events occurring.
[20] Mr Mawhinney is explicit in that the ultimate purpose of the 17 certificates of compliance is to create a residential development. However, he compartmentalises the applications and claims that each can be granted independently as permitted activities rather than being considered holistically as an application for subdivision.
[21] In our view the application needs to be looked at holistically. Section 139 does not envisage the making of multiple applications which rely on the grant of previous certificates to achieve subsequent outcomes and should not be used to facilitate a contrivance that would have an anomalous result.8
[22] Furthermore, reading the phrase or could be lawfully carried out without a resource consent in section 139(5) as including activities which fall outside the definition of subdivision could lead to a certificate of compliance being obtained for

6 Hauraki Maori Trust Board v Waikato Regional Council CIV-2003-485-999 4 March 2004 Randerson J.
7 Marshall Futures Limited v Marshall [1992] 1 NZLR 316.

8 PW Mawhinney & Glorit Subdivision Ltd v Waitakere City Council A 199/2005, 7 December 2005, Judge Sheppard para 118.
uses which Parliament has determined should not be subject to Resource Management processes.

[23] Ultimately, we are of the view that the appeal has no merit whatsoever. The effective outcome is a "subdivision". The request is a contrivance designed to defeat the subdivision rules of the plan, particularly as they relate to this sensitive foothills environment. If certificates of compliance were to issue it would undermine the objectives and policies in the plan which control the density of development in this area. The use of legal constructions to contrive a process that effectively amounts to a subdivis on contrary to the rules is in our view an abuse of process and for this reason alone the appeal is struck out.
[24] However, we have heard lengthy and detailed submissions from Mr Mawhinney and in deference to these we propose to deal with these in detail on an individual basis.

Evaluation of the applications for certificates of compliance:

(1) The erection of 59 barns and (2) The erection of 76 sheds:

[25] A certificate of compliance was requested for the erection of 59 barns and 76

that such buildings are permitted activities and the sheds and barns may be lawfully erected without resource consent pursuant to section 77B(1) of the Act.

[26] During the hearing Mr Mawhinney sought to delete the words 'for any activity other than a residential activity" from the applications.

[27] The significance of the words 'for any activity other than a residential activity" is that they trigger the requirement for a resource consent under Rule 8 of the Foothills rules.

Rule 8

8.0 General
The following rules shall apply to all non-residential activities except for rural activities and non-residential activities in scheduled sites.

8.1 Permitted Activities
Activities meeting the following performance standard are permitted activities:
• Home occupations meeting with the following requirements

no more than five persons are engaged in the home occupation, at least one of whom resides on the site; and

the home occupation is carried out within an existing building; and

the home occupation does not involve traffic generation involving a heavy traffic vehicle exceeding two vehicle movements per week; and
Except where goods are primarily ordered by mail or electronic transaction and distributed by post or courier, any retail sales and services shall be of goods produced on site; and
- The home occupation, apart from the parking of one vehicle, is screened from the

adjoining sites and the road.

Assessment Criteria

8(a) The extent to which non-residential activities compromise the rural character.
8(b) The extent to which purpose-built buildings are compatible with the scale and appearance of other buildings in the neighbourhood.
8(c) The extent to which non-residential activities fragment the rural character of the surrounding area.
8(d) The extent to which the activity would lead, on an individual or cumulative basis, to pressure for urban expansion and the fragmentation of rural character and amenity.
8(e) The extent to which more than minor adverse effects can be adequately avoided, remedied, mitigated or offset through provision of works and services on or off the site and / or through payment or provision of a financial contribution.
[28] The Council has submitted that Mr Mawhinney is unable to amend his application and therefore under Rule 8 the application for an activity other than a residential activity requires resource consent. The only permitted activities under Rule 8 are home occupations meeting certain criteria. The application also does not come within the definition of rural act-iv ty. Accordingly, the Council has subm tted that there is no jurisdiction to issue a certificate of compliance under section 139.
[29] In addition the Council submitted that the erection of a substantial number of barns and bor sheds on the subject site, with the prospect that these will be converted

into dwellings, triggers a non-complying consent requirement under City Wide Rule 1.1(b).

Rule 1 Maintenance and Condition of Land and Buildings
1.0 The following rules shall apply where relevant to any activity in all human environments except the working environment.
1.2 Non-complying activities:

(a) Any building which due to inadequate maintenance, has an external appearance detracting from amenity values or neighbourhood character.
(b) Land which, due to inadequate maintenance of the presence of structures or vehicles or other materials or storage of materials or property detracts from amenity values or neighbourhood character.
[30] The Council contended that the Rule is not limited to the maintenance and condition of land and structures, and encompasses the "presence" of structures, including the number, and /or density which can affect visual amenity and natural character values.
[31] Mr Mawhinney maintained that the erection of the barns and sheds is a permitted activity. In support of his application he submitted that Rule 3 enables the erection of buildings as a permitted activity provided the land involved is not a sensitive ridge.
[32] Rule 3 reads as follows:

Rule 3 Building location — Natural Landscape Elements
3.1 Permitted Activities
Activities meeting the following Performance Standard are permitted activities: buildings and development which are not on land identified as a sensitive ridge or headland/cliff/scarp in the natural areas maps.

[33] In our view the applications for a certificate of compliance for the erection of barns and sheds should be struck out.
[34] The onus is on the applicant to advise the Council of the proposed use of the buildings subject to the request. In this particular case the buildings (barns and sheds) are only to be used as dwellings, and the Council had to assess the application on the

basis that the end result is to create dwellings. Whether the words "to be used initially for any activity other than a residential activity" are withdrawn is immaterial. The applications are struck out on the basis that they must be looked at holistically. The Council is not an automaton and must independently evaluate all relevant rules to the proposed activity.9

[35] In its submissions the Council relied on Rule 1, and submitted that the barns will affect the amenity character of the area. However, we consider that the inclusion of the words "due to inadequate maintenance" brings the applications outside the scope of this Rule.
[36] Mr Mawhinney relied on Rule 3, but this rule cannot be read in isolation. The use of the barns and sheds for future residential activities is inherent to the activity and cannot be divorced from it. It is trite that holistic appraisal is required of all elements of an activity.
[37] The application is essentially for a subdivision and is sought to circumvent the rules regarding subdivision in the area. The barns and sheds will affect the amenity character of the area, and the policies and objectives of the plan do not support this proliferation of structures in an area that is intended to be environmentally important. Accordingly, the applications for a certificate of compliance to erect 56 barns and 76 sheds are struck out.

(3) The separate lease of the areas subject to the individual forestry rights for a term of 34 years and 364 days:

[38] A certificate of compliance was sought for the separate lease of the areas subject

to the individual forestry rights shown marked 1 to 78 on the plan COC 5 for a term of

9 Waitatere City Council v Kitewaho [2005] 1 NZLR 208.
34 years and 364 days (being less than the 35 years referred to in section 218(a)(iii)) on the grounds that:

(a) The restriction in section 11 is limited to subdivision of land as defined in section 218; and
(b) A lease with a term less than 35 years is excluded from being a division of an allotment and thus from being subdivision of land by section 218(a)(iii); and
(c) Such leasing does not contravene a rule in any relevant plan, and therefore complies with it and may be lawfully carried out without resource consent.
[39] The Council has submitted that it has no statutory jurisdiction in relation to forms of lease that fall outside the parameters of the statutory duty in section 11. If the activity is not captured by the definition of subdivision, it falls outside section 11, is not regulated by the district plan and there is no basis to issue a certificate of compliance.
[40] Mr Mawhinney submitted that a certificate of compliance can be issued on the grounds that the test for a certificate of compliance is whether an activity could be lawfully carried out without a resource consent not whether its a permitted activity without a resource consent.
[41] In Mr Mawhinney's submissions he suggested that once the 34 year lease terminates the lease will automatically convert to a monthly tenancy. However, during the hearing he withdrew the request for a 'monthly tenancy' arrangement beyond the 34 year term.
[42] The Council submitted that if the application seeks a certificate for 34 years and 364 days then it is captured by the definition of subdivision in section 218(1)(iii) which includes a "lease...which, including renewals, is or could be for a term of more than 35 years", and a resource consent is required. If the application is amended to remove the reference to 364 days then there is no jurisdiction under section 139 to grant a certificate of compliance because the activity is not a subdivision within the scope of section 218.
[43] Mr Mawhinney submitted that follo ing the withdrawal for the request for monthly tenancy, the lease is under 35 years, outside the scope of section 218, and therefore an activity for which a certificate of compliance can issue.
[44] We agree with the Council. The lease is less than 35 years and outside the definition of subdivision. Therefore, the Council had no jurisdiction to grant a certificate of compliance under section 139. Furthermore, we consider that the practicalities of a lease terminating after 34 years and 364 days are limited. The application is accordingly struck out.

(4) Rentcharges

[45] A certificate of compliance was requested for rentcharges on the grounds that:

• (a) the restriction in section 11 of the Act is expressly limited to subdivision of land as defined in section 218; and
• (b) a rentcharge is not the division of an allotment and is excluded from being subdivision of land as defined in section 218(1)(a)(iii); and

(c) a rentcharge does not contravene a rule in any relevant plan and

therefore complies with it and may be lawfully carried out without resource consent.

[46] A rentcharge is an annual sum of money issuing and payable out of land, but not as an incident of tenure. A legal rentcharge over Land Transfer Land is created by the execution and registration of a memorandum of encumbrance in Forms D in the Second Schedule to the Land Transfer Act 1952.
[47] Mr Mawhinney submitted that when the areas of land out of which the rentcharges issue and are payable are shown or identified separately on a survey plan, each area will become an allotment under section 218(2)(b) of the Act. When the survey plan is approved by LINZ, a legal rentcharge over the subject land is created. He submitted that the division of the underlying allotment by such registration of land is not subdivision of land as defined in section 218, and therefore, is not subject to section 11. Accordingly, Mr Mawhinney argued that no subdivision consent or further consent is required from the Council, and that such a rentcharge is a site.
[48] The Council submitted that the request for a certificate of compliance for rentcharges is outside the jurisdiction of the Act and outside the scope of section 139 on the grounds that it does not involve either a land use activity or a subdivision activity. If the rentcharges were sought in relation to an element of land use or subdivision this would trigger the requirement for a resource consent, also meaning that the application is outside the scope of section 139.
[49] We are of the opinion that, there being no land use or subdivision activity attached to the rentcharge, the application is outside the jurisdiction of the Act.

[50] If the plain meaning of section 139 is that any activity or proposal can be the subject of a certificate of compliance if it does not require a resource consent, including activities that are not 'regulated' by the Act, this would result in anomalous and absurd results.

[51] A rentcharge may be created by way of registration of a memorandum of encumbrance, and this may be done without involving resource management processes (as in this case). Accordingly, we are in agreement with the Council and this aspect of the appeal is struck out.

(5) separate certificates of title to any one or more of the parts of the subject of forestry rights:

[52] A certificate of compliance was requested in respect of the application to the Land Registrar for separate certificates of title to any one or more of the parts of the subject land on the grounds that:

(a) such an activity is excluded from being subdivision of land pursuant to section 6 of the Forestry Rights Registration Act 1983; and
(b) such an application does not contravene a rule in any relevant plan, and the efore complies with it and may be lawfully carried out without resource consent under section 139.

[53] Section 6 of the Forestry Rights Registration Act 1983 reads as follows:

Section 6 Subdivisions and riqhts of way

For the purposes of the [Resource Management Act 1991], the [creation] of a forestry right shall be deemed not to be a subdivision of the land of the [proprietor], and any right of access [ ] created as ancillary to a forestry right over the land of the [proprietor] shall be deemed not to be the [creation] of a right of way under section 348 of [the Local Government Act 1974].

[54] Mr Mawhinney submitted that the proprietor or holder of any forestry right may at any time request a certificate of title to the estate and interest in the forestry right, and that a certificate of title can be issued without further consent of the Council as the creation of forestry rights are expressly excluded from being subdivision of land under the Resource Management Act by section 6 of the Forestry Rights Registration Act.
[55] The Council submitted that the request for a certificate of compliance for forestry rights is outside the jurisdiction of the Act and outside the scope of section 139 on the grounds that the application for forestry rights does not involve either a land use activity or a subdivision activity. Consequently, there is no jurisdiction to grant a certificate of compliance under section 139.
[56] If the forestry rights were sought in relation to an element of land use or subdivision this would trigger the requirement for a resource consent, also meaning that the application is outside the scope of section 139.
[57] We agree with the Council. Accordingly, the application for a certificate of compliance for separate certificates of title to any one or more of the parts the subject of forestry rights is struck out.

(6) The transfer of undivided shares in the subject land:

[58] A certificate of compliance was sought for the transfer of undivided shares in the subject land to the registered proprietors of the forestry rights and or leases and or rentcharges on the grounds that:

(a) the restriction in section 11 is limited to subdivision of land as defined in section 218; and

(b) the transfer of undivided shares in land is not subdivision as defined in section 218(I); and
(c) such leasing does not contravene a rule in any relevant plan and therefore complies with it; and
(d) may be lawfully carried out without resource consent under section 139.
[59] The owners of the forestry rights and lease areas shown on plan COC 5a will o n undivided shares in the underlying fee simple. From Mr Mawhinney's submissions it is understood that transfer of an undivided share in the fee simple is essential for the creation of a cross lease.
[60] The Council submitted that a certificate of compliance cannot be issued because no resource consent is required for the transfer of undivided shares in the existing fee simple allotments, as the transfer is not subdivision of land as defined in section 218.
[61] We are in agreement with the Council. There is no jurisdiction to issue a certificate of compliance, the application being outside the scope of section 218. Accordingly, this aspect of the appeal is struck out.

(7) Cross lease of the sheds, (15) The cross lease of the 77 barns;
and (16) the cross lease of the existing dwellings on Lot 933 DP 320 387 and Lot 19 DP 168374

[62] A certificate of title was sought for the cross lease of the 76 sheds, 77 barns and the existing dwellings on Lot 933 DP 320 387 and Lot 19 DP 168374 on the grounds that subdivision of land is a permitted activity under subdivision Rule 2.1(b)(ii) or (iii) (now deemed to be operative and part of the district plan by section 19) and may be lawfully carried out without consent under section 77B(I).

Rule 2.1 (b)

Subdivisions meeting the following Performance Standard are Permitted Activities provided that the subdivision meets all other relevant subdivision rules in the Plan:

(ii) proposed sites in any Human Environment which is not an Urban Human Environment where provision can be and is made for the treatment and disposal of stormwater and wastewater from each proposed site and for all proposed sites capable of accommodating buildings, provision can be and is made, where available, for water, electricity, gas and telecommunications connections;
(iii) proposed sites containing existing buildings where those buildings will meet the Permitted Activity Standards applicable to the Human Environment within which the proposed site is located;
[63] The Council submitted that the cross lease of the sheds or barns could only take place once the plans for the structures are approved. As the sheds and barns require land use consent as discussed earlier, a certificate of compliance cannot issue for the proposed cross lease.
[64] Furthermore, the Council submitted that the application to cross lease triggers subdivision requirements under the Trans tional District Plan, Foothills Rule 7 and a consent requirement under s405 of the Act.
[65] For example, the Transitional District Plan requires any subdivision under the Rural 3 Zone to have (at least) discretionary activity consent. Under section 405 all subdivision under a Transitional Plan requires (at least) a controlled activity (or more restrictive) consent. Under the Foothills Rules an application must meet the criterion for permitted subdivision under Rule 2.1(a) of the City Wide Rules.

Rule 2: General
The following rules shall apply, where relevant, to all subdivision of land.
2.1 Permitted Activities

(a) Subdivisions meeting the following performance standards are permitted activities (other subdivision rules do not need to be complied with):
(I) proposed sites for open space, or a Marae Special Area provided that the balance of land not being for open space, or Marae Special Area meets the subdivision standards applying to the relevant Human Environment.
(ii) proposed sites for any designation shown on the Human Environment Maps provided that the balance of land not being for the designation meets the subdivision standards applying to the relevant Human Environment.

•••

[66] Additionally the Council submitted that Rule 2.2 requires that an applicant "meet all other relevant subdivision rules in the plan" meaning that there is a default requirement to comply with the Foothills Rules. There being no permitted subdivision in the Foothills Rules, a certificate of compliance cannot be issued.
[67] We are in agreement with the Council. The grant of a cross-lease is a subdivision of land. Accordingly, subdivision consent must be obtained for a cross-lease development. A certificate of compliance cannot be issued under section 139. The applications for certificates of compliance for cross lease are stmck out.

(8) The erection of 14 further barns

[68] A certificate of compliance was sought for the erection of 14 buildings (barns) te-be-used initially for any activity othcr than a residential activity on the grounds that:

• (i) each of the lease allotments referred to in application (3) is a site; and
• (ii) each of the rentcharge allotments in application (4) is a site;
• (iii) each of the forestry rights referred to in application (5) is a site;
• (iv) each of the sheds to be cross leased in application (7) becomes an allotment as defined in section 218(2) each cross lease allotment is a "site" under the second bullet point in the definition of "site" made operative 27 March 2003; and
• (v) all 14 further barns are located on such sites; and
• (vi) the erection of one such barn in each of such sites is a permitted activity (except in areas which are located on Te Aute sensitive ridge); and

may be lawfully erected without resource consent pursuant to section 77B(1).

[69] The applications for certificates of compliance for rentcharges, forestry rights and the cross lease of the 76 sheds have been struck out. Accordingly, this application due to its reliance on earlier certificates of compliance being granted, is also struck out.

(9) The conversion of the 77 barns into dwellings for countryside living including residential activities

[70] Conversion of the barns into dwellings for countryside living including residential activities, on the grounds that:

(a) each of the lease allotments is a site and / or;
(b) each of the rentcharge allotments is a site;
(c) each of the sheds to be cross leased becomes an allotment when shown on a survey plan, as defined in section 218(2), and when the cross lease survey plan is approved under section 223(2) each such cross lease allotment is a site;
(d) and each such dwelling per site is a permitted activity under Foothills rule 2.1; and
(e) a permitted activity may be lawfully carried out without resource consent (section 77B(1)).

[71] We are of the opinion that the conversion of the 77 barns into dwelling sites is reliant on a certificates of compliance being granted for the erection of 77 barns. As the applications for certificates of compliance for the erection of 77 barns have been stmck out by this Court, this aspect of the appeal is also struck out.

Various ancillary activities (10) The erection of terraces decks and pergolas; (11) The carrying out of earthworks; (12) Clearance of vegetation; (13) Creation of driveways and (14) establishment of lawn and pasture

[72] A certificate of compliance was sought for the erection of terraces, decks and pergolas as shown on plan COC 7 around any one or more of the 59 barns, the 14 barns and the 4 barns the subject of a separate application for land use consent as a controlled activity to be erected on Te Aute Sensitive ridge.
[73] A certificate of compliance was sought on the grounds that the erection of such decks, terraces and pergolas are permitted activ ties and may be lawfully erected without resource consent pursuant to section 77B(1).
[74] A certificate of compliance was sought for carrying out earthworks in each of the building sites for the erection of the 76 sheds, the 59 barns and the 14 barns and decks, terraces and pergolas associated with the barns on the grounds that such earthworks are permitted activities under General Area Rule 3.1 and can be carried out without resource consent pursuant to section 77B(1).
[75] A certificate of compliance was sought for the clearance of vegetation on the grounds that such clearance is a permitted activity under General Area Rule 2.1(a)(iii) and may be lawfully carried out without a resource consent under section 77B.
[76] A certificate of compliance was sought for the conversion of parts of the forestry roads and tracks into vehicle access to serve the barns and dwellings by upgrading the carriageway to a standard suitable for use by passenger motor vehicles. The certificate of compliance was sought on the grounds that such a conversion is a land use subject to section 9 of the Act, and it does not contravene a rule in any relevant plan and therefore may be lawfully carried out without resource consent.

[77] A certificate of compliance was sought for the establishment of lawn and / or pasture on the basis that the establishment of vegetation including lawn and pasture is a permitted activity under General Area Rule 5.1 and may be lawfully carried out without resource consent under section 77B.

[78] All these activities are ancillary and are dependent on other activities receiving certificates of compliance. In our view the applications' reliance on earlier applications being granted makes them hypothetical. For this reason the applications for certificates of compliance for the erection of terraces, decks, pergolas, the carrying out of earthworks, clearance of vegetation, creation of driveways and establishment of lawn and pasture are struck out.

(17) The vesting of land as road

[79] A certificate of compliance was sought for the vesting of part of the subject land as road on the basis that:

(i) it is not a subdivision of land as defined in section 218; and
(ii) is therefore not subject to section 11, and
(iii) is part of a land use defined in section 9(4); and
(iv) complies with all relevant plans by not contravening them.

It can therefore be carried out without resource consent, and a certificate of compliance must be issued for it under section 139(1).

[80] The Council submitted that even if a certificate of compliance is granted for this
activity and the vesting of the road could be a permitted activity, the certificate would

serve no purpose as the Council is the roading authority and the vesting of roading cannot take place without the Council's prior agreement under section 223.

[81] The Council submitted that as vesting of roading cannot take place unless the Council is a willing party, the application for certificate of compliance should be struck out on the grounds that it is hypothetical.
[82] We are in agreement with the Council. Accordingly, this aspect of the appeal is struck out.

Decision:

[83] The Council's application is granted and the appeal is struck out.
[84] Costs a e reserved. Any application for costs may be made in writing and lodged and served within 20 working days of the date of this decision. Any response may be made in writing and may be lodged and served within 15 working days after receipt of the application.

For the Court:

R Gordon Whiting Environment Ridge

.

ENV₇2006-A10,000543 Mawhinney Strike Out decision.doc 24

tAi& fJ

REQUEST FOR CERTIFICATE OF COMPLIANCE

(pursuant to sl 39 Resource Management Act 1991)

To: Waitakere City Council Henderson

("WCC")

From: Waitakere Resource Consents Limited (as an agent).

WE HEREBY REQUEST A CERTIFICATE OF COMPLIANCE UNDER SECTION 139 OF THE RESOURCE MANAGEMENT ACT 1991 FOR THE ACTIVITIES AND PROPOSAL DESCRIBED TIEREDI.

1 Date of req u est: 28 July 2005

2 Address of requesters: P 0 Box 95157

Swanson

3 Subject Land: The land the subject of this request is defined in. Schedule

1 annexed hereto at p38, and the location is shown on the map in plan COC 12 herein.

4 Proposal: The proposal or activity for which this request is made is as

follows:

WAITAKERE CITY COUN 6 WAIPAREIRA AVE HENDERSON

WAITAKERE CITY

c7S- (6

ime Date

A/_0,-/C)/

RECEIVED SIGNATURE

4.1 Erectian of 59 Barns: The certificate of compliance is requested for the erection of 59 buildings (barns) to be used initially for any activity' other than a residential activity2,

• as shown on plan series COC 1 herein;
• at the locations shown on plan COC 2 annexed hereto;

on the grounds that such buildings are permitted activities (as described in. Appendix A annexed hereto; p14) and the 59 barns may be lawfully erected without resource consent pursuant to s77B(1) RMA;

4.2 Erection of 76 Sheds: The certificate of compliance is requested for the erection of 76 buildings (sheds) to be used for any activity other than a residential activity,

• as shown on plan COC 3 annexed hereto;
• at the locations shown on plan COC 4 annexed hereto;

on the grounds that such buildings are permitted activities (as described in Appendix A annexed hereto; p14 paragraphs 3 to 14) and the 76 sheds may be lawfully e ected without resource consent pursuant to s77B(1) RMA;

4.3 35 year Leases: The certificate of compliance is requested for the separate lease of the areas subject to the individual forestry rights shown marked 1 to 78 on plan COC 5 herein for a term of 34 years and 364 days (being less than the 35 years referred to in s218(1)(a)(iii) RMA) on the grounds that:

"any activity" is defined in the district plan made operative 27 March 2003.

2 "residential activity" is defined in the district plan made operative 27 March 2003.

The restriction in sl 1 RMA is Iimited to subdivision of land as defined in s218 RMA; and

(b) A lease with a term of less than 35 years is excluded from being of a division of an allotment and thus from being subdivision of land by s218(1)(a)(iii) RMA; and
(c) such leasing does not contravene a rule in any relevant plan, and therefore complies with it (as further described in Appendix A, paragraph 16, p37),

and may be lawfully carried out without resource consent (s139 RMA);

4.4 Renteharges: The certificate of compliance is requested for rentcharges3 issuing and payable out of each of the areas of land shown marked 1 to 78 on plan. COC 5 (including the 76 sheds described at paragraph 4.2 above but not the barns converted to dwellings described at paragraph 4.9 herein) on the grounds that :

(a) The restriction in s11 RMA is expressly limited to subdivision of land as defined in s218 RMA; and
(b) A rentcharge is not the division of an allotment and is excluded from being subdivision of land as defined in s218(1)(a)(iii) RMA; and

3 "A rentcharge is an annual sum of money issuing and payable out of lang but not as an incident of tenure." Hinde, McMortland and Sim, Land Law (vol ii, 1979) para 8.153, and see, generally, 8.152 — 8.157. A rentcharge is an incorporeal hereditament. A legal rentcharge over Land Transfer land is created by the execution and registration of a memorandum of encumbrance in Form D in the Second Schedule to the Land Transfers Act 1952.

(c) a rentcharge does not contravene a rule in any relevant plan, and therefore complies with it (as further described in Appendix A, paragraph 16, p37),

and may be lawfully carried out without resource consent (s139 RMA);

4.5 Forestry Rights Allotments The certificate of compliance is requested in respect of the application to the land registrar for separate certificates of title to any one or more of the parts of the subject land4 the subject of forestry rights in the areas marked 1 to 78 on plan COC 5 herein, on the grounds that:

(a) such activity is excluded from being subdivision of land pursuant to s6 of the Forestry Rights Registration Act 1983; and
(b) such application does not contravene a rule in any relevant plan, and therefore complies with it (as further described in Appendix A, paragraph 16, p37),

and may be lawfully carried out without resource consent (s139 RMA);

4.6 Undivided shares: The certificate of compliance is requested for the transfer of undivided shares in the subject land as described in Schedule 5 annexed at p61 to the registered proprietors of the forestry rights and/or leases and/or rentcharges described at paragraphs 4.3 to 4.5 above, on the grounds that:

(a) The restriction in sl 1 RMA is limited to subdivision of land as

defined in s218 RMA; and

4 "Land" as defined in s2 of the Land Transfer Act 1952.

(b) The transfer of undivided shares in land not subdivision of land as defined s218(1) RMA; and
(c) such leasing does not contravene a rule in any relevant plan, and therefore complies with it,

and may be lawfully carried out without resource consent (s139 RMA);

4.7 Cross lease of sheds: The certificate of compliance is requested for the cross lease of any one or more of the 76 sheds referred to at paragraph 4.2 above in the covenant areas shown marked 1 to 41, 43 to 59, and 61 to 78 on plan COC 5a annexed hereto (such covenant areas (curtilage) being the lease/forestry right/rentcharge allotments as shown on plan COC 5) on the grounds that such subdivision of land is a permitted activity under subdivision rule 2.1(b)(ii) or (iii) (now deemed to be operative and part of the district plan by s19 RMA) as described in Appendix A paragraph 4.4.11(b) p21, and may be lawfully carried out without resource consent under s77B(1) RMA.

4.8 Erection of 14 Further Barns: The certificate of compliance is requested for the erection of 14 buildings (barns) to be used initially for any activity other than a residential activity,

• as shown on plan series COC 1 herein;
• at the locations shown on plan COC 6 annexed hereto;

on the grounds that:

(a) each of the lease allotments referred to at paragraph 4.3 above is a site; and/or

(b) each of the rentcharge allotments referred to at paragraph 4.4 above is a site
(c) each of the forestry right allotments referred to at paragraph 4.5 above is a site; and/or
(d) each of the sheds to be cross leased as described at paragraph 4.7 above becomes an allotment as defined in s218(2) RMA when it is shown on a survey plan, and when the cross lease survey plan is approved under s218(2) RIVIA (which approval is mandatory when it conforms with the certificate of compliance) each such cross lease allotment is a "site" under the second bullet point in the definition of "site" made operative 27 March 2003 (as further described in Appendix A paragraph 4.4.11(b) p21); and
(e) all 14 further barns are located in such sites; and
(f) the erection of one such barn in each of such sites as shown on plan COC 5a is a permitted activity as described in Appendix A annexed hereto at p14 (except in areas in 60 to 63 which are located on Te Aute sensitive ridge); and

and may be lawfully erected without resource consent pursuant to s77B(1) RMA;

4.9 Conversion of Barns to Dwellings: The certificate of compliance is requested for the conversion of one or more of

(b) the 14 barns referred tb-at paragraph 4.8 herein, and/or
(c) the 4 barns the subject of a separate application for land use consent as a controlled activity to be erected on Te Aute sensitive ridge,

into dwellings for countryside living including residential activities, on the grounds that:

(a) each of the iease allotments referred to at paragraph 4.3 above is a site; and/or
(b) each of the rentcharge a otments referred to at paragraph 4.4 above is a site
(c) each of the forestry right allotments referred to at paragraph 4.5 above is a site; and/or
(d) each of the sheds to be cross leased as described at paragraph 4.7 above becomes an allotment when shown on a survey plan, as defined in s218(2) RMA, and when the cross lease survey plan is approved under s223(2) RMA (which approval is mandatory when it conforms with the certificate of compliance) each such cross lease allotment is a site (under the second bullet point in the definition of site made operative 27 March 2003) as further described in Appendix A paragraph 4.1.11(b) p21; and
(e) one each such dwelling per site is a permitted activity under Foothills rule 2.1,

and a permitted activity may be lawfully carried out without resource consent (s77B(1) RM.A); and

4.10 Terraces, decks and pergolas: The certificate of compliance is requested for erection of terraces, decks and pergolas as shown on plan COC 7 around any one or more of

(a) the 59 barns referred to at paragraph 4.1 herein, and/or
(b) the 14 barns referred to at paragraph 4.8 herein, and/or
(c) the 4 barns the subject of a separate application for land use consent as a controlled activity to be erected on Te Aute sensitive ridge,

on the grounds that the erection of such decks, terraces and pergolas are permitted activities (as described in Appendix A annexed hereto at p14 onward) and may be lawfully erected without resource consent pursunnt to s77B(1) RMA;

4.11 Earthworks in Building Platforms: The certificate of compliance is requested for carrying out earthworks in each of the building sites for the erection of

(a) the 76 sheds referred to at paragraph 4.2 herein, and
(b) the 59 barns referred to at paragraph 4.1 herein, and/or (b) the 14 barns referred to at paragraph 4.8 herein,

and decks, terraces and pergolas associated with the barns, on the grounds that such earthworks are permitted activities under General Area rule 3.1 (as further described in Appendix A paragraph 9 p32) and can be lawfully carried out without resource consent pursuant to s77B(1) RMA;

4.12 Clearance of Vegetation: Without prejudice to the existing use protected by sl0 RMA which includes the harvest of the pinus radiata tree crop from the subject land by ground based clear fell harvesting, which has the effect of destroying the vegetation under and around the tree crop, the certificate of compliance is requested for the vegetation alteration (including clearance) of pinus radiata, gorse, pampas and other vegetation listed in the Re ovable Vegetation Appendix and the Environmentally Damaging Plants Appendix of a total cleared area not exceeding 500 square metres in each of the lease/rentcharge/forestry right/cross lease allotments ("sites") in the areas shown on plan COC 8 annexed hereto, on the grounds that such clearance is a permitted activity under General Area rule 2.1(a)(iii) (as further described in Appendix A annexed hereto at p31 paragraph 8) and may be lawfully carried out without resource consent under s77B RMA;

4.13 Driveways: Whereas ground based clear-fell harvesting using forestry roads and tracks is an existing use protected by sl0 RMA and can be lawfully carried out without resource consent under s9(1) RMA, the certificate of compliance is requested for the conversion of parts of the forestry roads and tracks used to clear-fell harvest the pinus radiata crop into vehicle access to serve the barns/dwellings by upgrading the

carriageway to a standard suitable for use by passenger motor vehicles, on the grounds that:

(a) such conversion is a land use subject to s9 RMA;
(b) it does not contravene a rule in any relevant plan;

and therefore, it may be lawfully carried out without resource consent. The location of the forestry roads and tracks to be converted is shown on plan COC 9 annexed hereto.

4.14 Establishment of Lawn/Pasture: The certificate of compliance is requested for the establishment of vegetation, being lawn or pasture, in the areas shown on plan COC 10 on the grounds that:

(a) The existing vegetation will be destroyed by the harvest of the pinus radiata tree crop from the subject land by ground based clear fell harvesting, which has the effect of destroying the vegetation under and around the tree crop as well as the tree crop itself, and such harvesting is an existing land use protected by slO RMA which may be lawfully carried out without resource consent pursuant to s9 and sl 0 RMA; and
(b) the subsequent establishment of vegetation including lawn/pasture is a permitted activity under General Area rule 5.1 and may be lawfully carried out without resource consent under s77B RMA;

4.15 Cross lease of Barns: The certificate of compliance is requested for the cross lease of any one or more of.

(b) the 14 barns referred to at paragraph 4.8 herein, and/or
(c) the 4 barns the subject of a separate application for land use consent as a controlled activity to be erected on Te Aute sensitive ridge in areas 59 to 62,

with covenant areas (curtilage) being the covenant areas in the cross-lease allotments for the 76 sheds shown on plan. COC 5a (which covenant areas are the lease/forestry right allotments) on the grounds that such subdivision of land is a permitted activity under subdivision rule 2.1(b)(ii) or (iii) (now deemed to be operative and part of the district plan by s19 RMA) as further described in Appendix A at paragraph 4.1.11(c) p23, and may be lawfully carried out without resource consent under s77B(1) RMA.

4.16 Cross lease of Existing Dwellt s The certificate of comp ce is requested for the cross lease of:

(a) The existing dwelling on Lot 933 DP 320387 with a covenant area (curtilage) being lease/forestry right allotment 42
(b) The existing dwelling on Lot 19 DP 168374 with a covenant area (curtilage) being the proposed Lot 619 in subdivision consent SPW 20760 RMA 992173

on the grounds that such subdivision of land is a permitted activity under subdivision rule 2.1(b)(ii) or (iii) (now deemed to be operative and part of the district plan by s19 RMA) and may be lawfully carried out without resource consent under s77B(1) RMA.

4.17 Vesting land as road: The certificate of compliance is requested for the vesting of the areas of land shown on plan COC 17 annexed hereto as road on the grounds that such vesting:

(a) is not subdivision of land as defined in s218 RMA, and is therefore not subject to sl 1 RMA; and
(b) is part of a land use as defined in s9(4) RMA; and
(c) complies with all relevant plans by not contravening them (as further described in Appendix A at paragraphs 15 and 16, p36/37);

and may be lawfully carried out without resource consent (s139 RMA).

5 Compliance Information: Annexed hereto in Appendix A is information that demonstrates the proposal or activity is either a permitted activity or may otherwise be lawfully carried out without resource consent.

6 Owners: The names and addresses of the owners or occupiers of the

subject land to which the request relates are set down in Schedule 1 annexed hereto (p39).

7 Term: As contemplated in s113 and s125 RMA, it is requested that, for

the purposes of s125 RMA (lapsing of consent), the, term of the

certificate of compliance be 35 years from the date of commencement.

Partial Issue: If the WCC considers that the certificate of compliance
may be issued for only some of the activities and proposals described in
this request, it is further requested that the certificate of compliance is

issued for those activities, and that for the others, a notice of refusal of certificate of compliance is issued.

Dated this day of 2005.

P W Mawhinney

Waitakere Resource Consents Limited

Address for service:

P 0 Box 95157

Swanson.

Telephone and Facsimile: (09) 8108 656

1 The following information demonstrates the proposals and activities for

which the certificate of compliance is requested complies with the relevant plan and are either permitted activities or may be otherwise lawfully carried out without resource consent.

2 Zoning: The subject land is zoned under the City of Waitakere District

Plan made operative in part on 27 March 2003 as follows:

(a) Foothills Human Environment

• (b) General Natural Area (part only)
• (c) Managed Natural Area (part only)
• (d) Riparian Margins Natural Area (part only)

(e) Part of Te Aute sensitive ridge (part only). The location of the proposed "development" (as defined in the district plan) in relation to the natural areas is shown on plan COC 13.

3 Foothills rule 2.1 (building location): None of the proposal and activities

for which the certificate of compliance is requested that involve buildings and development located on a sensitive ridge or headlandfcliffiscarp shown on the natural areas maps, and since such building and development is a permitted activity under Foothills Rule 3.1, it can be lawfully carried out without resource consent pursuant to 77B(1) RMA. The certificate of compliance is requested on that basis. Where there is a proposal to erect a barn/dwelling in each of the forestry right/lease areas 59 to 62, which are located in part on Te Aute sensitive ridge, that is a controlled activity under Foothills rule 3.2 and a separate application for resource consent is being made.

4 Foothills rule 3.1 (Residential activities/density): The conversion of the

barns to dwellings will result in no more than one dwelling per site, as follows.

4.1 The two major factors are:

(a) a "site" is defined in part in the district plan (made operative 27 March 2003) as an allotment.
(b) "allotment" is defined in s218(2) RMA.

The proposed leases, rentcharges, forestry rights, undivided shares, and cross leases are allotments, and thus sites, as described at paragraphs 4.1.1 to 4.1.11 below.

4.1.1 Where s218(2)(a) RMA refers to "any parcel of land under the Land

Transfer Act 1952 whose boundaries are shown separately on a

survey plan whether or not a subdivision consent for the

subdivision shown on the survey plan has been granted ..... ";

• a "parcel of land" is a piece of land, and a description of parcels in a document is a legal description of land (Butterworths NZ Law Dictionary), and
• a "survey plan" is defined in s2 RMA as meaning a plan of subdivision of land, or a building or part of a building, prepared in a form suitable for deposit under the Land Transfer Act 1952 (and expressly includes a plan to give effect to a cross lease). The method by which is survey plan is prepared in a form suitable for deposit is set down in the "regulations for the time being in force in that behalf" (s167 Land Transfer Act 1952), and in practice those

regulations are the Surveyor-General's rules made under the s49 of the Cadastral Survey Act 2002, which superceded the Survey Act 1986 and the Survey Regulations 1998.

4.1.2 The subject land is "land under the Land Transfer Act 1952", and thus allotments in the subject land are of the kind defined in s218(2)(a) RMA.

4.1.3 "land under the Land Transfer Act 1952" is defmed in s2 of the Property Law Act 1952, and means estates and interests registered under that Act. The same section defines "land" as including all estates and interests, whether freehold or chattel, in real property.

4.1.4 "estate or interest" is defmed in the Land Transfer Act 1952 as meaning every estate in land, and any mortgage or charge on the land under that Act.

4.1.5 "land" is defined in the Land Transfer Act 1952 as including:

• messuages (a house, outbuildings, curtilage or courtyard, and gardens):
• tenements (everything in which a person can have an estate of freehold and which is connected with land)
• hereditaments (real property which at common law descended to the heir on intestacy)

whether corporeal (that which can be sensed, seen or handled by the human body e.g. a house) or incorporeal (that which cannot be seen or handled, and which exists only in contemplation, e.g. rent for the house; in New Zealand, the only incorporeal hereditaments that are of importance are easements, profits a pendre and rent charges),

of every kind and description,

AND EVERY ESTATE OR INTEREST THEREIN (an interest is a right or title to, or estate in, any real or personal property; real property (realty) includes land, things growing in or attached to land, minerals (corporeal hereitaments), rights over land (e.g. easements), and profits a pendre (incorporeal hereitaments), whilst personal property (personality) includes goods and chattels and leasehold interests in land)

together with all paths, passages, ways, waters, watercourses, liberties, easements, and privileges thereunto appertaining, plantations, gardens, mines, minerals, and quarries, and all trees and timber thereon or thereunder lying or being, unless specially excepted.

4.1.6 Thus land is not limited to being only the physical soil, and vegetation and buildings on it. It can also be the non-physical estates and interests in such soil and vegetation and buildings

4.1.7 A rentcharge is land because it is an incorporeal hereditament.

4.1.8 s2I8(2)(b) also separately defines an allotment as being any parcel of land or building or part of a building identified separately on a survey plan. Thus an allotment can be a building, such as the sheds and barns. s2 RMA defines "cross lease" as meaning the lease of a building or part of a building erected or to be erected on any land that is:

• granted by any owner of the land; and
  • held by a person who has an estate or interest in an undivided share in the land.

Thus an allotment can be a building that is cross leased.

4.1.9 (a) "Land under the Land Transfer Act 1952" is defmed in s2 of that Act as being plantations, trees and timber (see paragraph 4.1.5)

(b) A forestry right is a profit a pendre pursuant to s3 of the Forestry Rights Registration Act 1983: Also in Smith v CIR [1969] NLLR 565, where the right to fell and remove timber growing on the land of another was held to be a profit a pendre

A profit a pendre is both an incorporeal hereditament and a tenement (Hinde, McMorland and Sim Land Law volume ii, 1979, paragraphs 6.005 to 6.0057). It is therefore an estate of freehold in possession for the purposes of s65 of the Land Transfer Act 1952, which provides that every registered proprietor of an estate of freehold in possession is entitled to a certificate of title under that Act (now that fee tail is now abolished in NZ, an estate of freehold is either in fee simple or for life - the estate of the subject land is in fee simple. The alternative to an estate in possession is an estate in expectancy — the proposed forestry rights will be estates in possession).

(d) s167 of the Land Transfer Act 1952 provides that,

(i)

on application for a new certificate on subdivision or any other dealing with land (dealing is defined in s2 of that Act, and includes transfer, lease or encumbrance of any estate or interest),

(ii) or for registration of any instrument affecting part only of land

the registrar may require the applicant to deposit a plan of the land or part thereof, as the case may be.

(e) s5 of the Forestry Rights Registration Act 1983 provides that the proprietor or holder of any forestry right may at any time deposit a plan in accordance with section 167 (5) of the Land Transfer Act 1952.
(f) Thus a forestry right is an allotment within the meaning of both s218(2)(a) and (b) RMA.

4.1.10An allotment thus includes:

(i) a leasehold interest in a parcel of land shown or identified on a survey plan; and
(ii) a cross lease of a building or part of a building shown or identified on a survey plan; and
(iii) a rentcharge arising issuing and payable out of land shown or identified in a survey plan; and
(iv) a forestry right created over a parcel of land shown or identified on a survey plan; and
(v) an estate or interest being a tenancy in common by way of an undivided share in the fee simple in a parcel of land shown or identified on a survey plan.

4.1.11A "site" is defined in part as being an allotment subject to other restrictions, as follows:

(i) 1st bullet point: an allotment that is comprised in a single certificate

of title; or

Z bullet point: an allotment on an approved survey plan for which a separate certificate of title could be issued without further consent of WCC.

4.1.12The proposed allotments for which the certificate of compliance is requested conform with the defmition of "site", and a dwelling may be may therefore be erected in each of them, as follows:

4.1.11(a) 35 year lease sites:

(i) 2nd bullet point of definition of "site": a separate certificate of title

can be issued without further consent of the WCC for the allotments comprising the leasehold interests (term of less than 35 years) in the parcels shown 1 to 78 on plan COC 5, because leases of less than 35 years are not subdivision of land as defined in s218 RMA, and are thus not subject to sl l RMA which expressly refers to s218, so that no subdivision consent or further consent is required from WCC for issue of a separate certificate of title to the leasehold interest. The 35 year leases thus meet the standards and terms of the second bullet point in the definition of "site"; and/or

1st bullet point of definition "site": s66 of the Land Transfer Act 1952 provides that a separate certificate of title can be issued for the leasehold interest in each of the parcels of land marked 1 to 78 on plan COG 5. Such certificate of title would the only one for that

leasehold interest in the land, and thus qualify as a "single" certificate of title, thus also meeting the standards and terms of the first bullet point in the definition of "site".

4.1.11(b) Shed cross lease sites:

(i) 2nd bullet point of definition of "site": When the 76 sheds shown on plan COC 5a are shown or identified separately on a survey plan, each of such building will become an allotment under s218(2)(b) RMA. The cross lease of the each of the 76 sheds "meets all other relevant rules", which is the proviso of the permitted activity in subdivision rule 2.1(b) (which rule is now deemed to be operative and part of the district plan and the previous rule inoperative under s19 RMA, there being no outstanding objections or appeals). In particular, the purported 4 hectare minimum site area is met by the cross lease allotments all having a site area in excess of that, being the areas of the existing prhnary parcels described at paragraph 7(b) herein, in accordance with the definition of cross lease in s2 RMA (as discussed at paragraph 4.1.8 herein). When the sheds are erected, the cross lease will also meet the terms and conditions of subdivision rule 2.1(b)(iii). The terms and conditions of subdivision rule 2.1(b)(ii) are also met in that provision is made for the treatment and disposal of stormwater by the discharge of it being a permitted activity (imperious area of 76 sheds x 4 square metres = 304 square metres, which is less than the 1,000 spare metres restriction for the permitted activities in both the regional and proposed regional plans). Since the subdivision of the subject

land by the cross lease of the 76 sheds is a permitted activity, a separate certificate of title for each of the 76 cross lease allotments can be issued without further consent of WCC, thus meeting the standards and terms of the second bullet point in the definition of "site"; and/or

(ii) 1st bullet point of definition of "site": The cross lease allotments, being the cross lease of a shed in each of the areas marked 1 to 41, 43 to 59, and 61 to 78 on plan COC 5a, will each be comprised in a single cross lease certificate of title, and there will be no other certificate of title to that cross lease allotment, thus meeting the standards and terms of the first bullet point in the definition of "site".

The reason for cross leasing the sheds as opposed to more substantial buildings is that resource management bureaucracy has in the past insisted that the buildings to be cross leased must first be erected, on the grounds that only buildings can be cross leased, by the definition in s2 RMA (ex WCC functionary employed by North Shore City Council). This contention is denied on the grounds of the plain meaning of the definition of "cross lease" in s2 RMA, which expressly provides that buildings yet "to be erected" may be subject to a cross lease. However, if the WCC insist that a building must be in existence, then the sheds have advantages in that:

• No building consent is required under the Building Act 1991

for one storey buildings of less than 10 square metres in floor

area which does not contain sleeping accommodation or

sanitary facilities of storage of potable water (Building Act 1991, third Schedule, clause (1)(iv), and the sheds conform with those restrictions; and

• The prohibitive costs of obtaining 76 building permits for more substantial bnildings is avoided, and cannot be used by the WCC to stop the cross lease subdivision.

(iv) Another reason for cross leasing the sheds is that a "dwelling" is defined in the district plan (made operative 27 March 2003) as including buildings which are subsidiary to the dwelling, that is, the shed. The cross lease of the sheds can therefore be regarded as the cross lease of the barns yet to be erected and converted to dwellings, as is expressly contemplated in the definition of cross lease in s2 RMA by the reference to a building "to be erected".

4.1.11(c) Barn cross lease sites:

(i) 2nd bullet point of definition of "site": When the

• the 59 barns referred to at paragraph 4.1 of the request, and/or
• the 14 barns referred to at paragraph 4.8 of the request, and/or
• the 4 barns the subject of a separate application for land use consent as a controlled activity to be erected on Te Aute sensitive ridge,

are shown or identified separately on a survey plan, each such building will become an allotment under s218(2)(b) RMA. The cross lease of the each of the barns "meets all other relevant rules", which is the proviso of the permitted activity in subdivision rule 2.1(b) (which rule is now deemed to be operative and part of the district plan and the previous rule inoperative under s19 RMA, there being no outstanding objections or appeals). In particular, the purported 4 hectare minimum site area is met by the cross lease allotments all having a site area in excess of that, being the areas of the existing primary parcels set down at paragraph 7.1(b) herein. When the barns are erected, the cross lease will also meet the terms and conditions of subdivision rule 2.1(b)(iii). Since the subdivision of the subject land by the cross lease of the barns is a permitted activity, a separate certificate of title for each of such cross lease allotments can be issued without further consent of WCC, thus meeting the standards and terms of the second bullet point in the definition of "site"; and/or

(ii) 1s` bullet point of definition of "site': The cross lease allotments, being the cross lease of :

• the 59 barns referred to at paragraph 4.1 of the request, and/or the 14 barns referred to at paragraph 4.8 of the request, and/or
• the 4 barns the subject of a separate application for land use consent as a controlled activity to be erected on Te Aute sensitive ridge,

will each be comm.' ed in a single cross lease certificate of title, and there will be no other certificate of title to that cross lease allotment, thus meeting the standards and terms of the first bullet point in the definition of "site"; and

(iii) The cross lease of the barns will take place prior to them being converted into dwellings,

and the certificate of compliance for the conversion of the barns to dwellings at the rate of one per site is requested on that basis.

4.1.11(d) Rentcharge sites:

(i) 2nd bullet point of definition of "site": When the areas of land out of which the rentcharges issue and are payable are shown or identified separately on a survey plan, each of such area will become an allotment under s218(2)(b) RMA. When such survey plan has been approved by LINZ, a legal rentcharge over the subject land is created by the execution and registration of a memorandum of encumbrance in Form D in the Second Schedule to the Land Transfers Act 1952. The division of the underlying allotment by such registration is not subdivision of land as defined in s218 RMA, and therefore, is not subject to sll RMA (which is expressly limited to subdivision of land within the meaning in s218 RMA). Thus no subdivision consent or further consent is required from WCC, and such rentcharge is a site.

4.1.11(b) Forestry right sites:

(i) 2nd bullet point of definition of "site": As described above, the proprietor or holder of any forestry right may at any time request a certificate of title to the estate and interest in the forestry right, and such a separate certificate of title can be issued without further consent of the WCC for the allotments comprising the forestry rights profit a pendre in the parcels shown 1 to 78 on plan COC 5, because the creation of forestry rights are expressly excluded from being subdivision of land under the RMA by s6 of the Forestry Rights Registration Act 1982. Consequently, the creation of such forestry rights are not subject to sl 1 RMA, and no subdivision consent or further consent is required from WCC; and/or

1st bullet point of definition "site": The individual certificates of title to the forestry rights in each of the parcels of land marked 1 to 78 on plan COC 5 will be the only such certificates for the individual forestry right interests in the land, and so qualify as a "single" certificate of title to each of those interests, thus meeting the standards and terms of the first bullet point in the definition of "site".

Foothills rule 4.1 (yards): The proposed buildings have a set back of 10 metres or more in:

(a) each boundary of a lease area: and
(b) each boundary of an area of land from which a rentcharge issues and is payable; and

• (b) each boundary of a forestry right certificate of title: and
• (c) each entitlement boundary/covenant area boundary of a cross lease; and
• (d) each of the primary parcel boundaries of a cross lease; and
• (e) each of the boundaries of the existing allotments,

except where the site area is less than 4,000 square metres, whence the set back from each such boundary is at least 3 metres, as shown on plans COC 14 and COC 14a. The set backs shown include set backs from the decks, terraces and pergolas surrounding the barns/dwellings, in accordance with the definition of "set back" in the district plan made operative 27 March 2003. There are no road widening designations in the subject land. The permitted activity set back is dictated by the areas of the lease/forestry right allo ments, as set down in Schedule 2 annexed hereto. The setbacks when measured to the existing boundaries of the existing parcels also meet the standards in Foothills rule 4.1, as demonstrated plan COC 14a.

Foothills rule 5.1 (height)• none of the buildings have a height exceeding 8 metres or a elevation height exceeding 10 metres. The worst case is shown on plan COC 15. All the other proposed barns/dwelling and sheds have the same or a lower elevation height.

7 Foothills rule 7.1 (building coverage):

(a) Building coverage does not include the uncovered decks, terraces or pergolas around the barns/dwellings, by the definition of

"building coverage" in the district plan made operative 27 March 2003;

(b) The first 59 barns: the total building coverage of the first 59 barns (96 square metres each) and the 76 sheds (4 square metres each) calculates to 5968 square metres. The relevant part of the subject land is 714,746 square metres in area, as detailed in the table below. Thus the total proposed building coverage is less than the 1% prescribed in Foothills rule 7.1.

The above table does not include the area of the vehicle access in Lot 9 DP 166619, nor in Lot 23 DP 168374, nor in Lot 200 DP 210991. Nor does it include parts of Lots 19, 20 and 21 DP 169374, which are included in the subject land defined in Schedule 1. The areas for these pieces of land are set down in Schedule 1. If those areas were included on the building coverage calculation, the result is an even smaller percentage building coverage.

(b) The location of the first 59 barns and 76 sheds in relation to the existing parcels is shown on plan COC 16. On a per parcel basis for

the existing parcels, the building coverage for the first 59 barns and the 76 sheds is as follows:

Lot 1 DP 320387

Lot 933 DP 320387

Lot 323 DP 210991

Lot 324 DP 210991

The next 14 barns: When the new "sites" are created (lease/rentcharge/forestry right/shed cross lease covenant areas), a different rule applies, being that building coverage of up to 300 square metres per site is a permitted activity (Foothills rule 7.1). Since there is a maximum of only one barn and one shed in each of the lease/forestry areas, with a combined building coverage of only

100 square metres, the building coverage is only 113rd of that provided for as a permitted activity.

(d) Thus all 73 barns (including the further 14 barns) and 76 sheds may be lawfully erected without resource consent, and the certificate of compliance is requested on that basis.

8 General Area rule 2.1 (vegetation alteration):

(a) Vegetation alteration (including clearance) of pinus radiata, gorse, pampas and other vegetation listed in the Removable Vegetation Appendix and the Environmentally Damaging Plants Appendix of a total cleared area not exceeding 500 square metres in each of the lease and forestry right allotments as shown on plan COC 8 annexed hereto is a permitted activity under General Area rule 2.1(a)(iii) and may be lawfully carried out without resource consent under s77B (re s139 RMA), and the certificate of compliance is requested on that basis; and

• (b) The harvest of the pinus radiata tree crop from the subject land by ground based clear fell harvesting, which has the effect of destroying other vegetation under and around the tree crop, is an existing use protected by slO RMA that may be lawfully carried out without resource consent pursuant to s9(1) RMA; and
• (c) The definition of "development" made operative 27 March 2003 expressly includes "clearance" of vegetation. Such development is a permitted activity under Foothills rule 3.1, and it may therefore

be lawfully carried out without resource consent pursuant to s77B(1) RMA. The certificate of compliance is requested on that ground as well.

General Area rule 3.1 (earthworks):

(a) Earthworks within an approved building platfoim is a permitted activity under General Area rule 3.1(a) without limit as to volume, and may therefore be lawfully carried out without resource consent pursuant to s77B(1) RMA (except for the 4 barns to be erected on Te Aute sensitive ridge in areas 59 to 63, for which a separate resource consent application is being made). The building platforms to which General Area rule 3.1 applies will be approved upon the issue of the certificate of compliance. The building platforms extend under the decks, terraces and pergolas in accordance with the definition of "building platform" made operative 27 March 2003, and earthworks in that part of the building platforms is also a permitted activity under General Area rule 3.1. The certificate of compliance is requested on that basis.

	(b) The proposed buildings will be accessed over forestry roads and tracks, either currently existing, or to be repaired, or to be installed during the harvesting of the pinus radiata. Such tracks are an existing use protected by slO RMA and that use may be lawfully carried out without resource consent under s9(1) RMA. The location of the forestry roads and tracks is shown on plan COC 9.

(d) The definition of "development" made operative 27 March 2003 expressly includes "earthworks". Development, and thus earthworks, is expressly allowed as a permitted activity under Foothills rule 3.1 (except on Te Aute sensitive ridge), and the earthworks involved in the proposal can therefore be lawfully carried out without resource consent pursuant to s77B(1) RMA. The certificate of compliance is requested on that ground as well.

10 General Area rule 4.1 (impermeable surfaces): The restriction in General Area rule 4 is as regards the "establishment of impermeable surthces", not existing impatuieable surfaces that have already been established. Most of the impervious surfaces to be used for vehicle access are already in existence, and the use of them is protected by sl 0 RMA. They are therefore not subject to general area rule 4.1 on two grounds:

(i) by the express reference to "establishment of impermeable surfaces" in that rule; and
(ii) pursuant to s9(1)(b) RMA.

10.1 Vehicle Access: However, even if the lawful and existing vehicle access is taken into account in the calculation of total impervious area, it does not exceed the 15% of site area prescribed in general area rule 4.1 for a permitted activity, as follows:

(a) The area of the vehicle access that lies in the common area shown on plan COC 9A is 24,174 square metres. This calculates to 10.0% of the area of the common area, being 240,946 swine metres (including parts of Lots 19, 20 and 21 DP 168374 comprising 9,836, 2130, and 844 square metres respectively).

(b) The areas of the vehicle access within the exclusive use area of the lease/rentcharge/forestry right/cross lease covenant areas are set out on Schedule 3 annexed, and are shown on plan COC 9A. The schedule shows that when the area of vehicle access is added to the area of impervious buildings, again, the 15% permitted activity threshold is not exceeded.

10.2 Buildings: The impermeable surfaces in the proposed buildings do not exceed 15% of the total site area of the subject land, nor the individual allotments. The footprints of the buildings are shown on plans COC 14 and COC 14a. The areas of impervious surface in buildings as a percentage of the site areas of the lease/rentcharge/forestry right allotments (and of the cross lease covenont areas) are set out in Schedule 3.

10.3 Existing Parcels: The total impervious surface including existing impervious surface in the existing parcels is listed in Schedule 4, Again, the impervious surface does not exceed 15% of the area of those parcels.

Since the establishment of impervious surfaces under the proposals and activities for which the certificate of compliance is requested does not exceed 15% of site area, it is therefore a permitted activity and may be lawfully carried out without resource nsent pursuant to s77B(1) RMA, and the certificate of compliance is requested on that basis.

11.1 The establishment of any vegetation, including pasture, is a permitted activity in the subject land under General Area rule 5.1, and may therefore be lawfully carried out without resource consent in the areas:

(a) where the pinus radiata tree crop has been clear fell harvested under the existing use protected by slO RMA and provided for in s9(1) RMA, and

• (b) where pinus radiata, gorse, pampas and other vegetation listed in the Removable Vegetation Appendix and the Environmentally Damaging Plants Appendix of a total cleared area not exceeding 500 square metres in each of the lease and forestry right allotments as shown on plan COC 8 annexed hereto as a permitted under General Area rule 2.1(a)(iii).

The certificate of compliance is requested on this basis.

11.2 The subsequent conversion of such pasture to bush for the purposes of stounwater attenuation in accordance with section 5.5 of the WCC's Countryside and Foothills Stormwater Management Code of Practice is a permitted activity under General Area rule 5.1 and may be lawfully carried out without resource consent under s77B(1) RMA. The certificate of compliance is also requested on this basis.

12 Riparian Margins: None of the proposed buildings will be erected in a riparian margin, as shown by the building locations on the natural areas plan on Plan COC 13. Where some of the existing forestry roads and tracks run through the riparian margins zone, they were lawfully

established before the riparian margins rules became operative or were publicly notified, and are therefore an existing use protected by sl 0 RMA. No resource consent is required for such land use pursuant to s9(1) RMA.

13 Managed Natural Area: None of the proposed buildings will be erected in the managed natural area, as shown by the building locations on the naturals areas plan on Plan COC 13. None of the forestry roads and tracks or any other vehicle access runs through the managed natural area zone as it is currently portrayed in the WCC's version of the planning maps in Map D4 (published circa 2004/2005).

14 Sensitive Ridge: None of the proposed buildings the subject of the request for the certificate of compliance will be erected on a sensitive ridge or headland/clifFscarp, as shown by the building locations on the natural areas plan on Plan COC 13. Where there is a proposal that 4 barns will be erected on Te Aute sensitive ridge in allotments 59 to 63, that is the subject of a separate land use resource consent application for the controlled activity provided for in Foothills rule 3.2 of the district plan.

15 Road to vest: s238 RMA makes provision for the automatic dedication of road when a survey plan showing such road is deposited. It is mandatory for the WCC to issue the certificate of compliance in respect of the subdivision of land described in this application (particularly but without exclusion, for the cross lease subdivision). When the resultant survey plan conforms with the certificate of compliance, it is mandatory

for the WCC to approve the survey plan under s223(2) RMA, and such survey plan may then be deposited. When the survey plan deposits, the road shown on it will automatically vest in WCC.

16 s139 RMA: s139(1) requires for a certificate of compliance to be issued that the proposal or activity complies with the plan. "Contravene" is defined in s2 RMA as including fail to comply with. The corollary of that is that "comply" includes Mil to contravene. Thus when a proposal of activity does not contravene a plan, it complies with it, and a certificate of compliance can be issued on that ground. Furthermore, s139 (5) RMA expressly provides that a certificate of compliance can certify that a proposal or activity can be carried out without resource consent (as an alternative to certifying that a proposal or activity is a permitted activity). This was referred to by Chisholm J in Duncan v Dunedin City Council where he said in part at paragraph [24]: "............... The words "or could be lawfully carried out without resource consent" in subs(3) and (5) are easily explained on the basis that they recognize that in terms of s9(1) there can be compliance with the plan even if the use is not expressly permitted so long as the use does not contravene a rule in the plan. .................. .

[1] C 57/97.