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Perceptus Limited v Waitakere City Council A040/2008 [2008] NZEnvC 94 (4 April 2008)

Last Updated: 16 May 2011

BEFORE THE ENVIRONMENT COURT

Decision No. A040/2008

IN THE MATTER of the Resource Management Act 1991

AND

IN THE MATTER of appeals under section 358 of the Act

BETWEEN PERCEPTUS LIMITED AND SWANSON HEIGHTS

LIMITED

ENV-2006-AKL-000881

AND WAITAKERE RESOURCE CONSENTS LIMITED

AND GLORIT SUBDIVISION LIMITED

ENV-2006-AKL-000882

AND GLORIT SUBDIVISION AND LONDON &

GREENWICH GENERAL TRADING COMPANY

LIMITED

ENV-2006-AKL-000883

Appellants

AND WAITAKERE CITY COUNCIL

Respondent

Hearing at Auckland 30 October 2007

Court: Environment Judge R G Whiting

Counsel: Mr P Mawhinney for the Appellants

Mr R Enright for Waitakere City Council

Ms B MacDonald for Waitakere City Council

Decision Issued:

DECISION OF THE ENVIRONMENT COURT

[1] The application to strike out the appeals is granted.

REASONS

Introduction:

[1] This matter involves three appeals in which the appellants applied for various certificates of compliance and applications for resource consent to subdivide land at Anzac Valley Road, Waitakere.

[2] On 28 February 2006 the Council dismissed the appellants' applications under s88(3) of the Resource Management Act 1991 ("the Act") on the basis of inadequate information.

[3] The appellants filed an objection against the Council's decision under section 357 on 3 March 2006, which the Council later dismissed.

[4] The appellants have appealed the Council's decision to this Court. The Council has filed an application to have the three appeals struck out.

The Applications:

[5] All three applications are dependent on two preliminary steps and build on the following foundation:

(i) the creation and amalgamation of boundaries and boundary adjustments
(ii) the subdivision of the land into 4 relatively large lots with each lot owning undivided shares in the land and the access lots created by boundary adjustments together with additional access lots.

[6] The three applications follow sequential steps although the documentation for these steps can be taken out contemporaneously.

[7] Mr Mawhinney is open about the fact that the proposals, along with his many other proposals, are for the purpose of maximising the subdivisional potential of the land.

[8] The applications are set out in more detail below.

Leasehold Proposal

[9] The leasehold application involves a request for a certificate of compliance for each of the subdivisions of land:

(ii) as permitted activity boundary adjustments under General Subdivision Rule 2.1(a) of the Waitakere Proposed District Plan publicly notified on 14 October 1995; and
(iii) as permitted activity subdivisions of land under General Subdivision Rule 2.1(b) in the Proposed/District Plan as set out on the attached plans.

In the alternative subdivision consent is sought under the Proposed / District Plan for the fee simple subdivision and the lease subdivisions as either

(i) controlled activities under general subdivision rule 2.2(a); or
(ii) restricted discretionary activities under Foothills Subdivision Rule 7.2(c). Fee Simple Proposal

[10] The fee simple application involves a request for a certificate of compliance for the subdivision of land:

(i) as permitted activity boundary adjustments under General Subdivision Rule 2.1(a) of the Waitakere Proposed District Plan publicly notified on 14 October 1995; and
(ii) as permitted activity subdivision of land under General Subdivision Rule 2.1(b) in the Proposed / District Plan as set out on the attached plans.

In the alternative subdivision consent is sought under the Proposed District Plan for subdivision as either

(i) controlled activities under General Subdivision Rule 2.2(a); or
(ii) restricted discretionary activities under Foothills Subdivision Rule 7.2(c).
Cross Lease Proposal

[11] The cross lease application involves a request for a certificate of compliance for:

(i) boundary adjustments; and
(ii) the construction of 77 sheds; and
(iii) subdivision consent under the Waitakere Proposed District Plan publicly notified on 14 October 1995 for the cross lease of the 77 proposed sheds and the home of Mr and Mrs Swainson on existing Lot 933 DP 320 387 as set out on the attached plans as either:

• (a) a controlled activity under General Subdivision Rule 2.1(a); or
• (b) a restricted discretionary activity under Foothills Subdivision Rule 7.2(c).

Strike-Out application:

[12] The Council has applied to have the appeals struck out in whole or in part on the grounds that:

(a) The appeals disclose no reasonable or relevant case.
(b) The appeals involve an abuse of process of the Environment Court.
(c) The appeals involve flawed legal arguments as to the purported status of the resource consent and certificate of compliance applications.
(d) There is no right of appeal against the Council's decision not to grant a waiver under s37 of the Act in respect of the s139 applications.
(e) The Act does not envisage that a certificate of compliance application will be considered in conjunction with a subdivision application, and there is no provision to file a joint application.
(f) The applications were fundamentally defective in their failure to address the s9 land use components or the relevant regional consents.
(g) The relevant administrative fees to lodge the applications were not paid. The applicants sought to apportion payment for the s139 applications out of funds that were required to pay the subdivision application fees. As a result, neither fee was paid in totality.
(h) The applications rely upon methods of boundary adjustment that have previously been considered, and discredited.
(i) The application duplicates the relief sought in the Dilworth Structure Plan. Duplication amounts to an abuse of process as it would subvert integrated management to allow dual, overlapping subdivision entitlements without express provision for which regime is to take priority.

Power to strike out:

[13] 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
[14] In Mawhinney v Waitakere City Council[1] it was found to be an abuse of the Court's process to seek endorsement for a scheme contrived to circumvent the subdivision rules of a district plan. The public interest lay in the Court upholding the rules of the plan, and justified the appeal being struck out.
[15] 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 participation by lay persons should not be bound by undue formality.[2]
[16] 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.[3]

The Relevant Plan:

[17] The affected land is zoned as Foothills Environment in the partially Operative District Plan.
[18] The land is zoned as Rural Zone 3 of the Waitemata section of the Transitional District Plan. Part of the land in these appeals is included in the area that is currently subject to the Dilworth Structure Plan appeal (reference)[4] on the Proposed District Plan. Therefore the Transitional District Plan is still relevant in relation to subdivision rules.

Assessment of Proposals:

[19] This decision is being released along with another decision of the Court (A 039/2008[5]) on development proposals made by Mr Mawhinney and his various companies. These decisions are to be read in conjunction with each other.

[20] The application for cross lease of 77 sheds bears a striking similarity to the cross lease method proposed in Decision A 039/2008. For the reasons given in that decision I hold that such a proposal does not comply with the provisions of the partly operative proposed district plan and transitional plan.
[21] Mr Mawhinney also submitted that the Court is constrained in these proceedings by the reasons given for Council in refusing the applications. In my view to be so constrained would be pedantic and the appropriate course is to consider the applications as to whether or not they comply with the rules of the partly operative and transitional district plan.
[22] In considering the three proposals I am of the view that each proposal should be considered as a whole. While each proposal consists of sequential steps starting with adjustment of boundaries followed by a large subdivision into 4 lots and ending up with 77 dwellings, to separate the steps out and consider them in isolation would be inappropriate.
[23] To consider the sequential steps separately could lead to an anomaly, with some steps being granted consent and not others. Justice Blanchard commented in From the Early Experience of the New Zealand Supreme Court:

...an arguable point must lead somewhere. It will not be enough to have a genuinely arguable issue if the point exists, as it were, in a vacuum or if, in order for the appeal to succeed, it would be necessary also for the appellant to succeed on a further or on a logically prior point that is obviously hopeless."

[24] It is my view that the heart of these proceedings is the question as to whether or not the end result, which is 77 dwellings and parcels of land on which those , dwellings are situated, complies with the foothills environment rules of the partly operative proposed district plan and the transitional plan.
[25] 12.3:5.2(b) of the Transitional District Plan reads:

The site shall have a minimum net area of 5ha.

[26] Rule 7 of the Foothills Rules reads:

7.0 The following rules apply to the subdivision of land in the Foothills Environment.

7.1 Controlled Activities

Subdivision meeting the following performance Standards are Controlled Activities: the minimum site area for each proposed site is 4ha; and...

[27] The Council submitted that the three appeals should be struck out as they seek to establish a greater density of dwellings than the 1 per 5 hectares / 1 per 4 hectares rule.
[28] Mr Mawhinney submitted that while there are references in Foothills subdivision rules 7.1 and 7.4 to minimum site areas of 4 hectares that does not equate to a density restriction, because the 4 hectare minimum areas can overlap each other.
[29] Justice Randerson said in Waitakere City Council v Kitewaho Bush Reserve Co Ltd[6] that:

"Many of these effects are recognised by the WCC's proposed district plan which accepts that the foothills environment occupies the key position between the urban area of the city and the Waitakere Ranges. ...One of the key provisions in achieving the objectives of the proposed plan is the minimum site size. Separate provision is made for the control of subdivision because it is recognised that subdivision is a catalyst for further intensification of settlement, that the layout of a subdivision heavily influences the quality of the natural-built environment, and that decisions at the time of subdivision about the provision of infrastructure can have major impacts on environmental quality."

[30] In my view the purpose of the plan and the Act is to control subdivision. Furthermore, it is desirable for an interpretation of the plan to be adopted which avoids absurdity or anomalous outcomes.[7] Both the partially operative plan and the transitional plan clearly intend to restrict the density of dwellings in the Foothills Environment.
[31] In Waitakere City Council v Kitewaho Bush Reserve Co Ltd[8] Justice Randerson commented:

"The Resource Management Act is a complete code for the control of subdivisions in New Zealand. Unless the subdivision is expressly allowed by rules in both the operative and proposed district plans, then a resource consent is required. ...the subdivision of land is not merely an exercise of drawing lines on a plan but has ramifications for the environment which are properly to be considered under the district plans and in decisions under the Resource Management Act."

[32] I am in agreement with Justice Randerson. If the proposals which are the subject of these proceedings were found to be in accordance with the rules of the plan they would nevertheless be contrary to the objectives and policies of the plan and in my view the single purpose of the Act.
[33] All three appeals are struck out as they involve proposals that are contrary to the objectives and policies of the plan.

Decision

[34] The application to strike-out the three appeals is granted. Accordingly, the appeals are struck out.

[35] Costs are 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.

DATED at Auckland this 4th day of April 2008

For the Court:

R Gordon Whiting Environment Judge

See PDF copy for supporting documents.

[1] A 199/05.

[2] Hauraki Maori Trust Board v Waikato Regional Council CIV-2003-485-999 4 March 2004 Randerson J.

[3] Marshall Futures Limited v Marshall [1992] 1 NZLR 316.

[4] This reference / appeal is still proceeding on its torturous way through the Court system. While I had envisaged issuing these two decisions contemporaneously with a decision on the Dilworth Structure Plan reference / appeal, that matter is still some time off final determination. I therefore issue this decision with A 039/2908 as it would be unfair on the parties to delay further.

[5] Waitakere Resource Consents ited and Successors v Waitakere City Council.
[6] [2005] 1 NZLR 208, 231.
[7] Nanden v Wellington City Council [2000] NZRMA 563, 573

[8] [2005] 1 NZLR 208, 209.