AK and SD Smith v GD and DJ Muldoon

 
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Decision No: [2013] NZEnvC 161

BEFORE THE ENVIRONMENT COURT

Court:

Environment Judge C J Thompson

Environment Commissioner J A Hodges

ENV-2013-AKL-000059

In The Matter Of An Application For Enforcement Orders Under S316 Of The Resource Management Act 1991

Between
AK and SD Smith
Applicants
and
GD and DJ Muldoon
Respondents
Counsel/Appearances:

R B Brabant for applicants

GD and DJ Muldoon — respondents

M E Davenport for the Auckland Council – as Amicus Curiae

Application for enforcement orders for removal of structures on a roof — respondents and applicants had reached agreement over reconstruction of a neighbouring house following a mediated settlement — Court issued order by consent — respondents then erected solar panels and air conditioning unit on the roof of the restructured house — whether the solar panels and the air conditioning unit were in breach of the resource consent — whether the respondents were estopped from erecting the structures.

The issues were: whether the solar panels and the air conditioning unit erected were in breach of the Plan provisions and/or the resource consent; and, whether the Muldoons were estopped from erecting the structures on the basis of the Augier v Secretary of State for the Environment line of authority.

Held: As a matter of straight interpretation of the plan provisions, the structures were in breach. While it was possible to erect complying structures, that wasn't the real point. The issue was whether there could be panels on that roofline at all given the agreement reached between the parties.

The resource consent made no mentions or indication of the presence of structures of any kind on the roof. They were not on any of the plans. It was equally plain they were not authorised by the resource consent.

The proposition discussed and settled in the Augier line of cases was that so long as certain factors were present, a party to a RMA proceeding would be held to and made to comply with an agreement that party had made as part of the resolution of those proceedings, even if that agreement could not have been imposed as a condition of a resource consent by the consent authority or the court. The factors that needed to be present included ( Frasers Papamoa Ltd v Tauranga CC):

  • • A clear and unequivocal undertaking to the court and or the other parties;

  • • Receipt of the grant of resource consents in reliance on that undertaking;

  • • The imposition of a condition on those resource consents which broadly encompassed the undertaking; and

  • • A detriment to the court or other parties if the undertaking was not complied with

The factors were plainly present. The wording of the agreement settled at mediation and the terms of the consent order presented to the court was clear and unequivocal. The agreed plan clearly showed the roof to be unambiguously flat and unadorned with any kind of structure at all. This was what the court accepted as being a settlement of the appeal proceedings and what it acted upon in granting the consent. There was nothing unclear or ambiguous about what was shown as the agreed form bulk and appearance of the new dwelling.

The resource consent was plainly granted in reliance on that agreement. Had there not been an agreement, the Muldoons’ appeal would have gone to a hearing and the result might have been quite different. The conditions of the consent plainly incorporated that agreement. Also, it was plain that the failure to build and complete the house in accordance with the agreement made and recorded in the consent order was to the detriment of the Smiths — the proceeding would not exist if it was not.

This was therefore a case where a condition of a resource consent was clearly agreed to by the party to be bound by it. It came within the exception to the concept that equitable concepts have no place in environmental disputes ( Frasers Papamoa Ltd v Tauranga CC). It would be inequitable to allow the Muldoons to resile from the agreement they had unequivocally made.

The solar panels required a resource consent but this was now beside the point. The Muldoons must be taken from their agreement to have agreed to keep that part of the roof clear of any structure or equipment whether or not it could be authorised by a resource consent or through other means.

It was not relevant that the solar panels were authorised by a building consent. These were issued under the Building Act 2004 and approved the structural integrity and safety of the proposed structures. They did not have effect as a resource consent of any other authorisation under the RMA.

Given the factors surrounding the agreement were so clearly present, it would be inequitable for the Muldoons’ breach of that agreement to go without remedy. There was continuing breach of the relevant resource consent and the Muldoons ought to be required to cease that and not repeat it. No structure, whether compliant or not, which did not conform to the plans that formed part of the granted resource consent could be erected.

Enforcement orders granted.

The application for Enforcement Orders is granted

Costs are reserved

DECISION ON APPLICATION FOR ENFORCEMENT ORDERS

Introduction
1

Mr and Mrs Smith and Mr and Mrs Muldoon are, respectively, the occupiers of neighbouring properties at 36 and 42 Takitimu Street, Orakei, in Auckland City. The properties are owned by family trusts in each case. The properties are separated by a double-width driveway giving access to other properties at the rear of both. In 2008 the Smiths submitted against an application for resource consent to authorise substantial alterations and additions to the house on the Muldoon property. Essentially, their grounds were the adverse effects to be caused to their residential amenity by loss of views and light, and by a sense of being overlooked and crowded. The Council declined the application and an appeal to this Court against that outcome was lodged by the Muldoons. A mediated settlement was agreed to, on terms which will be discussed shortly but which, in short, limited some dimensions of the proposed house. Following that agreement, the Court later issued a Consent Order granting the resource consent.

2

The building work did not begin until 2012, and continued into 2013. At a point earlier this year Mr and Mrs Smith expressed concern that solar panels had appeared on the roof of the rebuilt house, and that an air conditioning unit appeared to be about to go up beside them (it later was installed). They regarded, and continue to regard, those structures as being in breach of the relevant Plan provisions; as not authorised by the resource consent granted when the appeal was resolved, and as being in breach of the mediated agreement.

3

Mr and Mrs Muldoon do not agree with any of those views: — they believe that the solar panels are compliant and, in particular, they do not regard the agreement as encompassing such structures at all. Further, they assert that the solar panels are authorised by a building consent issued by the Council in 2011. They say that the air conditioning unit has been moved to a complying position on that part of the roof.

4

The Auckland Council, while not a party to the proceeding, has inevitably become involved. We are most grateful for Mrs Davenport's appearance at the hearing to assist the Court by leading evidence from two Council Planning staff who have been involved in the issues. Its position, after some reflection and amendment of view by staff members, is that the solar panels do, strictly, breach the permitted activity standards but, because of their dimensions and placement, they cause lesser actual adverse effects than a complying structure might. The Council has therefore decided against taking enforcement action.

The present application
5

In the absence of enforcement action from the Council, Mr and Mrs Smith seek enforcement orders to:

  • a. Require [the Muldoons] to remove structures (namely solar panels and an air-conditioning unit) which they have erected on the roof at the south-eastern corner of their restructured dwelling, the presence of those structures being:

    • (i) in breach of the development controls applying to the site (ref Section 7 of the Auckland Council (Isthmus Section) Operative District Plan).

    • (ii) not allowed by the resource consent granted on appeal by the Environment Court and dated 1 May 2008, authorising “additions and alterations to an existing two-storey dwelling at 42 Takitimu Street, Orakei”.

    • (iii) contrary to the terms of an agreement dated 28 March 2008 signed by the parties to settle an appeal, the provisions of which they relied upon when agreeing to the Court granting consent.

  • b. Prohibiting [the Muldoons] from erecting any structures or establishing any outdoor deck on the roof area at the south-eastern corner of the reconstructed building, being the roof area between gridlines A-B and 1–2 on Plan A1.6 and (in elevation) between gridlines A and B on Plan A2.2 (south elevation) unless permitted by a resource consent or variation of the consent dated 1 May 2008.

The legal basis for an Order
6

Mr and Mrs Smith rely upon s314(l)(a)(i) and (b)(ii) of the Act: ie that the Court may make an order to:

  • (a) Require a person to cease, or...

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