Akaroa Organics v Christchurch City Council

• Jurisdiction: New Zealand
• Judge: J E Borthwick,C E Manning
• Judgment Date: 16 February 2010
• Neutral Citation: [2010] NZEnvC 37
• Court: Environment Court
• Date: 16 February 2010

In the Matter of the Resource Management Act 1991

and

In the Matter of an appeal under section 120 of the Act

Between

Akaroa Organics (Env-2008-Chc-127)

Appellant

and

Christchurch City Council

Respondent

Decision No [2010] NZEnvC 37

Court:

Environment Judge J E Borthwick

Environment Commissioner C E Manning

BEFORE THE ENVIRONMENT COURT

Application for a condition to be attached to a land use consent that it would not lapse until after eight years instead of the default five years as provided for in s125(2) Resource Management Act 1991 — whether the grounds existed for an extension of time to be granted.

Appearances:

Mr D Caldwell for Akaroa Organics

Mr A Schulte for Christchurch City Council

A: The appeal to extend the lapsing period is declined.

B: Any application for costs is to be lodged and served by Friday 26 February 2010. Replies to the application for costs must be lodged and served by Friday 5 March 2010.

REASONS

Introduction

1 This appeal concerns a decision by the Christchurch City Council to decline a land use consent application in respect of a dwelling, lodge and accessory buildings at Duvauchelle, Banks Peninsula.

2 We were told that the parties have resolved to allow the appeal and that consent should be granted subject to a number of conditions. The only matter referred on appeal to the Court concerned the period after which the consent would lapse if not given effect.

3 The appellant, Akaroa Organics, seeks a condition that the consent granted in respect of the lodge lapse after twelve years. This period was amended during the — course of the hearing to eight years. All other activities are to be given effect to within the five years. This is opposed by the City Council which says that the entire consent should lapse after five years.

The law

4 The default position in the Resource Management Act 1991 is that a resource consent will lapse five years after the date of its commencement unless it is given effect to or an application is made to extend the lapsing period (section 125(2)).

5 When an application is made to extend the lapsing period, the consent authority is required to take into account:

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

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

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

6 There are good policy reasons against resource consents subsisting for lengthy periods without being put into effect. These reasons are discussed in the well known decision of Katz v Auckland City Council 1:

There are compelling reasons of policy why a planning consent should not subsist for a lengthy period of time without being put into effect. Both physical and social environments change. Knowledge progresses. District schemes are changed, reviewed and varied. People come and go. Planning consents are granted in the light of present and foreseeable circumstances as at a particular time. Once granted a consent represents an opportunity of which advantage may be taken. When a consent is put into effect it becomes a physical reality as well as a legal right. But if a consent is not put into effect within a reasonable time it cannot properly remain a fixed opportunity in an ever-changing scene. Likewise, changing circumstances may render conditions, restrictions and prohibitions in a consent inappropriate or unnecessary.

7 This passage was cited with approval of the Court of Appeal in Body Corporate 97010 v Auckland City Council and Others 2 and by other divisions of the Environment Court in Re an Application by Selwyn District Council 3 and A V Hastings v The Auckland City Council 4.

The parties' positions

8 Akaroa Organics says that it is neither practical nor financially possible to give effect to the entire consent within a five year period. It says that these constraints should be taken into consideration when determining the length of the lapsing period, if that period is different from the default period in section 125 of the Act.

9 Mr Malcolm Anderson, on behalf of Akaroa Organics, deposed that within the five year period it was unlikely that funding would be available for the construction of the lodge. Funding for the proposal is subject to further detailed business plans and the consent holder's ability to service loans or attract an investor.

10 He also said that a considerable amount of work would be required to be done to give effect to the resource consent. It was unlikely that all of the buildings would be constructed within five years. Moreover, the agreed conditions of consent (that are to be the subject of a draft consent order) are onerous. By way of an example, the conditions require extensive landscaping to be carried out in two stages over a five year period. In his opinion it would be beneficial if landscaping was completed before the lodge was constructed (although there is no requirement in the conditions to that effect).

11 Mr Caldwell, on behalf of Akaroa Organics, submitted that if practical and financial considerations are relevant when deciding whether to extend the lapse date under section 125(l)(b), these considerations should also be relevant when deciding the application for consent and the conditions that apply.

12 He further submitted that the policy considerations (as discussed in Katz v Auckland City Council 5), that tell against unimplemented consents subsisting for lengthy periods of time, do not arise in this case. This is a land use consent from which effects on the environment are certain because of the detailed conditions of consent. Change in relation to the social and physical environment and secondly, in relation to the policy environment, as evinced through the planning instruments, is unlikely over the next 12 years. This is not a case where there is any uncertainty in terms of knowledge (presumably of effects or the resource itself).

13 The City Council opposed the twelve year lapsing period. It said that the period by which consents were to be given effect to had been extended from two to five years by the Resource Management Amendment Act 2003. Parliament had done so taking into account the vagaries of finance and the practical commercial realities of

implementing consents. In the City Council's view five years...