An Application by Rodney District Council for A Declaration Under Section 311 of The Act

• Jurisdiction: New Zealand
• Judge: J A Smith
• Judgment Date: 01 December 2009
• Neutral Citation: [2010] NZEnvC 85
• Docket Number: (ENV-2009-AKL-000377)
• Court: Environment Court
• Date: 01 December 2009

In the Matter of an appeal under Section 120 of the Resource Management Act 1991

and

In the Matter of an application by Rodney District Council for a declaration under Section 311 of the Act

[2010] NZEnvC 85

Court:

Environment Judge J A Smith 1

(ENV-2009-AKL-000377)

BEFORE THE ENVIRONMENT COURT

Application by Rodney District Council for declarations as to the enforceability of financial contribution conditions of consent regarding a development at Whisper Cove where the original developers had gone into liquidation and defaulted on contribution payments — whether all conditions of consent enured for all time and if conditions of consent had variable periods of application (e.g. as preconditions or conditions in force for a time), whether these financial conditions continued until such time as the payments were made.

Appearances:

P M S McNamara & J A Gregor for Rodney District Council

A G Hazelton & R M Robertson for SL255 Limited and others

H Romaniuk for Romaniuk & Hope

R M Devine & S D Mills for Whisper Cove Limited (in receivership)

• A. Parties are to circulate comment on the suggested declarations within ten (10) working days; reply within five (5) days thereafter; with a final reply after further three (3) working days.

• B. The court will then consider the final form of declaration to be made.

• C. Any application for costs within twenty (20) working days; reply ten (10) working days thereafter.

DECISION OF THE ENVIRONMENT COURT

Introduction

1 The Rodney District Council ( the Council) seek declarations relating to the enforceability of financial contribution conditions of consent in respect of a comprehensive development at Whisper Cove, Snells Beach, North Auckland.

2 The Application for Declaration itself is unfortunately worded. The form of declarations sought were as follows:

• (a) that current and future owners of properties in stage 1 of the “Whisper Cove” development at Snells Beach, legally described in Schedule 1 to this application, are obliged to pay, on demand, financial contributions imposed on the “applicant” or “consent holder” under conditions 31 to 41 of the land use consent granted to Kawau Holdings Limited by a consent order of the Environment Court in appeal RMA 0023/04 dated 3 November 2004 (land use consent), but not yet paid; and

• (b) failure by such current and future owners to pay, on demand, financial contributions imposed on the “applicant” or “consent holder” under condition 31 to 41 of the land use consent, but not yet paid, is a contravention of the land use consent; and

• (C) if current and future owners of properties in the “Whisper Cove” development at Snells Beach, legally described in Schedule 2 to this application, further develop the properties, they will be obliged to pay any additional financial contributions imposed on the “applicant” or “consent holder” under conditions 31 to 41 of the land use consent on the earlier of the intended date of commencement of works for any further stage or part stage, or the date of issue by Council of building consent for any further stage or part stage; and

• (d) failure by such current and future owners to pay any additional financial contributions imposed on the “applicant” or “consent holder” under conditions 31 to 41 of the land use consent on the earlier of the intended date of commencement of works for any further stage or part stage, or the date of issue by Council of building consent for any further stage or part stage, if they further develop the properties, is a contravention of the land use consent; and

• (e) if current and future owners of properties in the “Whisper Cove” development at Snells Beach, legally described in Schedule 3 to this application, connect to the reticulated water supply that is currently available, they will be obliged to pay financial contributions for water imposed on the “applicant” or “consent holder” under conditions 41 of the land use consent not later than the issue of building consent for any dwelling construction; and

• (f) failure by such current and future owners to pay any financial contributions imposed on the “applicant” or “consent holder” under condition 41 of the land use not later than the Issue of building consent for any dwelling construction, if they connect to the reticulated water supply, is a contravention of the land use consent.

3 As is evident from a perusal of these declarations, the Council seeks orders

requiring owners of individual units constructed pursuant to the resource consent to pay unpaid financial contributions to the District Council.

The Issues

4 As the case proceeded, a more fundamental issue arose for declaration. Put in broad terms, this is whether a financial contribution condition of this sort runs with the land under Section 134 of the Act and whether it is enforceable against new landowners where new titles have been created.

5 This in turn gives rise to questions of interpretation of resource consents:

• [a] whether all conditions of consent enure for all time; and

• [b] if conditions of consent have variable periods of application (e.g. as preconditions or conditions in force for a time), whether these particular financial conditions continue until such time as the payments are made.

6 It is important to note that no enforcement actions are before this Court currently. To that extent, this declaration does not seek to obtain some form of judgment for payment as against individual owners. Whether enforcement proceedings under the Act could be used for such purposes does not appear to have been argued previously. Certainly, civil action in the District Court may also be available and questions as to whether or not an individual land owner might not be liable i.e. by reasons of estoppel or the like are more properly addressed in that forum rather than in enforcement action.

7 There is a live and proper question for this Court's determination under Section 311 of the Act as to the nature of the conditions of consent. In that regard, the Application for Declaration appears to encompass Section 310(c):

…whether or not an act or omission, or a proposed act or omission, contravenes a resource consent.

8 The applicant, being a consent authority meets the requirements of Section 311(2), and Section 311(3) does not arise. Furthermore, Section 310(a) more generally gives rise to the ability to declare the existence or extent of any function, power, right, or duty under this Act. The requirement to meet a resource consent condition could be seen as arising as a duty in terms of both Section 9(1)(a) or under Section 108(1) of the Act, relying also upon subsections (9) and (10) of Section 108,

9 A resource consent is defined in Section 2(1) of the Act:

resource consent has the meaning set out in section 87; and includes all conditions to which the consent is subject

10 Fundamentally, for current purposes the resource consent includes not only all benefits (to do something otherwise contravening the Act) but the burdens (limitations and conditions) included in the consent.

The Conditions of the Consent

11 It was not contended by any of the parties that the Council did not have power to impose the requirement for Financial contributions upon the original resource consent. On 19 ^th June 2003, the Council notified an application for comprehensive residential development and subdivision for a maximum of 270 household units. This was declined by the Council on 21 ^st January 2004, but granted by a consent order issued by the Environment Court for a five lot subdivision to be followed by fee-simple subdivisions around each individual dwelling, and a land-use consent for 160 residential units (subject to resolution in relation to a cafe). This is known as Consent 34743 for land use and subdivision.

12 There was a series of alterations to that consent which do not affect the core consent provisions before this Court at the current time. The conditions of consent are annexed hereto and marked A. Conditions attached to the land use consent include:

31. The Applicant agrees and undertakes to pay the following financial contributions in accordance with Plan Change 62 in full mitigation of the offsite effects of the activity in respect of infrastructure and community facilities. The Applicant agrees that the figures contained in this consent are based on best available knowledge and accepts any risk associated with these figures.

• The contributions shall be paid to the Council in a staged basis in accordance with condition 38.

Contribution	Unit Cost excl GST	Additional Units	Levy excl GST
Roading	907	155	$140,585 plus the cost of any access works
Sewerage	9000	160”	$1,440,000
Water	0— no connection	155	0
Storrnwater	$0— full on site mitigation	155	o
Neighbourhood Reserves	2,880	155	$446,400 subject to land valuation
Sports Fields	$4,800	155	$744,000 subject to land valuation
Community Facilities	2544	155	$394,320
Parking	Provided on site	155	0
TOTAL			$3,165,305

• The existing site being developed comprises 5 lots, which are not connected to sewerage reticulation. Therefore the number of created units for services other than sewerage is 160-5. As there is no current connection to the sewerage reticulation, the contributions for this service are assessed at 160 units.

• 34. It is noted that the applicant undertakes to be bound by this condition and undertakes that it will secure the written agreement of any future consent holder to also be bound by this condition, prior to transferring the consent to that consent holder, so that any future consent holder shall be bound by this condition to the same extent as the original consent holder.

• 35. In the event that the Resource Consent Conditions Auditor (refer condition 16) determines that there has been...