Auckland Council (Formerly Auckland Regional Council) v Auckland Council (Formerly Manukau City Council)

 
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[2011] NZEnvC 77

BEFORE THE ENVIRONMENT COURT

Environment Judge R G Whiting sitting alone pursuant to section 279 of the Act

In the Matter of appeals under clause 14(1) of the First Schedule to the Resource Management Act 1991 (the Act)

BETWEEN
Auckland Council (Formerly Auckland Regional Council) (ENV-2010-AKL-000034)
Makaurau Marae Maori Trust Board Incorporated (ENV-2010-AKL-000027)
Bianconi Investments Ltd & Others (ENV-2010-AKL-000029)
Roger Gummer and Delwyne Roberts (ENV-2010-AKL-000036)
Appellants
and
Auckland Council (Formerly Manukau City Council)
Respondent
Auckland Council (Formerly Manukau City Council) (ENV-2010-AKL-000023)
Makaurau Marae Maori Trust Board Incorporated (ENV-2010-AKL-000024)
Bianconi Investments Ltd & Others (ENV-2010-AKL-000028)
Roger Gummer and Delwyne Roberts (ENV-2010-AKL-000038)
Appellants
and
Auckland Council (Formerly Auckland Regional Council)
Respondent
Appearances

Mr P O'Driscoll for Te Akitai Waiohua Waka Taua Trust

Ms F Lupis for Watercare Services Limited

Ms M Dickey and Mr M Allan for Auckland Council

Mr R Enright and Ms H Connell for Makaurau Marae Maori Trust Board Incorporated and Te Kawerau Iwi Tribal Authority

Mr P Cavanagh for Bianconi Investments Limited, Kilroy Investment Group and Tunicin Investments Limited

Mr D Nolan and Mr C Brown for Auckland International Airport Limited Mr D Allan for Florapak Partnership

Mr R Baldwin and Mr Duff for Mangere Bridge Residents & Ratepayers Association Incorporated

Final decision of conditions of consent — appellant granted consent to construct a second dwelling on his property in 2005 — respondent sought financial contributions under s108(1) Resource Management Act 1991 (conditions of resource consents) — District Plan provided for assessment of financial contributions at current market values — whether rules applying to a proposal should be those at the time the application was lodged — resource consent granted before conditions finalised.

The issue was whether the financial contribution should be assessed at the time of the application or the time of completion.

Held: The Council's processes had clearly been lacking, arguably in issuing a building consent when the resource consent process had not been completed in the first place. However, it was the responsibility of the applicant/appellant to ensure that he had the appropriate resource consent. If G had concerns about the draft conditions proposed by the Council then he should have brought the matter back to the Court; it was not sufficient to ignore the Court's directive and proceed with the activity as though he had an operative consent.

The Council's position with regard to the financial contributions had been made clear to G in numerous communications prior to the Certificate of Compliance being issued in 2007, notwithstanding the disagreement as to the total amount due. G had merely assumed the cost of the financial contributions estimated in 2005 would not be increased. As G had elected to proceed without a resource consent he could hardly complain that the consent and the reserve contribution were to be determined on the basis of contemporary values. The Council's approach had generally been consistent with the approach in r22.8.3.1(b) of the Plan.

Conditions proposed by the Council were confirmed.

  • A. The application for discovery and inspection of documents is declined.

  • B. The application for an order for full and clear particulars of the grounds of opposition to the Applicant's joinder as a party is declined.

  • C. Costs are reserved.

ORAL DECISION OF THE ENVIRONMENT COURT ON APPLICATION FOR DISCOVERY AND INSPECTION
REASONS FOR DECISION
Introduction
1

There are eight appeals being dealt with in relation to this discovery application. They are in relation to two topics. Firstly, Manulcau City Council — Proposed Plan Change 14 (Mangere Gateway Heritage Area) and secondly, Proposed Plan Change 13 to the Auckland Regional Policy Statement (extension to the Metropolitan Urban Limits — Mangere Gateway Heritage Area).

2

After being involved in a lengthy dispute resolution process, the parties have filed consent documentation in relation to a number of these appeals. The Court has received six section 274 notices and waiver applications from Te Akitai Waiohua Waka Taua Trust on behalf of Ngati Pare Waiohua, Te Akitai Waiohua, and Ngati Pou Waiohua between January 2011 and March 2011 in relation to the following, appeals;

  • [a] ENV-2010-AKL-000022:Watercare Services Limited v Auckland Council (formerly Manukau City Council)

  • [b] ENV-2010-AKL-000023:Auckland Council (formerly Manukau City Council) v Auckland Council (formerly Auckland Regional Council);

  • [c] ENV-2010-AKL-000027:Makaurau Marae Maori Trust Board Incorporated v Auckland Council (formerly Manukau City Council)

  • [d] ENV-2010-AKL-000033:Auckland International Airport Limited v Auckland Council (formerly Manukau City Council)

  • [e] ENV-2010-AKL-Q00034;Auckland Council (formerly Auckland Regional Council) v Auckland Council (formerly Manukau City Council)

  • [f] ENV-20J0-AKL-000035:Auckland Council (formerly Auckland Regional Council) v Auckland International Airport Limited

3

On the 18 March 2011, the Court received an application for further particulars, discovery and inspection of documents accompanied with an affidavit from Mr David Wilson on behalf of Te Akitai Waiohua Waka Taua Trust (Te Akitai). The Court issued directions on the same day by email to all parties, directing that any party that wished to lodge a notice of opposition was to do so by 5pm on Wednesday 23 March 2011, Te Akitai were to file any rebuttal by 5pm on 25 March 2011.

4

This discovery application only correlates to the section 274 notices and waiver applications being sought in respect of the appeals at [2] (b), (c) and (e). The discovery application appears to only be seeking documents from the Makaurau Marae Trust Board Incorporated (Makaurau) and Te Kawerau Iwi Tribal Authority (Te Kawerau). This does not indicate that other parties involved witlvthis application and the related section 274 and waiver applications will not be directly affected.

5

On the 22 March 2011, the Court received notice of opposition from Bianconi Investments Limited, Kilroy Investment Group, Tunicin Investments Limited (Bianconi) and Auckland International Airport Limited (Auckland Airport).

6

On the same day, the Auckland Council (the Council) also filed a memorandum stating that they would abide the decision of the Court, but in adopting that stance wished to record a few matters. Firstly, that this application is filed against the backdrop of the Te Akitai's waiver applications which are to be heard by the Court on Monday 28 March 2011, which is today, Secondly, the application for discovery appears to be focused entirely on the issue of mandate, which is not relevant to formulating a request to be joined as a section 274 party and is not a matter that the Environment Court has jurisdiction to deal with, Thirdly, that this matter is almost identical to the circumstances in the Watercare discovery application, the subject of a recent decision of mine; Watercare Services Ltd & Others v Auckland Council & Others. 1

7

On the 23 March 2011, the Court received a memorandum of counsel on behalf of Watercare Services Limited ( Watercare), I note that Watercare is not a party to an appeal which is the subject of this discovery application. However, Watercare are affected as the discovery is being sought in support of Te Akitai's numerous section 274 notices and waiver applications, one of which is to join Watercare's appeal (ENV-2010-AKL-000022). I note that

the issues raised are substantially similar to the notices of opposition previously filed by the other parties.
8

On the same date, the Court received a notice of opposition from Makaurau and Te Kawerau. In the interests of efficiency they adopt the grounds provided by Auckland Airport in their notice of opposition dated 22 March 2011. Makaurau and Te Kawerau also firmly rely on the recent Watercare2 decision of the Environment Court, which they describe as a virtually identical application by the same applicant,

The Discovery Application
9

This application is made in respect of Te Akitai seeking documents to support their section 274 and waiver applications, In their application they seek;

An order that Makaurau Marae Maori Trust Inc and Te Kawerau Iwi Tribal Authority Inc file a notice of full and clear particulars of the grounds of its opposition to the Applicant's joinder as a party. 3

Te Warena Taua, at Para 9 denies that Te Akitai Waiohua have tribal precedence (mana whenua) over Kawerau and Makaurau. However he has decided to withhold information that is available to be disclosed, on these issues from the Environment Court. 4

The documents are relevant as they will advance the Waiohua iwi contention that the Waiohua iwi contention they have been excluded as the mana whenua group by two other tribal groups who have intruded on to their ancestral land and made a settlement contrary to the provisions of the Resource Management Act 1991, 5

10

Te Akitai referred to...

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