Belfast Park Ltd v Canterbury Regional Council
Decision No.  NZEnvC 235
BEFORE THE ENVIRONMENT COURT
Environment Judge J R Jackson (sitting alone under section 279(1) of the Act)
In Chambers at Christchurch
In the Matter of the Resource Management Act 1991
In the Matter of an appeal under clause 14 of the Firs Schedule of the Act
Application for waiver of the time limit under section 281 Resource Management Act 1991 – whether a delay of 7 days was sufficiently minimal to enable a waiver of the time limit to be granted.
Held: There were two questions to be answered on an application for waiver under s281 RMA. They were: (1) would any of the parties to the proceeding be unduly prejudiced; and (2) should the court exercise its discretion in favour of the applicant? The various factors relevant to be considered included: The length of the delay; The reasons for the delay; The scheme of the Act relating to public participation; What had happened in the proceeding in the mean time; What effect introducing new parties might have on progressing the appeal to resolution.
The delay was close to minimal — the reason for the delay — professional error — counted against Chilton Farms but only mildly because of its prompt action thereafter — the scheme of the RMA encouraged public participation and introducing a new party was unlikely to slow the appeal down. Application for waiver of time granted.
A: Under section 281 of the Resource Management Act 1991 the application by Chilton Farms Limited for a waiver of time for lodging its section 274 notice is granted;
B: The Registrar should note the interest of Chilton Farms Limited as a section 274 party in this appeal.
C: Costs are reserved.
This decision concerns an application by Chilton Farms Limited (“Chilton Farms”) for waiver of the time limit under section 281 of the Resource Management Act 1991 (“the Act” or “the RMA”) to join an appeal (by Belfast Park Limited and Tyrone Estates Limited), as a section 274 party. Appeal ENV-2010-CHC-70 by Belfast Park Limited and Tyrone Estates Limited (“Belfast Park”) is against a decision of the Canterbury Regional Council on proposed change 1 to the Regional Policy Statement and variation 4 to proposed change 1 (“Change 1”).
Chilton Farms has also raised a jurisdictional issue as to whether Belfast Farms' appeal is within the scope of its original submission. However, the subject of this decision is the application for waiver for Chilton Farms to join the Belfast Park appeal out of time. I do not propose to consider the jurisdictional issue at this point of the proceedings. That is a distinct issue which may (depending on the outcome on this application) need to be set down for hearing at a later stage.
The appellant has sought that an area of land at Belfast be included within the CN4 Greenfield residential area identified in Change 1. Chilton Farms is interested in the proceedings because it owns a pig farm located to the north east of the appellant's land. The proximity of Belfast Park's proposed residential development and business areas to the existing Chilton pig farm raises the issue of increased reverse sensitivity effects 1. The concern is in relation to both the existing operation and the ability to expand in the future. In a supporting affidavit Mr Chilton stated that he has 4,000 pigson his farm and that he hopes to expand to 10,000 pigs over time 2. He also deposed that he has grave concerns, with the concentration of housing moving closer to the farm, as to the increase in the number of complaints he will receive 3.
On 29 April 2010 Chilton Farms lodged a section 274 notice with an application for waiver of the time limit. The Registrar noted it was seven working days late, with reference to section 274(2) of the Act.
On 11 May 2010 the Registrar received a notice of opposition from Belfast Park alleging, in summary, primarily that time limits should be followed, and that no reasons are given as to why they were not in this proceeding; secondly that Chilton Farms lacks standing to become a party since its original submission was not made about the subject matter of the appeal. There is no allegation in the notice that allowing the waiver would cause undue prejudice to Belfast Park.
At a prehearing conference on 26 May 2010 the parties agreed that the waiver application was able to be dealt with on the papers and I issued a timetable for the lodging of submissions.
On 4 June the Registrar received legal submissions and two affidavits in support of the application for waiver from Chilton Farms. The first affidavit is by Ms Fiona Aston, director of Fiona Aston Consultancy Limited, a resource management consulting company. The second affidavit, already referred to, is by Mr Richard Chilton, a director of Chilton Farms.
On 18 June 2010 the Registrar received legal submissions in response from Belfast Park, accompanied by the affidavit of Mr Shane Dixon, a planner and surveyor. Chilton Farms lodged its final submissions in reply on 25 June 2010.
On the question of whether it has status to appear under section 274 of the RMA, the parties agree that Chilton Farms made a submission to the Canterbury Regional Council on Change 1 on 31 October 2007. That submission to the Canterbury Regional Council sought that all references to the urban limit be deleted as its primary relief or alternatively, that its own land be included within the urban limit. Perhaps inconsistently the submission also refers to the increasing pressures from reverse sensitivity in the area. Counsel submits that the parts of the proceeding Chilton Farms says it is interested in, that is –
(a) Map 1 E6 in so far as it identifies the locations and boundaries of Greenfield Areas CN4 and CB1 on Belfast Park's land; and
(b) The provision for residential activities within the CB1 Greenfield Area
– are directly relevant to the issue of reverse sensitivity identified in its original submission.
In case the court finds that the original submission was not made about the subject matter of the proceedings, Chilton Farms submitted that it has an interest in the proceedings greater than the general public's interest 4. Counsel submitted that the test whether a person has an interest greater than the general public has been said to mean an interest of “some advantage or disadvantage, such as that arising from a right in property directly affected and which is not remote 5.” Chilton Farms submits that the proceedings directly affect it and say that the issues in the proceedings are not too remote to the operation of the piggery. Any decision made will directly impact the future development of the CB1 Greenfield Area.
On whether a waiver of the late lodging of the notice should be granted, counsel submitted that the court has a wide discretion when considering an application for waiver such as this. Relevant factors are that there has been no major delay, the noticeand application for waiver were filed six working days late. Ms Aston acknowledged in her affidavit that the late filing was an oversight on her part 6.
Counsel argued that there is no undue prejudice to the parties by granting this waiver. Mediation has not yet occurred and a timetable for the exchange of evidence has not yet been proposed.
Summarised, Belfast Park's submissions in opposition to the application for waiver are the breadth of Chilton Farm's original submission is not sufficient to be considered as a submission on the same matter, under section 274(1)(e), as the relief sought in Belfast Park's notice of appeal. Chilton Farms raised issues of reverse sensitivity but only in justification of its request for its land to be included within the Urban Limit.
For Belfast Park Ms Wolt submitted Chilton Farm cannot claim an interest greater than the public generally since its piggery is located 550 metres from the closest point of the Belfast park site. Mr Dixon deposed 7 that this is an adequate buffer distance for residential...
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