Brian Eric Baxter and Jill Dianne Baxter v Tasman District Council

 
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[2011] NZEnvC 4

BEFORE THE ENVIRONMENT COURT

Court:

Environment Judge B P Dwyer sitting alone under s309 of the Act

Decision No. ENV-2010-WLG-000060

In the Matter of an appeal against an abatement notice under section 325 of the Resource Management Act 1991

BETWEEN
Brian Eric Baxter and Jill Dianne Baxter
Appellants
and
Tasman District Council
Respondent

Appeal against an abatement notice and an application for an extension of a stay of the abatement notice-appellant subdivided property-condition of resource consent that the original dwelling was to be removed — appellant tenanted the property and only took steps to remove the dwelling after the respondent issued an enforcement notice — whether it was unreasonable for the appellant to comply with the abatement notice pending resolution of the appeal.

The issues were whether: whether it was unreasonable for B to comply with the abatement notice pending resolution of the appeal; and whether an appeal should be allowed.

Held: It was unlikely that B could comply with the abatement notice pending resolution of the appeal. The situation could not be remedied overnight, however, the test under s325(3D)(b) RMA (likely effect on the environment if the stay is granted) was not whether B could comply with abatement notice but whether it was unreasonable for him to do so. The condition was part of B's resource consent application; approval had been given on the basis the original dwelling would be removed. B had not given any reasons why he was unable to comply with the condition within three months of moving into the new dwelling. It would have been feasible for B to have calculated the likely date of completion and to have put arrangements in place. Nothing in B's appeal challenged the validity of the abatement notice and B's current inability to comply with the abatement notice was entirely the result of his own failure to take any steps to comply with the condition.

Allowing ongoing non-compliance with the condition of a resource consent, which was clearly a significant factor in the grant of approval, challenged the integrity of the resource consent process. Application for a further stay declined.

The notice of appeal disclosed no relevant or reasonable case. The appeal essentially sought more time for B to comply with the abatement notice. B's actions constituted an abuse of process and it would be an abuse of process of the Environment Court to allow the case to be taken further. Appeal dismissed.

DECISION

  • A: Stay cancelled.

  • B: Appeal struck out.

  • C: Costs reserved.

Introduction
1

On 8 June 2010 Brian Eric Baxter and Jill Dianne Baxter (Mr and Mrs Baxter) filed a notice of appeal against an abatement notice issued by Tasman District Council (the Council) together with an application for stay of the abatement notice. The application for stay was granted by me on 13 July 2010 1, after I had heard from the Council which did not oppose the stay, provided it was granted on a finite basis.

2

The appeal and application for stay both involve compliance with a condition of a resource consent which the Council had granted to Mr and Mrs Baxter on 15 January 2009. The resource consent (RM 080962) authorised the construction of a second dwelling on the Baxters' property at 217 Redwood Valley Road, Redwood Valley (the site).

Background
3

In its decision on RM 080962 the Council stated the following background: The applicants propose to construct a second dwelling on the subject site, and live in the original dwelling while the new one is being built. They have volunteered a covenant that the second dwelling will not be used as a basis for any future subdivision and that the existing dwelling will be removed from the property when the new dwelling is occupied.

In granting consent to the application the Council imposed the following condition:

2
    A covenant under Section 108 of the Resource Management Act 1991 shall be entered into and registered against the certificate of title before building consent is issued for the land on which the new dwelling is to be located. The covenant shall state that: (a) the second dwelling that is the subject of resource consent RM080962 shall not provide a basis for any future subdivision of the title; and 1 Decision [2010] NZEnvC 238 (b) the existing dwelling shall be removed from the properly within three months of the occupation of the new dwelling or the property sold, whichever is the sooner. The covenant shall be entered into pursuant to section 108 of the Act and shall be registered against the title pursuant to section 109 of the Act. All costs incurred in preparing and registering the covenant shall be paid for by the Consent Holder. (Condition 2)
5

Condition 2 was not complied with. Baxters moved into the second dwelling on the site in January 2010 so the original dwelling ought to have been removed by the end of April 2010 at the latest. When the Council inspected the site on 14 May 2010 and found the original dwelling in situ and occupied by tenants it issued an abatement notice requiring compliance with Condition 2.

6

Mr and Mrs Baxter acknowledged that they had not complied with Condition 2 within the specified time but in their stay application identified two difficulties in relocating the original dwelling:

  • • A limited number of sections for sale in the district which do not have covenants preventing relocation of existing dwellings;

  • • Unavailability of the services of a house removal contractor, and practical difficulties in moving the house off the property over the winter. Mr Baxter provided letters from two house removal firms operating in the district, advising that they were unable to relocate the building until November/December at the earliest.

7

The Council in its response to the stay application accepted that it might not be currently possible to remove the original dwelling due to wet ground conditions and unavailability of removal contractors and agreed to a stay of the abatement notice until October 2010.

8

In my decision on the stay application I also recognized the practical difficulty, I made the following comments:

[8]It is reasonable for the Court and the Council to recognise the present practical difficulties in relocating the existing house and to allow an appropriate extension of time for that to happen. Mr and Mrs Baxter must accept, however, that having received the benefit of the resource consent, they must be bound by the corresponding obligations which it imposes. Compliance with the condition cannot be left to drag on indefinitely.

[9]Having regard to the above matters, I hereby grant a stay of the abatement notice until 30 October 2010 being the date suggested by the Council. I reserve leave to Mr and Mrs Baxter to seek a further extension of the stay prior to that date, should that be necessary. If such an application was made I would expect it to be accompanied by concrete evidence of definite arrangements being in place for removal of the existing dwelling in the very near future.

9

The reservation of leave to seek an extension of the stay was implicitly included to recognise the fact that letters provided to the Court from house movers indicated that it might be November/December before the original dwelling could be removed rather than the October deadline imposed by the Court. Paragraph 9 makes it clear that any application for an extension ought be accompanied by concrete evidence of definite arrangements being in place for removal of the building in the very near future. This was intended to provide Mr and Mrs Baxter with some leeway.

10

On 10 November 2010, the Council's solicitors filed a memorandum updating the situation in relation to the stay of abatement notice. The Council memorandum identified that the original dwelling remained on the site. The memorandum went on to advise that on 8 September 2010 the Council had received an application for resource consent to retain the original dwelling on the site (with cooking facilities removed) and for it to be used in conjunction with a bed and breakfast operation being run from the new dwelling.

11

The memorandum further advised that as a pragmatic step the Council would consent to the stay being extended to 30 November to enable the Court to determine appropriate process and for the Council to consider its position.

12

A memorandum from Counsel for Mr and Mrs Baxter was received by the Court on 17 November 2010, confirming the situation described in the Council memorandum and requesting that the stay be continued to allow the application for resource consent to be determined by the Council.

13

On 18 November 2010, I had the Court confirm that an extension of the stay of abatement notice was granted to 30 November 2010 with a further status report to be filed on that date.

14

The Council filed a further status report on 30 November 2010. The Council's status report advised (in summary):

  • • The Baxters' resource consent application to enable the...

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