Brian Eric Baxter and Jill Dianne Baxter v Tasman District Council

• Jurisdiction: New Zealand
• Court: Environment Court
• Judge: Judge B P Dwyer
• Judgment Date: 19 January 2011
• Neutral Citation: [2011] NZEnvC 4
• Docket Number: Decision No. ENV-2010-WLG-000060
• Date: 19 January 2011

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

[2011] NZEnvC 4

Court:

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

Decision No. ENV-2010-WLG-000060

BEFORE THE ENVIRONMENT COURT

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.

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

  • (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 original dwelling to stay was being processed by the limited notification path and the closing date for submissions was 12 January 2011.

• • The Council's decision on the application was accordingly some time

• • away and there was possibility of an appeal of the Council decision.

• • The Council had advised the Applicant that it was willing to agree to a further extension until the Council's decision was made on the basis that the second dwelling remained unoccupied.

• • The Council had received advice from Baxters' Counsel that the second dwelling was occupied by tenants and notice under the Residential Tenancies Act 1986 had to be given before the dwelling could be vacated.

15 Upon receipt of the above document I arranged for these proceedings to be set down for a judicial conference in Nelson on Thursday 2 December. Mr and Mrs Baxter and the Council were represented at that conference.

16 At the conference the relevant issues for consideration by the Court were canvassed and Mr and Mrs Baxter and the Council were given further time to make written submissions with regard to those matters. Those submissions have now been received and considered.

17 The first issue related to tenancy of the original dwelling. At the time the Council inspected the original dwelling in May 2010 it was occupied. The Council's abatement notice recognised that. The tenants had taken up occupancy on the week commencing 10 April 2010 and were still in occupation as at the date of the pre-hearing conference. One of the tenants swore an affidavit on 7 December 2010 deposing that they were still in occupation as at that date.

18 Counsel for both Mr and Mrs Baxter and the Council made submissions on the status of the tenancy agreement and the ability to have the tenants vacate the property in light of the provisions of the Illegal Contracts Act 1970. However, that issue has now become academic as Counsel for Mr and Mrs Baxter has subsequently advised that the tenants were to vacate the original dwelling by Monday, 20 December 2010.

19 The second issue dealt with in Counsels' submissions arose out of propositions which I put to Counsel during the course of the pre-hearing conference as to how the Court might deal with these proceedings. I expressed the view that there were three options. Should the Court:

• • Grant the application for an extension of the stay as requested by Mr and Mrs Baxter;

• • Refuse the application for an extension of the stay thus requiring immediate removal of the original dwelling from the site (or alternatively leave Mr and Mrs Baxter liable to...