Canterbury Regional Council(ENV-2010-CHC-114) v Waimakariri District Council and G G and P D Barr

• Jurisdiction: New Zealand
• Judge: J E Borthwick
• Judgment Date: 21 September 2010
• Neutral Citation: [2010] NZEnvC 324
• Date: 21 September 2010
• Court: Environment Court

In the Matter of the Resource Management Act 1991 (the Act) and of an appeal pursuant to section 120 of the Act

BETWEEN

Canterbury Regional Council(ENV-2010-CHC-114)

Appellant

and

Waimakariri District Council

Respondent

and

G G and P D Barr

Applicants

Decision No. [2010] NZEnvC 324

Court:

Environment Judge J E Borthwick

BEFORE THE ENVIRONMENT COURT

Application to determine whether relief sought by a Regional Council in its Notice of Appeal against a decision by a District Council went beyond the scope of its original submission by the addition of the words under any circumstances — whether in the circumstances it would be unfair and contrary to the purpose of the appeal process to allow the Regional Council to modify its position.

• A: The Environment Court determines that the relief sought by the Regional Council on appeal is within the scope of its original submission.

DECISION OF THE ENVIRONMENT COURT ON INTERLOCUTORY APPLICATION

REASONS

Introduction

1 The parties have referred a jurisdictional issue for determination, the issue being whether the relief sought by the Canterbury Regional Council in its Notice of Appeal against a decision by the Waimakariri District Council goes beyond the scope of its original submission.

2 The parties requested that the determination be made on the papers.

The submission

3 The Regional Council opposed the application for resource consent by G G and P D Barr to erect a dwelling on an existing rural lot at Waikuku Beach Rd, Waikuku. The decision sought from the District Council was to:

Decline the resource consent

Should resource consent be granted a condition should be attached to the consent requiring that the dwelling erected at this site shall have a minimum flow level of 3.0 m.a.m.s.l.

4 The Regional Council set out the reasons for its submission and in summary they were:

• (a) the application is contrary to provisions of the Regional Policy Statement;

• (b) the site is subject to flooding from the Ashley River. The risk of flooding may be attenuated by building the dwelling 3.0 metres above mean sea level ( mamsl) and a condition is sought to this effect. In the absence of such a condition the consent is also contrary to certain provisions within the Waimakariri District Plan and also the Regional Policy Statement;

• (c) the application is inconsistent with the Greater Christchurch Urban Development Strategy;

• (d) a grant of consent would undermine the administration of the District Plan; and

• (e) the application does not achieve Part II of the Act.

5 The Regional Council did not attend the hearing in support of its submission. The District Council granted the application and imposed a condition that the house has a minimum floor level of 30 mamsl.

6 The Regional Council appealed the decision and seeks that the application be declined.

Legal submissions

7 Mr Chapman on behalf of the Barrs submits that it is not open to the Regional Council to seek by way of relief that the appeal be allowed and the application declined. The Regional Council in its submission on the application for resource consent sought that either the application be declined ‘or’ a condition as to minimum floor level be imposed 1. The District Council accepted one of the two alternative outcomes sought, but now the Regional Council seeks to change the scope of its original submission by seeking that the application be declined under any circumstances. Counsel for the Barrs further submits that the Regional Council did not make it abundantly clear that the alternative put forward would not address its concerns. In the circumstances it would be unfair and contrary to the purpose of the appeal process to allow the Regional Council to modify its position.

8 Ms Perpick on behalf of the Regional Council submits that the relief sought must be read in the context of the reasons given for the submission. The central reason for the submission concerns the application's inconsistency with provisions of the Proposed Change 1 to the Regional Policy Statement. The submission also refers to the application's inconsistency with the Urban Development Strategy (a non statutory instrument). Finally, the Regional Council considered that in the absence of a condition controlling the minimum flow levels the application would be inconsistent with provisions in the Waimakariri District Plan.

9 Ms Perpick submits that the Regional Council has not changed the scope of the proceedings to argue matters beyond those signalled in its original submission. While

the Regional Council proposed a condition...