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

 
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Decision No. [2010] NZEnvC 324

BEFORE THE ENVIRONMENT COURT

Court:

Environment Judge J E Borthwick

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

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.

Held: Case law concerning the issue of whether an appeal was within the scope of an original submission on a provision in a plan was quite settled. The court's jurisdiction on appeal was limited by: Part 2 Resource Management Act 1991; the application for resource consent — a local authority (and on appeal the court) could not give more than was applied for; any submissions; and the notice of appeal. Each successive document may limit, but not widen, the preceding documents. Read as a whole, the Regional Council submission was that the consent be declined. The relief sought by the Regional Council in its notice of appeal was within the scope of its original submission.

  • 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...

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