Caryn Nigro v The Farnorthdistrict Council

• Jurisdiction: New Zealand
• Judge: L J Newhook,Acting Principal Environment Judge
• Judgment Date: 27 April 2012
• Neutral Citation: [2012] NZEnvC 76
• Court: Environment Court
• Date: 27 April 2012

[2012] NZEnvC 76

BEFORE THE ENVIRONMENT COURT

Court:

Acting Principal Environment Judge L J Newhook

Environment Commissioner C E Manning

Environment Commissioner A J Sutherland

In The Matter of the Resource Management Act 1991

and

In The Matter of An Application For A Declaration Under

BETWEEN

Caryn Nigro (ENV-2011-AKL-000228)

Appellant

and

The far North District Council

Respondent

and

Taupo Bay Progressive Association

Applicant

Appearances:

Ms C H Prendergast for Caryn Nigro

Ms J S Baguley for Far North District Council

Mr J C Dawson for Taupo Bay Progressive Association

The Environment Court declares:

• A: That the activity authorised in the Certificate of Compliance 2120015-RMACOC, granted on 20 July 2011 and issued to the Taupo Bay Progressive Association, is not a permitted activity under the Far North District Plan, and was not permitted on the date the certificate was issued.

• B: The question of costs is reserved.

DECISION

REASONS

Introduction

1 (On.20 My 2011 the Far North District Council (FNDC) issued a certificate of compliance to Taupo Bay Progressive Association for the construction of an Astroturf tennis court of some 650 m ² on land known as Whangaroa Reserve located between Marlin Drive and Tuna Place in Taupo Bay in the Far North District. The proposal is described in the certificate as follows:

To develop, establish and operate a tennis court and clubroom pavillion [sic] with associated carpark, landscaping and on site wastewater disposal.

Attached to the certificate are plans of the site showing the tennis court and clubrooms and a floor plan of the proposed building.

2 Ms Caryn Nigro considers that the proposal breaches a number of rules in the Far North District Plan. As a consequence she has applied for a series of declarations from the Environment Court, namely:

• (1) that the activity authorised in the certificate of compliance 2120015-RMACOC, granted 20 July 2011 and issued to the Taupo Bay Progressive Association is not a permitted activity under the Far North District Plan;

• (2) that the Far North District Council did not have sufficient information to satisfy itself that the activity proposed in the application for certificate of compliance was a permitted activity. Even if sufficient information was provided, FNDC failed to properly consider the application against the provisions of the Far North District Plan. In particular:

  [a list of eight rules which Ms Nigro considers have been breached];

• (3) that in the circumstances a 2 metre high fence around the tennis court will not be sufficient to avoid, remedy or mitigate the adverse effect of the activity on the adjoining land;

• (4) that as a consequence of 1, 2 and 3 above the certificate of compliance 2120015-RMACOC was wrongly issued.

Legal matters, declarations and certificates of compliance

3 The scope of declarations the Environment Court may make is wide-ranging. We note that under section 310 a declaration may declare:

• …

• (h) any other issue or matter relating to the interpretation, administration and enforcement of this act, except for an issue as to whether any of sections 95 to 95F have been or will be contravened.

4 In relation to certificates of compliance, which are granted pursuant to section 139 of the Act, it is within the jurisdiction of the court to make such declarations. However, as the Planning Tribunal put in Culpan v Vose: 1

a declaration [that a particular proposal contravenes the district plan] would not invalidate a certificate of compliance granted in respect of the same proposal. It would merely be a declaration, carrying no more authority than the persuasive effects of the reasons given for it.

A reasoned declaration might of course influence the significance a court might attach to the certificate of compliance in establishing a permitted baseline to be considered in connection with a different proposal.

5 Certificates of compliance, as we have said, are issued under section 139 of the Act. Section 139(4) and (5) provides that the certificate issued must:

• • describe the activity and the location; and

• • state that the activity can be done lawfully in the particular location without a resource consent as at the date on which the authority received the request [for It].

6 The Planning Tribunal in Culpan v Vose2 noted that:

… in examining a request to decide whether a certificate of compliance should be granted, the territorial authority is required to make a point by point scrutiny by reference to all the applicable ‘district rules.

After recording that in the normal course of events councils may not enforce strict compliance where the degree of non-compliance is trivial and has no adverse effect on others, the tribunal added:

However a certificate of compliance could not properly be given where there are shortfalls — even shortfalls that might otherwise be tolerated.

7 The Court of Appeal in Pring v Wanganui District Council3 took a similar approach. It noted: 4

If a proposal complies, s 139 requires the consent authority to issue a certificate within a short specified statutory time-frame. The authority must first be satisfied there is compliance. Before it can be properly satisfied it must have had sufficient information in order to be able to make a thorough comparison with the applicable rules.

We also note the Court's comments: 5

… it must also be recognised that because neighbours and users of adjoining streets may well be adversely and directly affected by a development which obtains a certificate of compliance and thereby is deemed to have a resource consent [subs (6)], the Court will scrutinise what has occurred more carefully and with a less tolerant eye when considering whether the decision was one open to the consent authority on the material before it then …

8 Finally, we refer to the decision of the Planning Tribunal in Wawatai Limited v Hamilton City Council6

There is an onus on an applicant for a certificate of compliance to satisfy the Tribunal that every aspect of the activity is in conformity with the relevant rules pertaining to it. It is not sufficient to leave the Tribunal with the view that it might be a complying activity or could be a complying activity.

The relevant planning rules

9 The site of the proposal is zoned recreational activity. While Ms Nigro contended that the proposal could not be guaranteed to comply with a number of relevant rules of this zone or district-wide rules, there were three which particularly occupied the parties, particularly in the evidence produced to us and at the hearing. These are:

Rule 9.6.1.5 Impermeable surfaces: a maximum of 10% of site area is permitted.

Rule 12.3.6.1.2 Excavation and/or filling:

The permitted activity standard provides for:

[e]xcavation and or filling, excluding mining or quarrying on any site in the … Recreational Activities … zones provided that:

• (a) it does not exceed 300 m ³ in any 12 month period per site; and

• (b) it does not involve a cut or filled face exceeding 1.5 m in height i.e. the maximum permitted cut and fill height may be 3 m.

Rule 12.7.6.1.1 Setback from Lakes, Rivers and the Coastal Marine Area:

[a]ny building or impermeable surface must be set back from the boundary of any lake, river, or coastal marine area a minimum of 30 metres.

We will discuss each of these rules in turn, and analyse whether the proposal for which a certificate of compliance was issued complies with it.

The impermeable surface rule

10 The site the subject of the application for a certificate of compliance has an area of 2125 m ². In consequence the area over which impermeable surfaces are allowed is 212.5 m. The Taupo Bay Progressive Association sought to place on this land:

Whether the application can comply with this rule turns on whether the Astroturf surface is or is not impermeable in terms of the plan.

• • a pavilion with a roofed area of 130 m ²;

• • four car-parking spaces with an all-weather surface (59 m); 7

• • an Astroturf tennis court of some 650 m ².

11 In July 2010 the Council notified a plan change to amend various definitions in the plan. Before the plan change the following definition applied:

Impermeable Surface

In relation to any site means any part of that site which cannot be permeated by water and includes:

• …

• (c) any paved or otherwise impermeable area used for parking, manoeuvring, access or loading of motor vehicles but excluding any area having an unsealed surface;

• (d) any area paved either with a continuous surface or with open jointed slabs, bricks, gobi or similar blocks.

The plan change introduced some significant changes. The definition ran: 8

Impermeable Surface

In relation to any site means any building or surface on the land which will not easily allow natural percolation of surface water into the ground and includes:

• …

• (c) any paved or otherwise impermeable area used for parking, manoeuvring, access or loading of motor vehicles and including any area having an unsealed but compacted impermeable surface;

• (d) any area paved either With a continuous surface or with open jointed slabs, bricks or similar blocks but excluding any area having an unsealed surface.

12 The plan change was heard by commissioners and their recommendations were adopted by Council on 14 April 2011. The decisions were notified on 4 May 2011 and the period for appeals closed on 25 June 2011. On 28 July 2011 the Far North District Council resolved to approve and publicly notify Plan Change 5 and that it should be operative in full as from 15 August 2011. In the decisions version of the plan change in

subsection (c) of the definition above, the words “and including” were replaced by the words “but excluding”.

13 There was some debate amongst counsel about which form(s) of the definition of impermeable surface was/were required to be complied with at the time the...