Franklin v Marlborough District Council

• Jurisdiction: New Zealand
• Judge: J R Jackson
• Judgment Date: 23 August 2012
• Neutral Citation: [2012] NZEnvC 175
• Court: Environment Court
• Docket Number: (ENV-2012-CHC-8)
• Date: 23 August 2012

In the matter of an appeal against abatement notices pursuant to section 325 of the resource management act 1991

Between

Ian Robin Franklin

and

Ian Franklin Boat Builders Ltd

Appellants

and

Marlborough District Council

Respondent

Decision No. [2012] NZEnvC 175

Court:

Environment Judge J R Jackson (sitting alone under section 279(1) of the Act

(ENV-2012-CHC-8)

(ENV-2012-CHC-9)

BEFORE THE ENVIRONMENT COURT

Appeal against issuing of abatement notices — appellant was using land for the commercial storage and repair of boats — in September 2010 appellant had obtained existing use certificate under s139A(1) Resource Management Act 1991 (consent authorities to issue existing use certificates) — respondent council claimed activity had ceased in November 2009 and had remained inoperative until November 2010 and thus all existing use rights had expired — whether the issuing of the certificate effectively refreshed the 12 month period for which existing use rights could run — whether the certificate certified a current use of the land and not just a historical use.

Submissions:

M Hunt for the appellants

R Fowler and M Radich for the respondent

• A. Under section 279(l)(a) of the Resource Management Act 1991 the Environment Court rules that because the certificate of existing land use dated 29 September 2010 and issued under section 139A(1) of the Act states that surveying, repair and maintenance of boats was occurring on the land at 323–325 Waikawa Road on that date, section 10(2) of the Act has the effects that:

  • (a) the existing use rights which were also certified on that date continued for twelve months to 29 September 2011; and

  • (b) the existing use rights did not expire in November 2010.

• B: Consequently, under section 279(l)(b) of the Act, the appeal is allowed (by consent) and the abatement notice is cancelled.

• C: Costs are reserved. Any application should be made within 15 working days and any reply within a further 15 working days.

SECOND PROCEDURAL DECISION

REASONS

Introduction

1 This decision concerns an existing use certificate issued by the Marlborough District Council (“the council”) on 29 September 2010 under section 139A of the Resource Management Act 1991 (“the RMA” or “the Act”) as introduced 1 in 2005.

2 The issue arises in an abatement proceeding: on 20 December 2011, the council issued an abatement notice alleging that the activities carried out by Ian Franklin Boat Builders Limited (“Franklins”) and Mr IR Franklin on the land at 323 to 325 Waikawa Road (“the site”), near Picton, breach the provisions of the RMA. Franklins and Mr Franklin appealed to the Environment Court. On 7 February 2012 the court issued a stay decision 2. A further legal point has arisen as to the legal effect of a certificate of existing land use issued on 29 September 2010. At a prehearing conference on 30 April 2012 the parties agreed through counsel that submissions would be lodged and served, and that the court could then deal with the issue on the papers.

3 The certificate reads:

Certificate of Existing Use

Pursuant to S.139A of the Resource Management Act 1991

File Ref: U100463

• 1. Applicant

• Ian Franklin Boat Builders Limited

• 2. Location of Activity

• 323–325 Waikawa Road, Waikawa – the land legally described as Lot 2 DP 2932 and Section 9E Waikawa Village Maori Block.

• 3. Description of Land Use

• Use of the land at 323-325 Waikawa Road for the commercial storage, repair and maintenance of boats.

• 4. Description of Land Use

  • (a) The subject allotments together cover approximately 3,543 square metres in area.

  • (b) The land use is comprised of the following key built elements:

    • (i) A primary repair and painting workshop with a footprint of approximately 315 square metres.

    • (ii) A secondary repair and painting workshop with a footprint of approximately 85 square metres.

    • (iii) A woodworking shop with a footprint of approximately 90 square metres.

    • (iv) An engineering workshop with a footprint of approximately 65 square metres.

    • (v) A two-storey office/stafffoom building with a footprint of approximately 32 square metres.

    • (vi) An ablution block with a footprint of approximately 9 square metres.

    • (vii) A boat hardstand area covering approximately 800 square metres.

    • (viii) A car parking area covering approximately 700 square metres.

    • (ix) An outdoor boat cradle yard covering approximately 1,100 square metres, with three associated rail iron slipways and a winch house.

  • (c) Five regular staff work at the site on up to six vessels sized between approximately six metres and fifteen metres in length.

  • (d) The hours of operation of the land use are 8.00 am to 5.00 pm, Monday to Friday.

  • (e) The operations undertaken at the site consist of the surveying, repair and maintenance of boats, and associated storage of boats awaiting such works. Repairs and maintenance include stripping, painting, fibre-glassing and woodworking, except for any associated discharge of contaminants to land, air or water.

• 5. Certification

• On the date of issue of this certificate, the above described use of the land was a use of land allowed by section 10 of the Resource Management Act 1991.

• 6. Limitations

  • (i) This Certificate does not apply to the land legally described as PT RD JOINING PT SEC 9 WAIKAWA MAORI VILLAGE AND SECS 9F 9G1 WAIKAWA VILLAGE MAORI BLOCK.

  • (ii) This Certificate does not apply to any discharge of contaminants to land, air or water arising from the use of the land at 323-325 Waikawa Road, Waikawa.

Signed [Anna L Eatherley]

ANNA EATHERLEY MANAGER

RESOURCE CONSENTS

Dated this 29th day of September 2010

4 The preliminary point is raised by the appellant, Mr I Franklin, in his affidavit of 24 January 2012 in support of the stay application where he wrote 3:

Nowhere in the certificate is there any suggestion that the activities were only able to be undertaken for a limited period of time or that the Council regarded those activities as having ceased at any time prior to the issue of the Certificate. At the time it was issued my understanding was that it provided for the use of the site for that purpose indefinitely [on the terms in the Certificate].

In contrast, the issue as the council sees it was stated by Ms Radich 4 who described the legal issue as “… whether the issuing of the Certificate of Existing Use on 29 September 2010 effectively refreshed the 12 month period for which existing use rights run. Council considers it does not”.

5 The issue is that there are several ways of looking at the effect of the 29 September 2010 certificate:

• (1) was it simply a confirmation that existing use rights existed on that particular date (as the council claims); or

• (2) can the council resile from the statements in the certificate as to the actual use of 29 September 2010; or

• (3) because it states that certain activity was being carried out on that date, and that that activity was allowed by section 10 of the RMA, was that activity allowed by section 10(2) to be discontinued for up to twelve months from 29 September 2010 without the existing use rights being lost?

Background

6 The facts as they are understood by the appellant, Mr Franklin, are described in his affidavit. Counsel for the MDC said they are not challenged for the purpose of this decision 5 but that is not entirely correct. My description of the background to this decision is provisional because it is based on that affidavit and on a memorandum from counsel for the council.

7 It appears to be agreed that the site has been used as a boatyard since the 1960s 6 — formerly as “Jorgensen's boatyard” and more recently by J Cooper and Sons Limited. Mr J Cooper, a principal of that firm, began to reduce the scale and intensity of the business in, according to Mr IR Franklin 7, the end of 2009. What happened on the site after that date is not so clear.

8 The site is zoned Residential under the Marlborough Sounds Resource Management Plan which was made operative in 2002.

9 On 22 July 2010 Franklins applied 8 through an agent for a certificate of existing use. The application 9 stated that there had been a continued use of the boat yard from the 1960s to November 2009 10. The appellants now dispute that 11. Mr Franklin alleges the use continued beyond November 2009, and indeed at least some of the documents attached to the application for the certificate seem to support that.

10 As described above, the certificate of existing use was issued on 29 September 2010

11 The respondents took full possession 12 of the property at some (unspecified) date in August 2011 according to Mr Franklin and signed a heads of agreement to lease 13 on or about 1 September 2011.

12 On 20 December 2011, that is over one year after the issue of the certificate, the council issued the abatement notice which triggered this proceeding.

13 The abatement notice came as a surprise to the appellants. They had obtained the certificate in respect of past use 14 of the site and knew they had occupied and used the land since before 1 September 2011. To preserve the appellant's position while their appeals were heard, the stay of the abatement notice was granted 15 on 7 February 2012.

14 The difficulty for Franklins is that while the certificate states that the site was being used for boat storage and repair on 29 September 2010, the council is now basing its abatement notice on an allegation 16 that the activity had ceased in November 2009 and remained inoperative until November 2010, and thus all existing use rights had expired. Counsel for the council is relying on a statement in the application for the certificate which states under the heading “Continuity of use” 17:

… The information supplied with this application confirms that there has been a continued use of the site as a boatyard from the 1960s until as recent as November 2009.

It submits 18...