Franklin v Marlborough District Council

 
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Decision No. [2012] NZEnvC 175

BEFORE THE ENVIRONMENT COURT

Court:

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

(ENV-2012-CHC-8)

(ENV-2012-CHC-9)

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
Submissions:

M Hunt for the appellants

R Fowler and M Radich for the respondent

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.

The issue was: whether the certificate certified a current use of the land and not just a historical use.

Held: In order to certify as to the matter in s139A(1)(b) RMA, the consent authority had to be satisfied as to the matters set out in s10 RMA (the activity was lawfully established; at the time they were being questioned, the effects of the use were the same or were similar in character, scale and intensity to those that existed before the rule became operative or plan was notified, and the use had not been discontinued for a continuous period of more than twelve months). If one of those three requirements of s10 RMA was not made out, then the consent authority would not be able to certify under s139A RMA that the described use “was” an existing use under s10 RMA. Section 139A RMA expressly required identification of two states of affairs on the identified area of land as at the date of the certificate: the activity authorised by s10 RMA (s139A(1)(a) RMA) and the actual activity being carried on (s139A(l)(c) RMA). Those two activities might (and often were) be identical but it was not necessarily so. There might be no actual activity on the site (in which case the certificate should say so) but there might be an activity described under s139A(1)(a) and (b) RMA which “was” allowed by s10 RMA.

The significance of establishing that a certificate of existing use under s139A(1)(c) had to contain a specification of the actual activity being carried on, on the relevant land, at the date of the certificate, is that the council could not later resile from that specification. That followed from the basic administrative law principles that a formal action or document issued by a council was valid (or at least deemed to be valid) until set aside. In other words, the council was also bound by any statements in the certificate.

The certificate had complied with s139A(1)(a) RMA by describing the area of land and the land use on it, including its character, scale and intensity. It then stated that as at 29 September 2010 “the above described use of the land was a use of land allowed by s10 RMA”. There were also specification of the use at the date of the certificate. The difficulty for the council was that its certificate recorded that the current land use consisted of the surveying, repair and maintenance of boats. It was arguable that statement was intended to be a description of the historical use (even though that had already been given earlier in the certificate) rather than of the actual character, intensity and scale of the activity as required by s139A(1)(c) RMA. Under s139A(l)(c) RMA the actual usage must be described in some detail, its character, scale and intensity must be specified.

The council's confusion was shown by the fact that it had described the actual use of the land before its description of the use that was legal as at the date of the certificate. That suggested that the council's officer thought of s139A(1)(c) RMA as merely requiring greater specification of the description required by subsection s139A(1)(a) RMA.

The holder of the certificate, third parties, and the public were all entitled to treat the certificate as valid on its face, and as a resource consent. Because the certificate stated what the “actual” use was as of 29 September 2010, and that actual use was the same as the historical use then it was s10(2) RMA, not s139A RMA, which operated to keep the existing use alive for a further twelve months, unless the consent authority's error arose from inaccuracies in the information supplied by the applicant F. There was nothing materially misleading in F's application. It seemed more likely that an error may have arisen because of a misunderstanding of the legal requirements of s139A RMA.

Because the certificate stated that the activity of boat repair and storage was being undertaken on 29 September 2010 and that that was an existing use when the district plan became operative, the council could not now assert otherwise. The result of s10(2) RMA when applied to the certificate was that if, as the certificate stated on its face, the activity was being undertaken on 29 September 2010, it could be discontinued for up to twelve months (to 29 September 2011) before the existing use rights disappeared. While there was some conflicting evidence on the scale and intensity of activity on the site between 29 September 2010 and 31 August 2011, that was irrelevant. In particular, the council could not say they were extinguished in November 2010. Further, it was clear on the agreed facts that the full scale and intensity of activity on the site was resumed by 1 September 2011 so the existing use rights were not discontinued for twelve months from 29 September 2010.

Appeal allowed. Abatement notice struck out.

  • 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...

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