Marlborough District Council v Franklin and Another
| Jurisdiction | New Zealand |
| Judge | KÓS |
| Judgment Date | 12 June 2013 |
| Neutral Citation | [2013] NZHC 1391 |
| Docket Number | CIV 2012-406-226 |
| Court | High Court |
| Date | 12 June 2013 |
In The Matter Of an appeal under s 299 of the Resource Management Act 1991
Kos J
CIV 2012-406-226
IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY
Appeal from an Environment Court decision which cancelled abatement notices issued by the appellant council in respect of boat building yard activities — appellant had issued an existing use certificate under s139A RMA (existing use certificates) certifying respondents were carrying out repair and storage of boats on site as at 29 September 2010 — existing use rights lapsed if the use was discontinued for more than 12 months — boat business had lapsed but resumed on 1 September 2011 — appellant issued abatement notices stating the existing use rights had expired at end of November 2010 — what was the “use” in each of s139A(1)(a), (b) and (c) and whether council was bound by its statement in its s139A certificate that boat repair and maintenance was being carried out — whether in order to obtain the s139A certificate, the use had to have resumed.
R J B Fowler with P J Radich for Appellant
M J Hunt for Respondents
Under the Resource Management Act 1991 land may be used so long as the use (1) does not offend a rule in a plan, or (2) is permitted by a resource consent, or (3) is an existing use.
An existing use does not require a resource consent. But existing use rights lapse if the use is discontinued for more than 12 months after the rule the use would otherwise offend becomes operative.
The Act now provides in s 139A for existing use certificates to be issued by a council. How is that provision to be construed? What is the “use” referred to in each part of s 139A(1)? And if the use has been discontinued, must it have been resumed before the certificate is issued?
A summary of my conclusions on these questions is to be found at [57].
A boatyard has operated at 323-325 Waikawa Road, Picton, since 1960 or so. The land is within the Residential Zone in the Marlborough Sounds Resource Management Plan. The plan became operative in 2002. It prohibits industrial uses in such a zone. But existing use rights have applied hitherto to protect the boatyard activity.
Originally it was known as the “Jorgensen Boatyard”. It was run by Finn and Harry Jorgensen. The Jorgensen family operated a boat building, maintenance and repair business on the site. The site includes three slipways and a jetty. On the landward side there is a boatyard, woodworking shop, two boat repair and painting sheds and an engineering workshop. The whole site is 0.4852 hectares in area.
Then Finn Jorgensen died and Harry Jorgensen moved to Auckland. In about 1998 the land was sold to its current owners.
After the sale of the property by the Jorgensen family, John Cooper leased the site from the owners. He took over the operation of the boatyard. He does not seem to have built any boats there. But he continued to undertake boat storage and boat maintenance and repair work at the site.
The maintenance and repair work at the yard began to wind down at the end of 2009. For the purposes of this appeal, it is accepted that boat repair and maintenance continued at the yard until the end of November 2009. The appellant Council does not accept that it continued thereafter. The respondent Mr Franklin, on the other hand, maintains that boat storage and limited maintenance work continued after that date.
The respondents, Mr Franklin and his company, were involved in a substantial way in boat building and repair in Christchurch. The former aspect of their business suffered a serious setback in the Christchurch earthquakes. But they also had a presence in Picton: a yard at Waikawa Marina and a travel lift for taking boats out of the water. They wished to expand the Picton operation. As a result they negotiated a lease of what had been the Jorgensen, and then Cooper, yard. Entering the lease seems to have been a protracted business. As early as February 2010 they slipped a large sailing catamaran for servicing. They also built some slipway equipment on the site in 2010 in anticipation of the lease. The respondents took possession of the site in August 2011, and executed the lease on 1 September 2011.
On 26 July 2010, long before entering the lease, the respondents applied for an existing use certificate under s 139A of the Act. The certificate sought confirmation of existing use rights to “continue all existing operations of boat building, repair and maintenance on the site”. In fact boat building had ceased on the site in about 2002. The application, which was prepared by a resource management consultant, said:
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 is that statement the Council relies on in saying the existing use was discontinued at the end of November 2009.
Mr Franklin has sworn an affidavit. In it he says that that statement was wrong. He had not noticed the error at the time of the application. He points to the continuing activity referred to in [10] above. He says that shows that the existing use was not discontinued in November 2009.
At the end of the day that is not a matter I need to resolve in this appeal. The appeal concerns a question of law, rather than fact.
On 29 September 2010 the Council issued an existing use certificate. Before setting it out in full, I note that the use described was limited to “commercial storage, repair and maintenance of boats”. The certificate did not confirm existing use rights in relation to boat building. No issue is taken with that. Boat building disappeared from the yard, and disappears from this decision, accordingly.
The certificate states, in full:
Certificate of Existing Use
Pursuant to S139A of the
Resource Managements Act 1991
File Reference: 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 as 323-325 Waikawa road for the commercial storage, repair and maintenance of boats.
4. Character, Scale and Intensity of the 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/staffroom 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 wood-working, 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.
The revived fortunes of the yard in 2011 do not seem to have been popular with some of its neighbours. They complained to the Council about noise, dust and other discharges.
On 20 December 2011 abatement notices were issued by the Council. The notices said:
The existing use certificate that was issued for this property on the 29th of September 2010 is considered by Council to have expired as at the end of November 2010. Section 10(2) of the Resource Management Act 1991 stipulates that: existing use rights are lost if the use is discontinued for a continuous period for more than 12 months.
So the Council was saying that the existing uses certified were still subject to lapse under s 10(2) if discontinued for a continuous period of 12 months at any time. Obviously, on the Council's argument, that time could begin before the date of the certificate, with some of the period of discontinuance preceding certification, and some after. Once the 366 th day is reached, the existing use rights are lost and a resource consent would have to be obtained to...
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