P W & J D Lindsay v Dunedin City Council

 
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[2013] NZEnvC 8

BEFORE THE ENVIRONMENT COURT

court:

Judge Jackson

ENV-2012-CHC-112

In The Matter Of The Resource Management Act 1991

In The Matter Of An Appeal Under Section 120 Ofthe Act

Between
P W & J D Lindsay (Env-2012-Chc-112)
Appellants
and
Dunedin City Council
Respondent

Determination of validity of notice under s274 Resource Management Act 1991 (“RMA”) (representation at proceedings) for representation in Environment Court proceedings — “residents and friends” society lodged s274 RMA notice to become a party to the Environment Court proceeding in respect of a resource consent for function centre — several of the society members also lodged s274 notices in their own capacity — society submitted it had an interest in the proceedings greater than the interest of the general public as its objective was to protect the amenity values of the function centre — whether the interest of the society was greater than that of the general public giving it standing to lodge a s274 notice.

The issue was: whether the interest of the society was greater than that of the general public and if so, whether it was entitled under s274(1)(d) RMA to be a party to the proceeding.

Held: The purpose of s274(1)(d) appeared to be to make persons with a general interest (the same as that of the general public) put their case to a local authority by making a submission. They could not hang back and wait for a possible appeal to the Environment Court unless they had a greater interest. On the other hand, if a person did have a greater interest than that of the general public then they would qualify under s274(1)(d). The effect of recent cases was that a person with a direct personal interest in the amenities of an area (e.g. the effect on their views) came within s274(1)(d) and that a society with specific objects about the amenity or environment of an area might also have such a greater interest — even though some of its members had lodged submissions originally and were entitled to lodge notices under s274(1)(e) RMA.

In the present case, the object of the society was to protect the amenity values of the Currie Road property. It was directly interested in how the amenities of the Currie Road would be affected by the appellants’ application. It claimed to be advantaged by a refusal of resource consent and disadvantaged by a grant of consent to the appellants.

A society for the protection of the amenities of a road had a slightly more general interest than a society for the protection of a particular place or building such as a heritage building. However, the interest was very specific compared with that of the general public. It was very unlikely that the general public knew had an interest in the amenities of Currie Road. The society therefore, had an interest in the proceeding greater than that of the general public and accordingly, had a standing to lodge its s274 notice.

Equally, it had a greater relationship with the potential advantages or disbenefit of the proceeding because some of its members were property owners who resided in or near Currie Road. If the appeal was successful without the society being heard, then the amenities of Currie Road would be affected and the society would not have achieved its purpose.

PROCEDURAL DECISION
  • A: Under section279(1)(a) ofthe Resource Management Act 1991, the Environment Court declines to order that The Currie Road Residents and Friends Society Incorporated's section 274(1)(d) notice is invalid;

  • B: Costs are reserved. Any costs application is to be lodged and served by 8 March 2013; any reply is to be lodged and served by 5 April 2013.

REASONS
Introduction
1

On 26 September 2012 P W and J D Lindsay (“the appellants”) lodged with the Registrar of the Environment Court a notice of appeal against conditions attaching to a decision of the Dunedin City Council granting land use consent 1 to operate a function venue and garden tours at 95 Currie Road, Outram, Dunedin.

2

On 24 October 2012 The Currie Road Residents and Friends Society Incorporated (“the Society”) lodged a notice of its wish to become party to the proceeding under section 274 of the Resource Management Act 1991 (“the RMA” or “the Act”). The Society's section 274 notice states that it wishes to become a party on the basis it is a person who has an interest in the proceedings greater than the interest that the general public has. The Society goes on to say that it has an interest greater than the general public based on its purposes which are as follows:

  • • To protect the amenity values of Currie Road for the residents and their friends and families;

  • • To foster and maintain the rural lifestyle of Currie Road, Outram;

  • • To ensure Currie Road remains a tranquil, peaceful environment; to share that environment with close friends and family.

I have no direct evidence that those are the objects of the Society. But nor has that been challenged. I accept Professor Henaghan's metaphor that the residents believed that the Society “… would amplify their voices”.

3

On 26 November 2012 the appellants lodged an application under section 279 of the Act, seeking an order that the section 274 notice is invalid and that the Society has not established standing to be heard. That application follows the procedure approved by the High Court in Meadow 3 Ltd v van Brandenburg2.

4

By way of minute dated 28 November 2012 the court directed that any notices of opposition and suppmiing affidavits were to be lodged by 5 December 2012. The Society was also to confirm whether it agreed with the matter being dealt with on the papers and if so it should lodge any legal submissions by 14 December 2012. The appellants and the Council (if it wished to be heard) were to lodge any legal submissions in reply by 21 December 2012. The patiies have complied with the timetable and agreed that the issue of standing should be determined on the papers. The Society also lodged an i1regular 3 affidavit (actually sworn by K P Wanington) dated 5 December 2012 which I have also read in accordance with section 276 of the Act, which allows the

Environment Court to read anything relevant to a decision even if it is put forward in a way that does not comply with the law of evidence.
5

The Dunedin City Council abides 4 the decision of the court.

6

The Society's was not the only section 274 notice lodged in this proceeding. On 15 October 2012 the Registrar had received section 274 notices which are identical except for the names 5. Each states that the person wishes to become a party to the proceeding as a submitter on the subject matter of the proceeding. They claim that the amenities of the neighbourhood may be affected by the operating conditions of the function venue. It is not contested that these individuals have standing to be parties under section 274(1)(e) of the Act. All of these people are members of the Society.

Section 274 and the authorities on it
7

In 2009 section 274(1) was amended to read 6 (relevantly):

274 Representation at proceedings

(1) The following persons may be a party to any proceedings before the Environment Court:

  • (a) the Minister:

  • (b) a local authority:

  • (c) the Attorney-General representing a relevant aspect of the public interest:

  • (d) a person who has an interest in the proceedings that is greater than the interest that the general public has,…

  • (e) a person who made a submission to which the following apply:

  • (i) it was made about the subject matter of the proceedings; and

That wording is different from the previous section 274(1) in two ways. First, and most obviously, the right for a person to be heard if representing “… a relevant aspect of the public interest” has gone. Only the Attorney-General has that right now 7.Secondly, and more subtly, a person may now only be a party if they have an “interest in the proceedings that is greater than the interest that the general public has”. That compares with section 274 in its earlier versions which all required a person to have an interest “greater than that of the public generally”. It is unclear whether that new wording makes any significant change. However, I received no submissions on the issue, so will assume it does not.

8

A leading case—on a similar wording of section 274—referred to in submissions here is Purification Technologies Ltd v Taupo District Council8. That decision was concerned with an appeal against refusal of a certificate of compliance 9 in respect of an

irradiation plant 10 proposed for Mangakino. The Planning Tribunal first carefully pointed out the case was different from the more familiar kind of appeal against grant or refusal of resource consent” 11. It then observed that, unlike a resource consent appeal where the Planning Tribunal (or the Environment Court) has to decide the appeal on the substantive merits in a discretionary exercise, the issue is quite different when it is considering a certificate or compliance. In the latter case “… the Tribunal does not have a discretion or choice to exercise” 12.
9

It is in that context that the passage relied on by counsel for the appellants has to be read. The Planning Tribunal wrote13:

… we...

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