Pohutukawa Coast Community Association v Auckland Council

• Jurisdiction: New Zealand
• Judge: R G Whiting
• Judgment Date: 10 June 2011
• Neutral Citation: [2011] NZEnvC 154
• Date: 10 June 2011
• Court: Environment Court

Decision No. [2011] NZEnvC 154

BEFORE THE ENVIRONMENT COURT

Court:

Environment Judge R G Whiting

In the Matter of an appeal under Clause 14 of the First Schedule of the Resource Management Act 1991 (the Act) in relation to Proposed Private Plan Change 30A to the Manukau Operative District Plan 2002

BETWEEN

Pohutukawa Coast Community Association

(env-2011 — akl-000125)

Appellant

and

Auckland Council (formerly Manukau City Council)

Respondent

BETWEEN

Pohutukawa Coast Community Association

(ENV-201l-AKL-000126)

Appellant

Progressive Enterprises Limited

Applicant

and

Auckland Council (formerly Manukau City Council)

Respondent

Submissions:

Mr C Butler for Pohutukawa Coast Community Association (“The Association”)

Mr J Gardner-Hopkins and Mr M Gribbe n for Progressive Enterprises Limited (“Progressive”)

Ms E Molloy for Auckland Council (formerly Manukau City Council) (“The Council”)

• A. The application for waiver of service of the Association's notices of appeal on all submitters to Proposed Plan Change 30 and 30A is declined.

• B. Any submitter upon receiving a copy of the Association's notices of appeal are to file their section 274 notice if they so wish by 5pm on 30 June 2011.

• C. The Association is granted a waiver of time to serve their notices of appeal on all the submitters to Proposed Plan Change 30 and 30A. Included in that will be a cover letter stating that the attachments are available on request and that the final day for submitters to file their section 274 notices will now be 5pm on 30 June 2011.

REASONS FOR DECISION

DECISION OF THE ENVIRONMENT COURT

Introduction

1 Pohutukawa Coast Community Association (‘the Association’) has filed two appeals with the Environment Court. Firstly, ENV-201 l-AKL-000125 on Proposed Plan Change 30 to the Manukau Operative District Plan 2002 in relation to Beachlands Village: New Avenues and secondly, ENV-201 l-AKL-000126 on Proposed Private Plan Change 30A to the Manukau Operative District Plan 2002 in relation to Beachlands Village Business Centre Zone

2 Six appeals in total have been lodged on Proposed Plan Change 30 and three appeals in total have been lodged on Proposed Plan Change 3 OA.

The Application

3 The Association on the 17 May 2011 applied to waive service of their notices of appeal on the majority of the submitters to both the Proposed Plan Changes.

4 They also sought directions;

“To place a front page advertisement in the Pohutukawa Coast Times advertising the appeals to the plan changes by the Pohutukawa Coast Community Association in lieu of posting a copy of the notice of appeal to the submitters in the Beachlands/Maraetai area. This publication is delivered to every single dwelling in the Beachlands/Maraetai area and the vast majority of submitters to the plan change were located in the Beachlands/Maraetai area. Submitters located outside the Beachlands/Maraetai area will be delivered by post.”

5 The advertisement would contain; the plan change number being appealed, the date of the appeals, that the Association is the appellant and that the notices of appeal can be requested by post, email, via their website or by phone.

6 The Association states in their final reply dated 1 June 2011, that they feel it is more than adequate to notify the community of the appeals against Plan Changes 30 and 30A by a front page advertisement in the Pohutukawa Coast Times.

7 Auckland Council (‘the Council’) through its lawyers indicates that they will abide the Courts decision on this matter. However, if the Court is minded to grant the waiver, the Council seek the following directions to be made;

(1) 30 copies of the appeals to be provided to them” to be made available at the Beachlands Village Library, the Botany Library and at the Auckland Council Customer Services Centres at Manukau and Flatbush and that the advertisement shall advise that the appeals are available at those locations, and

(2) That the Association shall provide copies of its appeals on their website.

8 Progressive Enterprises Limited (“Progressive”) has filed a memorandum dated 24 May 2011 with the Court opposing the Association's application. They submit that there are no exceptional or unusual circumstances that justify a waiver of the clear service requirements under the Act. 450-480 submitters are not unusual or exceptional and the costs associated with service are not sufficient to justify the waiver sought. 1

The Law

9 S281 governs waiver requirements under the Act. It states;

(1) A person may apply to the Environment Court to-

(a) waive a requirement of this Act or another Act or a regulation about-

…

(iii) the method of service; or

…

(v) the persons on whom anything shall be served; or

(b) give a direction about-

(1) the time...