Pukekohe Hiab Transport Ltd v Auckland Council

• Jurisdiction: New Zealand
• Court: Environment Court
• Judge: Environment Judge
• Judgment Date: 20 May 2013
• Neutral Citation: [2012] NZEnvC 96
• Date: 20 May 2013

[2012] NZEnvC 96

BEFORE THE ENVIRONMENT COURT

Court:

Environment Judge Harland

Environment Commissioner A Sutherland

Environment Commissioner A Leijnen

In the Matterof an appeal against an abatement notice under Section 325 of the Resource Management Act 1991 (the Act)

BETWEEN

Pukekohe Hiab Transport Limited (env-2012-akl-000089)

Appellant

and

Auckland Council

Respondent

and

Paul Leslie

Section 274 party

Appearances:

Mr D Rendall for the appellant

Mr McAuley and Mr Bangma for Auckland Council

Sir William Birch for Mr P Leslie

DECISION OF THE ENVIRONMENT COURT

REASONS FOR DECISION

Introduction

1 Pukekohe Hiab Limited appeals against two abatement notices issued by the Auckland Council (“the Council’) against its directors 1 on 26 April 2012 requiring its trucking business to cease operating from 185 Rogers Road, Pukekohe until such time as it has obtained resource consent. The company argues that it does not require resource consent to operate lawfully from the property, as it is a home occupation permitted under the District Plan and as well, it has existing use rights. The Council and Mr Leslie (a neighbour) disagree and ask the Court to dismiss the appeal and confirm the abatement notices.

2 An application for the stay of the abatement notices was filed shortly after the appeals were filed. The parties agreed on the terms of a stay that might be appropriate and on 14 June 2012 the Court granted the stay upon those terms. These terms remain in force and are now outlined:

• (a) only three trucks will be permitted to be parked on the site at any time;

• (b) all vehicle movements and activity associated with the business operation of the appellants is to occur between 0700 and 2200 hours, except that one truck associated with the residential activity on the site will be permitted to leave the site each day between the hours of 2200 and 0700;

• (c) minor maintenance of the trucks, such as washing and changing tyres, will be permitted in the yard;

• (d) The transferring of any load from any trucks in the yard is not permitted, apart from an average of one occasion every two weeks for each truck. The appellant is required to keep a record of when such loads are transferred for inspection by the Council if required.

3 The parties agreed that the issues we need to determine on appeal are:

• (a) Whether the trucking business is a home occupation within the definition of the relevant district plan/s; and

• (b) If it is, whether it qualifies as a permitted activity that does not require resource consent; but

• (c) If it is not a permitted home occupation, whether the business has existing use rights that enable it to operate from the site without resource consent.

4 The parties accepted that the appellant has the burden of proving that it complies with the provisions in the District Plan or that it has existing use rights 2.

5 At the outset we signal that we are not satisfied that the appellant has proved 3 that it has either existing use rights or that the trucking business operates as a permitted home occupation. The net result is that it will need to apply for resource consent. The reasons for that decision are outlined below.

What is the planning framework that applies?

6 The planning witnesses (Mr Phyn for the Council and Mr Vickers for the company) referred us to three operative 4 versions of the Auckland District Plan (Franklin Section) and the various definitions and rules in them that control home

7 occupations. They are:

• (a) the Franklin District Plan (“the ODP”) which became operative on 29 February 2000;

• (b) Plan Change 14 (“PC14”) the decisions version, which was notified (and thus had effect) on 30 September 2003; and

• (c) Plan Change 30 (“PC 30”) which was notified (and thus had effect) on 31 July 2012 and is also known as Variation 6 to PCM.

8 Both PC 14 and PC30 contain amendments to the ODP definition and rules relating to home occupations. Whilst both PC14 and PC30 remain subject to appeals on other aspects (and are therefore not fully operative plans in all respects), the parts of them relevant to this appeal are operative. The relevant provisions of PC14 were made operative in November 2010 and the relevant provisions of PC30 were made operative on 12 December 2012. As the abatement notices were issued on 26 April 2012, the definition and rules relating to home occupations in PC14 are most relevant 5, but we accept that the PC30 definition and rules are relevant and should be considered by us when exercising our overall discretion under s325(6) of the RMA. The provisions of the ODP must be considered by us when we evaluate the evidence in relation to the existing use argument.

The nature and operation of the trucking business from the site

9 The property at 185 Rodgers Road is zoned rural and comprises 1.34 hectares. It is situated on the comer of Waiuku Road, with the entrance to it from Rogers Road. Mr and Mrs Morris have their permanent home on the site from which the trucking business operates. As well, the property includes a large paddock that fronts, but does not have access onto, Waiuku Road. The part of the Leslie property comprising their home abuts this paddock behind vegetative screening. The screening has been planted by the Leslies and is on their property.

The company's evidence

10 The property was originally purchased in December 1998, 6 but the purchase was settled in early 1999. At the time Mr Morris was a self-employed truck driver operating one truck, and the property was purchased in part to meet this business need. Mr Morris told us that the property had previously been a piggery and as a result had a concreted area in the yard that he thought was suitable to be used as a turning bay for his truck. In 2002 Mr Morris went back to working as an employed truck driver, but would sometimes bring his employer's truck home overnight. After one and a half years of working for someone else, Mr Morris went back to being self-employed. In May 2005, the company was formed. Mr and Mrs Morris are listed as directors of and equal shareholders in it.

11 Over the years the trucking business has grown to the extent that the company now employs six staff in addition to Mr and Mrs Morris, and it owns and operates three trucks from the site and has three other refrigerated trucks that are operated under contract to Foodstuffs.

12 The first of the refrigerated trucks was purchased two years ago. The refrigerated trucks are based at the Foodstuffs depot at Manukau where they are loaded overnight. We were told that the contractual arrangements with Foodstuffs require this to be the case, as the trucks need to be plugged in to the power overnight. Occasionally when Mr Morris is required to fill in for one of the drivers, one of the refrigerated trucks may be parked at the property overnight.

13 A summary of the equipment and personnel operating on the site is set out below:

• • the “Blue Classic” (an International truck sometimes referred to as a tractor unit);

• •2 trucks ( 16 and 17 tonne), one with a front mounted and one with a rear mounted crane arrangement; 7

• • an assortment of truck trailers e.g. two big trailers and two smaller trailers — including a B-train trailer which can carry 27 tonne and a 13 metre one which was described to us as a “trombone” as it extends out to 20 metres long to carry long loads; 8

• • a Pilot vehicle; 9

• • a Forklift which operates on the property — generally used for assisting in rearranging truck setup; 10

• • two people living on site (Mr and Mrs Morris) are employed in the business and three additional staff work from this site (an administrator and two drivers). Drivers associated with the refrigerated trucks visit from time to time, but are not based on the site.

14 A large shed was constructed on the site in 2009 and two containers used for storage are also situated there. A portacom office building was moved onto the site about 2 years ago but has recently been removed for economic reasons. The office which was accommodated in the portacom has been transferred into the large shed.

15 Mr Morris has a background as a motor vehicle mechanic and he told us that the containers are used to store cars, motorbikes and boats that family members own and work on in their spare time. Mr Morris told us that he had restored a pickup truck and hoped to do the same with the Blue Classic truck which the company currently uses. Mr Morris maintained that there is no heavy equipment on site for working on trucks, and no significant repairs to work vehicles are undertaken at the property.

16 Mr Morris also told us that customers do not drop goods off at the site and that the business does not store goods in the yard. He did accept that on one occasion “there'd be a couple of portacoms that we put on the ground”11 meaning that the portacom was taken off one truck, placed on the ground in the yard and then hoisted onto another truck later. Mr Morris also accepted that the fork hoist used in the past was “rickety” and that the new fork hoist was “a lot quieter.”

Mr Leslie's evidence

17 Mr and Mrs Leslie purchased their property in April 2003. Since then they have had two daughters (now aged 5 and 7), who now both attend school. Over the last five years, Mr Leslie has been the primary caregiver for the children at home 12 where he also operates what he described as “a small hobby plant nursery.” Mr Leslie was concerned about the noise, vibration, dust and fumes that he said emanated from the trucking business. On our site visit we saw that the master bedroom, a...