Robinson v Waitakere City Council (no 13)

JurisdictionNew Zealand
JudgeJudge J R Jackson,H-A McConachy,K A Edmonds,A J Sutherland
Judgment Date16 September 2010
Neutral Citation[2010] NZEnvC 314
CourtEnvironment Court
Docket Number(ENV-2006-AKL-4) (ENV-2006-AKL-8) (ENV-2006-AKL-12) (ENV-2006-AKL-15) (ENV-2006-AKL-2) (ENV-2006-AKL-3) (ENV-2006-AKL-5) (ENV-2006-AKL-6) (ENV-2006-AKL-9) (ENV-2006-AKL-10) (ENV-2006-AKL-11) (ENV-2006-AKL-14) (ENV-2006-AKL-16) (ENV-2006-AKL-13)
Date16 September 2010

In the Matter of the Resource Management Act 1991

and

In the Matter of appeals pursuant to Clause 14 of the First Schedule to the Act relating to the Swanson Structure Plan

Between
P and J Robinson

and

T Heskell

and

M and C Simpson

and

S Furneaux

and

S Sherratt

and

W Boswell

and

E De Lange

and

P Heimel

and

J Berry, and M and R Reid

and

Waitakere Ranges Protection Society Incorporated

and

M and A Yozin

and

S James and J Lovell

and

Auckland Regional Council

and

G Loos

and

T Jenkin
Appellants
and
Waitakere City Council
Respondent

Decision No. [2010] NZEnvC 314

Court:

Environment Judge J R Jackson

Environment Commissioner H-A McConachy

Environment Commissioner K A Edmonds

Environment Commissioner A J Sutherland

Venue: at Auckland

(ENV-2006-AKL-4)

(ENV-2006-AKL-7)

(ENV-2006-AKL-8)

(ENV-2006-AKL-12)

(ENV-2006-AKL-15)

(ENV-2006-AKL-2)

(ENV-2006-AKL-3)

(ENV-2006-AKL-5)

(ENV-2006-AKL-6)

(ENV-2006-AKL-9)

(ENV-2006-AKL-10)

(ENV-2006-AKL-11)

(ENV-2006-AKL-14)

(ENV-2006-AKL-16)

(ENV-2006-AKL-13)

BEFORE THE ENVIRONMENT COURT

Application for a rehearing under s294 Resource Management Act 1991 (review of decision by Court) of an appeal regarding refusal to grant subdivision permission for two properties — subdivision declined on basis of adverse effects on amenities of neighbours and environment — subdivision consents related to plan changes — at the time of the decision the properties were separately owned but were now owned by the same trust — whether the change in ownership constituted a change in circumstances.

Appearances:

R Law for the Nixon Family Trust

J D Young for the Auckland Regional Council

J Caunter for Preserve the Swanson Foothills Society Incorporated and for Mr C Tucker (a section 274 party)

H Ash and C Faesenkloet for the Waitakere City Council

THIRTEENTH DECISION

A: Under section 294 of the RMA, the Nixon Family Trust is granted a rehearing of the proceedings in respect only of the property at 42 Christian Road.

B: The application for a rehearing is refused in respect of the property at 57–61 O'Neills Road.

C: Costs are reserved to be costs in the substantive proceeding.

REASONS

Introduction
1

This decision is about whether or not to grant an application under section 294 of the Resource Management Act 1991 (“the RMA” or “the Act”) for a rehearing of the appeals in respect of two properties – 42 Christian Road and 57–61 O'Neills Road – within the Swanson area of Waitakere City.

2

In the Eighth Decision 1 in these long-running proceedings the court allocated no subdivision opportunity under the proposed Swanson Structure Plan for this part of the “Foothills Environment” 2 to either property. It described the properties and outcomes as follows:

42 Christian Road: 5.4593 ha, one dwelling, no building;

Outcome: 1 lot (i.e. no increase). 3

57 O'Neills Road: 2.8894 ha, one dwelling, no building, no MHU

Outcome: 1 lot (i.e. no increase). 4

3

Of 42 Christian Road the court wrote in the Eighth Decision 5 that:

Access to any second lot appears to be a significant issue. The existing house is on a narrow ridge, so that any drive past it to a new house site further down the property would detract significantly from its amenities. Alternative access (from Christian Road) would involve forming a new accessway into the gully south of the house. That would have potentially three sets of adverse effects:

  • (a) earthworks in the head of a steep gully;

  • (b) possible adverse effects on any native plants in the gully;

  • (c) noise, reduction of privacy, and potential adverse effects on its foreground views for the neighbouring property at 44 Christian Road since that looks into the gully.

A third option would be access from O'Neills Road but that would need both a longish access over a third party's property and a crossing of Blewitt Stream which the policies tell us is undesirable.

Consequently the judgment in respect of this property was that further subdivision and consequential residential development was inappropriate 6:

… because of the adverse effects on the amenities of the neighbours, and/or adverse effects on the stream ecology, together with the potential accumulative effects of other subdivision and development opportunities …

4

The court also decided that a subdivision opportunity for 57 O'Neills Road was inappropriate because 7 of its important pastoral qualities and the desire for those to be maintained, and because of the court's concern with accumulative effects.

5

At the time of the hearing and decision the two properties were separately owned, and the owners were separately represented. The owner of 57–61 O'Neills Road was represented by senior counsel. In contrast, the owner of 42 Christian Road was represented by Mr Law, a legal layperson albeit one with a very wide knowledge of the issues of the Swanson and adjacent Birdwood areas. Both properties are now owned by the Nixon Family Trust (“NFT”) which continues to be represented by Mr Law.

6

The NFT has applied for a rehearing in respect of both properties on the grounds there have been changes of circumstances. The principal change is that because the NFT is now the owner of both properties, access to 42 Christian Road can be resolved in a satisfactory, definite way by creating and forming a right of way over 57 O'Neills Road. Secondly, Mr Nixon has given evidence that on 42 Christian Road there is a formed access over Blewitt Stream and that that access passes through a culvert so no new crossing needs to be built if access to this property is to come from O'Neills Road.

Section 294 and the authorities on it
7

The application is made under section 294 of the RMA. That states (relevantly):

294 Review of decision by Environment Court

  • (1) Where, after any decision has been given by the Environment Court new and important evidence becomes available or there has been a change in circumstances that in either case might have affected the decision, the Environment Court shall have power to order a rehearing of the proceedings on such terms and conditions as it thinks reasonable.

  • (2) …

The older cases
8

Section 294(1) of the RMA is in identical terms to section 160 of the Town and Country Planning Act 1977, and indeed the key wording was also found in section 42(5) of the Town and Country Planning Act 1953. Of that last, Turner SM said in Petone Borough v Lower Hutt City Council 8:

In the interpretation of … section [42(5) of the 1953 Act] the Board is concerned to impart to the words therein contained a ‘fair large and liberal’ interpretation to ensure that no injustice or wrong shall be done through inability to bring to the Board new and important evidence or changes of circumstances which could have, if known at the time, affected any decision.

In that case the Board was not contemplating a post-hearing change in circumstances.

9

In another case under the 1953 Act, Johns v Wellington City Council 9, the Special Town and Country Planning Appeal Board – referring to the previous decisions of the Petone Borough v Lower Hutt City 10 and City Construction Limited v Auckland City 11 – wrote:

The purpose of s.42(5) is to ensure that no injustice or wrong is done through the inability to bring to the Board, new and important evidence, or changes of circumstances which could have affected the decision. But the provision is not to be used to obtain a rehearing because of omissions in the original hearing.

10

With the addition of the words “environmental damage” to the phrase “… injustice or wrong” we consider that sentence could usefully summarise the purpose and application of section 294 of the RMA also. We also note that in an early case under the Town and Country Planning Act 1977 the Number Three Division of the Planning Tribunal – Meadow Mushrooms Limited v Paparua County Council 12 approved and applied the statement in Johns v Wellington City Council.

11

In another case under the 1953 re An Application by Allied Farmers Co-operative Limited 13 – the Number One Town and Country Planning Appeal Board observed that:

… in respect of planning applications changes of circumstances could include either or both of the following:

  • (a) physical changes in the neighbourhood; and

  • (b) changes in the personal circumstances of the applicant;

so that the terms of the original order are rendered inappropriate.

One of the changes relied on in that case was that after the initial decision, a third party, Allied Farmers Co-operative Limited, had acquired the property (which was subject to the planning consent) from the receivers of the original applicant, JBL. The Board held that Allied Farmers could step into the shoes of the former owner. This was affirmed by the Supreme Court in Dodds v Auckland City Corporation 14. Wild CJ wrote 12:

The third question posed by the appellants is whether the board was right in law in holding on the evidence that there was a change of circumstances such as to entitle it to make a review. This again seems to be a challenge to the board's exercise of its discretion rather than a question of law. In its context the phrase “change of circumstances” must be accorded a wide meaning and I

think that it was clearly competent for the board to decide that the passing of JBL into receivership, the consequential frustration of its plans, the sale to Allied Farmers and that company's modified scheme together amounted to a change of circumstances that might have affected the decision and that justified a review.
12

In an appeal to the High Court under the Town and Country Planning Act 1977 against a refusal by Judge Treadwell to grant a rehearing under section 160 of that Act – Donald v Wellington City Council 16 – Greig J quoted the passages from Petone Borough 17 and Allied Farmers 18 with apparent approval. He went on to decide that Judge Treadwell had applied the wrong test when he asked whether the changed circumstances “would”...

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4 cases
  • Skp Incorporated v Auckland Council
    • New Zealand
    • High Court
    • 19 Junio 2020
    ...that the mandate dispute was a steady state situation and not a determining factor. 8 Robinson v Waitakere City Council (No 13) [2010] NZEnvC 314, (2010) 16 ELRNZ 245 at The Environment Court’s conclusions refusing a rehearing in relation to coastal processes/climate change and traffic issu......
  • Skp Incorporated v Auckland Council
    • New Zealand
    • Court of Appeal
    • 2 Diciembre 2020
    ...by the Environment Court of the adverse effects of the proposal on Ngāti Paoa iwi; and 11 Robinson v Waitakere City Council (No 13) [2010] NZEnvC 314, (2010) 16 ELRNZ 245 at this would perpetuate the harm to Ngāti Paoa of the Council’s earlier decision to refuse to recognise the Trust Board......
  • Skp Incorporated v Auckland Council
    • New Zealand
    • Supreme Court
    • 27 Abril 2021
    ...of the High Court after the Court of Appeal had declined leave to appeal. 14 15 16 17 See Robinson v Waitakere City Council (No 13) [2010] NZEnvC 314, (2010) 16 ELRNZ 245 at KPBL also opposes the application for an extension of time. Senior Courts Act 2016, s 75. Burke v Western Bay of Plen......
  • Skp Incorporated v Auckland Council
    • New Zealand
    • Supreme Court
    • 27 Abril 2021
    ...of the High Court after the Court of Appeal had declined leave to appeal. 14 15 16 17 See Robinson v Waitakere City Council (No 13) [2010] NZEnvC 314, (2010) 16 ELRNZ 245 at KPBL also opposes the application for an extension of time. Senior Courts Act 2016, s 75. Burke v Western Bay of Plen......

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