Robinson v Waitakere City Council (no 13)
Decision No.  NZEnvC 314
BEFORE THE ENVIRONMENT COURT
Environment Judge J R Jackson
Environment Commissioner H-A McConachy
Environment Commissioner K A Edmonds
Environment Commissioner A J Sutherland
Venue: at Auckland
In the Matter of the Resource Management Act 1991
In the Matter of appeals pursuant to Clause 14 of the First Schedule to the Act relating to the Swanson Structure Plan
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
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.
Held: Section 294 RMA provided that where there had been a change in circumstances that might have affected the decision, the Environment Court (“EC”) had the power to order a rehearing of the proceeding on such terms and conditions as thought reasonable. The approach to the section focused on whether: there was new and important evidence or there had been a change in circumstances; whether that might have changed the decision and if yes to both whether the Court should exercise its discretion to order a rehearing. Factors relevant to the Court's discretion included: the purpose the RMA; public interest in finality of litigation; nature of the proceedings (appeal about resource consent of a plan); what the change of circumstances was, its scale and intensity and practical and legal effects.
A change in ownership by itself was not relevant beyond giving a person a right to appear; there must be an additional reason why the change of ownership might have made a difference. The change in ownership was irrelevant in respect of the subdivision allocation for O'Neills Road. The fact that neighbours had given permission for the subdivision some years ago was also irrelevant.
The Trust's application for a reahearing was simply a party trying to put forward a better case. That was insufficient to qualify as a change in circumstances or as new and important evidence. The jurisdictional preconditions for granting a hearing had not been made out in respect of O'Neil's Road and consequently a rehearing had to be denied.
The change in ownership to the Christian Road property was more fixed in its effect. The Trust now had a power to create a right of way over the O'Neills Road to give access to the flatter land at the end of the Christian Road property. At first sight that was a relevant change in circumstances because the access over O'Neills Road was much easier than recreating access down the steep gully immediately south to the drive to the existing house on Christian Road. Further the alternative access was not as close to the neighbours as the gully access. There was also new evidence regarding a crossing over a culvert on Christian Road which qualified as new and important evidence.
In the case of the Christian Road property, the Trust was trying to review an (apparently) wrong finding of fact made on the evidence on the earlier decision. That was not a relevant change in circumstances by itself but could be taken into account with the change in ownership.
The change in ownership meant that the Council could be sure that it was not wasting its time as a consent authority to grant subdivision consent of the land at Christian Road which required access by right of way over the O'Neills Road property. Further the EC's concern over creating a new crossing of the stream also appeared largely resolved. Therefore, two of the three reasons for refusing the subdivision were gone. Accordingly, the EC had jurisdiction to grant a rehearing. The proceedings were about a plan change. In such a case the Court was more likely to grant a rehearing because plan changes were not yet completed, intended to apply for for ten or more years and were very large in scale so that differentiating features could have been overlooked.
A rehearing was granted with regards to the Christian Road property on only the question of whether it should be allocated a subdivision opportunity.
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.
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.
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
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 …
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.
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.
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.
The application is made under section 294 of the RMA. That states...
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