Ronald Rae Goodwin v The Auckland Council

JurisdictionNew Zealand
CourtEnvironment Court
JudgeC J Thompson,Principal Environment Judge
Judgment Date20 Jan 2011
Neutral Citation[2011] NZEnvC 7
Docket NumberENV-2010-AKL-233 (previously. A 0118/04)

[2011] NZEnvC 7

BEFORE THE ENVIRONMENT COURT

Court:

Principal Environment Judge C J Thompson

Environment Commissioner R M Dunlop

Environment Commissioner K A Edmonds

ENV-2010-AKL-233 (previously. A 0118/04)

In the Matter of an appeal under s120 of the Resource Management Act 1991

BETWWEN
Ronald Rae Goodwin
Appellant
and
The Auckland Council (Previously the Rodney District Council)
Respondent
Counsel:

D Low for the Appellant

M Nacey for the Respondent

Final decision of conditions of consent — appellant granted consent to construct a second dwelling on his property in 2005 — respondent sought financial contributions under s108(1) Resource Management Act 1991 (conditions of resource consents) — District Plan provided for assessment of financial contributions at current market values — whether rules applying to a proposal should be those at the time the application was lodged — resource consent granted before conditions finalised.

The issue was whether the financial contribution should be assessed at the time of the application or the time of completion.

Held: The Council's processes had clearly been lacking, arguably in issuing a building consent when the resource consent process had not been completed in the first place. However, it was the responsibility of the applicant/appellant to ensure that he had the appropriate resource consent. If G had concerns about the draft conditions proposed by the Council then he should have brought the matter back to the Court; it was not sufficient to ignore the Court's directive and proceed with the activity as though he had an operative consent.

The Council's position with regard to the financial contributions had been made clear to G in numerous communications prior to the Certificate of Compliance being issued in 2007, notwithstanding the disagreement as to the total amount due. G had merely assumed the cost of the financial contributions estimated in 2005 would not be increased. As G had elected to proceed without a resource consent he could hardly complain that the consent and the reserve contribution were to be determined on the basis of contemporary values. The Council's approach had generally been consistent with the approach in r22.8.3.1(b) of the Plan.

Conditions proposed by the Council were confirmed.

FINAL DECISION ON CONDITIONS OF CONSENT
Background
1

In our decision of 29 June 2005 (A107/2005) we upheld Mr Goodwin's appeal against the Rodney District Council's (RDC) decision to decline consent for a second dwelling at 116 Brightside Road, Stanmore Bay, Whangaparaoa Peninsula. We said that there may be issues about appropriate conditions and asked the parties to confer and advise the Court by 22 July 2005 what, if any, conditions should attach to the consent, That did not occur.

2

The RDC (now Auckland City Council) advised that its records show that draft conditions were circulated but that the parties disagreed about them, notably the amount of neighbourhood reserves contribution payable as part of the total financial contribution. The discussions did not result in conditions being forwarded to the Court.

3

Nonetheless the RDC granted a Certificate of Compliance under the Building Act 2004 for the second dwelling on the property on 10 January 2007.

4

On 14 September 2010 the RDC confirmed that the Court had yet to finalise its decision on the matter of conditions. The Court directed dates for the parties to file submissions, with the matter to be determined on the papers.

5

The Council and appellant both filed submissions regarding the final conditions of consent. Mr Goodwin filed an affidavit. There were also affidavits from Edward David Wren, an independent planning and resource management advisor, who gave evidence at the hearing of the appeal, and from Paul Howes, Team Leader, Development Engineers at the RDC.

6

Given the second dwelling is now constructed, the Council is only seeking financial contribution conditions. Mr Goodwin objects to the Council's proposed conditions for financial contributions.

Draft Financial Contribution Conditions
7

We were provided with a copy of the draft conditions of consent circulated in July/August 2005 (both the original and as slightly amended on 8 August to correct an error).

8

A fax dated 28 July 2005 from Mr Casey QC, who was acting for Mr Goodwin at that time, states:

Neighbourhood reserves contribution. It is unreasonable that Mr Goodwin should be assessed on the land value of the whole site, when there is an existing dwelling already on the site. His contribution should be one half of the amount shown.

It concludes by referring to looking forward to a revised set of conditions.

9

Mr Wren then wrote back to Mr Casey on 8 August 2005 advising that:

(c) The consent is for the erection of a household unit. This will create an additional demand on reserves. The developmentis in Stamnore Bay on Whangaparaoa, The calculation is based on the cost of providing 12 square metres of land, at the $$/square metre value of the subject site, for each person in one dwelling, at an average dwelling occupancy of 2.6 persons on the Whangaparaoa Peninsula. The formula and all other criteria are contained in Operative Plan Change 62 which can be viewed on www.rodney.govt.nz.

It concludes by trusting the explanation is sufficient so that the conditions can be reported back to the Court,

10

No further action was taken on the matter of conditions.

The Council's Position
11

The Council asked Mr Wren and Mr Howes to review the draft conditions of consent circulated in July/August 2005 and determine the conditions still relevant to the exercise of the resource consent. Both Mr Wren and Mr Howes recommend a condition requiring payment of a financial contribution remains an appropriate condition to be attached to the consent.

12

Mr Howes updated the conditions and reassessed the schedule prepared and dated 14 July 2005. As at that date, the total financial contributions (including roading, sewerage, stormwater, sportsfields and community facilities) were $18,341.11 (inc GST). The neighbourhood reserve contribution component was valued at $6,618.61.

13

Mr Howes said that the adjusted total is currently calculated to be $27,013.31, with the neighbourhood reserves contribution calculated at $10,034.67. He explains that the reason for the difference is because he calculated contributions based on the current household unit contributions. He states that the draft condition is the standard one, with the timing of payment modified to reflect the completion of the dwelling. Mr Howes suggests Mr Goodwin be given three months from the date of the Court order to pay the financial contribution.

14

Mr Howes also noted that when the parties discussed the draft consent conditions in 2005, a financial contribution for water was not included. This was because it was up to Mr Goodwin whether to connect the new dwelling to the water supply or not, and to then request the Council to provide a new connection for the additional dwelling. He said that the site has one connection and it would appear that both sites have small water tanks, although it is unclear if they are for potable water or stormwater attenuation. He said that for this reason there is no water supply contribution identified and considered it appropriate to draw the appellants' attention to this through an Advice Note, as follows:

Advice Note — Payment for water supply

The site is within the Extraordinary Supply Area of the *Water Supply Area. Should the owner wish to connect to the public supply, application should be made directly to the Manager Water Services for the Terms and Conditions.

Mr Goodwin did not contest the inclusion of such an Advice Note.

15

Mr Wren gave evidence that the financial contribution conditions are reasonable and formulated in accordance with the relevant district plan provisions. He said that the appellant is incorrect in seeking that the amount of the reserve contribution be reduced by half in respect of the value of the land. That is because the consent granted is for the erection of a household unit which will create an additional demand for services.

16

At the time of the appeal hearing, operative Plan Change 62 of the Operative District Plan provided that a financial contribution may be payable in accordance with a condition of a resource consent by every person who intends to erect one or...

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