Staufenberg Family Trust No. 2 v Queenstown LakesDistrict Council
Decision No.  NZEnvC 383
BEFORE THE ENVIRONMENT COURT
Environment Judge J R Jackson
In The Matter of the Resource Management Act 1991
In The Matter of an appeal under section 120 of the Act
FEINT AND OTHERS
J T Caunter for R and J Young Family Trust
J E Macdonald for the Queenstown Lakes District Council
W P Goldsmith for the Staufenberg Family Trust No. 2
K Feint for J A and M C Feint
Application by Council for leave to call evidence that was inconsistent with its own decision — applicant wished to establish go-kart facility — two s42A Resource Management Act 1991 (reports to local authority) reports were against the grant of consent — consent granted by commissioners at council hearing — council strategy committee resolved not to support the decision — council applied to call evidence from council officers to oppose decision — evidence was consistent with s42A reports — obiter remarks on legality of council's processes in terms of supporting its decisions — whether council could call evidence that was inconsistent with its decision — whether a local authority should be allowed on appeal to attack its decision on a consent application.
The issues were: whether the Council could call evidence that was inconsistent with its decision; and whether a local authority should be allowed on appeal to attack its decision on a consent application.
Held: In the context of appeals on plans, it was preferable that the Council should neither resile from its decision, nor call opposing evidence unless there was a good reason to do so. However different considerations applied to resource consent applications. Care was required before the Environment Court (“EC”) permitted a matter to proceed on a different basis that that put to the consent authority ( ). This was a discretionary issue, resolution of which depended on the circumstances. Four factors needed to be considered: fairness; a change in circumstances; public confidence in the process; and the integrity of the Act.
Fairness: fairness in this context meant procedural fairness. In this case it was achieved by the application for leave to call evidence being made in good time. The evidence would not be new as the applicant had received it prior to the first hearing. Fairness was a neutral factor; while it would not be unfair to allow the Council to call the evidence, there was no unfairness in disallowing it, as other parties could call it.
Change in circumstances: where an applicant had changed its position, the original decision was largely irrelevant. However the issue related to whether there had been a change in the application, and not merely a different expert opinion. There was no change in the application in this case. There was no new information that justified the Council's change of position and allowing it to resile from having granted consent (cf: ).
Public confidence: when a local authority made a decision, unless it was wrong at law, the public was entitled to believe that the decision would be supported (by the authority) before the EC. While it was preferable for the court to consider all relevant information when making its decision, that information could be presented by the appellants or by the s274 party.
Integrity of the Act: the integrity of the Act and of the district plan would be maintained if the proposed witnesses gave evidence, as the court would be better informed. However there was no matter of national importance raised in the proceedings and this was therefore a minor factor.
The most important factor was public confidence in the process. Section 290A RMA (court to have regard to decision that is subject of appeal) required that the court have regard to the commissioners’ decision. The appropriate weight might not be given if that decision was ignored or contradicted by the Council's witnesses. Public confidence in the process would be better maintained if the Council did not call evidence but instead supported the decision or abided by the decision of the court.
Obiter: The court had grave doubts whether the approach of the strategy committee, in resolving not to support the decision, was permissible under the RMA or the Local Government Act 2002. Of more concern was an apparent standard process for management of resource consent appeals, which included a recommendation by planning officers “as to whether the Council should support the decision” which the “strategy committee had delegated authority to decide…” However the legality of that issue was not for decision in this case.
Application for leave to call evidence refused.
A: Under section 279(1)(a) of the Resource Management Act 1991 the application by the Queenstown Lakes District Council to call evidence opposing the council's decision is refused.
B: Costs shall be reserved to be costs in the substantive proceeding.
The substantive proceedings under the Resource Management Act 1991 (“the Act” or “the RMA”) are appeals against the grant by the Queenstown Lakes District Council of a resource consent to R and J Young Family Trust (“the applicant”).
On 23 August 2011 the council filed an application for leave to call evidence accompanied by an affidavit in support from Ms J J Carter, a senior planner. The applicant wishes to prevent the council from calling that evidence.
The issue for me to determine is whether I should allow the council to call evidence which is inconsistent with its decision.
On about 22 September 2010 the applicant lodged with the council an application for resource consent to establish a commercial entertainment facility, supplying go-carts, bumper boats and ten pin bowling and an ancillary café, at the corner of Mount Barker Road and State Highway 6 near Wanaka. The site is on the opposite side of the highway from Wanaka Airport.
Before the hearing two experts employed by Lakes Environmental Limited prepared and served reports under section 42A of the RMA. They were 1:
• by Michelle Grinlinton-Hancock (a planner);
• by Andrew Norwood (a landscape architect).
Those reports were not in favour of the application for resource consent.
At the hearing before independent commissioners appointed by the council two experts produced those reports: Ms Grinlinton-Hancock gave her own, but the landscape report was produced 2 by Dr Marion Read, a senior landscape architect, because Mr Norwood has travelled overseas.
Despite the recommendations in the reports, the commissioners granted the application with conditions. Two sets of submitters, the Staufenberg Family Trust No. 2 (“the Staufenberg Trust”) and Mr and Mrs Feint, have appealed the decision.
On 19 July 2011 the “Strategy Committee” of the council met and resolved 3 (amongst other things) “That the decision of the Commissioners is not supported”. I have grave doubts as to whether that approach is permissible under the RMA (or under the Local Government Act 2002 for that matter). Of even more concern is that the council has, according to Ms Carter 4, a standard process for management of resource consent appeals which includes a recommendation by planning officers “… as to whether the Council should support the decision” 5 which the “Strategy Committee has delegated authority to decide …”. However, the legality of that process is not for me to decide.
The precise reason the council has applied to the Environment Court is that the council wishes to call evidence from council officers to oppose the decision made by the hearing commissioners. At the hearing before the court the council wishes to call evidence from Dr Read and from Ms Carter. Ms Carter is proposed to replace Ms Grinlinton-Hancock who has now also left the council's agent's employment. Counsel states 6 their evidence would be “consistent with” the section 42A reports.
After receiving the council's application the applicant filed a notice of opposition accompanied by an affidavit in support from Mr William Ross Young dated 31 August 2011. The applicant claims to have been significantly prejudiced by the council's change of position. Mr Young's affidavit shows that upon receiving notice from the appellants of their appeals, the applicant sought discussions with those parties 7. These steps were taken before the period for section 274 notices to be lodged had closed and before the respondent had made its decision on whether it would mediate. The applicant wished to explore concerns with the appellants and to try to settle the appeals if possible. The council's solicitors were made aware of this contact being made 8.
A meeting between the applicant and the Staufenberg Trust took place on 7 July 2011. Mr Young's evidence is that the discussion was helpful and good progress was made 9. It was agreed that the applicant would import a go-kart to allow the Staufenberg family to hear the noise...
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