Staufenberg Family Trust No. 2 v Queenstown LakesDistrict Council
| Jurisdiction | New Zealand |
| Judge | J R Jackson |
| Judgment Date | 05 December 2011 |
| Neutral Citation | [2011] NZEnvC 383 |
| Date | 05 December 2011 |
| Court | Environment Court |
In The Matter of the Resource Management Act 1991
and
In The Matter of an appeal under section 120 of the Act
(ENV-2011-CHC-43)
FEINT AND OTHERS
(ENV-2011-CHC-47)
and
Decision No. [2011] NZEnvC 383
Environment Judge J R Jackson
BEFORE THE ENVIRONMENT COURT
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.
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
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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.
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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:
Those reports were not in favour of the application for resource consent.
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• by Michelle Grinlinton-Hancock (a planner);
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• by Andrew Norwood (a landscape architect).
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 effect of the go-karts for themselves. The go-kart was shipped from the United Kingdom for that purpose but the Staufenberg Trust has refused to mediate further. Mr Young claims 10 that the applicant's settlement discussions with the Staufenberg Trust have been adversely influenced by the council's change of position and its refusal to mediate. While the Staufenberg Trust has not challenged that evidence, I note that Mr Young acknowledges 11 that he received notice of the council's decision to not support the hearing commissioners' decision (on 19 July 2011) before he ordered the go-kart (on or after 1 August 2011).
A prehearing conference was held on 5 September 2011 in Queenstown and the parties agreed to have this preliminary matter decided on the papers. An agreed timetable to lodge submissions was directed. Submissions were duly received from the council, the Staufenberg Trust, Mr and Mrs Feint and the applicant.
It is a regular practice in the Environment Court for a council to call evidence from external consultants to support a council decision if that decision had gone against the recommendations of council staff. That is an option open to the respondent here. Instead it is seeking to call evidence opposing its own decision, and the issue for me now is whether the council should be allowed to do so. A related question is whether a local authority should be allowed, on an appeal, to attack its decision on a resource consent application.
In the context of appeals on new plans the Environment Court has held that it is preferable for a council neither to resile from its decision nor to call opposing evidence unless there is good reason to do so: Canterbury Regional Council v Christchurch City Council 12. I also pointed out there that different considerations apply on a resource consent appeal 13.
In Penman v North Shore City Council 14 the Planning Tribunal pointed out that:
… a Council is bound by the terms of a resolution passed following the hearing of an application. It cannot later change that decision. … Its officers and planners are under no such restraint and may change their views … if evidence given at the council hearing, intervening events or further reflection justifies such a change.
In Chan v Auckland City Council 15 it was the council which changed its mind, and wanted to call a new witness. In those circumstances the Planning Tribunal refused to allow the new witness to be called on the ground that 16:
Such a precedent would allow councils on any appeals, through their officials to change their minds (that is the council's mind) without public notification … Such an approach would bring into disrepute the whole planning process …
In Mainframe Limited v Queenstown Lakes District Council 17 the council granted consent to an applicant for land use consent to erect a house on Crown Terrace southeast of Arrowtown. The council gave notice to the parties that it was not going to defend its position and that it intended to call the authors of the council's section 42A reports (both against consent) opposing the application. Rather understandably, the applicant for resource consent objected to the council's proposal. Because there was an allegation that the proposed house site was in an outstanding natural landscape 18 and therefore a matter of national importance 19 potentially involved and which the majority's decision had not recognised I allowed the council to call evidence.
Mead v Queenstown Lakes District Council 20 is the only decision I was referred to which post-dates the coming into force of section 290A of the RMA. That provision requires that the Environment Court, when determining an appeal, “… must have regard to the decision that is the subject of the application or inquiry”. It means that the court should consider whether to give the first instance decision some weight.
In Mead v Queenstown Lakes District Council 21 the appellant had been declined a resource consent to subdivide land at Dingleburn Station near Lake Hawea. After he appealed he amended his proposal. In view of the changed application the council changed its position and applied to the court...
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