AOKAUTERE LAND HOLDINGS LTD v PALMERSTON NORTH CITY COUNCIL [2022] NZHC 453 [14 March 2022]

AOKAUTERE LAND HOLDINGS LTD v PALMERSTON NORTH CITY COUNCIL [2022] NZHC 453[14 March 2022]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECIV-2021-485-510[2022] NZHC 453IN THE MATTER of an appeal against Environment CourtDecision [2021] NZEnvC 122BETWEEN AOKAUTERE LAND HOLDINGSLIMITEDAppellantAND PALMERSTON NORTH CITY COUNCILRespondentHearing: 2 March 2022Counsel: G J Woollaston for AppellantN Jessen for RespondentJudgment: 14 March 2022JUDGMENT OF SIMON FRANCE JIntroduction[1] The appellant, Aokautere Holdings Ltd, applied for a subdivision resourceconsent. Subsequently, pursuant to s 168A of the Resource Management Act 1999(the Act), the Palmerston North City Council issued a Notice of Requirement (NOR).This is a notice that a territorial authority wishes or intends to designate land for apublic work. The proposed public work would use much of the subdivision land for aroad. The two proposals are accepted by everyone to be incompatible – both cannothappen.[2] The NOR was referred to an independent commissioner for determinationunder s 168A. Prior to completion of that process, the subdivision consent applicationcame up for hearing. I am advised the Council suggested to Aokautere Land HoldingsLtd the consent application be deferred, but this was not agreed to.[3] At issue before the Hearings Committee of the Council,1 then the EnvironmentCourt by way of an application for a declaration,2 and then this Court by way of thisappeal against an alleged error of law,3 is the relevance of the existence of the NOR tothe resource consent determination. The position of Aokautere Land Holdings Ltd isthat the NOR must be ignored and the consent considered in the normal way. TheHearings Panel did not agree, nor did the Environment Court. The EnvironmentCourt's holdings are:(a) the presence of a NOR is not an impediment to proceeding with theresource consent application;4(b) the presence of a NOR can be a relevant "other matter" to be consideredunder s 104(1)(c) of the Act when determining the application;5(c) if the conclusion of the Hearings Panel is that the NOR is a matter theconsideration of which is "relevant and reasonably necessary" todetermining the application, then the opening words of s 104 then makeit a mandatory consideration;6 and(d) the weight to be attached to the NOR is a matter for the decision maker.7[4] No one contests the correctness of the first point which need not be furtherconsidered. Aokautere Land Holdings Ltd contests that the NOR is or can be a"relevant and reasonably necessary" matter to consider in relation to the consenthearing. It submits that the NOR procedure is a discrete self-contained process. TheNOR procedure contains its own safeguards, and is a notice of intended designation1 Decision dated 8 May 2020.2 Aokautere Land Holdings Ltd v Palmerston North City Council [2021] NZEnvC 122. Thedeclaration procedure is found at s 311 of the Act.3 Resource Management Act 1991, s 299. The appeal power is limited to questions of law.4 Aokautere Land Holdings Ltd, above n 2, at [17].5 At [15]6 At [15].7 At [17].which may never occur. It should not impact the workings of the Act. If consent isgranted, the NOR provisions contain their own limits on what may be done to any landsubject to a NOR.Validity of appeal[5] I accept the issue of whether a NOR can ever be an "other matter" unders 104(1)(c) of the Act is a question of law.[6] Mr Woollaston submits the Environment Court further erred in appearing toendorse the weight which the Council placed on the existence of the NOR in this case.I do not consider that to be a question of law. Further, it was an obiter comment bythe Court based on a contestable assessment by the Court of the weight which theHearings Panel had given the NOR. To engage with the inquiry would be to confer aright of general appeal where none exists.[7] A secondary issue is the ongoing utility of this appeal. The NOR in questionwas withdrawn, amended by the Council in a minor way, and then reissued. It hasnow been confirmed. Aokautere Land Holdings Ltd has filed an appeal against thatdecision which is limited in scope. The reality is that there is now a designation whichwill soon be part of the Plan, there is no appeal against the original subdivisiondecision, and any renewed subdivision application will need to contend with adesignation and will not be affected by a NOR.[8] I am far from convinced about any general public interest in this proceeding.It seems not to be a matter to have arisen previously, presumably because pragmatisminevitably wins the day. However, having heard from counsel, I will proceed to issuewhat can be relatively brief reasons which agree with the conclusion of the specialistCourt.Reasons[9] Three provisions are relevant:[10] Section 104 of the Act concerns the determination of a resource consentapplication. The relevant parts for present purposes provide:104 Consideration of applications(1) When considering an application for a resource consent and anysubmissions received, the consent authority must, subject to Part 2 andsection 77M, have regard to—(a) any actual and potential effects on the environment of allowingthe activity; and(ab) any measure proposed or agreed to by the applicant for thepurpose of ensuring positive effects on the environment tooffset or compensate for any adverse effects on the environmentthat will or may result from allowing the activity; and(b) any relevant provisions of—(i) a national environmental standard:(ii) other regulations:(iii) a national policy statement:(iv) a New Zealand coastal policy statement:(v) a regional policy statement or proposed regional policystatement;(vi) a plan or proposed plan; and(c) any other matter the consent authority considers relevant andreasonably necessary to determine the application.At issue is whether a NOR fits within "any other matter" in subs (c).[11] Sections 168A and 178 are relevant to the NOR. There are two NOR issuingprovisions. Section 168A applies when a territorial authority itself wants thedesignation. Section 168 covers the situation where any other approved entity wishesto designate land. Section 168A applied here because it was the Council that wishedto extend an existing road across the subdivision land to join another existing road.[12] Section 178 provides that until the designation to which the NOR relates isincluded in the District Plan or is otherwise withdrawn or cancelled: no person may do anything that would prevent or hinder the public work,project, or work to which the designation relates unless the person has theprior written consent of the requiring authority.[13] It is this provision that Mr Woollaston relies on as providing the necessarysafeguards, and thereby making the existence of a NOR irrelevant to the consentapplication. The proposition is that there is efficiency in this approach. With asubdivision there is much to be done other than the actual impeding earthworks, andthe issuing of the consent can allow a developer to proceed with reports, promotionand financing. It is emphasised that a NOR creates a transitional status which may noteventuate into a designation. Section 178 adequately protects the proposed work butneed not impede parallel processes.[14] An aspect of this approach is that it places responsibility on the consent holderto comply with s 178. The concept of "hinder" a work is not precise and there isobvious scope for dispute. Of this potential situation the specialist Court in thedecision under appeal observed:8 the proposition that a consent authority might rely on voluntary forbearanceby a consent holder is so highly problematic as to be irresponsible.It is appropriate for this Court to recognise the experience underlying the observation.[15] More generally, one is left with the simple question as to why the legislationwould require a consenting authority to ignore a status, transitional or otherwise, thatapplies to the land it is considering. There is no sound policy reason. It is to beemphasised that what the Environment Court does is confirm the NOR is somethingthat can be, and if relevant should be, considered in the mix. The extent to which itinfluences matters will no doubt be influenced by the extent to which there is anincompatibility. In some cases the inter-relationship may be minor such as to bereadily managed. Here it was at the other end of the spectrum, leading the HearingPanel to view the NOR as a complete impediment.[16] The concept of the NOR being transitional should not be overstated. Arequiring authority has indicated that it wants a designation over the land. It is a formal8 Aokautere Land Holdings Ltd, above n 2, at [16].step that initiates a process and applies a hold to contrary works until confirmed (orwithdrawn). How likely it is that the designation occurs will no doubt be influencedby the scope of the work, but I do not accept the idea of transitional provides a reasonto ignore it all together. Again, as noted, these are matters that can be considered.[17] The appellant's proposition gives too little weight to the first finding of theEnvironment Court which is that a NOR does not prevent a consent applicationprogressing. In my view, that is the key conclusion. The Court's second finding thatthe NOR will be relevant to the extent it appears to the consenting authority to be so,having considered its relationship to the consent applications, seems somewhatinevitable and obvious.[18] Other matters were raised but I consider the reasons given adequately respondto the appellant's case and explain why, as in the Environment Court, it is not accepted.It is counter-intuitive to suggest that a proposed designation over land which is thesubject of a resource consent hearing must be ignored. There is nothing in the schemeor language of the legislation to require such a counter-intuitive approach. Thedecision of the Environment Court confirms an orthodox position – the NOR can andshould be considered to the extent it is relevant to the specific nature of the consentapplication being determined.[19] The appeal is dismissed. Costs memoranda may be filed, but that should beunnecessary.___________________Simon France JSolicitors:Dewhirst Law, Palmerston North for AppellantCooper Rapley Lawyers, Palmerston North for Respondent