GILLIES WAIHEKE LIMITED And Ors V THE AUCKLAND CITY COUNCIL CA CA284/03

GILLIES WAIHEKE LIMITED And Ors V THE AUCKLAND CITY COUNCIL CA CA284/03 25 March 2004IN THE COURT OF APPEAL OF NEW ZEALAND CA284/03 CA285/03 CA286/03 GILLIES WAIHEKE LIMITED GRAEME ROSS PENDERGRAST DALLAS OLIVE PENDERGRASTvTHE AUCKLAND CITY COUNCILHearing: 8 March 2004 Coram: McGrath J Hammond J O'Regan J Appearances: R B Brabant and P J Dale for the Appellants S J Bonnar for the Auckland City Council Judgment: 25 March 2004JUDGMENT OF THE COURT DELIVERED BY HAMMOND J Introduction[1] The appellants were charged with undertaking earthworks during the construction of a house on land at Waiheke Island contrary to a rule in the Auckland City Council's district plan, such work not having been expressly allowed by a resource consent.[2] Gillies Waiheke Ltd, the first appellant, is the owner of the land. The second and third appellants are directors of the first appellant. They were found to be responsible in their capacity as holders of a resource consent in relation to the subject property. [3] The relevant rule in the district plan provided that earthworks in excess of 20 m 3 were not permitted without resource consent for a discretionary activity. The appellants' proposed design required significantly more earthworks to be undertaken. In fact earthworks of some 2,300 m3 were eventually undertaken on the site. The appellants' defence was that the particular resource consent granted in respect of the development authorised the earthworks that were in fact undertaken. [4] In the result, convictions were entered against all the appellants by McElrea DCJ in the District Court at Auckland on 14 December 2001. Randerson J dismissed an appeal from that judgment on 20 December 2002. [5] On 18 July 2003 Randerson J gave leave to appeal to this Court on certain questions of law said to arise from his decision. These were as follows:A. In convicting the appellants under s9(1) of the Resource Management Act 1991 (the Act), did the District Court err in law in concluding that on the true construction of the resource consent granted to the appellants, the reference to 765 m3 in the plan accompanying the application for resource consent had the effect of limiting in the circumstances the extent of earthworks expressly allowed by the resource consent for the purposes of s9(1) of the Act to 765 m3? B. Did the District Court err in law in concluding that earthworks of not less than 2300 m3 were not expressly allowed by the resource consent for the purposes of s9(1) of the Act? C. Did the District Court err in law in finding that the appellants had contravened s9(1)(a) or ss338 and 340 of the Act when a consent had been obtained which permitted earthworks in excess of the 20 m3 limit imposed by the relevant rule in the respondent's District plan?[6] Randerson J also said:One of the principal points Mr Brabant has submitted he intends to raise in the Court of Appeal is the practice which has been adopted by some territorial authorities in granting resource consents subject to a condition such as that in this case which refers to work being carried out in accordance with information and plans submitted. He intends to submit that this canlead to undesirable uncertainty and that given the possibility of conviction for non-compliance with resource consent conditions, as well as the possibility of other enforcement action being taken under the Resource Management Act, it is important that consent holders know the true nature and extent of any resource consent allowed.[7] Had the appeal been argued in the way which was foreshadowed to the High Court, legal issues of principle and public importance would undoubtedly have arisen. But as will become apparent from this judgment, the appeal was argued in a way which really only raised question A, in para 5, supra. We very much doubt whether the Judge would have given leave to bring the matter before this Court by way of a second appeal had he appreciated how it would in fact be argued here. However, leave having been granted, in accordance with the usual convention in this Court we will dispose of the appeal on its merits, which it has to be said are plainly against the appellants.The facts[8] It was common ground that Mr and Mrs Pendergrast proposed to construct a residential dwelling, a swimming pool, vehicle access, and retaining walls on the subject land. This development required earthworks exceeding the permitted standard and required controlled activity assessment. The relevant requirements of the Auckland Operative Plan, Hauraki Gulf Islands, are that earthworks exceeding 20m 3 must have a resource consent (rule 6C.1.3.6). [9] An application of that character was made on the Pendergrasts' behalf to the Auckland City Council by their architects (Patterson Co-Partners Architects Ltd). Annexed to the application was an Assessment of Effects on the Environment dated 13 November 1997, and the application was accompanied by four plans, labelled TP1-4, of which we need refer only to one. [10] This is a case which it is convenient to follow with the aid of one of the plans (TP1), to which we have just referred. That plan is annexed as Schedule A.[11] On the righthand margin of Plan TP1 is some uncontroversial information such as the legal description, zoning and location of the subject land. About one- third of the way down, certain words appear as follows:Earthwork: 20m2 allowed approximately 765m2 proposed.It is common ground that there is a typographical error. Those references were to cubic metres, not square metres. [12] The operative words of the resource consent were:Pursuant to Section 105 of the Resource Management Act 1991, the non- notified discretionary activity land use application by Ross and Dallas Pendergrast to construct a residential dwelling, swimming pool and associated vehicle access, and retaining walls which • exceed the permitted standard for earthworks, and • require controlled activity assessment: at Lot 21, Matiatia Estate, Waiheke Island described as Lot 21, being approved by subdivision of Pt Lot 1, DP171587 is granted consent.[13] Condition One of this consent provided that the proposed activity "shall be carried out in accordance with the information and plans submitted as part of [the] application ". [14] The information which was laid on 18 April 2001 was on the footing that the appellants had "used land in a manner which contravened s9(1) of the Resource Management Act 1991 [contrary to the rule in the operative district plan] such earthworks not having been expressly allowed by a resource consent, granted by Auckland City Council as Territorial Authority responsible for the Plan".The broad position of the appellants and the respondent[15] The respondent City Council took the course it did because, in its view, the words "approximately 765m 2" on Plan TP1, in the position indicated, operated as a limitation on the amount (by volume) of earthworks which could be carried out. Ifmore work than that was to be done, a further consent would be required, if it could be procured. [16] The appellants' case, in all three courts, has been that in the bottom lefthand corner of the plan there is a key reading "Earthworks" and showing three shaded areas (Cut, Cut, and Fill). Areas of the plan are then shaded in a manner corresponding to those designations. The appellants' argument is that the figure of 765m 3 simply represents the architect's estimate of the earthworks to be done in the shaded areas shown, and was not meant to state the total amount of earthworks able to be carried out under the resource consent. Indeed, Mr Brabant submitted, this had to be the case as earthworks plainly caught by the application (such as those for the driveway) were not shaded on the plans. To take that approach is not to assert an "open ended" entitlement to undertake earthworks on the subject land; rather, Mr Brabant said, as to those earthworks outside the shaded areas, what would have been allowed was to undertake such earthworks as were reasonably necessary and incidental to the completion of the works for which consent was granted. [17] Mr Brabant also contended that, even if contrary to his submission that the appellants' interpretation is the correct one, two reasonably arguable interpretations of the notations on Plan TP1 were available. Hence the appellants should not have been convicted: on the prosecution they should have been given the benefit of any real doubt.The judgments in the courts below[18] McElrea DCJ thought it to be "virtually unthinkable that any consent [of this kind] would allow an unlimited body of earthworks". The plans referred to tabulated data identifying greater excavation than 20 m 3 , and that the contrast on the plan was between what was allowed (20 m3 ) and was proposed (765 m 3 ). The resource consent had an express limitation that the proposed activity was to be carried out in accordance with the information and plans. The Judge concluded that "a reasonable bystander would have concluded [that what] was clearly meant or understand was a limitation of 765 m3 of earthworks". The Judge accordingly entered convictions.[19] In the High Court, Randerson J took the view that the meaning of the particular consent had to be determined objectively by reference to the plans, the information contained in them, the application (including the supporting documents), and the district plan. He also took the view that the reference to 765 m 3 "[could] only be construed as being given for the purpose of defining the upper limits of the scope of the consent".The grounds of appeal[20] In this Court Mr Brabant contended that McElrea DCJ made "two primary errors: • in not recognising that the scope of the earthworks consent requested in the application documents and operative words of the consent was which granted, expressly permitted the earthworks that were undertaken on the property; • in finding that condition one of the consent restricted total earthworks on the site to a volume of not more than 765 cubic metre." [21] Mr Brabant suggested that these errors had not been corrected in the High Court.Discussion[22] It is convenient to begin by first noting that it is common ground – and has been the law for many years in this country – that in planning matters of this kind the scope of the permitted activity is to be determined not just by the bare consent, but also by reference to the supporting documentation which was submitted to obtain that consent. But even if that were not so, this consent was specifically subject to the condition (imposed pursuant to s108 of the Resource Management Act 1991) that the proposed activity was to be carried out in accordance with the information and plans submitted as part of the application.[23] Secondly, all counsel accepted that the approach to the interpretation of a consent and the accompanying conditions is an objective one. That is, what would the reasonable observer, faced with this information, have made of it? [24] Thirdly, the heart of this whole case was always: what, if anything, were there by way of limitations or conditions on the consent as granted, when viewed from such a perspective? [25] As to that question, as always with a matter of language, the relevant words and figures should be read in their ordinary and everyday way, and in their relevant context. The notation which the architect caused to be placed on the righthand side of the plan in relation to earthworks was "approximately 765 m 3 proposed". We think, as did both Judges in the courts below, that on an ordinary, everyday reading, that the word "proposed" is of great significance. It indicates to the reader that 765 m 3 is the amount of earthworks to be undertaken in the development. Secondly, if the word does not mean what it apparently says, then some detective work is called for. A reader would have to work out that the designation at the bottom left of the plan referred to the shaded areas, and then go across to the righthand side and the 765 m 3 limitation, and then to apprehend that there are other earthworks (unspecified by volume) which have to be undertaken for the construction of the driveway and other matters of that character. A condition to a resource consent is no place for some sort of puzzle, and it seems most unlikely other persons would read it in that way. [26] Looking at all the relevant material which was submitted, we share no doubt, along with the Judges in the lower courts, that this specific notation, read objectively, imposed an upper limitation for earthworks. [27] What the condition meant in the context of the whole of the consent document, including the plan, was a mixed question of law and fact in the lower courts, and the view we have come to on this point is in and of itself sufficient to dispose of this appeal. However, counsel made submissions on certain other matters and we think it appropriate to make some brief observations on them.[28] The first point to make is that s67(8) of the Summary Proceedings Act 1957 has (we think correctly) been held to apply to s9(1)(a) of the Resource Management Act: Smith v Auckland City Council [1996] 1 NZLR 634 (HC) per Fisher J; alsoBay of Plenty Regional Council v Bay Milk Products Ltd [1996] 3 NZLR 120 (HC) per Thorp J. The effect is that the burden is on a defendant to prove, on the balance of probabilities, that the use was expressly allowed for by a resource consent (seeAkehurst v Inspector of Quarries [1964] NZLR 621 (SC)). [29] As to the old presumption that statutes having a criminal effect must be strictly construed in favour of the individual, that presumption has lost some real force in recent years, largely because of the purposive approach to statutory interpretation which prevails today. In R v Clayton [1973] 2 NZLR 211, this Court was clear that s5(j) of the Acts Interpretation Act 1924 (the then relevant provision; see now s5(l) of the Interpretation Act 1999) has as much application to penal statutes as to any others. As Professor Burrows has sagely observed, "[a] person is unlikely to be allowed to free ride on deficiencies of expression" (Statute Law in New Zealand (3ed, 2003) p143). [30] As we have said, we are of the view that the construction of this documentation must be resolved against the appellants. But even if that were not so, and there was some plausible conflicting interpretation, in this case it is the appellants' infelicities, and even what could be called a "misleading" plan, which led to the position which in fact arose. It hardly lies in the mouth of an applicant to create a latent ambiguity and then utilise it when it surfaces, as a defence in a Resource Management Act prosecution.Conclusion[31] In the result, all three appeals will be dismissed. The appeals were all heard together. Accordingly the respondent City Council will have one sum for costs of $3,000 together with its disbursements; such disbursements to include the reasonable travel and accommodation costs of Mr Bonnar.Solicitors: Grove Darlow, Auckland for the Appellants Auckland City Council for the Respondents