SAI 1 TRUST v AUCKLAND COUNCIL [2019] NZHC 2808

SAI 1 TRUST v AUCKLAND COUNCIL [2019] NZHC 2808 [31 October 2019]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2019-404-299[2019] NZHC 2808IN THE MATTER of the Judicial Review Procedure Act 2016,the Judicature Amendment Act 1972 andParts 5 and 30 of the High Court Rules. Onan application for judicial review of adecision under the Resource ManagementAct 1991BETWEEN Madhav Hari Karmarkar, Siri MadhavKarmarkar and Jayashree Corporation Ltd astrustees of the SAI 1 TRUSTApplicantAND AUCKLAND COUNCILRespondentHearing: 29 October 2019Appearances: Applicants in personA R Govind and F Mohammed for RespondentJudgment: 31 October 2019JUDGMENT OF LANG J[on application for judicial review]This judgment was delivered by me on 31 October 2019 at 3.30 pm,pursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDate[1] The applicants in this proceeding are the trustees of the SA1 Trust (the Trust).In that capacity they own a residential property situated at 325 Mount Albert Road inMount Roskill. They wish to convert an existing dwelling at the rear of the propertyinto three units.[2] In September 2018 the Trust lodged an application for a resource consent withthe Auckland Council (the Council) to enable the development to proceed. TheCouncil subsequently sought further information from the Trust regarding a variety ofissues that the application raised. By 30 November 2018 all but one of these had beenresolved.[3] The outstanding issue related to a surveyor's certificate the Council soughtfrom the Trust so it could be satisfied the proposal did not infringe viewshaftrestrictions contained in the Auckland Unitary Plan (AUP). This issue arose becausethe Trust's property lies within an identified Volcanic View Shaft Overlay for thevolcanic cone situated at Mount Albert. The AUP requires building works that arecarried out in the vicinity of volcanic cones in the Auckland region to remain below acertain height so they do not obstruct the views of volcanic cones currently enjoyedby other properties in the area.[4] By 30 November 2018 the Trust had not supplied the surveyor's certificate.The Council advised the Trust on that date that its failure to provide the certificatemeant the application for resource consent would need to proceed on a notified basis.The Trust seeks judicial review of that decision.Background[5] The proposed development was the subject of an earlier dispute between theTrust and the Council. This resulted in proceedings in the Environment Court. Thesewere ultimately settled when the Council and the Trust entered into a settlementagreement on 30 May 2018. One of the terms of the agreement was that the Trustwould lodge a fresh application for resource consent. This resulted in the applicationfor resource consent that led to the present proceeding.[6] The application for resource consent was processed by Ms Huda Majeed, asenior planner employed by the Council. She held delegated authority to makedecisions in relation to resource consents on behalf of the Council. She was also theCouncil officer responsible for the decision requiring the application for the Trust'sresource consent to proceed on a notified basis.[7] On 5 October 2018, Ms Majeed sent Ms Hailey Kim, an employee of theTrust's planning consultant, a letter seeking further information under s 92 of theResource Management Act 1991 (the Act). This letter raised the following issues inrelation to compliance with the volcanic viewshaft provisions in the AUP:Volcanic Viewshafts3. Please provide a survey certificate to confirm compliance of the newaddition with the viewshaft. The surveyor can rely on the coordinatesof the viewshafts in Schedule 9 of the AUP for the purposes ofproviding accurate survey of the subject site in relation to theviewshafts. Please note that GIS maps in AUP(OP) contain indicativecontour lines showing the height of the viewshaft above ground level.Please note non-compliance with the viewshaft would require publicnotification of your application under D14.5 and hence reliableinformation from a surveyor is required demonstrating compliance ofthis aspect of the proposal.[8] The letter concluded:Deadline for ResponseYou must provide this information within 15 working days being 26 October2018. If you are unable to provide the information within 15 working days,then please contact the reporting planner named below so that an alternativetimeframe can be mutually agreed.If you do not respond within 15 working days, refuse to provide theinformation or do not meet an agreed alternative timeframe betweenCouncil and yourself, this application must be publicly notified asrequired by section 95C of the Resource Management Act 1991.This deadline will be strictly enforced given the previous complianceissues on this site and queries around the legal establishment of existingunits.[9] On 18 October 2018, the Council agreed to a request by the Trust for anextension of time until 31 October 2018 to provide the information the Council hadrequested. Section 37(1)(a) of the Act permits a consent authority to extend any timeperiod prescribed by the Act.[10] On 31 October 2018, the Trust provided the Council with a significant body ofmaterial responding to the issues Ms Majeed had raised in her letter dated 5 October2018. This included a topographical survey plan and the following letter from theTrust's surveyor dealing with the viewshaft issue:Dear Ms Majeed,BUILDING COMPLIANCE CHECKING FOR PROPOSEDADDITIONSite Address: 325 Mount Albert Road, Mt RoskillLegal Description: Lot 8 DP 27258Resource Consent Number: LUC60326659As requested, we have checked the compliance of the design of the buildingfrom the view or proposed building height and the height of volcanic viewshaft.Topographical survey was carried out by Catobolam Consultants Limited andthe ground levels are shown on the building plans. The heights of the buildingin all corners were calculated from the surveyed ground level and rollingheight of volcanic view shaft is also shown [on] the plan.Based on the building height assessment against the volcanic view shaft, thefollowing infringements are identified;- The access area for roof terrace, which has walls on four sides andmono pitch roof.- The sizes of infringement; 1291mm high, 6.0m length and 2.2mwidth.We can certify on reasonable ground that the infringement identified on theplans can be kept to the sizes identified in attached plan if the building isconstructed in accordance with these plans with high accuracy.[11] Ms Majeed responded to the information provided by the Trust in an emaildated 14 November 2018. This contained the following comments regarding thematerial the Trust had provided:Point 3:Point 3 in sec 92 letter dated 5/10/2018 required the following:Please provide a survey certificate to confirm compliance of the new additionwith the viewshaft. The surveyor can rely on the coordinates of the viewshaftsin Schedule 9 of the AUP for the purposes of providing accurate survey of thesubject site in relation to the viewshafts. Please note that GIS maps inAUP(OP) contain indicative contour lines showing the height of the viewshaftabove ground level. Please note non-compliance with the viewshaft wouldrequire public notification of your application under D14.5 and hence reliableinformation from a surveyor is required demonstrating compliance of thisaspect of the proposal.My comments:This point is not satisfied.You have provided a topographical plan prepared by Catobolam ConsultantsLtd, that shows the contour lines based on the ground levels, but not theviewshafts. Please note that these are two different topics, as the viewshaft(plural viewshafts) is a gap between buildings or other visual obstructions thatallows a view of something scenic, while the contour lines are used todetermine elevations and are lines on a map that are produced from connectingpoints of equal elevation (elevation refers to height in feet, or meters, abovesea level).As mentioned in my letter dated 5/10/2018, your surveyor will need to rely onthe coordinates of the viewshafts in Schedule 9 of the AUP for the purposesof providing accurate survey of the subject site in relation to the viewshafts.Please provide a plan showing accurate viewshafts based on the coordinatesin Schedule 9 of the AUP and reflect this in your plan entitled "Side Elevationof Unit 325, 325A & B", to proper line in the sky based on the accurateviewshafts and confirm compliance with the view shafts.I have also noted that the above plan has shown 9m Rolling Height, which isnot right, as the building height limit is 11m in Mixed Housing Urban zone.Refer to H5.64. Please correct this accordingly.[12] The email sent on 14 November 2018 concluded with the following advice:Please note that if the information required above is not provided toCouncil [sic] satisfaction by Friday 23 November 2018 this applicationwill be publically [sic] notified under s95C and s95A(3)(b) [of theResource Management Act 1991].[13] On 23 November 2018, Ms Kim forwarded further material to the Council inresponse to this email. There is no dispute that this resolved all outstanding issuesother than that relating to the surveyor's certificate. On the latter point, Ms Kimadvised:We are still awaiting the surveyor's response and will send you [sic] as soonas we get the response.[14] Ms Majeed did not respond to this email. On 30 November 2018, however,she sent the following email to Ms Kim:Hi HaileyFurther to my email below (dated 14/11), the timeframe for responding to s 92requests has expired.As such, the application must now proceed on a publicly notified basis. Pleasefind attached the letter relating to this.An invoice will be sent in due course.[15] The letter to the Trust that accompanied this email was in the following terms:Dear HaileyResource consent application – no response to further information request –public noticeApplication number: LUC60326659Applicant: Madhava Corporation LimitedProposed activity(s): Land use consent to convert the existing dwelling intoseven units by adding or altering the existing dwellingand legalising units in front dwelling.Site Address: 325 Mount Albert Road, Mt Roskill, Auckland, 1041An email was sent to you on 14 November 2018 advising of the publicnotification of your application if you failed to provide the informationrequested under section 92 of the Resource Management Act 1991 (the RMA).As you have not provided satisfactory information by Friday 23 November2018 as requested in the email above, please be advised that (under sections92 and 95C of the RMA) your application must now proceed on a publiclynotified basis.Before your application can be publicly notified, council requires the paymentof the notification deposit of $20,000. Until the required payment is received,processing of your application will cease, as provided for under section 36(7)of the RMA.[16] Over the next two weeks further correspondence ensued between the Counciland the Trust's planning consultant but matters were not resolved. The Trustsubsequently filed this proceeding on 21 February 2019.Grounds of review[17] The Trust advances three broad grounds of review.1 They are:1. The Council should have used its own resources to determine that theproposed development would not infringe the volcanic viewshaftrequirements imposed by the AUP.2. The Council was wrong to decide that the proposed development failedto comply with the viewshaft requirements of the AUP; and3. The Council failed to give the Trust adequate time to respond to theissues the Council raised in its letter dated 14 November 2018.Should the Council have used its own resources to determine whether theproposed development infringed the viewshaft requirements imposed by theAUP?[18] The Trust contends it provided the Council with sufficient information toenable it to determine whether the proposed development infringed the viewshaftrequirements of the AUP. The Trust relies for this submission on the fact that theCouncil "is a public organisation; having enough resources to carry out this task".[19] Before a consent authority such as the Council can consider whether anapplication for resource consent should be notified, it must be in possession ofsufficient reliable information to be able to make that decision on an informed basis.21 The statement of claim also contained a ground of review based on the fact that the Council senta copy of its decision to Mr Madhav Karmarkar's company Madhava Corporation Ltd and not tothe individual trustees. The Trust did not advance submissions on this ground at the hearing andI take it to have been abandoned. The argument could not succeed in any event because theCouncil's letter was addressed to Ms Kim, the Trust's planning agent who handled the applicationfor the Trust.2 Discount Brands Ltd v Westfield (New Zealand) Ltd [2005] NZSC 17, [2005] 2 NZLR 597 at [114]per Blanchard J; Auckland Council v Wendco (NZ) Ltd [2017] NZSC 113, [2017] 1 NZLR 1008,at [84] per Glazebrook and Arnold JJ.Issues of practicality and policy suggest the onus is on the applicant to provide thatinformation. In practical terms the information will generally be held by the applicantand not the consent authority. In terms of policy, it is appropriate that the cost ofproviding the information should be borne by the applicant and not the ratepayer.[20] Consent authorities nevertheless have the ability to ensure they obtainsufficient reliable information through the exercise of their powers under s 92 of theAct to require an applicant to provide further information within 15 working days.Where such a request is made, the period within which the authority is required todetermine the application is suspended.3[21] In the present case the topographical plan that the Trust provided to the Councilon 31 October 2018 did not in any event allow the Council to determine whether thedevelopment complied with the viewshaft provisions of the AUP. As the Councilpointed out in its letter dated 14 November 2018, survey work needed to be undertakento determine that issue. The topographical plan relied upon contour lines based onground levels rather than the viewshaft coordinates set out in Schedule 9 to the AUP.For the reasons I have given the Council was under no obligation to meet the cost ofundertaking its own survey to determine whether the proposed development compliedwith the restrictions imposed by the AUP. That exercise needed to be undertaken bythe Trust. This ground of review fails as a result.Was the Council wrong to contend the proposed development failed to complywith the viewshaft requirements of the AUP?[22] Chapter D14 of the AUP governs the Volcanic Viewshaft and Height SensitiveArea Overlay. As I have already observed, the purpose of the overlay is to protectsignificant views of volcanic cones in the Auckland region through the use ofviewshafts and height sensitive areas. Under Chapter D14, buildings that intrude intoa regionally significant viewshaft require restricted discretionary activity consent upto nine metres in height, beyond which they constitute a non-complying activity.Where an application for resource consent relates to a building that does not comply3 Resource Management Act 1991, s 88C(2).with this standard, Chapter D14.4.1 (A6) requires the application to be publiclynotified.[23] In practical terms the Council endeavours to ensure compliance with theviewshaft restrictions by requiring an applicant for resource consent to provide asurveyor's report or certificate in cases where the activity for which consent is soughtwill occur within a zone subject to those restrictions. Without such a report orcertificate the Council cannot undertake an appropriate assessment of the activitystatus. The report or certificate is therefore essential to enable the Council todetermine whether the proposed activity will breach or comply with the requirementsset out in Chapter D14.[24] The Trust contends the evidence now available demonstrates the Council waswrong to determine that the proposed development exceeded the height requirementsimposed by the AUP for volcanic viewshafts. It has provided evidence by twoplanning experts setting out their opinions on this issue. I put to one side the evidenceof Mr Visvanathan Ragunathan because, although his affidavit purports to be filed inreply to the Council's evidence, that is plainly not the case. Mr Ragunathan's affidavitalso contains hearsay evidence about events that occurred between 23 and 30November 2018.[25] The Trust has also filed an affirmation by Mr Hamish Hey, a senior planneremployed by a land development consultancy group. I accept Mr Hey has relevantplanning experience and expertise to give expert evidence about the issues raised inhis affidavit.[26] Mr Hey deposes that the Trust's development will not be in breach of themaximum height requirements for residential properties in the Residential-MixedHousing Urban Zone of the AUP in which it is located. More importantly, he providesthe following evidence about compliance with the viewshaft requirements of the AUP:10. Field work was conducted using modern digital surveying equipmentand calibrated to the Mt Eden Datum. Once downloaded into a CADprogram, the CAD file of the buildings from the architect was addedin a 3D format enabling the topo[graphical] survey with contours tobe illustrated around the existing building with additions (Exhibit C).Of note is the ground level surveyed is deemed to be the ground levelas existed on 23 November 23013 in accordance with the Definitionsof Ground Level from Page 49 of the AUP Definitions.11. A 3D Terrain shape was created of the Volcanic View Shaft Plain usingthe reference datum points of the View Shaft A7-Mt Albert from theAUP and added to the CAD file. This enables Exhibit D to documentthe clearance of the proposed building additions (and its upper stairbulkhead extension) at the four corners of the roof structure. Theclearance of these from the view shaft is detailed on two cross sectionlines (A-A and B-B) being the roof eaves and dimensions theclearance at the upslope and downslope corners.17. Exhibit D (CLC Ref: 20556-L103A) demonstrates the clearance ofthe building below the specified Volcanic View Shaft Plain created bythe datum points from Schedule 9 of the Plan at a distance of:• Section A-A: A clearance of 0.50m-0.51m on the South Westside of the structure• Section B-B: A clearance of 0.45m on the North East side of thestructure.These figures are rounded to two decimal places[27] The Council may well have been prepared to accept that the proposeddevelopment complied with the viewshaft requirements of the AUP if the Trust hadprovided it with Mr Hey's findings in response to the issues raised in the Council'sletter dated 14 November 2011. It appears to be the type of information the Councilwas seeking from the Trust to ensure the proposed development complied with thoserequirements.[28] Unfortunately, however, the Council was not aware of Mr Hey's conclusionsuntil the Trust filed his affirmation in support of its application for judicial review. MrHey does not say when his firm carried out the surveying work to which he refers inhis affidavit. He affirmed his affidavit on 30 April 2019, however, so it is likely thework was carried out at some stage between the date on which the Trust filed thisproceeding and 30 April 2019. This means it took place several months after theCouncil had determined the application needed to proceed on a notified basis.[29] The fact that the Trust may now be able to establish that the developmentcomplies with the viewshaft requirements in the AUP has no bearing on the issue tobe decided in this proceeding. The sole issue in this proceeding is whether the Councilwas able to require the application for resource consent to be publicly notified becausethe Trust had failed to supply it with the required information by 30 November 2018.[30] This ground of review fails as a result.Did the Council fail to give the Trust adequate time to respond to the mattersraised in its letter dated 14 November 2011?[31] Section 92(1) of the Act provides as follows:92 Further information, or agreement, may be requested(1) A consent authority may, at any reasonable time before thehearing of an application for a resource consent or before thedecision to grant or refuse the application (if there is no hearing),by written notice, request the applicant for the consent to providefurther information relating to the application.[32] Section 92A then relevantly provides:92A Responses to request(1) An applicant who receives a request under section 92(1) must, within15 working days of the date of the request, take 1 of the followingoptions:(a) provide the information; or(b) tell the consent authority in a written notice that the applicantagrees to provide the information; or(c) tell the consent authority in a written notice that the applicantrefuses to provide the information.(2) A consent authority that receives a written notice under subsection(1)(b) must—(a) set a reasonable time within which the applicant must providethe information; and(b) tell the applicant in a written notice the date by which theapplicant must provide the information.[33] Section 95A of the Act sets out the steps a consent authority is required tofollow in determining whether to publicly notify an application for resource consent.The first step includes a requirement that an application be publicly notified wherepublic notification is required under s 95C. Section 95C(2) requires an application toproceed on a notified basis if a consent authority has requested the applicant to providefurther information under s 92 but the applicant does not provide the information priorto any deadline imposed by the authority.[34] In the present case the Council initially gave the Trust until 26 October 2018,or the required 15 working days, to provide the information requested in its letter dated5 October 2018. As I have already recorded, it subsequently agreed to the Trust'srequest for an extension until 31 October 2018. Following receipt of further materialfrom the Trust on that date the Council required the Trust to provide the informationsought in its letter dated 14 November 2018 by 23 November 2018. This amountedto seven working days.[35] The Trust contends that the information sought by the Council in its letter dated14 November 2014 was confusing or ambiguous. I make two points about thatsubmission. First, the Trust's planning consultant and surveyor did not question thenature or scope of the information sought by the Council when they received theCouncil's letter. Secondly, I consider the letter to set out quite clearly the Council 'srequirements in relation to the surveyor's certificate. In particular, it described theprocess the surveyor would need to undertake in order to produce an acceptablecertificate.[36] I acknowledge that the time for compliance imposed in the letter dated14 November 2018 was not a lengthy period, but the Trust had already had 27 workingdays within which to provide the information sought in the Council's letter dated 5October 2018. It also needs to be borne in mind that the information sought by theCouncil on 14 November 2018 was not new. It was the same as that sought in theCouncil's letter dated 5 October 2018.[37] Furthermore, the time limit imposed in the letter dated 14 November wasobviously sufficient to enable the Trust to provide information that satisfied all of theCouncil's other outstanding queries. In addition, another four working days passedbefore 30 November 2018, when the Council ultimately advised the application wouldneed to proceed on a notified basis. In total, therefore, the Trust had 31 working dayswithin which to supply the information the Council initially sought in its letter dated5 October 2018.[38] The only issue that gives cause for potential concern arises out of the fact thatthe Trust was plainly still waiting for a response from its surveyor as at 23 November2018. To that extent its ability to comply with the 23 November deadline maytherefore have been outside its control.[39] I consider, however, that the Trust must bear primary responsibility for whatsubsequently occurred. It was on notice that it needed to provide all outstandinginformation by 23 November 2018 if it was to prevent the Council from requiring theapplication to proceed on a notified basis. The Trust should therefore have ascertainedfrom its surveyor when the outstanding certificate was likely to be available. The Trustwould then have been able to seek a further extension from the Council until that date.It would have been unreasonable, in my view, for the Council to have refused a furthershort extension given the difficult background to this matter and the fact that all othermatters had been resolved. With the benefit of hindsight it was therefore unwise forMs Kim to have left the issue of when the surveyor's certificate would be available onsuch an uncertain and open-ended basis.[40] I also accept it would have been a relatively simple matter for the Council tomake enquiries of the Trust to ascertain when it expected the surveyor's certificate tobe available. It could then have granted a further extension of time until that dateprovided it was not too far in the future.[41] If the Trust had produced an acceptable surveyor's certificate within a shortperiod of time after 30 November 2018 I may therefore have found that the Councilacted unreasonably in requiring the application to proceed on a notified basis. Such afinding is precluded, however, because the Trust never produced the surveyor'scertificate that the Council sought. Instead, it immediately argued that the Councilhad acted precipitately in requiring the application to be publicly notified. It neveraddressed the issue of when the certificate might be available.[42] It follows that the Trust did not provide the information sought by the Councilwithin the stipulated time. The Council was accordingly required under s 95C(1) and(2) to publicly notify the application for resource consent.Result[43] The application for judicial review of the Council's decision is dismissed.Costs[44] The Council has succeeded in defending the application and is thereforeentitled to an award of costs in its favour. The parties agreed in a joint memorandumfiled on 29 April 2019 that costs should be categorised on a 2B basis. My tentativeview is therefore that the Council should receive costs calculated on that basis togetherwith disbursements as fixed by the Registrar. If either party takes a different view itshould file a concise memorandum (ie no more than three pages in length) and I willgive further directions for the filing of a memorandum in response. I will then dealwith the issue of costs on the papers.Lang JSolicitors:Auckland Council, AucklandCopy to Applicant