MAWHINNEY V WAITAKERE CITY COUNCIL HC AK CIV 2008-485-1119

MAWHINNEY V WAITAKERE CITY COUNCIL HC AK CIV 2008-485-1119 27 November 2008IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV 2008-485-1119IN THE MATTER OF THE RESOURCE MANAGEMENT ACT 1991 BETWEEN PETER WILLIAM MAWHINNEY Appellant AND WAITAKERE CITY COUNCIL Respondent Hearing: 12 and 14 November 2008 Counsel: P Mawhinney, in person, Appellant G R Milner-White and M L Broad for Respondent Judgment: 27 November 2008JUDGMENT OF HEATH JThis judgment was delivered by me on 27 November 2008 at 11.00am pursuant to Rule 540(4) of the High Court Rules Registrar/Deputy RegistrarSolicitors: Kensington Swan, Auckland Copy to: Appellant in personThe appeal[1] Mr Mawhinney appeals against a decision of the Environment Court given on 4 April 2008: Perceptus Ltd v Waitakere City Council (Environment Court, Auckland, A40/08, Judge Whiting). [2] For the purpose of this judgment, I refer to the district and proposed operative plans that apply to subdivisions as "the relevant operative district plan".Background[3] Mr Mawhinney and companies controlled by him hold interests in land in West Auckland. The land is situated in the foothills of the Waitakere Ranges, near Bethells Beach. For the purposes of the Resource Management Act 1991 (the Act), the Waitakere City Council (the Council) is the relevant consent authority. [4] Mr Mawhinney seeks to subdivide the land. Over the last few years he and his associated companies have made a number of applications to the Council for permission (to use a neutral term) to undertake a subdivisional development. A number of those applications have found their way, on appeal, to both the Environment Court and this Court. Mr Mawhinney accepts candidly that he has been developing his applications to respond to particular requirements articulated in decisions of the Environment Court and this Court. [5] On or about 21 February 2006, Glorit Subdivisions Ltd, London and Greenwich Trading Co Ltd, Perceptus Ltd, Swanson Heights Ltd and Mr Mawhinney lodged an application with the Council. The application sought both a certificate of compliance (under s 139 of the Act) and subdivision consents (under s 88). It is implicit from the form of the single application that Mr Mawhinney and his associated companies accept that the ability to subdivide cannot be obtained purely through subdivision consents that comply with all relevant rules in the relevant operative district plan.[6] The certificate of compliance was sought in relation to boundary adjustments shown on one plan and the construction of 77 sheds shown on a different plan. The subdivision consents relate to a proposed cross lease of the 77 proposed sheds and a named couple's home, on the basis that the proposed cross lease was either a controlled activity under r 2.1(a) of the General Subdivision Rules or a restricted discretionary activity under the Foothills Subdivision Rules, r 7.2(c). [7] The Council rejected the application, primarily on the grounds that it was incomplete. In its letter to the applicants of 28 February 2006, the Council said:3.1 The status of the resource consent application is non complying and a full assessment of all relevant effects is required, including relevant land use effects arising as a result of the proposed lease subdivisions. This includes the additional Human Environment and subdivision rules that are triggered under the partially operative Waitakere City District Plan, together with relevant resource consents that are required from the Auckland Regional Council under s 15 of the Act: for further information we refer you to the decision of Randerson J in Waitakere City Council v Kitewaho Bush Reserve Co Ltd & Ors [[2005] 1 NZLR 208]. 3.2 The applicant is not entitled to limit its application to general subdivision rule 2.2 or Foothills subdivision rule 7.2(c). This is confirmed by the obiter comments of Randerson J in Waitakere City Council v Kitewaho Bush Reserve Co Ltd & Ors. 3.4 The Act does not envisage the lodgement of a certificate of compliance application as a joint application with a resource consent application. Council has given consideration to the possibility of severing the certificate of compliance application from the subdivision application however has determined that this would not be appropriate for the following reasons: a. The Act does not envisage that a certificate of compliance application will be considered in conjunction with a subdivision application. The legal tests to be applied are quite distinct, as are Council's powers. The decision of Randerson J in Waitakere City Council v Kitewaho Bush Reserve Co Ltd & Ors has confirmed that, until granted, an application for a certificate of compliance is not deemed to be an application for a resource consent. Accordingly the statutory powers of processing available to Council on each are distinct and it is appropriate that they are processed separately. b. The onus should not rest with Council to differentiate between the grounds advanced in support of the s139application and the grounds advanced to support the subdivision application. Case law under s139 confirms the stringent approach that Council is required to take, to ensure that a certificate of compliance is only issued where an activity is permitted in all relevant aspects. . (my emphasis)[8] The applicants lodged a detailed objection with the Council. The objection was dismissed by a Hearings Committee. [9] The Hearings Committee regarded the three applications for subdivision consent as deficient because they did not provide an adequate assessment of environmental effects. In particular, the Committee found that the application could not be limited to general subdivision Rule 2.2 or Foothills Environment Subdivison Rule 7.2(c). In expressing those views, the Committee relied on Randerson J's judgment in Waitakere City Council v Kitewaho Bush Reserve Co Ltd, to which reference is made in para 3.1 of the Council's decision letter of 28 February 2006, set out at para [7] above. [10] The applicants appealed to the Environment Court against dismissal of their objection. The Council applied to strike out the appeal, on the grounds that it amounted to an abuse of process. The Council's application was heard by Judge Whiting (sitting alone) on 30 October 2007 and granted in a judgment given on 4 April 2008. [11] On 6 and 7 October 2007, the Environment Court had heard other appeals brought by Mr Mawhinney and his companies against the Council's decision not to issue certificates of compliance for 17 separate activities, on the basis that they were permitted under the relevant operative district plan. Those appeals were also struck out, on the application of the Council, in a judgment also given on 4 April 2008:Waitakere Resource Consents Ltd v Waitakere City Council (Environment Court, Auckland, A39/08, Judge Whiting and Commissioner McConachy). [12] Judge Whiting made it clear, in the judgment under appeal, that the two decisions were to be read together.[13] The common theme underlying the Environment Court's decisions to strike out the appeals is that a single application, seeking both certificates of compliance and resource consents, was a "contrivance" to avoid the need to comply with the subdivision provisions of the Act. The Court considered that, in cases where the certificates and consents are sought for the ultimate purpose of a subdivision, they ought to be assessed for compliance "holistically", rather than in isolation from each other. [14] Mr Mawhinney has been substituted as appellant to replace the corporate applicants, for reasons I need not detail.The issue on appeal[15] Section 299(1) of the Act restricts appeals to the High Court to points of law. Mr Mawhinney, in his written submissions, raised 12 grounds of appeal, all of which, in his submission, involve questions of law. [16] It is unnecessary for me to address all 12 proposed grounds because, in my view, the critical issue is whether the Environment Court was right to strike out the appeals for abuse of process. The answer to that question turns on whether the methodology employed by Mr Mawhinney to obtain authority to subdivide the land was a device designed to subvert the subdivision requirements of the Act and the relevant operative district plan. [17] Early in the appeal hearing, I raised with Mr Mawhinney whether, if he were to lose on that point, the appeal would inevitably be dismissed. I indicated that I agreed with and endorsed Randerson J's reasoning in Waitakere City Council v Kitewaho Bush Reserve Co Ltd.[18] Although Mr Mawhinney submitted that application of the Kitewahoprinciple was not fatal to his appeal, I remained of the view that it was. During the course of the appeal, without formally doing so, I indicated that I proposed to rule against Mr Mawhinney on this issue and to dismiss the appeal. I now explain my reasons for reaching that view.Analysis[19] Section 11 of the Act deals with restrictions on the subdivision of land. Section 11(1)(a) provides:Restrictions on subdivision of land(1) No person may subdivide land, within the meaning of section 218,unless the subdivision is— (a) Expressly allowed by a rule in a district plan and in any relevant proposed district plan or a resource consent, and a survey plan relating to the subdivision has in accordance with Part 10— (i) Been deposited by a District Land Registrar or a Registrar of Deeds; or (ii) In the case of a subdivision by or on behalf of a Minister of the Crown, been approved by the Chief Surveyor for the purposes of section 228; or (my emphasis)[20] Section 218 of the Act defines the term "subdivision of land" by reference to the process by which a single block of land is divided to create separate certificates of title. The definition does not address specifically the work subsequently required to create individual sections, on the ground. Such work is subject to s 9 of the Act, which deals with issues of land use. [21] Section 139 of the Act authorises consent authorities to grant certificates of compliance. Section 139(1) provides:Consent authorities to grant certificates of compliance(1) Where an activity could be lawfully carried out without a resource consent, in respect of any particular location, the consent authority shall, upon request and payment of the appropriate administrative charge, issue to any person who so requests a certificate that a particular proposal or activity complies with the plan in relation to that location. [22] Section 11(1)(a) authorises the subdivision of land, if the subdivision is "expressly allowed by a rule in" a relevant operative district plan or "a resourceconsent". Section 139(1) is relevant only to an activity that can be carried out lawfully "without a resource consent". [23] Section 11(1)(a) does not support the proposition that a subdivision may be authorised through a combination of resource consents and certificates of compliance. The two methods by which land may be subdivided are disjunctive. [24] That point is emphasised by s 223 of the Act, a provision dealing with the approval and deposit of survey plans for subdivisional purposes. Section 223(1) and (2) provides:Approval of survey plan by territorial authority(1) An owner of any land may submit to a territorial authority for its approval, a survey plan in respect of that land if— (a) A subdivision consent has been obtained for the subdivision to which the survey plan relates, and that consent has not lapsed; or (b) A certificate of compliance has been obtained, and that certificate has not lapsed. (2) Subject to sections [237, 237A], 240, 241, and 243, a territorial authority shall approve a survey plan submitted to it under subsection (1) if it is satisfied that,— (a) Where a subdivision consent has been obtained, the survey plan conforms with the subdivision consent; or (b) Where a certificate of compliance has been obtained, the survey plan conforms with the certificate of compliance. .[25] As in s 11(1)(a), the references to "subdivision consent" and "certificate of compliance" are disjunctive. That is deliberate and militates against a construction which permits a single application, covering both types of authorisation, to be lodged to obtain approval to subdivide. [26] Similarly, s 77B of the Act differentiates "permitted activities" from other forms of regulated activities, all of which require a resource consent. Section 77B provides:77B Types of activities(1) If an activity is described in this Act, regulations, or a plan or proposed plan as a permitted activity, a resource consent is not required for the activity if it complies with the standards, terms, or conditions, if any, specified in the plan or proposed plan. (2) If an activity is described in this Act, regulations, or a plan or proposed plan as a controlled activity,— (a) a resource consent is required for the activity; and (aa) the consent authority must grant the resource consent, unless it has insufficient information to determine whether or not the activity is a controlled activity; and] (b) the consent authority must specify in the plan or proposed plan matters over which it has reserved control; and (c) the consent authority's power to impose conditions on the resource consent is restricted to the matters that have been specified under paragraph (b); and (d) the activity must comply with the standards, terms, or conditions, if any, specified in the plan or proposed plan. (3) If an activity is described in this Act, regulations, or a plan or proposed plan as a restricted discretionary activity,— (a) a resource consent is required for the activity; and (b) the consent authority must specify in the plan or proposed plan matters to which it has restricted its discretion; and (c) the consent authority's powers to decline a resource consent and to impose conditions are restricted to matters that have been specified under paragraph (b); and (d) the activity must comply with the standards, terms, or conditions, if any, specified in the plan or proposed plan. (4) If an activity is described in this Act, regulations, or a plan or proposed plan as a discretionary activity,— (a) a resource consent is required for the activity; and (b) the consent authority may grant the resource consent with or without conditions or decline the resource consent; and (c) the activity must comply with the standards, terms, or conditions, if any, specified in the plan or proposed plan. (5) If an activity is described in this Act, regulations, or a plan or proposed plan as a non-complying activity,— (a) a resource consent is required for the activity; and(b) the consent authority may grant the resource consent with or without conditions or decline the resource consent. (6) Particular restrictions for non-complying activities are in section 104D. (7) If an activity is described in this Act, regulations, or a plan as a prohibited activity, no application may be made for that activity and a resource consent must not be granted for it.][27] Mr Mawhinney suggested that amendments to the Act in 2003 assisted his argument. He focussed on s 31 of the Act, which identifies a territorial authority's functions "for the purpose of giving effect to [the] Act in its district" and the specific provisions of s 31(2) which incorporates "control of subdivision" within the methods that can be used to carry out those functions. [28] I do not consider that the amendment to s 31 alter the requirements of the Act in relation to authorisation of subdivisional activity. In fact, the ability to control subdivisions to achieve "integrated management" of the territorial authority's policies and objectives goes against Mr Mawhinney's argument on this point. [29] In Kitewaho, Randerson J held that the Act provided a complete code for the control of subdivision of land in New Zealand. Accepting that his comments wereobiter (see Kitewaho at [78]), the Judge considered (at [79]-[102]) the relevant rules of the operative plan, in the context of s 11 of the Act and Part X, dealing with subdivision. [30] Randerson J said:[80] I am satisfied [the Act] provides a complete code for the control of the subdivision of land in New Zealand. Not only does it impose restrictions on the subdivision of land under s 11, but it also provides in Part X for the approval and deposit of survey plans and restrictions upon the issue of certificates of title by the District Land Registrar and for a range of other matters relevant to subdivision issues. These latter provisions were formerly included in the Local Government Act 1974 but were incorporated into [the Act] at the time of its promulgation in 1991. [81] As well, as the Judge noted, s 406 of [the Act] provided that, notwithstanding anything to the contrary in Parts VI or X, a territorial authority was obliged not to grant a subdivision consent if it considered either that the land was not suitable or that the proposed subdivision would not be in the public interest. Under that section, there was also a discretion to refuse a subdivision consent if adequate provision had not been made or was not practicable for stormwater drainage, the disposal of sewage, or thesupply of water or electricity (except where the allotment was to be used solely or principally for rural purposes). By s 406(2), the section ceased to have effect once a proposed district plan for the district comes into force: see the discussion in Murray v Whakatane District Council [1999] 3 NZLR 276 at p 284. . . . [84] Until the Resource Management Amendment Act 1993 was passed, the words in s 11(1)(a) "and in any relevant proposed district plan" were not included in the section. Parliament's clear intention by the 1993 amendment was to give effect to the provisions of proposed district plans in relation to subdivision, as well as the operative district plan. It follows that unless the subdivision proposed is expressly allowed by rules in both the operative and proposed district plans, then a resource consent is required. [85] The scheme of s 11 involves a presumption which is the reverse of that provided for in s 9. Under s 9, the presumption is that land may be used in any manner unless it contravenes a rule in a district plan or a proposed plan. If it does contravene a rule in either plan, then the activity may not take place unless expressly allowed by a resource consent or it is permitted as an existing use. By contrast, the presumption under s 11 is that subdivision may not take place unless it is either expressly allowed by a rule in both the district and proposed plans or by a resource consent. As well of course, there is the requirement in s 11(1)(a) for a survey plan to be deposited under Part X. The same form of presumption applies to restrict the use of the coastal marine area (s 12); certain activities in river and lake beds (s 13); the taking, using, damming, or diversion of water (s 14(1) and (3)); and the discharge of contaminants into the environment (s 15). . . . [90] (b) If the proposed subdivision is not expressly allowed by a rule in both the district plan and any proposed district plan, then a resource consent is required. The expression "resource consent" as it is used in s 11(1)(a) is to be interpreted as including all the resource consents necessary to overcome any non-compliance with any relevant subdivision rules under the district plan and proposed district plan. That must follow since a subdivision could not be treated as being expressly allowed by a rule in a district plan and any proposed district plan if it did not comply with one or more of the relevant rules in those plans.[31] As is apparent, the human mind behind the Kitewaho appeal was Mr Mawhinney. Points similar to the one in issue have also been raised by him and dismissed in other cases, including Mawhinney v Waitakere City Council(Environment Court Auckland, A199/2005, 7 December 2005, Judge Sheppard) andMawhinney v Waitakere City Council (High Court Auckland, CIV 2006-485-627, 19 December 2007, Venning J).[32] While Mr Mawhinney is open in saying that he has endeavoured to modify his applications to take account of what has been said in earlier judgments, the evolution of the various applications is no more than a variation on a single theme. The new applications do not address a fundamental flaw in the procedure that Mr Mawhinney has adopted. That flaw arises from his need to obtain resource consents to carry out the whole of the proposed subdivision and to comply with all relevant rules in the relevant operative plan in doing so. [33] Mr Milner-White, for the Council, supported the Environment Court decision that the joint application amounted to an abuse of process. I set out two of the arguments advanced by Mr Milner-White which, in my opinion, amply support both the position he took and Judge Whiting's decision. [34] First, there is no specific provision in the Act allowing for an application that seeks to invoke both ss 88 and 139 in an endeavour to obtain authority to subdivide a property. Indeed, both ss 11(1)(a) and 223(1) and (2) indicate that this is not possible. [35] Second, the applicants relied on relevant individual rules of the relevant operative plan having been met. Yet, they seek to avoid the need to comply with allrules to obtain subdivision consent. That approach to the interpretation of the plan has been foreclosed by the decisions of Venning J and Judge Sheppard in their respective Mawhinney judgments, to which I referred at para [31] above.The Environment Court's jurisdiction to strike out appeal[36] The circumstances in which an Environment Court Judge is entitled to strike out an appeal are set out in s 279(4) of the Act:Powers of an Environment Judge sitting alone (4) An Environment Judge sitting alone may, at any stage of the proceedings and on such terms as the Judge thinks fit, order that the whole or any part of that person's case be struck out if the Judge considers—(a) That it is frivolous or vexatious; or (b) That it discloses no reasonable or relevant case in respect of the proceedings; or (c) That it would otherwise be an abuse of the process of the Environment Court to allow the case to be taken further.[37] In this case the question is whether the appeal was "an abuse of process" for the purposes of s 279(4)(c). The concept of "abuse of process" was discussed by Randerson J in Kitewaho, at [63]-[78]. [38] Randerson J equated the Environment Court's power to strike out with the way in which this Court's jurisdiction is exercised under r 186(c) of the High Court Rules. The Judge adopted Tipping J's observations in Commerce Commission v Giltrap City Ltd (1997) 11 PRNZ 573 (CA). Delivering the judgment of the Court of Appeal, Tipping J said, at 579, that "an abuse of process occurs when a litigant uses the processes of the Court for an ulterior or improper purpose". With respect, I agree. [39] The Environment Court held that Mr Mawhinney's attempts to circumvent the Act and the relevant operative plan amounted to an abuse of process. Because the application attempted to subvert the subdivision requirements of the Act and the relevant operative district plan, I have no doubt that the Environment Judge was right to hold that the appeals amounted to an abuse of process. [40] In those circumstances, the appeal must be dismissed, without the need to inquire further into the various points raised by Mr Mawhinney.Leave to appeal[41] After I indicated that I intended to dismiss the appeal, Mr Mawhinney made an oral application for leave to appeal to the Court of Appeal. That application is made in reliance on s 308 of the Act and the incorporated provisions of s 144 of the Summary Proceedings Act 1957.[42] I heard some argument on whether leave should be granted. I expressed a provisional view that leave might be desirable to resolve finally the fundamental issue to which Randerson J referred in Kitewaho and to avoid persistent applications that were being made in an attempt to meet problems encountered in individual judgments. Mr Milner-White, however, submitted that no sufficiently arguable qualifying question of law arose and that leave should be refused. [43] The threshold test for granting leave is set out in s 144(2) of the Summary Proceedings Act:Appeal to Court of Appeal (2) A party desiring to appeal to the Court of Appeal under this section shall, within 21 days after the determination of the High Court, or within such further time as that Court may allow, give notice of his application for leave to appeal in such manner as may be directed by the rules of that Court, and the High Court may grant leave accordingly if in the opinion of that Court the question of law involved in the appeal is one which, by reason of its general or public importance or for any other reason, ought to be submitted to the Court of Appeal for decision. .[44] My provisional view that leave might be appropriate was based on the need to obtain a definitive ruling on this point that would avoid Mr Mawhinney's persistent applications, all of which I regard as involving the same fundamental flaw. However, on preparing these reasons for judgment, I have come to the view that the answer to the question raised is so clear that leave is probably undesirable. [45] This judgment deals with the same issues addressed by Randerson J by applying his observations to determine the appeal. Accordingly, the analysis undertaken by Randerson J can now be regarded as authoritative. [46] Nevertheless, I intend to convene a further hearing so that Mr Mawhinney has an opportunity to make further submissions on this issue.Result[47] The appeal is dismissed. [48] The application for leave to appeal is adjourned for hearing before me at 9am on 10 December 2008. One hour is allocated. I will give a decision at the conclusion of that hearing on whether leave should be granted and, if so, in what terms. [49] The Council is entitled to costs on this appeal. They are awarded on a 2B basis, together with reasonable disbursements, both to be fixed by the Registrar. I do not certify for second counsel. ___________________________ P R Heath J Delivered at 11.00am on 27 November 2008