PETER WILLIAM MAWHINNEY V WAITAKERE CITY COUNCIL CA CA136/2009

PETER WILLIAM MAWHINNEY V WAITAKERE CITY COUNCIL CA CA136/2009 31 July 2009IN THE COURT OF APPEAL OF NEW ZEALAND CA136/2009 [2009] NZCA 335AND BETWEEN PETER WILLIAM MAWHINNEY Applicant AND WAITAKERE CITY COUNCIL Respondent Hearing: 21 July 2009 Court: Hammond, Robertson and Baragwanath JJ Counsel: Applicant in person G R Milner-White for Respondent Judgment: 31 July 2009 at 11.30 amJUDGMENT OF THE COURT A The application for special leave to appeal is declined. B Mr Mawhinney is ordered to pay costs to the respondent for a standard application on a Band A basis and usual disbursements.____________________________________________________________________REASONS OF THE COURT(Given by Robertson J)Introduction[1] The application for leave is brought under s 144(3) of the Summary Proceedings Act 1957 (via s 308 of the Resource Management Act 1991 ("RMA")) in respect of a judgment of Heath J delivered in November 2008: HC AK CIV 2008- 485-1119 27 November 2008. Heath J dismissed with costs an appeal by Mr Mawhinney against a strike out judgment by the Environment Court and subsequently declined to grant leave to appeal to this Court: HC AK CIV 2008-485- 1119 19 February 2009. Heath J awarded costs in favour of the respondent, the Waitakere District Council. [2] As Mr Mawhinney is self-represented, it is perhaps not surprising that he had not formulated specific questions of law in his leave application. However, our understanding, from Mr Mawhinney's submissions, is that the questions which he wished to raise were: (a) Is there a restriction in s 11 of the RMA against subdivision of land contravening or failing to conform with a rule? (b) Can a certificate of compliance be lawfully obtained for part of the subdivision and resource consent for another part and is such a combination unlawful? (c) Is the jurisdiction of the courts limited in appeals from s 88(3) of the RMA to determining whether an objection is upheld or dismissed? [3] After the hearing Mr Mawhinney filed a proposed amendment to his application for special leave that expressly stated five questions of law he wished the Court to consider. He explained he had not set out these questions earlier because he had not known it was the Court's practice to consider proposed questions of law when deciding whether to grant leave: (a) Does s 11 of the RMA restrict subdivisions that contravene rules?;(b) Can a subdivision be lawfully carried out when it is allowed either by a rule or a resource consent?; (c) Can a subdivision be carried out in two stages (namely first, those parts allowed by certificates of compliance and second, remaining parts permitted by resource consent)?; (d) Is the jurisdiction of the Environment Court limited to either upholding or dismissing an objection lodged by an applicant in respect of an application?; and (e) Is the test under s 88 of the RMA limited to an evaluation of the adequacy of the applicant's assessment of environmental impacts? [4] The questions as stated to not alter the substance of the application.Background[5] Mr Mawhinney owns property in West Auckland that he wishes to subdivide. The land falls within the jurisdiction of the Waitakere District Council ("the Council"). Mr Mawhinney has, for some time, sought by various means to obtain subdivisional consents under the RMA. Most have been refused. [6] In February 2006 Mr Mawhinney and associated companies lodged an application with the Council. The application sought both a certificate of compliance under s 139 of the RMA and subdivision consents under s 88. The s 139 certificate of compliance was sought in respect of boundary adjustments and the construction of some 77 sheds. The s 88 consents pertained to a cross-lease of the same 77 sheds and a residence, on the basis that the cross-lease was either a controlled activity under the General Subdivision Rules or a restricted discretionary activity under the Foothills Subdivision Rules. [7] Subdivision of land is prohibited by s 11 except in accordance with the terms of the section, namely that:(a) the subdivision is expressly allowed by a rule in a district plan (or relevant proposed plan) or a resource consent; and (b) a survey plan has been deposited by a District Land Registrar. An application for a certificate of compliance under s 139 may be made only where an activity could be lawfully carried out without a resource consent. [8] "Subdivision" is defined in s 218 as the division of an allotment (an "allotment" being any parcel of land whose boundaries are shown on a survey plan) by, among other means, the grant of a cross lease in respect of a part of the allotment. Mr Mawhinney proposes a cross-lease of sheds on his land, which is within this definition of subdivision: see s 218(1)(a)(iv). The proposed subdivision is not expressly allowed by a rule in a district plan or relevant proposed plan. Nor is there a resource consent for it. Since the activity could be lawfully carried out,only with a resource consent, no application may be made for a certificate of compliance. [9] Sections 88, 218 and 139 of the RMA state:88 Making an application(1) A person may apply to the relevant local authority for a resource consent [which by s 87 is defined as including "a subdivision consent", namely "a consent to do something that otherwise would contravene section 11"]. . . . (3) If an application does not include an adequate assessment of environmental effects or the information required by regulations, a local authority may, within 5 working days after the application was first lodged, determine that the application is incomplete and return the application, with written reasons for the determination, to the applicant. . . .218 Meaning of "subdivision of land"(1) In this Act, the term subdivision of land means— (a) The division of an allotment—(i) By an application to a District Land Registrar for the issue of a separate certificate of title for any part of the allotment; or (ii) By the disposition by way of sale or offer for sale of the fee simple to part of the allotment; or (iii) By a lease of part of the allotment which, including renewals, is or could be for a term of more than 35 years; or] (iv) By the grant of a company lease or cross lease in respect of any part of the allotment; or (v) By [the deposit of a unit plan, or] an application to a District Land Registrar for the issue of a separate certificate of title for any part of a unit on a unit plan; or (b) An application to a District Land Registrar for the issue of a separate certificate of title in circumstances where the issue of that certificate of title is prohibited by section 226,— and the term subdivide land has a corresponding meaning.139 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. . . . (3) no certificate of compliance may be issued where a proposed plan has been notified and the proposed activity is not a permitted activity, or could not be lawfully carried out without a resource consent, in relation to that location in the proposed plan. (6) a certificate of compliance shall be deemed to be an appropriate resource consent issued subject to any conditions specified in the plan, and the provisions of this Act shall apply accordingly The Council rejects the applications[10] The Council refused the application in a letter which relevantly said: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 power 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 the Council to differentiate between the grounds advanced in support of the s 139 application and the grounds advanced to support the subdivision application. Case law under s 139 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.[11] The applicants objected to the refusal, but the objection was dismissed by a Hearings Committee on the basis of Randerson J's judgment in Waitakere City Council v Kitewaho Bush Reserve [2005] 1 NZLR 208 (HC).The appeal to the Environment Court[12] The applicants then appealed to the Environment Court. Judge Whiting issued judgments in respect of it and other appeals brought by Mr Mawhinney and his companies on 6 and 7 October 2007, and 4 April 2008. He struck out the appeals on the ground they were an abuse of process. He considered that the combined applications filed by Mr Mawhinney and the companies were contrivances because they sought effectively to cobble together different requirements under the Act into one combined application, when that method of application was invalid in terms of Randerson J's judgment in Kitewaho.Heath J's decisions[13] Mr Mawhinney, on behalf of the companies, then appealed to the High Court under s 299(1) of the RMA on purported points of law. Heath J did not find it necessary to detail each of the points of appeal because he considered that:[16] 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.[14] Heath J followed the reasoning of Randerson J in Kitewaho, and on that basis dismissed the appeal. [15] Mr Mawhinney made an oral application for leave to appeal to this Court under s 308 of the RMA. Heath J expressed a "provisional view" that leave might be desirable to resolve the "fundamental issue" traversed by Randerson J in Kitewahoalthough he stated that:[44] 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.[16] At a subsequent hearing to determine Mr Mawhinney's application for leave to appeal to this Court and the Council's application for costs, Heath J concluded that leave was inappropriate and Heath J made a costs order against Mr Mawhinney, but stayed its execution for 20 days to permit filing of the special leave application. [17] We emphasise that it is for the High Court, and not this Court, to make a determination either to grant or refuse leave. If an applicant is refused leave in the High Court they may apply for special leave. The question of ordinary leave is the province of the High Court and is properly determined by that Court.The appeal[18] Mr Mawhinney submitted that there are two respects in which Heath J's judgment is erroneous in law. [19] The first respect in which he submitted Heath J erred is in the interpretation s 11 of the RMA, which provides that:11 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;[20] Mr Mawhinney submitted that since s 87 of the RMA defines a "subdivision" consent as "a consent to do something that would otherwise contravene s 11", and s 11 does not (expressly) prohibit the contravention of rules, it is legally impossible to contravene s 11 by failing to comply with a rule. He submitted that Heath J was wrong to determine that the requests for the certificates of compliance were improper on the ground that the legislation required developers to obtain "all the resource consents necessary to overcome any non-compliance with any relevant subdivision rule". [21] The respondent endorsed the view taken by both Heath J in the present case and Randerson J in Kitewaho, that s 11 creates a presumptively restrictive subdivision regime in which the starting point is that subdivision is not permitted, rebuttable by either express provision or a resource consent, but not by mere non- contravention of a rule. [22] The second error Mr Mawhinney submitted Heath J fell into was in concluding that, where part of a subdivision of land is a permitted activity and the other part requires resource consent, a combination of a certificate of compliance and resource consent is insufficient. He argued that because a certificate of complianceis "in effect a resource consent" by virtue of s 139(6), Heath J was wrong to find that the methods by which land may be subdivided are not disjunctive as found by the High Court.Discussion[23] We are satisfied that this application does not raise arguable points of law. The answers to Mr Mawhinney's contentions are plain and do not warrant further argument. They seek only to expand upon his own idiosyncratic interpretation of the requirements of the RMA. There is no conflicting authority on the points raised by Mr Mawhinney. The only other cases that have addressed this issue have been brought by him. [24] Mr Mawhinney's arguments in the present appeal were presented, in essentially the same form, to Randerson J in Kitewaho. The Judge in that case considered Mr Mawhinney's interpretation of s 11 of the RMA and, in respect of the correct test under the section, noted that:[85] The scheme of s 11 involves a presumption which is the reverse of that provided for in s 9 [of the RMA]. 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 must not take place unless expressly allowed by a resource consent or is permitted as an existing use [86] Whether the proposed subdivision is "expressly allowed" under both the district and proposed plans is a matter of construction of the plans in question there is no room for any suggestion that the subdivision may be permissible if it is allowed by implication.[25] That is a correct statement of the subdivision regime under the RMA. It has, in addition, been stated on other occasions that consent applications are not amenable to compartmentalisation and that the RMA is directed at the management of natural resources in a comprehensive and holistic way: see Bayley v Manukau City Council [1999] 1 NZLR 568 (CA); King v Auckland City Council [2000] NZRMA 145 (HC).[26] Mr Mawhinney's argument is unsupported either by precedent or by logic. A straight comparison between s 9 and s 11 shows that the presumption in s 11 (cf s 9) is that resource consent is required for a subdivision. Kitewaho is cogent on this point. [27] The correct proposition that s 11 presumptively prohibits subdivision and that mere non-contravention of rules does not satisfy s 11, also disposes of Mr Mawhinney's second contention, that s 11 may be satisfied by a combination of resource consents and certificates of compliance. Section 87(1)(b) defines a subdivision consent as a consent to do something that would otherwise contravene s 11, and that includes doing something that is not expressly allowed. Section 218 defines "subdivision of land", and it is clear that subdivision is not a purely technical matter and that a council is entitled to consider an application in light of the impact the subdivision will have on the management of associated resources (see Lakes District Rural Landowners Society Inc v Queenstown Lakes District CouncilEC CHCH C100/01 21 June 2001). [28] Finally, s 139 provides for the issuance of certificates of compliance. The section makes plain that a certificate of compliance will only be issued where the activity in respect of which it is sought could lawfully be carried out without a resource consent, and that means that an application must satisfy the council that every aspect of the activity (positively) conforms with the relevant rules (seeWawatai v Hamilton City Council PT HAM W17/96 26 February 1996). [29] Combined applications for resource consents and certificates of compliance are invalid. Certificates of compliance are available where, and only where, an activity is permitted in all relevant respects. They are not available as a means of patching up otherwise incomplete resource consent applications.Conclusion[30] The shared interpretation of the relevant provisions of the RMA favoured by the Judges in the High Court is sound and in accordance with the Act's scheme and purpose. Mr Mawhinney has not demonstrated that there is any general or publicimportance in his appeal. His application does not raise arguable points of law. He is using the appellate procedure as a means of furthering his own interests, and as a "backdoor means of expanding [his] argument into a wider challenge": see Downer Construction (NZ) Ltd v Silverfield Developments Ltd [2007] NZCA 355 at [39]. [31] The application for special leave to appeal is declined. Mr Mawhinney is ordered to pay costs to the respondent for a standard application on a Band A basis and usual disbursements.Solicitors: Kensington Swan, Auckland, for Respondent