/BEFORE THE ENVIRONMENT COURT I MUA I TE KOOTI TAIAO O AOTEAROA IN THE MATTER AND BETWEEN AND Decision No. [2019] NZEnvC \ · z. l\-- of the Resource Management Act 1991 of an appeal pursuant to s 120 of the Act HAINES HOUSE HAULAGE NORTHLAND LIMITED (ENV-2018-AKL-125) Appellant WHANGAREI DISTRICT COUNCIL Respondent Court: Environment Judge J A Smith Environment Commissioner R M Dunlop Environment Commissioner S K Prime Hearing: Whangarei, 10-12 December 2018, including site visit Appearances : A J Webb for Haines House Haulage Northland Limited (HHH) G J Mathias for Whangarei District Council (the Council) JS Baguley for Mrs A Waldron (s 274 party, resident) Date of Decision: 24 July 2019 Date of Issue: '; (! I >q·i··,9 (., r l. FINAL DECISION OF THE ENVIRONMENT COURT A: Due to the placement of a residence by the applicant on Lot 1 DP 483749, we are not satisfied it can now be utilised to mitigate the effects of the activity on the amalgamated title of Lot 1 DP 483749 and Lot 2 DP 356529 given the application evidence. B: In such circumstances: (i) A condition of consent cannot be imposed preventing the construction of a building or other structures on the site given this has already occurred ; Haines House Haulage Northland Limited v Whangarei District Council
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AND - Ministry of Justice · HAINES HOUSE HAULAGE NORTHLAND LIMITED (ENV-2018-AKL-125) Appellant WHANGAREI DISTRICT COUNCIL Respondent Judge JA Smith, sitting alone pursuant to section
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/BEFORE THE ENVIRONMENT COURT I MUA I TE KOOTI TAIAO O AOTEAROA
Court: Environment Judge J A Smith Environment Commissioner R M Dunlop Environment Commissioner S K Prime
Hearing: Whangarei, 10-12 December 2018, including site visit
Appearances: A J Webb for Haines House Haulage Northland Limited (HHH) G J Mathias for Whangarei District Council (the Council) JS Baguley for Mrs A Waldron (s 274 party, resident)
Date of Decision: 24 July 2019
Date of Issue: '; (! I >q·i··,9 (., ~ r l.
FINAL DECISION OF THE ENVIRONMENT COURT
A: Due to the placement of a residence by the applicant on Lot 1 DP 483749, we are
not satisfied it can now be utilised to mitigate the effects of the activity on the
amalgamated title of Lot 1 DP 483749 and Lot 2 DP 356529 given the application
evidence.
B: In such circumstances:
(i) A condition of consent cannot be imposed preventing the construction
of a building or other structures on the site given this has already
occurred ;
Haines House Haulage Northland Limited v Whangarei District Council
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(ii) We are not satisfied that the adverse effects of the activity in the rural
zone can otherwise be avoided as described in considerable detail in
our interim decision;
(iii) The application for resource consent should properly be refused .
C: The appeal is therefore dismissed and the resource consent refused.
D: Costs are reserved. Applications for costs are to be filed within 20 working days,
any reply within 1 0 working days and a final reply, if any, within five working days
thereafter.
REASONS
Introduction
[1] This decision follows from an Interim Decision of the Environment Court issued on 22
March 2019 and should be read in conjunction with it. It was clear the Court needed to
be satisfied as to the consent and conditions before it would allow the appeal.
[2] Annexed hereto and marked A is a copy of a Memorandum issued by the Court in
January 2019 subsequent to the hearing relating to the interconnection of the Lots being
on an amalgamated title . Fundamentally it appears that Lot 1 DP 483749 and Lot 2 DP
356529 were required to be amalgamated as a condition of subdivision in 2016. In those
circumstances the interrelationship of these lots and the conditions which might be
imposed by the Court are addressed in some detail in the Court's decision.
The outcome of the Court's interim decision
[3] The Court noted at paragraph 28:
... we are concerned at the way in which this application has morphed between the time it was filed and the time of our hearing. These changes show a form of incrementalism in relation to the use of Lot 1 and its eventual incorporation into the activity, notwithstanding that it was never part of the application.
And at paragraph 30:
We are satisfied that the conflation of Lot 2 DP 356529 and Lot 1 DP 483749 has led to an expansion of the application which is beyond jurisdiction . The difficulty appears to have arisen because the Council or the Court could have imposed conditions mitigating effects of the activity affecting both properties . However, the application cannot be expanded to include HHH-owned Lot 1 DP 483749.
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[4] Paragraphs 32 to 35 discuss the amalgamation , the joint certificate of title in respect
of those properties which was shown in the hands of TW Trustees, J Matich, Suzanna M
Matich-Hall and Titania Matich. It appears that the joint title for these two properties was
issued at the same time as the subdivision for the property now occupied by Mrs Waldron .
[5] The Court goes on at paragraph 34 to discuss the response from Mr Webb to the
Memorandum and identifies the factual matters which we take as read for the purposes
of this decision. In particular, we note the statement by Mr Webb:
[Bulletpoint 3] ... that Lot 1 DP 483749 was "creating an open space area incorporating landscaping between the buildings and Mrs Waldron's property".
Recent changes
[6] The Court members individually noted during visits to Northland for other cases that
a relocated house had been placed on Lot 1 some time prior to the middle of June 2019,
probably from about April. This was after the interim decision had been issued but the
Court is unclear as to the date on which the actual works were undertaken.
[7] Mr Mathias in his memoranda to the Court notes that a building consent was granted
for the building on 9 May 2019. We note that Mr Webb does not give a specific time
when the building was placed on the site.
[8] Ms Baguley asserts in her submissions that before the issuing of the interim decision
but after the hearing i.e. between December 2018 and March 2019, the applicant moved
the house onto the site and began works to establish foundations.
[9] Subsequently the Court's interim decision was issued on 22 March 2019 and Ms
Bagley asserts on behalf of her client that the applicant subsequently continued to carry
out more establishment works and moved the house into its permanent position . This
better accords with the Court's own understanding from observations passing this site
during this period . Mr Mathias is also silent on the topic of when establishment works
were undertaken on the site.
[1 0] We accept Mr Mathias' assertion that the applicant can place a home on Lot 1 as
of right. That is not the issue of concern to this Court or Ms Baguley. The issue is that
in doing so HHH have precluded the ability to fulfill the conditions of consent envisaged
by the Court in the interim decision.
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[11] Furthermore, it has to our mind, clearly established the Court's concerns as to
incrementalism in respect of the use of both properties jointly. The building was always
described to this Court as the manager's house. We note the plans attached to the
decision of the Court which clearly set out the areas shown in the drawings produced to
this Court, particularly Exhibit C where proposed landscaping trees were shown as being
included within Lot 1 and that part of Lot 1 was to be utilised as part of the storage area
for buildings on Lot 2. Furthermore, a proposed manager's house is clearly identified on
that plan . It appears the applicant has furthered this position notwithstanding that the
application only addressed Lot 2.
Conclusion as to ability to grant a consent
[12] In these circumstances the interim decision requirements cannot be fulfilled given
that the applicant has acted precipitously while the decision was pending and later
notwithstanding the clear terms of the interim decision.
[13] This gives concern to this Court as to whether the applicant would comply with
any conditions of consent. Although we must normally assume this is the case, where
there is clear evidence that the applicant has acted contrary to the Court's interim
decision we cannot with any confidence impose conditions requiring the building 's
removal. We also note the house is a permitted activity thus its removal is problematic.
[14) We acknowledge and accept that the building can be placed on this Lot 1.
However, the activity requiring resource consent cannot be granted consent if that activity
prevents the mitigation required. Our reasons include not only those of legal principle
but the inability to provide conditions that could satisfy us that the effects of the activity
itself could be sufficiently contained within the lots and that Lot 1 DP 4837 49 could be
free of buildings and utilised as rural pastural land to effectively manage the effects of
conducting the activity on the rest of the amalgamated site.
[15) This outcome is entirely of the applicant's own making . Preliminary works may
have been undertaken prior to any Council building consent being granted on 9 May
2019. The extent to which earthworks and the preliminary placement of the building are
permitted under the plan is not a matter we have examined and should be the subject of
further examination by the Whangarei District Council Compliance Team.
The appeal is refused and the Council decision confirmed.
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Costs
[17] Given our conclusion that consent should not be granted, we acknowledge that
Ms Waldron has been put to significant expense including in respect of the interim
decision memoranda and would normally make an application for costs. If any party
wishes to make an application for costs they are to do so within 20 working days, reply
within 10 working days and a final reply, if any, within a further five working days.
For the court:
I \
BEFORE THE ENVIRONMENT COURT I MUA I TE KOOTI TAIAO O AOTEAROA
Court:
IN THE MATTER
AND
BETWEEN
AND
of the Resource Management Act 1991
of an appeal under section 120 of the Act
HAINES HOUSE HAULAGE NORTHLAND LIMITED
(ENV-2018-AKL-125)
Appellant
WHANGAREI DISTRICT COUNCIL
Respondent
Judge JA Smith, sitting alone pursuant to section 37 4 of the Act
MEMORANDUM OF THE ENVIRONMENT COURT TO THE PARTIES (11 JANUARY 2018)
Introduction
[1] The Court held a hearing in respect of this matter and received final submissions
from Mr Webb for the applicant. In considering the scope of the application, and what is
currently sought, several issues have arisen.
The issues
[2] In the first instance the Court seeks commentary from the parties. The issues
are:
A. Who is the owner of Lot 1, DP 4837 49?
Two copies of Certificates of Title were produced to the Court:
• One attached to the consent application by Haines House Haulage