Queenstown Lakes District Council appeals Environment Court order to issue section 224(c) certification to local developer
In a disappointing move, Queenstown Lakes District Council (QLDC/Council) have lodged an appeal against the unprecedented Environment Court decision.
Introduction
QLDC lodged an appeal in the High Court against the recent Environment Court decision which granted[1] an enforcement order requiring the Council to issue a section 224 (c) certificate for a property located in Queenstown (Decision).
The Decision, considered very positive for developers and anybody implementing a subdivision, was expected to prevent Council’s practice in using general conditions to require additional works not contemplated or specified in the subdivision consent. Practically, the Decision was expected to assist in a more streamlined process for completing subdivision works, currently held up by Council requiring additional engineering works.
The appeal, lodged earlier this month, alleges the Decision erred on several points of law, including:[2]
- The court had no jurisdiction to issue an enforcement order;[3]
- The developer could not construct an accessway at the site not in accordance with the subdivision consent on the basis it was a permitted activity;[4]
- Condition 8, the “general engineering condition”, of the subdivision consent was not limited to the design of engineering works; and
- Certain clauses of QLDC’s ‘Land Development and Subdivision Code of Practice’ (SCOP) had no certification process under s224(c) of the RMA.
Background
The property in contention, situated in Frankton at Perkins Road/Angelo Drive, originally obtained resource consent in 2021, for the subdivision of two allotments into three.
In August 2022, the applicants believed they had completed all engineering works required by the subdivision consent conditions. This included all reasonable aspects of consent condition 8, the “general engineering condition”.[5] Condition 8 reads:
All engineering works, including the construction of retaining walls, shall be carried out in accordance with the Queenstown Lakes District Council’s policies and standards, being QLDC’s Land Development and Subdivision Code of Practice adopted on 8th October 2020 and subsequent amendments to that document up to the date of issue of any resource consent.
Despite this, QLDC refused to issue section 224(c) certification, citing the need for various “additional” engineering works to be undertaken. QLDC claimed consent condition 8 (aka the general engineering condition) provided the Council the right to require additional works, which included:
- Comment from a geotechnical expert as to slope stability;
- Comment from a traffic engineer as to the raised edge of the vehicle crossing within the road boundary;
- A requirement for vehicle safety rail to be designed by a structural engineer at the top of the slope within the site;
- Comment from the pavement designer; and
- Reshaping of swales in both directions.
The Council argued that completing these additional works would ensure compliance with QLDC’s SCOP.[6]
The applicant sought an enforcement order from the Environment Court, contending that the general engineering condition did not give QLDC the right to require additional engineering works. As the applicant had already complied with the engineering work specifically required and identified in the conditions, there was no reasonable basis QLDC could refuse to certify the subdivision consent. The orthodox position is that works required under consent conditions cannot be modified by terms of the Engineering Approval (EA). The question was therefore whether condition 8’s reference to the SCOP alters that position.
A jurisdictional issue was also raised by Council, who argued at the proceedings that:
“The court has no jurisdiction to make an enforcement order, as it would require QLDC to be satisfied the conditions of the consent were complied with when they did not hold that view.”[7]
Environment Court agrees with the applicant
In summary, the court found that all relevant conditions were met. The “additional works” required by QLDC were not part of the conditions of consent, nor expressly required by reference to the SCOP as they were not accounted for during the resource consent process.
Consent condition 8 had been construed by the Council as requiring compliance with any provisions of the SCOP considered by Council officers to be of relevance to the consented works.[8] However, the court determined consent condition 11 identified the engineering works required to accord with the SCOP under consent condition 8.[9]
Importantly, the court determined that whilst QLDC must be satisfied that conditions have been met to issue a s 224(c) certificate, they cannot rely on the general consent condition 8 to require additional works. Further, to the extent any reference to the SCOP allows Council general discretion to require additional works, condition 8 is unenforceable and invalid for uncertainty, as it unlawfully reserves to Council a subjective discretion.[10]
Jurisdictional point addressed
The court determined that a plain reading of s 224(c) meant that where works undertaken as part of the consent comply with the relevant conditions a s224(c) certificate should be issued.[11] An enforcement order can be sought to address the Council’s breach of the RMA duty pertaining to the Council’s function in the administration of resource consents, which in this case relates to certification under s 224(c).[12]
Specific SCOP issues
An “additional work” which provided much disagreement between parties, was the gradient of an accessway of the site and the engineering acceptance condition of the consent.
The court expressed their frustration with the SCOP provisions provided by Council,[13] with different versions of the SCOP (a 2018 version and 2020 version) being referred to in the consenting process and its incorporation into the Proposed District Plan (PDP) repeatedly labelled “confusing” by the court.
It was determined that the 2020 version of the SCOP, with clause 3.3.16 (which addresses the steepness of a proposed new private road, private way or other private access to be constructed on a sloping site) was not incorporated into Chapter 27 or Chapter 29 of the PDP respectively.[14] The court further agreed with counsel for the applicant, that none of the provisions of Chapter 29 were engaged.
On the issue of the accessway, the court found the accessway as a permitted activity did not need to be/was not “authorised” through the consenting process, despite it clearly being the intention of the applicants to construct a complying accessway.[15]
In relation to the accessway and slope stability, the court found that slope stability was specifically addressed in consent conditions, already assessed and informed by the SCOP[16] and slope stability was not addressed in the EA process.
Therefore, QLDC could not invoke, or require further work under clause 2.3.10 of the SCOP, when it was already reflected in the drafting of the consent conditions.
Conclusion
It was hoped the outcome of this Decision would see an end to Council’s practice in using general conditions like condition 8 to require additional works not contemplated or specified during the consent processing. However, it might also have led to more onerous upfront requests for information during the application process. Nevertheless, now that it is subject to appeal, those outcomes are uncertain.
As stated by the applicant’s witness, in practice consent condition 8 usually triggers a requirement for further resource consent from Council,[17] which “elongates post-consent construction timeframes and adds considerable complexity and cost to the s224(c) process.”[18] Further,
“Council officers rely on the SCOP as justification for engineering works to be undertaken irrespective of the scope of the resource consent authorising the development at their absolute discretion.”[19]
The appeal if successful will be disappointing for anyone subdividing in the district, as the original Decision makes it clear there is not that discretion and that risk of elongating construction timeframes should be reduced.
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[1] Pursuant to section 314(1)(b)(i) of the Resource Management Act 1991.
[2] There were several points of appeal, based on alleged errors of law.
[3] Under section 314(1)(b)(i) of the Resource Management Act 1991.
[4] Under the Queenstown Lakes Proposed District Plan;
[5] Pursuant to section 224(c) of the Resource Management Act 1991.
[6] The SCOP was originally adopted by QLDC in 2015, but has since had three revisions, that latest being in 2020.
[7] At [44].
[8] At [74].
[9] At [77]. The court found that consent condition 11(a)-(e) identified the engineering works required to accord with the SCOP under consent condition 8 (in addition to all retaining walls which are also expressly referred to).
[10] At [2 (g)].
[11] At [67].
[12] At [68].
[13] At [124].
[14] Chapter 27 (Subdivision) and Chapter 29 (Transport). The court explicitly stated at para 108, “Chapter 27 Subdivision does not incorporate any SCOP provisions. This chapter refers to the SCOP as “provid[ing] assistance in the design of subdivision and development.”
[15] At [145].
[16] At [172(a)].
[17] At [92] (paras [49] and [50] of Mr. Hansen’s affidavit of 16 February 2023).
[18] At [92].
[19] At [90].