(Photo credit: Auckland Libraries Heritage Collections 1477-2432)
Mike Doesburg, Partner and Molly McDouall, Solicitor, both resource management specialists at Wynn Williams.
The game of resource management and environmental law has many players and each serves a role: applicants, councils, submitters and, in some cases, the Environment Court.
Councils serve important regulatory functions, including as a planning and consenting authority charged with the unenviable and endless task of achieving sustainable management in a district or region. The Environment Court also serves important functions, including to determine planning and consent appeals, and in determining enforcement proceedings.
The potential for conflict between these functions became an issue in the Environment Court in Hensman v Queenstown Lakes District Council [2024] NZEnvC 37.
In a case reported in the May 2024 LG magazine, the Environment Court made an enforcement order, requiring the Council to exercise its administrative powers and sign a section 224(c) certificate (a necessary step to allow the completion of a subdivision of land).
The Council appealed the Environment Court’s decision and the resulting High Court judgment has clarified the bounds of Environment Court’s jurisdiction.
Facts
The Hensmans were implementing a subdivision consent, but grew frustrated at the Council’s refusal to provide engineering plan approval and sign a section 224(c) certificate. When disagreement between the parties could not be resolved, the Hensmans applied for an enforcement order, seeking that the Environment Court order the Council to sign the section 224(c) certificate.
In assessing the application, the Environment Court relied on “in principle” comments in a previous case (Northlake Investments Limited v Queenstown Lakes District Council [2022] NZEnvC 5) and found that the section 224(c) was a way that councils exercise their functions under the RMA. It found it had jurisdiction to issue an enforcement order and require the Council to sign the certificate to “ensure compliance… with the Act”.
The Council appealed the decision, alleging seven errors of law, including that there was no jurisdiction (under section 314(1)(b)(i) of the RMA) to issue an enforcement order against the Council.
Decision
The High Court examined the power of the Environment Court to make enforcement orders under the RMA, as well as the nature of the Council’s power to assess applications for section 224(c) certificates. The Court found:
• Section 224(c) does not confer a statutory duty enforceable against a council – it is a discretionary power that requires a council to form its own opinion on whether consent conditions are met.
• Section 21 (relating to avoiding unreasonable delay) and section 84 (relating to observing its own plan) do not transform the nature of the section 224(c) power into an enforceable obligation.
• An enforcement order is not the correct mechanism to resolve an impasse over whether a section 224(c) certificate should be issued. Instead, if there is a dispute about whether a condition has been complied with, an application for a declaration from the Environment Court under section 310 of the RMA is the appropriate tool. If there is a dispute about the reasonableness of a council decision, the obvious avenue is judicial review.
• Negative precedent would be set if the Environment Court could order councils to exercise administrative functions under the RMA. The High Court found that enforcement orders were never intended to be used for that purpose, which is the dominion of judicial review.
Justice Rachel Dunningham found that the Environment Court did not have jurisdiction to make the enforcement orders and set the decision aside.
The Court went on to consider the other six errors of law, upholding four, dismissing one and finding it unnecessary to determine the other. Those with a deep interest in the interpretation of engineering plan approval conditions or related plan provisions, and evidential burdens will find interesting discussion in those chapters of the judgment.
Comment
The High Court’s judgment helpfully clarifies the scope of the Environment Court’s jurisdiction on enforcement orders – the Court’s enforcement order jurisdiction cannot be used to require councils to take administrative actions under the RMA.
Were the conclusion otherwise, it is easy to see perverse outcomes, including the Environment Court being asked to order councils to take action under other broad discretionary powers such as:
• To review resource consents under section 128;
• bring prosecutions under section 338; or
• prepare and notify new plans under Schedule 1.
Importantly, there is still a remedy to break an impasse between consent holders and councils. The Environment Court’s declaratory jurisdiction is available, as is judicial review in the High Court.
With the role of the different players clarified, we can go back to playing the game.