Mike Doesburg is a Partner at Wynn Williams who specialises in local government and environmental law.
The subdivision and development of land often involves complex engineering solutions to ensure safe and enduring outcomes.
Rather than resolve the minutiae of those requirements in planning documents, it is common for territorial authorities to provide a subsequent engineering plan approval (EPA) process through resource consent conditions where engineering matters are assessed against the authority’s code of practice.
Much of the time the EPA process works well. However, disagreements can arise between councils and applicants. In such cases councils generally have a strong position – failure to obtain EPA means that consent conditions cannot be met and development cannot proceed.
The Environment Court recently grappled with one of these disagreements in Hensman v Queenstown Lakes District Council [2024] NZEnvC 37. The judgment is an important read for councils, consent planners and engineers when considering the content and framing of EPA conditions.
Facts
The Applicant sought resource consent to subdivide two allotments into three. The proposed new lot required a new accessway and vehicle crossing. Through the resource consenting process, conditions were imposed including:
• A condition requiring engineering works to comply with the Council’s Land Development and Subdivision Code of Practice (SCOP) and any subsequent amendments – Condition 8; and
• a condition detailing the EPA process, which identified the engineering features that required approval, including the vehicle crossing – Condition 11.
The Applicant applied for and was granted engineering approval and commenced works. During an inspection, a Council officer identified that the accessway was too steep and did not comply with the SCOP. The Applicant applied for and was granted a variation to the engineering approval, but disagreement remained regarding the gradient and other issues.
The Applicant applied for section 224(c) certificate for the subdivision, which was rejected. The Council identified other SCOP provisions that needed to be addressed including the installation of a vehicle safety rail and reshaping of swales. The Council’s position was that all of the SCOP applied, in accordance with Condition 8.
The disagreement could not be resolved, so the Applicant made an application for an enforcement order seeking that the Court order the Council to sign the s224(c) certificate.
Decision
The Court identified the central question for its decision was whether the Council could rely on Condition 8 to require engineering work that was not expressly listed in the conditions of the resource consent.
The Court began by considering its jurisdiction. It referred to the “in principle” observations made in an interim oral decision on a similar case: Northlake Investments Limited v Queenstown Lakes District Council [2022] NZEnvC 5. In that case, a differently constituted Environment Court observed that an enforcement order could encompass anything necessary to address a breach of a council’s functions in relation to the administration of resource consents.
The Court found that the s224(c) process is a way that territorial authorities exercise their functions under s31 of the RMA. Applying the observations from Northlake, the Court found that it had jurisdiction to make an enforcement order requiring a council to issue a s224(c).
Turning to the central question, the Court focused on the interpretation and application of Conditions 8 and 11. It found that Condition 8 (the general EPA condition) needed to be read with Condition 11 (which referred to the specific engineering works). The Court found that the “orthodox” interpretation was that the Applicant’s obligation to comply with the SCOP under Condition 8 was limited to the works authorised by the resource consent (particularly those detailed in Condition 11).
The Court went on to consider whether reference to the SCOP in the conditions changed that position. In this case, the SCOP was over 200 pages long and itself noted that it “does not have binding effect unless incorporated into a regional/district plan or bylaw.” Parts of the SCOP were incorporated into the District Plan, but only in certain chapters of the Plan.
The Court found the SCOP did not have residual legal effect through Condition 8, including because resource consent was not required under a chapter of the Plan that incorporated the SCOP. Accordingly, Condition 8 could not be relied on to trigger other provisions of the SCOP. The Court found there was no basis for the Council to refuse the s224(c) certificate and ordered that it be signed.
Comment
In terms of jurisdiction, it is notable that the Court is ready and willing to direct councils to sign s224(c) certificates. It raises the obvious question of how far the Court can go in ordering councils to take action to implement their functions with resource consents.
More broadly, the case does not detract from the use of EPAs or engineering codes of practice. However, it emphasises the importance of the drafting of consent conditions and incorporation of codes of practice into planning documents.
It has been reported that the Council has appealed the decision to the High Court – watch out for more in this space.