Case Law - Enforcing consents

Tasman Action Group Inc v Inglis Horticulture Ltd [2007] C126/07

These proceedings involved a dispute over the use in parts of the Tasman District of red crop covers, which the appellant considered to be offensive or objectionable to such an extent as to have an adverse effect on the environment.

The appellant was an incorporated society that sought to protect the amenity and environmental values of the Tasman District, and to ensure that persons, groups and businesses in the district operate in an environmentally responsible manner. Inglis Horticulture contended that they had acted in accordance with a rule in the District Plan; and that the adverse effects in respect of which the Society sought enforcement orders were expressly recognised by the Council during the development of the District Plan (and therefore came within the situation where the Environment Court may not make an enforcement order under section 319(2)(b) of the RMA.

Counsel for the Society argued that for the adverse effects to have been expressly recognised, the permitted activity rule would have had to have been created with express knowledge of the precise effects of the activity in the particular location; and contended that the evidence did not establish that the adverse effects of red crop covers had been expressly recognised by the District Council in approving applicable provisions of the District Plan.

The Court accepted that in light of the regime of the Interpretation Act 1999, Cooke v Auckland City Council [1997] A63/96 should no longer be followed in interpreting the words 'expressly recognised', and that full meaning has to be given to the word 'expressly'.

The Court found that there was no evidence that the Council (which approved the district plan provisions) expressly recognised potential adverse effects of the environment of the appearance of extensive areas of greenhouses or crop covers of any colour. Accordingly, the Court held that section 319(2) does not restrain the Court from making the enforcement orders sought in this proceeding.

General duty to avoid adverse affects - s17

Donkin v Board of Trustees of Sunnybrae Normal School [1997] C044/97

The Environment Court made a declaration that an existing school building (authorised by designation) contravened s17 because it was too close to the boundary and was causing objectionable effects upon the Donkin and Newman families, who each owned a property next-door to the school. The Donkins and the Newmans claimed that the school buildings affected their privacy, peace and sunlight.

The Court found that the two classrooms caused substantial adverse effects to the applicants and adjourned the proceedings to allow the parties to file further submissions as to the form of the declaration.

As a result, the Court declared:

… under section 313(a) of the Resource Management Act 1991 that the Board of Trustees of the Sunnybrae Normal School and the Minister of Education

a. have contravened their duty under section 17 of the Act by locating and using the school buildings (two classrooms) adjacent to the Donkin and Newman properties at 7A and 9 Cobblestone Lane, Glenfield;

b. have a duty to remedy or mitigate the adverse effects (loss of sunlight, daylight, and privacy, and an increase in noise) by relocating the building so that the classrooms are at least 10 metres from any residential boundary.

Sayers v Western Bay of Plenty District Council [1992] AO98/92

The Planning Tribunal heard an application by Mr Sayers, the occupier of a property at Waihi Beach, for a declaration as to whether the placing of fill on a neighbouring property by Mr Fowler contravened the RMA or a rule in the operative district scheme of the district council.

Fowler had placed a huge amount of fill on his property, which raised the level by nearly two metres (his object was to provide a more advantageous building platform).

The Tribunal found that the work undertaken by Fowler had caused an adverse effect on the amenity value of the neighbourhood as well as the economic and aesthetic conditions which affect or are affected by those values. There was also an adverse effect on one particular lot by virtue of a clay silt runoff problem.

The Tribunal considered s17, and at page 13 of the decision said:

Although as we have said, the Act embraces a permissive land use approach, applicable unless the particular activity is prevented or controlled in some way, s17 is critical for ensuring that, at the end of the day, particularly in cases where no district plan rule is apt for calling in aid to avoid, remedy or mitigate an adverse effect on the environment caused by an activity carried on by any owner of land, a person is not able to claim that no public law duty is owned to take such rectifying steps as the case may warrant. While the duty is not of itself enforceable by virtue of subsection (2), and while no action has been set in motion pursuant to subsection (3), w e see no reason why we cannot determine and declare whether or not the land owner in this case is under a duty imposed by the section. Section 310, as we construe it, does not limit our ability to make a declaration in the present circumstances.

The Tribunal held that the relevant rule in the district plan was ultra vires or contrary to law, but that if it had not been ultra vires the Tribunal would have declared that the activity concerned contravened the rule. Under s17 of the RMA the Tribunal declared that Fowler was under a duty to remedy or mitigate the adverse effect on the environment arising from the site alteration he was undertaking, and that to discharge that duty he must reduce the level of fill to a specified extent.

The Tribunal declared that Fowler was:

…under a duty to remedy or mitigate the adverse effect on the environment arising from the site alteration activity carried on and intended to be carried on by him, and that in discharge of such duty the existing level of fill on the site requires to be lowered 0.95 [metre], so as to produce an average fill thickness of or about 1 [metre](including the intended 250 [millimetres] layer of topsoil), still maintaining a generally flat platform. The filled area as lowered also requires to be properly retained and landscaped.

Service of documents

Slipper Island Resort v Thames Coromandel District Council and Others [1993] A008/93

The Planning Tribunal in Slipper Island Resort heard an application for re-hearing (under s294 of the RMA) of three appeals struck out by the Tribunal. One of the grounds put forward for the re-hearing was that no notice of hearing had been received or delivered to the appellants. The Tribunal held, at page 8:

… where a notice is attempted to be served under section 352 RM Act by postal delivery, a successful service may only arise if the notice is delivered at the addressee 's house or office or into his or her letterbox or rural delivery box. However, if such a notice was returned to the sender, whether or not the addressee was at fault for the non-delivery, that notice cannot be deemed to have been received by that person under section 352 RM Act at the time at which the letter would have been delivered in the ordinary course of the post.

Farrell v Manukau City Council [2008] A056/08

The appellants filed statutory declarations that a decision was not received. The Court held that the presumption of service was rebutted and that the appeal was filed within time even though there was undoubtedly prejudice to the Council in the circumstances given that the Council had relied on the resource consent and progressed with the tendering process.