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The Consent Tide May Be Turning

The Consent Tide May Be Turning

Alice Balme takes a look at a recent Environment Court ruling in the Queenstown-Lakes District and the impact it may have in the future.

By: Alice Balme

1 July 2024

The development community is often frustrated by the time it takes for consent authorities to process resource consents and fulfil their obligations in respect of subdivision consents.

Consent authorities typically hold the power and there are no prescribed timeframes once a consent has been granted. However, the tide may be turning on the balance of power after a recent decision of the Environment Court in the Queenstown-Lakes District.

Hensman v Queenstown Lakes District Council concerned a subdivision in Queenstown. The property owners sought resource consent to subdivide two allotments into three. Conditions required that the works be carried out in accordance with the council’s land and development code of practice (code condition 8) and that certain engineering works were certified by council prior to the works being undertaken (condition 11).

The applicant applied for and was subsequently granted engineering approval certifying the engineering works, and physical works started. Subsequently, however, a council officer identified that among other things an accessway did not comply with code. A dispute then arose in respect of this non-compliance.

Eventually, the applicant applied for a section 224(c) certificate to finalise the subdivision. On the basis of the outstanding code compliance issues, the council refused to issue the section 224(c) certificate. No resolution could be reached, leading ultimately to the applicant making an application for an enforcement order to the Environment Court, seeking that the court order council to sign the section 224(c) certificate.

There were two key issues the Environment Court looked at:

Jurisdiction: The court held the section 224(c) process is a way that territorial authorities exercise their functions under the Resource Management Act. As such, it had jurisdiction to make an enforcement order requiring a council to issue a section 224(c) certificate. This is the first case of this kind, building on an “in principle” decision in the Queenstown District in 2022.

Catch-all consent conditions: The court considered whether council could rely on the catch-all consent condition 8 to require engineering work that was not expressly listed in the conditions of the resource consent, or the application, in order to comply with code.

The council’s position was that all of the code applied, in accordance with condition 8. However, the court held that the applicant’s obligations to comply with the code under condition 8 was limited to the works that were authorised by the resource consent, in particular those detailed in condition 11. Condition 8, and its reference to the code, did not change this position. The code (a document that runs to hundreds of pages) did not have binding effect unless it was incorporated into the district plan or a bylaw.

The court ultimately decided that condition 8 could not be relied on as a catch-all to trigger other provisions of the code and as such there was no basis for the council to refuse the section 224(c) certificate. An enforcement order against the council was granted, ordering it to grant the section 224(c) certificate.

The Implications

This decision might provide some relief for developers – there is now clear jurisdiction for applicants to apply to the court for enforcement orders where they believe that councils are unduly withholding section 224(c) certificates. This could prove to be a helpful tool to shuffle along the often-languorous consenting process.

However, the practical implications of this decision and the way councils may change their practices warrants a flag. Condition 8 is a common catch-all condition used across the country to ensure engineering works meet the standards required. The solution that councils may implement as a result is requiring a far more thorough and vigorous approach to the engineering information requirements before consents are granted to avoid situations like the above.

While the applicants in this case may have a “win”, and Hensman may provide for the post-granting of a consent timeline to be faster, the pre-consent impacts (for example, a requirement to front-load consents) may mean that ultimately the overall timeline stays the same. This front-loading of the consent process could also have wider implications.

The council has appealed this decision to the High Court, so the matter is not settled just yet.

Alice Balme is a partner in Wynn Williams’ Local Government and Environment & Planning Team, based in Queenstown.

Disclaimer: The information provided in this article is for general informational purposes only and should not be relied on as legal advice. Always consult a qualified lawyer for advice specific to your situation.