Case Law

Sustainable Ventures Limited v Tasman District Council [2012]

20-unit apartment complex at Pakawau, Golden Bay

Author: Bronwyn Carruthers (Partner) and Simon Pilkinton (Solicitor), Russell McVeagh
Number: NZEnvC235
Court: Environment Court
Party: Sustainable Ventures Limited v Tasman District Council

The Environment Court has upheld an appeal by Sustainable Ventures Limited (“SVL“) against the conditions of a resource consent granted by the Tasman District Council (“Council“) for a 20-unit apartment complex at Pakawau, Golden Bay.  In granting consent to SVL, the Council imposed conditions which required SVL to undertake a dune restoration or “coast care programme” along the seaward boundary of its site (“coast care conditions“).  SVL’s consent application did not contain any proposal to incorporate land protection works of the type envisaged by the coast care conditions.  SVL accordingly appealed against the coast care conditions on the basis that the Council had no jurisdiction to impose those conditions.

SVL’s site and other neighbouring properties at Pakawau are subject to erosion from coastal processes. This led to property owners in the area establishing coastal protection structures along the coastal frontages to their properties.  SVL’s property itself was protected by an existing rock wall along its 220m seaward boundary.

In preparing its consent application for the proposed apartment development, SVL considered whether it should future-proof the coastal boundary of its site against erosion. Its coastal engineer, Mr Goss, found that the existing rock wall structure provided sufficient protection against reasonably expected episodic events, but that it may not stand up to “prolonged wave attack”.  SVL therefore decided that maintaining the status quo was undesirable, and considered that it could either maintain and improve the existing rock wall, or create a natural, vegetated dune system (“coast care option“).

Mr Goss concluded that improving the existing rock wall was the best option given the nature of the development proposed, the uncertainties as to future sea levels, and the similar existing rock walls used to protect neighbouring properties.  SVL’s consent application was made on the basis that the proposed apartment development would follow Mr Goss’ recommendation and consent was sought to improve the existing rock wall as protection against future coastal erosion. Critically, the coast care option was expressly rejected by SVL.  This option did not form part of its application and, as a result, no information about the potential effects of the coast care option was before the Council in SVL’s application or supporting documents.

Accordingly, SVL’s appeal was not a situation where the consent conditions at issue were identified by the consent applicant as a possible, but less preferred option. Rather, the coast care option had been expressly rejected by SVL and did not form part of the application for which consent had been sought. Nevertheless, the Commissioners who determined SVL’s consent application were satisfied that they could grant consent on the basis that the coast care conditions were imposed. The fundamental issue before the Environment Court was whether it was open to the Council to impose the coast care conditions on SVL’s consent, in circumstances where the consent application excluded the coast care option as an option for protecting the proposed development against coastal erosion.

The Court firstly considered the question of what might be approved by a local authority in considering an application for resource consent.  The Court noted that it was trite law that the scope of any consent that might be granted is defined by the resource consent application.  A Council has no jurisdiction to grant a consent which extends beyond the ambit of an application.

In this case, the Court found that SVL had considered but clearly rejected the coast care option as part of its consent application. It was therefore difficult to see how the coast care option, which had been specifically excluded by SVL, could be said to be within the ambit of SVL’s consent application. What the Council had done in this instance was purport to grant consent to an activity which SVL said it did not intend to undertake, and had not sought consent for. The coast care option, in other words, was not even before the Council and the Council accordingly had no jurisdiction to impose the coast care conditions.  If the Commissioners had reached the conclusion that consent should not be granted unless it incorporated the coast care conditions, then the proper course of action was for SVL’s application to be declined altogether.

In the event that the Court was wrong that there was no jurisdiction to impose the coast care conditions in the first place, the Court subsequently considered whether there was jurisdiction to amend SVL’s consent application in the same manner as the Council to incorporate the coast care conditions.  In particular, the Court considered whether a change to a consent application can be brought about by way of Council-imposed conditions, rather than be requested by SVL through the application process.

Contrary to SVL’s submission, under section 108(1) of the Resource Management Act 1991 (“RMA“), it is clear that a consent authority may impose conditions which have not been sought by a consent applicant. However, the range of conditions which a Council may impose is not limitless; particularly where the conditions imposed may amend the scope or character of the consent granted from that which was sought by the applicant. The question for consideration is whether the amendments made by a local authority to the applicant’s consent application that are imposed by way of consent conditions fall within the scope of permissible amendments. The extent of permissible amendments to resource consent applications was considered by the Supreme Court in Waitakere City Council v Estate Homes Ltd [2007] 2 NZLR 149.  In that case, the Supreme Court held that the test for determining the scope of permissible changes to a consent application is two-fold: firstly, do the proposed amendments render the application, in substance, a significantly different application; and secondly, will other parties or the public be prejudiced if the proposed amendments are permitted?

As to whether the coast care conditions rendered the application a significantly different application to that which was lodged by SVL, the Court accepted the Council’s submission that the coast care conditions would have positive effects on the environment when compared to the rock wall option proposed by SVL.  However, the Court was not persuaded that it followed from this that the scale and intensity of the coast care conditions, in earthworks terms, was the same as, or less than that of SVL’s proposed upgrade to the rock wall.  Without further information as to the precise nature and extent of the earthworks necessary to implement the coast care conditions, the Court could not say conclusively that the coast care conditions would not result in a significantly different activity from that which consent had been sought for. 

The Court noted that even more significant issues arose when considering the altered character and effects of the coast care conditions as opposed to SVL’s proposal.  SVL’s proposal to maintain and eventually upgrade the existing rock wall effectively “holds the line” of the coast along the line of the existing rock wall at the front of SVL’s site, whereas the coast care option would likely lead to an eventual retreat of the existing coastline.  Such an outcome would have significant implications for other property owners along the Pakawau sea frontage.  In particular, the Court found that the efficacy of neighbouring rock wall structures protecting other properties along the coast would be compromised if SVL implemented the coast care conditions, rather than maintaining and upgrading its rock wall.  Combined with the uncertainty surrounding the extent of earthworks required to implement the coast care conditions, the Court held that the activity approved by the Council in its consent decision was significantly different from that applied for by SVL.

In terms of prejudice, SVL’s application was fully publicly notified and 79 submissions on that application were received by the Council.  There was prejudice because none of those submitters had the opportunity to consider and submit upon the proposed coast care conditions, as the coast care option was expressly rejected by SVL in its consent application which was notified to the public.  Had the coast care conditions been included in the application documents as a possible option that SVL was prepared to undertake, there was a real possibility that more submissions may have been received and/or that the existing submitters may have taken a different approach, especially given that the coast care option may compromise the efficacy of neighbouring rock wall structures protecting other properties along the Pakawau coast. 

Accordingly, in addition to holding that jurisdiction to impose the coast care conditions was excluded by the terms of SVL’s consent application, in the alternative the Court also held that there was no jurisdiction for the Council to impose the coast care conditions on the basis that they will bring about a substantive amendment to the activity for which SVL had sought consent, which will be prejudicial to third parties who had no chance to submit on that amended activity. 

Comment

This case serves as a reminder that consent authorities have no jurisdiction to impose conditions on resource consents which effectively extend the consent granted beyond the ambit of what has been sought by the consent applicant in its application.  An applicant who applies for consent to undertake a particular activity cannot be granted consent which, by virtue of the conditions imposed on that consent, effectively requires it to undertake a different activity altogether from that which consent has been sought for.  Importantly, this applies even where the proposed consent conditions may result in an activity with a better environmental outcome.  The RMA requires consent authorities to ensure the sustainable management of resources; it does not require consent authorities to choose the best outcome from an environmental-effects perspective and seek to impose that outcome on consent applicants by way of consent conditions.