The TODD & WALKER Law Resource Management team has received three successful decisions in recent weeks on behalf of their clients. Below is a summary of these successful decisions.
Trilane Industries Limited v Queenstown Lakes District Council
Trilane Industries Ltd (the Applicant) is the owner of the Whare Kea Lodge on the shores of Lake Wanaka, which adjoins a property owned by Nature Preservation Trustee Limited (NPTL). The Applicant successfully judicially reviewed a decision granting resource consent to NPTL on a non-notified basis by the Queenstown Lakes District Council (Council). The resource consent involved demolishing a building and erecting a much larger two-level residential building on property adjacent to the Applicant’s Lodge including the undertaking of in excess of 30,000m3 of earthworks.
The central issue in the case was whether the Council erred in their assessment of the expert evidence, by deciding the adverse effects of the development would be minor and therefore the application could be processed on a non-notified basis. The expert landscape evidence held that whilst some effects of the development would be minor, other adverse effects would be “moderate” for a period of up to ten years. In deciding whether or not to notify a resource consent, if the effects of the same are “more than minor” the application must be publicly notified.
The High Court found the Council failed to have proper regard to the acknowledged temporary “moderate” (more than minor) adverse effects of the proposed development. This was equivalent to saying that more than minor temporary construction noise effects could be ignored, simply because, once built, the noise effects of the proposed development would be no more than minor.
The Council’s decision not to notify the resource consent and their decision to grant resource consent to the Respondent were both declared invalid and set aside by the High Court.
Read the decision document here - Trilane Industries v QLDC - Judgement of Dunningham J
Tussock Rise Limited. v Queenstown Lakes District Council
This case involved an application for costs following a successful opposition by Tussock Rise Ltd (the Appellant), a company that owns properties in Wanaka, to an application by the Council to strike out Tussock Rise’s submission on Stage 1 of the Proposed District Plan (PDP). The Council unsuccessfully applied for orders under 279(4) of the Resource Management Act 1991 to strike out the Appellant’s appeal based on a lack of standing. Following the Environment Court’s decision in 2019 which held the Appellant did in fact have standing, the Appellant applied for costs against the Council.
The Appellant submitted the Council’s application to strike out the Appellant’s appeal was unreasonable and in doing so, led to considerable unnecessary costs for the Appellant.
The Environment Court in its decision held that “it is unusual for cost awards to be made against a Council in a Plan Change process and that a relatively high threshold is required”. However, the Environment Court found the application made by the Council to strike out the Appellant’s appeal met the higher threshold prescribed for awarding costs against a Council in regard to a Plan Change process. Judge Jackson agreed with our submission that the strike out application “was inherently unreasonable… demonstrating that an award of costs against the Council is justified”.
In possibly wider ramifications for the Council’s staged Proposed District Plan the Court made a finding that such a process was:
“…contradictory and confused. The Council, in reliance on that flawed process, still made its application for strike out despite TRL attempting to communicate to the Council that the purported lack of jurisdiction was misconceived.”
It should be noted that it is highly unusual for costs awards to be made against Councils in Proposed District Plan proceedings and that even if costs are awarded the normal comfort level is in the range of 25-33 percent.
Demonstrating the concern the Environment Court expressed in respect of Council seeking to strike out the submission and its comments about the Council’s approach to its review of its District Plan the Court granted an award of 66 percent of the Appellant’s costs incurred in the process.
Read the decision documents here:
Tussock Rise v QLDC - Decision on strike out application
Tussock Rise Limited v QLDC - Costs decision
Skyline Enterprises Limited and Trojan Holdings Limited v Queenstown Lakes District Council
This decision concerned two of TODD & WALKER Law’s clients Trojan Holdings Ltd (THL) and Skyline Enterprises Limited (SEL), who are the respective owners of Stratton House and Skyline Arcade, both of which are located in Queenstown’s CBD. Pedestrian links are located through both of these buildings to Beach Street and Cow Lane, and Cow Lane and Ballarat Street. There was no evidence before the Court that such links had been required at the time they were originally consented.
The links had been identified on maps included in the PDP and the PDP contained rules that any redevelopment of the sites have to provide a pedestrian link on the ground level for public use.
Both THL and SEL successfully appealed to the Environment Court, seeking the removal of the requirement to the pedestrian links through their buildings.
THL and SEL appealed on the basis that the cost and unfairness of requiring the PDP pedestrian link provision on THL and SEL would adversely affect them. The Environment Court in its decision found that the objective to “provide pedestrian links and lanes” is not necessarily best achieved by subjecting the links to the rules and provisions in the PDP on specific identified properties.
The central issue on appeal to the Environment Court, was finding the most appropriate option for achieving the PDP’s objectives. That is, whether it was more appropriate to retain the pedestrian links, remove the pedestrian links or a compromise position.
The appeals were allowed, and the Council was directed to update its PDP, by deleting references to the pedestrian links which went through THL and SEL’s buildings.
Again, unusually given this was a proceeding relating to the PDP, costs were reserved, and a decision is pending whether they will be granted. An award of in excess of $40,000.00 has been sought.
Read the decision documents here:
Skyline Enterprises Limited and Trojan v QLDC - Decision of the Environment Court
TODD & WALKER Law are very proud of these three successful decisions and congratulate Senior Solicitor Ben Gresson who was instrumental in preparing the arguments in each of the cases.
To contact our experienced Resource Management and Local Government law team find out more information here.
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