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Retrospective Rule Changes Not on, Says Environment Court

9 December 2016
News release

Retrospective Rule Changes Not on, Says Environment Court

Auckland Council cannot grant a resource consent to do something and then expect people to apply for another one, simply because it has changed its own rules, the Environment Court has ruled.

This has major implications, not just for consent holders in Auckland now the Unitary Plan is largely operative, but for all holders of resource consents when a Council changes its District Plan. For example, the Christchurch Replacement District Plan will soon take effect and will change building restrictions around some residential areas.

In a decision just released, Environment Judge David Kirkpatrick found in favour of Arapata Trust Ltd with regard to a four storey commercial building it owns at 83 Albert Street, central Auckland.

Arapata principals, Mark Kirkland and Edwin Morrison from leading law firm Kirkland Morrison O’Callahan, went to the Environment Court after Auckland Council told them they would have to apply for a new resource consent following changes made under the proposed Auckland Unitary Plan.

This was despite Arapata being granted consent in October 2015 for the works it proposed at 83 Albert Street, which included refurbishing and strengthening the existing heritage building and constructing a further four storeys on top.

After Arapata bought the building in July 2015, it reached an agreement with Heritage New Zealand Pouhere Taonga (HNZPT) that the building should be scheduled as a significant historic heritage place in the Auckland Unitary Plan and got HNZPT’s written approval for the proposed works. Arapata then got the necessary resource consent from the Council to do the work.

In September this year, Arapata told Auckland Council it was now only going ahead with part of its plans, namely upgrading the building and rebuilding the roof annex. The Council replied that, although the works were already consented, the building’s exterior was now scheduled under the proposed Auckland Unitary Plan so a new resource consent for alterations to a heritage building would be required.

“A Council plan change should not mean you need to get another consent that you couldn’t have got in the first place because you didn’t need it before the plan change,” says Mark Kirkland. “The key message from this decision is, once you are granted a five year resource consent, you can rely on it to proceed. To do otherwise would be costly and counter-intuitive.

“It fact, it would put many developments across Auckland in jeopardy because of the possibility the plan might change and then you would have to start again.

“On the basis of our resource consent, we advised our bank and the building’s tenants and engaged a builder to start in February 2017. If the Council was then able to retrospectively make us apply for a consent we didn’t need in the first place, that would have major implications. Different conditions could have been imposed and more expenses incurred, stopping the entire project from going ahead.”

Judge Kirkpatrick said in his decision: “The central issue is: Does the holder of a current but unimplemented land use resource consent require any further resource consent for the already-consented use of land when a new or changed plan provision comes into effect?

“…As Arapata Trust holds a current resource consent to refurbish the existing building and rebuild the roof annex at 83 Albert Street, it does not require any further resource consent to use land in that way or undertake those activities.”

The decision continued: “Even if the Council’s approach were narrowed to apply only to the holders of the unimplemented resource consents, if would still mean, as this case demonstrates, that a person who had obtained a resource consent and, on the basis of that consent, entered into binding arrangements with a bank, a builder and tenants, would then be subject to the risk, almost completely beyond their control, of being told they require some further resource consent at any stage of the development up until the original resource consent had been given effect to…It is difficult to see how such an approach could be justified…

“There is also the issue of retrospectivity. The Council’s position…would mean that the rights obtained on the grant of a resource consent would be changed by a future change to the rules of the plan, without any act or omission on the part of the consent holder.”

Judge Kirkpatrick concluded: “A holder of a resource consent for a specified use or activity is not required to obtain a further resource consent for the same use or activity when a new or changed rule comes into effect.”

He awarded Arapata Trust $5,000 in costs, 60% of the amount sought. Normally, awards are in the region of 25% to 33% but the Judge said “a degree of uplift” was warranted “because the Council pursued an unjustified requirement for a further resource consent notwithstanding that it knew that Arapata held a resource consent for that use of land.”


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