In what’s labelled an unprecedented decision, the Environment Court’s just ordered Queenstown’s council to issue a certificate of compliance to a subdivision developer.
Grant, Lynda and Phil Hensman, represented by Todd & Walker Law’s Graeme Todd and Ben Gresson, successfully applied for an enforcement order from the court after the council refused to sign off the subdivision, at Perkins Rd/Angelo Dr, despite the developers believing they’d complied with the conditions of the subdivision consent.
The applicant obtained consent in June, 2021, to subdivide two allotments into three — the conditions of consent included ‘‘engineering — general’’.
It required all engineering works, including construction of retaining walls, be carried out in accordance with the council’s ‘land development and subdivision code of practice’, adopted on October 8, 2020, and subsequent amendments to that document up to the date of issue of any
resource consent.
The court’s decision, issued last week, says the Hensmans completed the required works, including ‘‘in all reasonable aspects the general engineering condition’’, in August, 2022, and applied to council for certification.
That was refused and instead the Hensmans were advised various additional engineering works had to be addressed, relying on what could be described as the catch-all general engineering condition.
They were asked to get comment from a geotech expert as to slope stability, comment from a traffic engineer as to a gradient edge of a vehicle crossing within a road boundary, install a vehicle safety rail — designed by a structural engineer – get comment from the pavement
designer and to reshape swales, in both directions.
‘‘When asked to identify which conditions of the resource consent required those works, the council officer pointed to consent condition 8 [general engineering],’’ the court’s decision says.
‘Unprecedented’: Todd & Walker Law associate Ben Gresson
In making the enforcement order, Environment Court Judge Prudence Steven, KC, found the developers had complied with all relevant conditions, and the further actions required by the council ‘‘are not justified based on any non-compliance we find … ’’
‘‘While it is for the council to be satisfied that conditions have been met, consent condition 8 cannot be relied upon to trigger further provisions of the [subdivision code of practice] accounted for during the resource consent process.
‘‘The council presented no valid legal or evidential basis for refusing to sign the … certificate confirming that conditions of the subdivision consent have been complied with.’’
Gresson, an associate specialising in resource management and civil litigation, tells Mountain Scene he’s not aware of any orders being made previously by the court which require the council to issue the ‘224c’ certificate, noting the evidence was developers confronted with the same issue have been undertaking the additional work to get consents approved, rather than object.
‘‘In this case, obviously, the consent holder … elected to exercise its rights to challenge the council’s determination.
‘‘We’ll wait and see what the impact is in terms of how developments are assessed in the future, and what the process is in terms of the council’s 224c certification.’’
Grant Hensman tells Scene council, through its officers, ‘‘often have a different view and timeline to private enterprise’’.
‘‘Neither party wishes to incur the time and expense of court when it can be resolved in other ways.
“That doesn’t always happen, so court is the last resort we will engage in when all other options are exhausted.’’
He notes the decision’s still subject to appeal, on points of law.
‘‘If the decision stands, which we would expect, council have to take notice and I would expect other people in similar situations, which is not uncommon, to point to this outcome.’’
Hensman confirms after the appeal period they will look to costs, which are reserved.
Council planning and development GM David Wallace says council notes the court’s decision, which they are reviewing.
