Council's obligations on an application for a certificate of compliance
Council's obligations on an application for a certificate of compliance
The Environment Court recently considered the extent of the Council’s obligations when considering an application for a certificate of compliance (“CoC”) under s139 of the Resource Management Act 1991 (“RMA”).
In Just One Life Limited v Queenstown Lakes District Council[1]a landowner (Apres Demain Limited) had applied for resource consent for a comprehensive residential development of its site, including associated landscaping and earthworks. Consent was declined by the Council, and the applicant lodged an appeal.
Before the appeal was determined, the applicant requested from the Council two CoCs to undertake earthworks on its site. The requests made it clear that the earthworks did not include, and were not associated with, construction of a dwelling. The CoCs were issued by the Council, with requirements that the first quantity of earthworks be carried out within one calendar year of lodging the application, and that the second be carried out within a further calendar year.
The adjoining neighbour, Just One Life Limited, applied for declarations from the Environment Court clarifying the legal validity of the CoCs. By the time the matter was heard by the Court it was common ground that the CoCs could no longer be exercised as the specified period for implementing them had passed. However, the Court agreed to make some observations regarding how the Council had approached the processing of the s139 requests.
First, the Court emphasised the importance of due enquiry as to the true nature of the proposal. The Court stated that:[2]
Bearing in mind that the outcome of certification is the issuance of a legal instrument giving rights akin to a resource consent, a consent authority’s due diligence responsibility is to properly understand the nature of the activity in order to duly scrutinise it against all applicable plan provisions.
In this case, the Council should have requested further information under s139(5) to satisfy itself regarding any potential overlap with the resource consent application before the Environment Court, and was not entitled to rely on the applicant’s claims that the proposal did not include buildings. The Court confirmed that it is not a permissible approach under the RMA to dissect a true proposal by splitting off permitted activity aspects of it. CoCs are available where, and only where, an activity is permitted in all relevant respects.[3]
Second, the Court confirmed that the Council must undertake its own assessment of the activity against the provisions of the plan:[4]
Furthermore, nor is the consent authority obliged to accept, on face value, the point by point analysis of plan provisions offered by the person making a request. Rather, that analysis should be treated with caution in that it advocates for the request.
In this case, the Council was required to carry out its own assessment of the proposal against the relevant plan provisions for the purpose of ascertaining full compliance with the plan. The provisions of the plan should be strictly applied:
As the process in s139 is one of certification, involving point-by-point scrutiny of the activity against applicable plan provisions, there is an associated rigour in not allowing for any exercise of discretion that would, for example, loosen the metes and bounds of the activity for which the CoC is requested.
In summary, the Court’s decision requires Councils to ensure that they have sufficient information to understand the nature of the proposal, and to undertake their own rigorous assessment of the proposal against the provisions of the relevant plan. Only where all aspects of the proposal are clearly permitted by the plan should a CoC be issued.
