Local authority requiring monetary contributions on designations
Local authority requiring monetary contributions on designations
Thursday 20 June, 2019
The Environment Court in Tauranga City Council v Minister of Education [2019] NZEnvC 32 has confirmed that a local authority has the power to recommend, and that the Environment Court has the power to impose, conditions requiring monetary contributions on designations in circumstances where the requiring authority has not offered such conditions on an Augier basis. This clarifies the position that the application of the general principles of section 108 of the Resource Management Act 1991 to designations includes financial contribution conditions.
Background
The Minister of Education (“the Minister”) lodged a notice of requirement to designate land in Tauranga for primary school and early childhood education purposes. Tauranga City Council (“the Council”) recommended a condition requiring the Minister to pay financial contributions in accordance with the Tauranga District Plan, unless a separate funding agreement was reached. The Minister rejected the condition and the Council subsequently appealed to the Environment Court.
The parties agreed that the Environment Court should address, as a preliminary issue, the following question of law: “Do sections 171 or 174 of the Resource Management Act 1991 allow a territorial authority to recommend, and the Environment Court to propose conditions requiring monetary contributions on designations (in circumstances where the requiring authority has not offered such conditions on an Augier basis)?”
The Council argued that the general power it has to recommend conditions under section 171 RMA includes the power to recommend conditions requiring the payment of money similar to the power to require financial contributions under section 108 RMA and consequently, that the power of the Court under section 174(4)(c) RMA includes the power to impose such a condition. The Minister argued that the inclusion of a specific power in section 108 RMA to impose a financial contribution on a resource consent, and the absence of any corresponding specific power in section 171 or 174, excludes any such condition from being recommended by the Council or imposed by the Court.
The Court held that it is difficult to identify any reasons why the powers to impose conditions in resource consents and notices of requirement should be substantially different in any way and that schools are not exempt from development contributions under the Local Government Act 2002. While there are numerous differences between Parts 6 (relating to resource consents) and Part 8 (relating to designations and heritage orders) of the RMA, the essential powers in relation to the imposition of conditions are very similar, and the limits on them are the same.
The reasons cited by the Court were:
- Section 108(2) RMA is enacted to clarify the essential power to impose conditions in section 108(1) by stating particular types of conditions that come within it rather than extending it by stating types of conditions that go beyond it.
- There are no relevant differences between section 108 and 171 and 174 that supports a difference in the extent to which conditions may be imposed on them. It is appropriate to interpret the two provisions in a way that makes their operation consistent according to the purpose of the Act. While designations mean works can be undertaken that does not comply with the District Plan, they do not reduce the considerations to which the territorial authority or the Court must have regard to under section 171 and 174.
- The frameworks are the same in that resource consents and designations both require consideration by the district council with full rights of appeal to the Environment Court.
In that regard, the Court held that designations should be subject to having conditions imposed on them on the same basis and for the same reasons as for resource consents, including conditions requiring financial contributions where provided for in the district plan. Sections 171 and 174 are to be read to incorporate the provisions in section 108(2)(a), (9) and (10).
While this decision is a win for local authorities, the opportunity to impose financial contributions is short lived. From 18 April 2022, there will be no ability to impose a financial contribution under the RMA. However, any financial contributions condition imposed before 18 April 2022 will remain in force and payments due after that date will continue to be owed.
For assistance with questions relating to this article, please contact Bridget Parham or Kirsty Dibley.
