Must Councils accept an assertion that a person is ‘suitably qualified'?
Must Councils accept an assertion that a person is ‘suitably qualified'?
Friday 9 March, 2018
The issue was considered in the recent Environment Court case David Mulholland Consulting Engineer Ltd v Whanganui District Council [2018] NZEnvC 10.
David Mulholland Consulting Engineer Ltd ("the applicant") applied to the Environment Court for two declarations under s 310 of the Resource Management Act 1991 ("RMA"). The declarations were to the effect that the applicant was a suitably qualified geotechnical engineer for the purposes of Rule 11.5.1 (“the Rule”) in the Whanganui District Plan (“the plan”) in relation to an application for resource consent to construct a retaining wall; and that, in making its decision, Whanganui District Council (“the Council”) failed in its duty to make an assessment as to whether the applicant was a suitably qualified engineer for the purposes of the Rule by solely relying on the Engineering New Zealand register of Geotechnical Engineers.
The Rule provides that a person who proposed to undertake specified activities should provide a report to the Council from a “suitably qualified and experienced geotechnical engineer”. The Rule includes a note that the Council should maintain a list of such engineers. The applicant, a civil engineer with 55 years of experience, was engaged by the owners of the relevant property. The proposed works required resource consent. The owners of the site prepared an Assessment of Environmental Effects (“AEE”) confirming the applicant as having provided the required geotechnical confirmation of the risks. The Council declined to accept the applicant as being suitably qualified. Although he is on the Engineering New Zealand register for the civil and structural fields, he is not specifically certified in the geotechnical field, and he was not on the Council’s “Suitably Qualified and Experienced Practitioner List”.
The issue before the Court was whether the Council’s act of declining to accept the applicant's certificate contravened the Rule. The Court considered the significance of a certificate from a “suitably qualified and experienced geotechnical engineer”, noting that under the plan if such a certificate was provided then the present proposed activity would be controlled and consent must be granted subject only to conditions. If it was not provided, then the activity status would be non-complying with more exhaustive issues to be resolved before a consent would be granted. The difference in status demonstrated the importance placed upon the expert opinion of its provider.
The Council submitted that reliance on the specialist records maintained by Engineering New Zealand meant that the assessment process was consistent and simple. Further, the importance of the issues and the necessity to ensure the safety of life and property were consistent with specified policies in the plan regarding natural hazards. It was the applicant’s submission that if a qualified engineer asserted to the Council that he or she had competence in a particular field, then the Council must accept that.
The Council did not have the in-house expertise to make its own informed assessment of engineering qualifications and experience. Further, the risks and responsibilities involved went much wider than the individual landowner involved. The Court found that, in considering an application and a report under the Rule, the Council should not be obliged to accept an assertion of competence by a person. The Council should rely on an independent and knowledgeable source, such as Engineering New Zealand, on the question of whether any individual engineer had suitable qualifications and experience in a particular field. In interpreting the Rule, the Court adopted the approach taken by the High Court in Nanden v Wellington City Council [2000] NZRMA 562, in addition to s 5(1) of the Interpretation Act 1999, concluding that the text of the Rule was plain on its face. The plain and logical purpose of requiring a certificate from such a qualified person was that the Council be assured of the reliability of the certificate and the protection not only of the applicant for consent but of other landowners and the public generally from what might be a significant physical and financial risk in the event of structural failure. The Court confirmed that the Council’s interpretation of the Rule was correct and declined the applications for declarations.
The Environment Court’s decision reaffirms the importance of carefully drafted district plan rules that are consistent with the relevant policies and objectives in the plan. It also confirms that local authorities are entitled to rely on certification from independent and knowledgeable bodies as to whether a person is suitably qualified in their field rather than making their own assessment, or accept assertions of competency at face value.
Please contact Bridget Parham or Shaye Thomas if you want to learn more about the issues discussed in this article.
