Court sends warning on poorly drafted consent conditions
Court sends warning on poorly drafted consent conditions
Tuesday 9 April, 2019
The Environment Court recently issued strong warnings that poorly framed conditions could impact the Court’s decision-making. Those warnings went unanswered by the Applicant which resulted in the release of an interim decision only.
In Granger v Dunedin City Council [2018] NZEnvC 250 a group of residents appealed a decision by the Dunedin City Council (Council) to grant subdivision and land use consent for a non-complying proposal to Peninsula Holdings Trust (Applicant). The Applicant sought to create an 8 lot subdivision with building platforms on 4 lots at Papanui Inlet on Otago Peninsula. The proposed lots were considerably less than the minimum size for residential lots in the Rural Zone under the proposed and operative district plans.
The Court was critical of the standard of drafting on key proposed conditions, and stated the standard was such that it was unable to determine whether the application satisfied section 104D of the Resource Management Act 1991. The Court said the poor drafting was not merely an editorial matter but went to the substance of the application. The Court noted that while the appellants did not appeal against the conditions of consent, the conditions were material to its determination of the appeal and went to the heart of the reasons for the appeal. The appeal asserted that the decision failed to protect the outstanding natural landscape and natural character of the coastal environment.
Due to the poor drafting of the proposed conditions, the Court could not gain a proper understanding of the level of effects on the environment. The Court was particularly critical of the drafting of conditions providing for a covenant and management plan. The Applicant proposed to enter into a covenant with the Council over part of Lot 3 to protect and enhance areas of indigenous vegetation. The covenant would be implemented by a management plan. However, neither a copy of the draft covenant or management plan was provided to the Court. Nor did the Court receive an accurate plan of the areas to be covenanted. Further, the expert witnesses’ recommendations regarding the content of the management plan condition was not carried through into the conditions.
Identifying the difference between a covenant and a management plan, the Court said a covenant is a promise made between two people. Turning to the purpose of the management plan, the Court stated:
[145] Management plans are a different tool and can be useful in that they describe the methods (practices and procedures) to achieve the conditions of a consent or, in this case, the promises made in a covenant. Where management plans are used to implement consent conditions, the conditions will usually provide they be developed by a suitably qualified expert; that the consent authority is to certify the methods in the plan will achieve the outcomes stated in the conditions; require the consent holder to conduct their activities in accordance with the management plan and finally, provide that the management plan will be periodically reviewed.
The Court stated that in this case, beyond a broad statement of the covenant’s purpose, the promises made between the covenanting parties was not recorded and the conditions imprecisely described the content of the management plan. Given the state of the conditions, the Court was left with uncertainty and unable to make any finding as to whether the proposal was contrary to the objectives and policies under section 104D.
The Court directed the Applicant to propose amendments to a number of conditions identified as being inadequate and to provide expert evidence confirming the content of the conditions. The Court said if the Applicant elected not to proceed as directed, the Court will then proceed to issue a final decision. However it warned that if the Applicant elected not to respond, it was probable the appeal would be upheld and the application declined and/or an interim decision only.
The decision (issued on 18 December 2018) is a timely reminder of the importance when drafting conditions to ensure the conditions properly address the effects of the proposal and are clear, certain and enforceable. Poorly drafted conditions risk an application being declined. The drafting of conditions should not be an afterthought but should be front and centre whenever a consent authority decides to grant a resource consent application.
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