Speargrass Holdings Limited v Van Brandenburg [2019] NZCA 564 (18 November 2019)

Last Updated: 26 November 2019

IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA

CA296/2018 [2019] NZCA 564

	BETWEEN	SPEARGRASS HOLDINGS LIMITED First Appellant CHRISTOPHER SCOTT MEEHAN AND MICHAELA WARD MEEHAN Second Appellants
	AND	FREDERIKUS PETRUS MARIA VAN BRANDENBURG AND DIANNE MARY JACQUELINE VAN BRANDENBURG First Respondents QUEENSTOWN LAKES DISTRICT COUNCIL Second Respondent

Hearing:	12–13 February 2019
Court:	Cooper, Clifford and Gilbert JJ
Counsel:	R A Rose for First Appellant P Page and S Wells for First Respondents (submissions in writing) N M H Whittington and A H Balme for Second Respondent
Judgment:	18 November 2019 at 11.30 am

JUDGMENT OF THE COURT

1. The appeal is dismissed.
2. The first appellant must pay the first and second respondents costs for a standard appeal on a band A basis and usual disbursements. In the case of the first respondents, such costs must not include any allowance for the hearing of the appeal.

____________________________________________________________________

REASONS OF THE COURT

(Given by Cooper J)

Introduction

[1] This appeal arises out of a dispute between the owners of neighbouring properties in the Wakatipu Basin about a substantial earth mound said to adversely affect residential amenity.
[2] The appellants (who we call, collectively, “Speargrass”) commenced three proceedings in the High Court. One was an appeal from a decision of the Environment Court^[1] granting consent to the Flax Trust (of which the first respondents are the trustees)^[2] for a substantial earth mound which had been formed along the northern boundary of land owned by the Flax Trust adjacent to land owned by Speargrass.^[3]
[3] The second proceeding was an application for judicial review of decisions of the Queenstown Lakes District Council (the Council) not to notify an application for resource consent for the earthworks necessary to construct the earth mound and its decision to grant it. As will emerge, the mound to which the Council gave its consent was significantly smaller than that which was in fact constructed, and to which the Environment Court retrospectively gave consent.
[4] The third proceeding was an originating application under s 333 of the Property Law Act 2007 (the PLA) seeking an order for the removal of the mound.
[5] All three proceedings were heard together and disposed of on 9 May 2018 in one judgment of the High Court.^[4] Dunningham J allowed the appeal against the Environment Court’s decision.^[5] In respect of the application for judicial review, she held that there should have been limited notification of the consent application to Speargrass.^[6] She reached that view on the basis of her conclusion that the Council had erred in its assessment of the permitted baseline in relation to the earthworks. The same error had also affected its assessment of the effects of consenting to the mound.^[7] However, the Judge accepted submissions advanced by the Flax Trust that relief should be refused on the basis of delay by Speargrass in applying for judicial review, and the prejudice that would be suffered by the Trust were the earthworks consent to be set aside.^[8] She also concluded that there would be no significant detriment to Speargrass as a result of relief being declined.
[6] The PLA application therefore fell to be considered in the context that the Environment Court’s retrospective consent allowing the as-built mound to remain in place was to be set aside, but the refusal of relief on the judicial review proceeding meant that there was a consent still in place for the smaller mound.
[7] The Judge held that because the extent of the mound exceeded what had been authorised, it was an unauthorised structure for the purposes of s 332(a)(i) of the PLA.^[9] She also found that the mound as built was so dominant in scale and so close to the dwelling on the Speargrass property that it had an undue effect on the property’s use for residential living.^[10] She considered that it detracted “in a significant way from the amenity values of the property”.^[11]
[8] However, she declined to make a “non-recurrence” order under the PLA. She considered that the mound originally consented to would have an acceptable range of effects and also considered a mound reduced in size from that which had been built might be acceptable, even if larger than that to which consent had been granted.^[12] She considered it would be preferable to leave the assessment of any changes in its configuration that ought to be made to proceedings under the Resource Management Act 1991 (the RMA), rather than making an order under the PLA.^[13]
[9] Following delivery of the High Court judgment, counsel for the Flax Trust filed a memorandum seeking clarification of the outcome in respect of the Environment Court appeal. In a minute issued on 23 May 2018, the Judge noted that all her decision did was set aside the Environment Court’s decision. This meant that the proceeding in the Environment Court was still on foot.^[14] She observed:^[15]

Flax Trust has the option of pursuing that appeal, or abandoning that appeal and proceeding with the consent as granted by the Council, or applying to do something else.

[10] There is no appeal from the High Court judgment on the appeal from the Environment Court’s decision. The appeal to this Court by Speargrass relates to the decisions declining its applications for judicial review and for orders under the PLA.
[11] The van Brandenburgs filed a notice of cross-appeal challenging aspects of the judgment relevant to the PLA application, but those issues have not been pursued. They filed written submissions in support of the High Court judgment on the judicial review application and the exercise of the Judge’s discretion to refuse relief under the PLA. The submissions asserted the appeal was pointless because the Environment Court remained seized of the issue whether, on the merits, the mound should be allowed to remain in place or be reduced in size to the point at which its effects were considered acceptable. Counsel took the unusual course of seeking leave not to appear in person at the hearing of the appeal and to rely on the written submissions filed. We granted leave in the absence of any opposition.
[12] The Council appeared and made submissions supporting the Judge’s approach on the relevant RMA issues.

Relevant facts

[13] The Flax Trust land on which the mound sits abuts the land owned by Speargrass at 88 Speargrass Flat Road. The former lies, roughly, to the south of the latter.^[16] Both properties are in the Wakatipu Basin near Queenstown, situated in “the triangle”, where numerous properties have been developed by the construction of substantial dwellings of high value. It is an area which the Judge noted is “prized for its spectacular scenic views”, including views of the Remarkables and Coronet Peak.^[17]
[14] The relevant context includes resource consents granted for the subdivision of both the Flax Trust and Speargrass properties.

RM100318

[15] The Speargrass land was formerly part of a four-hectare block owned by Winton Partners New Zealand Ltd (Winton), a company associated with the Meehan family.^[18] In May 2010, Winton sought subdivision consent to create four allotments each containing an identified residential building platform. The application noted that earthworks would be required to form the building platforms, and for ponds and mounding. Ten thousand cubic metres of earthworks were proposed over an area of 11,500 m². All earth moved within the site was to be retained and reused for mounding and associated landscaping. Consent was granted on 1 November 2010.^[19] As required by conditions of consent, a consent notice was registered on the titles of the subdivided lots on 13 September 2011.

RM110186 and RM110820

[16] Two variations to that consent notice (which were not notified to the Flax Trust) were subsequently sought and granted to Winton on 5 December 2011 and 1 November 2012.^[20] The first variation included moving the building platform for the Meehans’ house shown on the original application for subdivision consent to the west and significantly closer to the boundary with the Flax Trust property. The second variation amended landscaping conditions to include the planting of trees along the southern boundary to screen the proposed buildings from adjoining neighbours. These variations were not registered on the titles of the subdivided lots before work began on a two-storey garage structure associated with the Meehans’ house on the relocated building platform.

RM120327

[17] On 19 June 2012, the Flax Trust sought subdivision and land use consent for its land, accessed from Birchwood Road. Birchwood Road lies to the south of the Flax Trust land. When the application was lodged Mr van Brandenburg was unaware that the Council had granted consents RM110186 and RM110820. The subdivision involved the creation of eight lots with a residential building platform on each lot. Consent was also sought for earthworks and to depart from internal boundary set back, sight distance and passing bay rules in the Council’s District Plan.
[18] The application for these consents was publicly notified and attracted six submissions, including one from Winton. The submissions were either in support of the proposal or neither in support or opposition. Independent Commissioners granted consent to the application on 12 November 2012.^[21] Their decision noted that the application was somewhat unusual as it had two options for the configuration of the proposed subdivision. These options, referred to as options A and B, were depicted on revised plans of subdivisions presented at the hearing. Under option A, the eight allotments would vary in size between 4,770 m² and 8,220 m². Two lots would be set aside to be common property, with areas of 1.14 and 1.12 hectares respectively. Access from Birchwood Road would be achieved close to the southwestern corner of the property with internal access being provided within the two lots so set aside to serve each of the rural residential allotments.^[22]
[19] As noted in the Commissioners’ decision, the land to be subdivided was located in the Rural General zone in the Council’s Operative District Plan, which meant that discretionary activity consent was required for the subdivision itself and the location of the building platforms within it. It was also classified as Other Rural Landscape (ORL), a classification requiring the application of specific assessment criteria. The Commissioners recorded that the earthworks proposed would breach the District Plan standard of 1,000 m³/2,500 m², requiring restricted discretionary activity consent. The Commissioners proceeded to set out the relevant assessment criteria, concluding in each case that they could be met.
[20] Their key conclusions included that:

• (a) Any visual effects associated with future development on the subdivision would be satisfactorily mitigated by existing and proposed plantings and/or “mounding”.
• (b) The density of development resulting from the subdivision would be consistent with that found elsewhere in the triangle.
• (c) Existing fill or spoil on the site was to be recontoured along the length of its southern boundary to provide screening of the development from properties to the south and from Birchwood Road.
• (d) The landscaping proposed was similar to that provided in adjacent subdivisions to the west and south-west.
• (e) The subdivision and future development proposed would be “complementary and sympathetic to adjoining or adjacent properties within the Triangle ORL”.

[21] On the basis of these considerations, the Commissioners concluded that the “proposed development will not adversely affect the naturalness and rural quality of the landscape having regard to the landscaping including earthworks and planting that is proposed in this instance”.
[22] Consent RM120327 was granted subject to conditions. The existence of the two options was reflected in condition 1 which required the subdivision to be carried out in accordance with plans relevant to either option A or option B. Condition 12 provided that prior to Council approval of the survey plan under s 223 of the RMA, a structural landscaping plan was to be submitted for the approval of a named council officer. The structural landscape plan was to incorporate the landscape treatment provided for in the option A landscape plan or the option B landscape plan. A set of objectives was set out. The “structural planting” was to be designed to achieve a number of stated objectives. These included the provision of landscape screening that would appropriately mitigate potential visual effects of future dwellings within the residential building platforms as viewed from the “immediately neighbouring dwellings or building platforms to the east, north-east, west and south of Lots 1–8 by using landscape measures that are within Lots 1–8 themselves”. It was stated that the landscape treatment could “take the form of clumps and stands of planting or other measures including mounding”. Another objective was to “seek to coordinate and accord with ... surrounding sites as much as is practicable”.

RM130766

[23] In order to achieve the required landscape mitigation objectives, the Flax Trust chose to create ponds and undulating mounds in order to enclose each building platform and provide screening from the surrounding properties, and other properties within the subdivision. However, another resource consent was necessary to achieve this outcome, because the earthworks limitations in the District Plan would be exceeded to an extent significantly greater than authorised by RM120327. The total volume of the mounds now envisaged was 27,000 m³. They were to be formed using 3,000 m³ of fill already onsite, 16,000 m³ produced by the excavation of the ponds and 8,000 m³ to be trucked in.
[24] The further land use consent (referred to in the Council’s records as RM130766) was granted by an independent Commissioner on 10 January 2014. This is the decision which is the subject of the application for judicial review. On the previous day, a decision had been made that the application could be dealt with on a non-notified basis by a senior planner employed by the Council, Ms Giborees, acting under delegated authority. In granting consent, the Commissioner adopted a draft decision prepared by Ms Giborees containing both the reasons for dealing with the application on a non-notified basis and the substantive decision itself.
[25] In a section of the decision headed “Activity Status”, Ms Giborees noted that the application required two kinds of restricted discretionary activity consent. First, consent was required to exceed the volume of earthworks permitted by the District Plan. That rule, mentioned earlier, specified that no earthworks could exceed 2,500 m² in area or 1,000 m³ in volume within any one consecutive 12‑month period. The proposal before the Council involved a maximum volume of approximately 43,000 m³ of earthworks over an area of approximately 51,500 m². The second restricted discretionary activity consent was required because of a rule limiting the maximum height of any fill to two metres. Ms Giborees wrote that the maximum height of fill proposed would be 2.7 m.
[26] Ms Giborees considered that the Assessment of Effects provided in the application was comprehensive, and accurate, and adopted it for the purposes of her report. She also “adopted” reports from the Council’s consultant engineer (Mr Powell) and landscape architect (Ms Snodgrass).
[27] Under the heading “Engineering Matters (earthworks),” the decision noted that over 1,300 truck movements would be required to import the proposed volume of approximately 8,000 m³ of fill. A condition of consent would require that an approved traffic management plan be implemented prior to works commencing. The proposed mounding would be formed at gradual and natural looking slopes that would be able to support vegetation. A condition of consent would ensure that the earthworks did not breach the boundaries of the site.
[28] Under the heading “Landscape Matters”, Ms Giborees said that the proposed mounding would create a generally internally facing development which would achieve the required screening from/to neighbours as well as internal screening. The variation in the height of the mounds and breaks would allow the occasional view into the development, avoiding any tendency to a “fortress like” and completely enclosing landform. Ms Giborees noted that Ms Snodgrass had assessed the proposed earthworks against the objectives of condition 12 of subdivision consent RM120327 and was of the opinion that the proposed earthworks and structural landscape plan met the objectives. In these circumstances, she concluded that effects on the environment would be no more than minor.
[29] Ms Giborees also considered that effects on third parties would be either nil or less than minor. She wrote that the proposed earthworks were intended to provide landscape screening between neighbouring dwellings or building platforms approved under resource consent RM120327. The objectives of condition 12 would be satisfied. Consequently:

... the proposed earthworks will mitigate potential visual effects of future dwellings within the residential building platforms as viewed from the neighbouring properties to the east, north-east, west and south of the subject site.

She also noted that no works were to be undertaken “near property boundaries that would adversely affect any neighbours”. While the importation of 8,000 m³ of fill to the site had the potential to result in effects in terms of noise and vibration from truck movements, which could impact on the residential amenity of those lots located along Birchwood Road, a condition of consent had been volunteered by the applicant to limit the duration of the works. This would require the importation of fill to the site to be completed within 12 months of commencement. That would ensure that effects on the surrounding neighbours were temporary, and overall less than minor.

[30] Ms Giborees moved to a consideration of the permitted baseline. She noted that the consented baseline “from the subdivision” was five years, within which time works to establish platforms, roads and services were required to be completed. The works could be completed at any point during the five-year period. Consequently, earthworks of 300 m³ per year per lot created by the underlying subdivision consent could be undertaken as a permitted activity; that equated to 12,000 m³ total at the end of the five-year period. This was apparently the basis for her conclusion that the effect of the proposed earthworks on neighbouring properties would be less than minor. In addition, the mounding around the entire boundary of the property would provide an effective barrier from any visual and noise effects associated with the works. Effects on neighbouring properties would therefore be further mitigated. Upon completion, the earthworks would have created an environment of “ultimate seclusion”. The increased level of amenity resulting from not being able to see or hear anything occurring on the subject property would be a lasting benefit to its neighbours. There would be little or no construction noise due to the earth mounding, and the works would largely occur out of sight.
[31] Consistently with these conclusions, consent conditions imposed included requirements that:

• (a) the development be undertaken in accordance with the plans submitted;
• (b) all earth worked areas be re-grassed/re-vegetated or otherwise permanently stabilised against erosion as the earthworks were completed;
• (c) the planting shown on the landscape plan approved under resource consent RM 120327 (option A) be implemented within the first planting season from completion of the earthworks, and thereafter maintained and irrigated in accordance with the plans, and any plant or tree that died or became diseased be replaced in the next available planting season; and
• (d) the importation of fill to the site be undertaken within one year from the commencement of the works — the resource consent as a whole was to be “exercised” within five years from the date of the decision.

[32] Because the conditions did not refer in terms to a maximum permitted height, there was some uncertainty as to the height permitted. The Environment Court found that the authorised maximum height was “about 3 metres”, although it thought the position was “rather unclear”.^[23] Ms Giborees, apparently basing herself on the words used in the consent application, wrote that the mounds would be a maximum of 2.7 m in height. The Council’s engineering assessment was to the same effect. However, the Environment Court was influenced by the plan attached to the consent, which showed that a short section of the mound located at the north-western corner of the Flax property (adjacent to the boundary with the Speargrass land) might be up to 3 m in height. Dunningham J treated the relevant height as 2.7 metres without directly dealing with the Environment Court’s conclusions in this respect.^[24] We do not think much turns on this, but observe that, as the highest point of the mounds is at the boundary between the two properties (and not elsewhere within the Flax Trust property to the south), the uncertainty about height is an illustration of the benefit the Council might have obtained from notification of the application to neighbours.
[33] In any event, as stated earlier the mound in fact constructed was significantly larger than what the Council authorised. The Environment Court summarised the position:

[18] The mound was ... formed to its current height of approximately 5 metres above datum over a length of about 90 metres. That is extra height over what was approved of at least two metres and some of it is nearly 2.5 metres higher [than] approved.

(Footnote omitted.)

[34] According to a surveyor who swore an affidavit for Speargrass in the High Court, Mr Stephen Winter,^[25] the relevant as-built mound had a maximum height of 5.17 m, a total length of 100 m, a total area of 2,382 m² and a total volume of 4,635 m³. This may be compared to the structure that the Council originally permitted which was 2.7 m high and 100 m long, with an area of 2,452 m² and volume of 2,653 m³.
[35] Notwithstanding that, the Environment Court concluded that the conditions of resource consent RM130766 should be varied, subject to a condition as to appropriate planting, to accommodate the mound as built.^[26] As we have seen, the High Court took a different view.
[36] We have already noted that the High Court held that application RM130766 should have been the subject of limited notification to Speargrass. That conclusion was based on the Judge’s view that Ms Giborees, and therefore the Council, had proceeded on the basis of a faulty assessment of the permitted baseline.^[27] As to that, the High Court rejected the Council’s approach of comparing the proposal to earthworks notionally being carried out over the five-year life of the resource consent and allowing for the annual 300 m³ per lot entitlement under the District Plan for each of the eight lots of the subdivision.^[28] That approach overlooked both the consent condition that required the importation of fill to be undertaken in one year from the commencement of works on the site, and the fact that during the period of the works (necessarily prior to the completion of the subdivision) there would only be two lots on the site. On this basis, the permitted baseline that should have been used for comparative purposes was earthworks of 600 m³ in any one year. The Judge considered this was a material error that affected the decision to proceed on a non‑notified basis^[29] and the substantive decision to grant consent.^[30]

Mr van Brandenburg learns of RM110186

[37] Two further aspects of the background should be mentioned. First, when construction activity started on the relocated building platform on the Speargrass property, Mr van Brandenburg was overseas. In the Environment Court, he said that when he returned in October 2014 he discovered that the development on the Speargrass property was proceeding in a location different to that which he expected. The Environment Court quoted his evidence as follows:^[31]

Unbeknown [to] me, Mr Meehan had moved his dwelling off his 2010 consented building platform; had built a 2 storey garage structure such that the access up to the 2nd storey would overlook the houses on [the Flax property].

[38] In particular, the garage on the Speargrass property appeared to be closer and higher than the original consent granted by the Council.^[32] The Court noted that he checked the Council’s records and discovered that the design for buildings on the Speargrass land adjacent to the Flax Trust property provided for a two-storey house with second storey windows facing south while the building platform had been moved closer to the Flax Trust site pursuant to the resource consent (RM110186) of which he had previously been unaware.^[33] The Environment Court recorded his concession in cross‑examination that in what was a “knee jerk reaction” he gave the go ahead to finish the mound so that it would screen from view the staircase of the garage structure that had been erected on the Speargrass land.^[34] It is clear from the evidence that Mr van Brandenburg responded to the situation with which he was confronted by procuring the construction of the significantly larger mound on the Flax Trust property.

Mr Meehan reacts to the as-built mound

[39] For his part, Mr Meehan was concerned at the size of the mound. It was his evidence that shortly after he learned of the mound’s construction in early 2015 he discussed his “displeasure” with agents of Mr van Brandenburg (including his surveyor Mr Hansen). Thinking after an exchange of emails that an agreed resolution would be unlikely, he made a formal complaint to the Council as a result of which the Council visited the site and confirmed that the mound had not been constructed in accordance with consent RM130766. The Council advised Mr Meehan that it had written to the Flax Trust asking it to reform the mound so it complied with the approved plan.
[40] It seems likely that Mr Meehan was aware of a potential claim that application RM130766 should have been publicly notified from at least 12 February 2015, when he referred (in correspondence with Mr Hansen about the as built mound) to the fact that the mound had been constructed “in direct contravention of the (likely deficient) council consent”. On 4 March 2015, Mr Meehan wrote to the Council complaining not only about the as built mound, but also the mound to which the Council had granted consent. As to the latter, he wrote:

... the process of Council approving any such mound of what we loosely understand to be the circa 2.5 metre high approved size so close to our boundary has been fundamentally flawed in so much as we were not notified or asked for comment or approval in relation to the proposed earthworks at any stage. We reserve our rights to challenge the validity of the subdivision and/or earthworks approvals.

RM150185

[41] Rather than taking action to reduce the height of the mound, on 18 March 2015 the Flax Trust sought a retrospective variation of the relevant condition of RM130766 effectively to permit the mound to remain as built.^[35] The Council decided that the activity sought to be authorised would have adverse effects that were minor or more than minor on persons who had not provided their written approval. The application was processed on a limited notification basis and served on those judged to be affected (including the Meehans).^[36] On 14 January 2016, an independent Commissioner decided that the application should be declined. The Flax Trust then appealed to the Environment Court, whose decision allowing the appeal was delivered on 17 October 2016. That decision was quashed by the High Court.
[42] Speargrass commenced the application for judicial review and made an originating application under the PLA on 2 August 2017.

The judicial review application

The High Court judgment

[43] The High Court refused to grant relief on the application for review in the exercise of its discretion, for the principal reasons of delay in the commencement of the proceeding and because of its conclusion that the prejudice to the Flax Trust of granting relief would be greater than any prejudice to Speargrass as a result of relief being declined.^[37]
[44] The Judge considered the issues of delay and prejudice were intertwined.^[38] She accepted that a delay in commencing proceedings would be unlikely on its own to preclude the grant of relief. Ordinarily, however, it would be associated with prejudice because in the context of a resource management consent, the consent holder would likely have taken steps in reliance on the consent. If it has done so on the assumption the consent is valid, it may be more prejudiced if the consent is later set aside on an application for judicial review.
[45] But in this case, the Judge noted that the earthworks had been undertaken and the non‑complying mound constructed before Speargrass became aware of the grant of resource consent RM130766.^[39] This meant that prejudice to the Flax Trust associated with the cost of implementing the consent (that is, to the consented height) could not be a basis for withholding relief. However, the Judge considered it was clear from the content of the email sent by Mr Meehan to the Council on 4 March 2015 that by that date he was aware that a non-notified consent had been granted and “of the consent terms generally”, because he complained that the earth mound had not been built to its “approved shape or size”.^[40]
[46] Mr Meehan purported in his email to reserve rights to challenge the validity of the subdivision and/or earthworks approvals, but the Judge found that the steps subsequently taken by Speargrass were “quite inconsistent with the reservation of those rights”.^[41] She thought it significant that instead of commencing judicial review proceedings against the grant of RM130766 at that stage, Speargrass chose instead to participate in the application to amend the resource consent and the subsequent appeal to the Environment Court. It was clear in her view that had an application for review been commenced “soon after”, the Flax Trust “would not have proceeded with the application for amendment^[[42]] nor participated in the subsequent appeal of the decision on that application”.^[43]
[47] The Judge was also influenced by the stance Speargrass took on application RM150185. As recorded in the Commissioner’s decision rejecting that application Speargrass contended that the as-built mound was inappropriate, contrary to the objectives and policies of the District Plan and would have adverse effects that were more than minor. Speargrass asked that the application be declined and that the mound be “reshaped to comply with decision RM130766”. The Judge noted that at the hearing of the Environment Court appeal, Mr Meehan’s evidence was that at the approved height, the mound would “not be such a problem for me”, a position that had been supported by expert evidence called for Speargrass from Mr John Edmonds, an experienced Queenstown based planner.^[44]
[48] The Judge considered that if relief were granted by the High Court, the parties would be taken back to a point they should have been in more than three years ago.^[45] The Flax Trust would have to make a fresh application for resource consent for the earthworks which were already in place, the “vast majority” of which would have been “uncontentious”. Although it had not been quantified in financial terms, it was self‑evident that significant prejudice would be suffered by the Flax Trust if relief were granted, because of the wasted cost and delay incurred in pursuing RM150185 through to the hearing of the Environment Court appeal and defending its position in the High Court.^[46]
[49] The Judge found that the primary concern of Speargrass was with the earth mound as it had been built, and not as it had been consented to originally by the Council.^[47] This explained why Speargrass had opposed application RM150185, without initially taking action in respect of consent RM130766. She concluded that the judicial review proceedings had been filed as something of an afterthought to maximise pressure on the Flax Trust.
[50] She summarised her reasons for declining relief as follows:^[48]

(a) the delay of two and a half years between Speargrass identifying it had the option of judicial review, and filing judicial review proceedings, was too long;

(b) the length of the delay has prejudiced Flax Trust (and, to a lesser extent, the Council) because it has pursued an amendment to that consent, including two appeal hearings, with attendant costs and delay, when it is clear it would not have done so had judicial review proceedings been commenced in a timely way; and

(c) there is not significant detriment to Speargrass if relief is declined. The evidence clearly points to it being relatively unconcerned by the consented mound. It had known for many years that Flax Trust proposed mound and pond landscape treatment for the property and even after learning that consent had been granted, its position remained for some time that the consented mounds were acceptable, but the as-built mound was not.

The argument on appeal

[51] Speargrass impugns this result on a number of fronts. Ms Rose, for Speargrass, argued that the Judge had failed to apply authorities which have emphasised the importance of public notification of applications for resource consent. She contended that the Judge had not properly weighed the significance of the Council’s error about the permitted base line, the special character of the rural‑residential zone in this area, and relevant case law concerning the giving of notice that judicial review might be sought. She emphasised that the van Brandenburgs were not an innocent third party, having illegally constructed the as‑built mound. Moreover, the Flax Trust had proceeded with application RM130766 on a non‑notified basis when it knew or ought to have known that Speargrass would be adversely affected by it.
[52] Ms Rose also submitted that the High Court had made findings about prejudice to the Flax Trust and absence of significant detriment to Speargrass without a proper evidential foundation. The conclusion that Speargrass was relatively unconcerned by the mound was incorrect. The Judge had also failed to recognise and appropriately apply the general principle that the discretion to refuse relief in judicial review cases is “narrow” and “exceptional”, especially where some form of relief would have practical value.

Discussion

Statutory context

[53] Ms Rose was clearly right to emphasise the importance of public notification of applications for resource consent under the RMA. The leading authorities are the decisions of the Supreme Court in Discount Brands Ltd v Westfield (New Zealand) Ltd and Auckland Council v Wendco (NZ) Ltd.^[49]
[54] In the former, it was held unanimously that when making notification decisions a consent authority must have sufficiently comprehensive information to satisfy itself that the proposed activity would not have any adverse effect on the environment which was more than minor and that it would not have any adverse effect on any person unless it would certainly be de minimis or its occurrence would be a remote possibility.^[50]
[55] In Auckland Council v Wendco (NZ) Ltd the Supreme Court applied Discount Brands, the majority holding that on the evidence in that case, when considering whether to notify the relevant application for resource consent, the relevant council had before it adequate information to enable it to decide that the effects on Wendco (NZ) Ltd would be less than minor.^[51] Relevantly for present purposes, the Court confirmed that in determining an application for resource consent where the consent required was for a restricted discretionary activity, a consent authority could consider only those matters over which it had restricted the exercise of its discretion.^[52] The Court observed:^[53]

Unless the effect in question can be said to be a matter over which discretion is reserved it must be disregarded. The approach of the Court of Appeal would introduce a disconnect between ss 95E(2) and 104C, which is not consistent with the overall legislative scheme, and we do not see it as correct.

[56] At the time of the Supreme Court’s decision in Wendco, s 104C of the RMA provided as follows:

104C Determination of applications for restricted discretionary activities

(1) When considering an application for a resource consent for a restricted discretionary activity, a consent authority must consider only those matters over which—

(a) a discretion is restricted in national environmental standards or other regulations:

(b) it has restricted the exercise of its discretion in its plan or proposed plan.

(2) The consent authority may grant or refuse the application.

(3) However, if it grants the application, the consent authority may impose conditions under section 108 only for those matters over which—

(a) a discretion is restricted in national environmental standards or other regulations:

(b) it has restricted the exercise of its discretion in its plan or proposed plan.

[57] And s 95E(1) and (2)(b) provided:

95E Consent authority decides if person is affected person

(1) A consent authority must decide that a person is an affected person, in relation to an activity, if the activity’s adverse effects on the person are minor or more than minor (but are not less than minor).

(2) The consent authority, in making its decision,—

...

(b) in the case of a controlled or restricted discretionary activity, must disregard an adverse effect of the activity on the person that does not relate to a matter for which a rule ... reserves control or restricts discretion; ...

(Emphasis added.)

[58] These provisions applied to the Council’s consideration of application RM130766 in this case. The Supreme Court’s decision in Wendco means that an effect cannot be taken into account for the purposes either of the decision about notification or the grant or refusal of consent if the consent authority has restricted the exercise of discretion in a way that excludes that effect from consideration. Consistently with this, reference can also be made to s 95D of the RMA, which outlined obligations of the consent authority when considering, under s 95A(2)(a), whether the proposed activity would have or be likely to have adverse effects on the environment that are more than minor.^[54] Under s 95D(a) the consent authority was obliged to disregard any effects on persons who owned or occupied the land where the activity would take place and “any land adjacent to that land”.^[55] In the case of restricted discretionary activities, the authority was also obliged to:^[56]

... disregard an adverse effect of the activity that does not relate to a matter for which a rule ... restricts discretion.

[59] For completeness we also mention s 95B, which provided for limited notification of consent applications. Under this section, once the consent authority decided not to publicly notify an application, it was obliged to decide, under s 95E, whether there was “any affected person” in relation to the activity. A person was affected for the purposes of this provision, if the activity’s adverse effects on the person were minor or more than minor.^[57] In making its decision on this issue the consent authority was again obliged in the case of restricted discretionary activities to disregard adverse effects on the person unrelated to a matter for which a rule restricted the authority’s discretion.^[58]

Relevant RMA assessment considerations

[60] As we have seen, application RM130766 required restricted discretionary activity consent because of the area and volume of the proposed earthworks and because of the maximum height of the mounds. The Council had restricted the exercise of its discretion to matters addressed in six categories: environmental protection measures; effects on landscape and visual amenity values; effects on adjacent sites; general amenity values; impacts on cultural heritage value; and the reasonable or appropriate use of the land. The report that accompanied the application, and which was effectively accepted by the Commissioner’s decision, dealt with all these matters.
[61] The first category of matters over which the council had reserved discretion concerned such issues as sediment and erosion control techniques, adverse effects relating to stormwater and overland flows and adverse effects off-site; duration and stability of the earthworks; minimising dust emissions; effects on groundwater; and flood protection works. All were dealt with in the application report and did not give rise to an issue.
[62] In the second category were issues such as the visual quality and amenity values of the landscape; the visual amenity values of surrounding sites, the sensitivity of the landscape, rehabilitation and re-vegetation of the site; and consistency with the surrounding landscape. The report noted that the subject site was:

... surrounded by a landscape which has been modified through subdivision and building development indicating the ability of the site and surrounding area to absorb a greater degree of development without adversely affecting or impacting upon any surrounding landscapes.

The report added that the proposed works offered significant landscape amenity to the site and surrounding area.

[63] The report referred also to resource consent RM120327, noting that the works currently proposed would be undertaken “as further mitigation to enable future building works to better blend in with the surrounding area in accordance with condition 12”.^[59] In summary, “any adverse effects upon the visual amenity of the site or the surrounding area [were] considered to be de minimis”.
[64] As noted above, in the decision granting consent, the Commissioner noted that the proposed mounding would create a “generally internally facing development”, thereby “achieving the required screening from/to neighbours and screening internally”. The variation in height of the mounding, and breaks in it, would allow occasional views into the development, avoiding any tendency to a “fortress like” landform. A similar style of mounding existed on an adjacent property.
[65] The third District Plan category, effects on adjacent sites, concerned matters to do with stability of neighbouring sites, surface drainage and the risk of inundation or a raised water table on adjoining properties, and whether cut, fill and retaining would be done in accordance with engineering standards. The application identified no issue with respect to those matters, and the same is true of the Commissioner’s decision granting consent.
[66] The heading of general amenity values embraced issues such as whether the removal of soil to or from the site would affect the surrounding roads and neighbourhood through the deposition of sediment, whether the activity would generate noise, vibration and dust effects which could detract from amenity values, and the alternation of natural ground levels. The report that accompanied the application dealt with all those issues in a way which the Commissioner found satisfactory. The Commissioner was clearly aware of the volume of fill proposed to be imported to the site, and of the fact that 1,300 truck movements would be required for that purpose. The decision also noted that the ponds would be excavated to a maximum depth of two metres, while the mounding would reach a height of 2.7 m. The Commissioner considered that mounds would be “formed at gradual and natural looking slopes that are able to support vegetation” and there would be compliance with the distance from boundary rule in the District Plan. A condition of consent would ensure that earthworks did not breach the boundaries of the site and conditions relating to site management would ensure that effects on neighbouring properties were minimised. Exposed areas of earth would be revegetated or otherwise permanently stabilised at the completion of works.
[67] The report claimed, and the Commissioner accepted, that there would be no impacts on sites of cultural and heritage value. That left for consideration the category of the reasonable or appropriate use of the land. The relevant reservation of discretion raised these issues:

• (a) Whether the proposed ... earthworks [are] necessary or desirable for the ongoing and reasonable maintenance and use of the land.
• (b) Whether the proposed ... earthworks are necessary or desirable to achieve a reasonable or appropriate use of the land for the proposed activity.

[68] The application report referred here again to RM120327, noting that the proposed works were designed to meet the objectives set out in condition 12 of that consent, specifically to provide for increased levels of amenity, privacy and a residential setting within the subject site, and across the surrounding area. The Commissioner’s decision granting consent accepted that analysis.
[69] We have noted earlier that the application report was reviewed not only by Ms Giborees but also by a consultant engineer and landscape architect retained by the Council. The High Court considered that the application was comprehensive.^[60] The Judge concluded that the Council had adequate information about the magnitude of the works proposed, the grading of the mounds and the likely impacts on visual amenity both within the site and in relation to adjacent properties, to make the decision about notification.^[61] We accept that is so, and this is not a case in which it can be said there was insufficient information on which to base the decision not to notify the application. However, this conclusion has to be seen in the context of the error made by the Council about the relevant comparator for the purposes of the permitted baseline, which we have addressed above.^[62]
[70] Against this background, the Commissioner addressed the issue of whether there were any affected persons, in terms of s 95E of the RMA. The Commissioner concluded, in accordance with Ms Giborees’ report, that adverse effects on persons would be either “nil” or “less than minor”. In this part of the analysis, the emphasis of the reasoning in the decision was on the mounds serving to screen the dwellings and building platforms within the site from each other, and the mitigation of potential visual effects of future dwellings, on the Flax Trust land, viewed from neighbouring properties including the Speargrass property. Noise and vibration from truck movements were addressed, with reference to the effect of noise and vibration from trucks as they traversed to and from the site along Birchwood Road, distant from the Speargrass site. This part of the decision was also affected by the error identified by the Judge concerning the permitted baseline, but we accept that it otherwise proceeded on bases reasonably available to the Commissioner.
[71] We also accept the Judge’s view that the Commissioner reached conclusions that were reasonably available to her in respect of other relevant issues,^[63] bearing in mind the fact that the consent required was for a restricted discretionary activity. In this respect, while the application involved earthworks that were significantly greater in area and volume than what the District Plan would permit as of right, when measured against the relevant matters in respect of which the Council had reserved its discretion in the District Plan the issues were relatively confined. The District Plan consideration referring to the visual amenity values of the surrounding sites could arguably have been relevant to the issue of any effect on views from the Speargrass property, but the Commissioner’s decision concluded that the earthworks for which consent was granted would have a “less than minor” effect on neighbouring properties. This conclusion was expressed as one “[t]aking into account the consented and permitted baselines”, and so was affected by the error the High Court judge found in that respect.^[64] The emphasis of the decision was on mitigating the potential visual effects of buildings constructed within the Flax Trust subdivision on neighbouring sites. We have not been persuaded that was an erroneous approach to the relevant District Plan assessment criterion, and it reflected the approach taken in RM120327.
[72] Condition 12 of RM120327 was highly relevant. Although the consent sought in application RM130766 was for a restricted discretionary activity, the purpose for which the consent was sought was fulfilment of the requirement of RM120327 to present a structural landscape plan incorporating either Option A or B. Clearly the earthworks consent was not intended to replace the subdivision consent: both were to be implemented, so application RM130766 had to comply with condition 12. This follows from this Court’s decision in Sutton v Moule.^[65] The question of whether condition 12’s requirements were satisfied was another matter that the Council was obliged to consider notwithstanding the limitations normally applicable to restricted discretionary activities. We have noted the condition’s requirements earlier. The objective that referred to possible mounding was apparently designed to provide landscape screening that would appropriately mitigate visual effects of future dwellings within the residential building platforms as viewed from immediately neighbouring dwellings, including on the Speargrass site. The decision addressed that issue in a manner that the Judge found was appropriate. While the existing landform would be modified, the proposal would achieve the objectives set out in condition 12 of RM120327.
[73] In summary, leaving the permitted baseline issue on one side, the consideration of the relevant matters did not point to error in the Council’s decisions about notification, limited notification and the grant of consent.
[74] In this context the relevant question is whether the consent could be challenged on the basis of the causes of action pleaded in the High Court alleging it was unreasonable, affected by relevant errors of law, made on the basis of irrelevant considerations or as a result of failure to take relevant considerations into account. One error of law was established, in relation to the permitted baseline. It could also be said that the Council’s decision took into account an irrelevant consideration because of that error. The Judge held that this affected the Council’s assessment of the effects of the activity for the purpose of notification and making the substantive decision.^[66] Although not directly relevant to the dominance of the mound, or impacts on views, we accept that indirectly, the permitted baseline error could have influenced the Commissioner to grant consent to a more voluminous and higher structure adjacent to the Speargrass boundary than might otherwise have been the case.
[75] It is plain from the High Court judgment that the Judge considered there had been a material error,^[67] but the significance of that error must be assessed against the background we have addressed, including the fact that the Council was required to treat the application as requiring restricted discretionary activity consent. But the Judge also accepted a submission made by the Council that in the context of the 43,000 m³ of earthworks for which consent was granted it is unclear how material the miscalculation would have been.^[68] The Judge did not specifically mention the restricted discretionary category of the application, but in our view it adds weight to her conclusion about the appropriate disposition of the case having regard to the discretionary considerations relevant to the issue of remedy.

Delay

[76] We turn to the issue of delay. As noted above, Speargrass did not commence its application for review until 2 August 2017, although it was evidently aware in early 2015 of the potential argument that application RM130766 should have been publicly notified. Although Speargrass complained to the Council and reserved its right to challenge the consent, it did not do so, choosing instead to participate in the procedures associated with RM150185. The Environment Court’s decision quashing the Council’s decision and granting that application (subject to conditions) was made on 17 October 2016, just under 10 months before Speargrass commenced its proceedings.
[77] There is no particular time limit or requirement to obtain leave for the commencement of applications for review, such as exists in England. The flexibility that results is, however, generally seen as obliging those who seek the remedy of judicial review to act promptly to advance their claim.
[78] The approach of the courts in New Zealand is encapsulated by the observations of Cooke P in Fraser v Robertson:^[69]

The absence of any rigid time limit for invoking the jurisdiction in this country is salutary, but it is a position that could not sensibly be maintained unless the Court continues to insist on reasonable promptness in all the circumstances of the particular case and declines to entertain truly stale claims.

[79] That approach must be tempered by application of the general principle that once it is shown that the exercise of a statutory power of decision making has been affected by material error a remedy should follow where it would be of some practical value to the applicant, unless there are extremely strong reasons to refuse relief.^[70] As this Court observed in Just One Life Ltd v Queenstown Lakes District Council:^[71]

... a discretionary withholding of relief is not the normal outcome of a successful attack on a reviewable decision. If some form of relief could have a practical value then it ought to be granted.

[80] And in the case of decisions about notification of applications for resource consent any exercise of the Court’s discretion as to remedy must have due regard to the importance of such decisions in the statutory scheme and the value the legislation attributes to the opportunity for third parties to participate in the process.
[81] In the present case, the delay has clearly been extensive. Speargrass appears to have taken the view that having once reserved its rights, its position as a potential litigant in the High Court was protected both during and after the processing of application RM150185. Ms Rose referred to authorities which have emphasised the giving of notice of potential judicial review proceedings, and she contended that since such notice had been given here, the delay that followed should not be seen as significant.^[72] The Flax Trust had pursued RM150185 knowing that Speargrass considered RM130766 was flawed and potentially invalid. It had been legitimate for Speargrass to concentrate on its opposition to RM150185 before turning to the review of the grant of RM130766.
[82] However, RM150185 related to the as-built mound and if Speargrass took exception to the location of a mound of the size to which the Council had granted consent, that should have led it to commence the judicial review proceeding much earlier than it did. If it had been successful in its opposition to RM150185 in the Environment Court, that would simply have meant that there was no consent for the as-built mound, the position that now applies. Consent RM130766 would remain in effect. In these circumstances, RM150185 cannot properly be relied on to justify the long period that elapsed prior to the commencement of the review proceeding. That is underlined by the fact that even after the Environment Court’s decision was delivered, nearly 10 months went by before the application for review and the PLA proceedings were filed.
[83] Ms Rose submitted that the High Court erred by placing too much emphasis on the length of the delay. We agree that, having regard to the importance of notification of applications for resource consent, delay must be very significant before it can be dispositive.^[73] But the High Court clearly recognised that — that is why the judgment relied on a number of considerations which, taken together, were thought to justify the refusal of relief. We do not consider that the Judge’s overall analysis gave too much weight to the delay that occurred, given the extent of it and the absence of any proper reason for it.

Prejudice

[84] We have already summarised the other considerations that the Judge took into account in deciding to decline relief.^[74]
[85] Ms Rose challenged the Judge’s approach on a number of grounds. As already mentioned, she relied on the fact that Mr Meehan had given notice of potential judicial review proceedings, and the Flax Trust had proceeded with RM150185 in the knowledge that an application for judicial review might be made in respect of consent RM130766. She submitted that after the appeal of the Council’s decision declining RM150185, Speargrass had no choice but to participate in the Environment Court hearing and subsequently appeal that decision to the High Court. Any delays while this took place were the consequence of actions by the Flax Trust and should not be seen as a reason to withhold relief from Speargrass. She referred to the possibility that a court might have ordered that the Environment Court proceeding be determined first or progressed in tandem with any application for review. She noted that after Speargrass filed its appeal to the High Court against the Environment Court’s decision on RM150185, the proceedings had been subject to a timetable providing that all three proceedings would be heard together in a sequence dealing first with the decision of the Environment Court, second with the application for review, and third with the PLA application.
[86] She argued that in this context, delay attributable to Speargrass ought not to be characterised as “inordinate”, and nor should the Flax Trust be seen to have suffered prejudice occasioned by its own unlawful actions in constructing the mound. Similarly, it was not legitimate to find that the Council had been prejudiced in respect of the Environment Court hearing: it was the Council’s own decision making which “allowed the Variation Application to be made”.^[75]
[87] Ms Rose further submitted that the High Court judgment rested on two essential matters concerning prejudice that had insufficient grounding in the facts to justify the refusal of relief:

• (a) the finding that it was clear the Flax Trust and the Council would not have proceeded with application RM150185 nor participated in the subsequent appeal of the decision if the application for review had been made earlier;^[76] and
• (b) the conclusion that it was “self-evident” that significant prejudice would be suffered by the Flax Trust if relief was granted because of the wasted cost and delay incurred in pursuing RM150185 and the appeal proceedings including in the High Court.^[77]

[88] The case is unusual because the prejudice relied on by the Flax Trust is related not to it carrying out further works while Speargrass sat on its hands: the earthworks had already been completed by the time the dispute arose. Rather, the prejudice asserted relates primarily to the attempts made by the Flax Trust to secure retrospective consent for what it had unlawfully done, the costs incurred as a result of Speargrass’s opposition and, potentially, the waste of that expenditure if the application for review were successful. Although unusual, we think the prejudice relied on would nevertheless be real, and notwithstanding Ms Rose’s comprehensive submissions on this point we are satisfied there was a sufficient basis for the Judge’s conclusions on this issue.
[89] The High Court’s approach turns on the idea that an early application for review of consent RM130766 would have caused the Flax Trust not to make, or not to proceed with, application RM150158 (including on appeal). Ms Rose argued this was not justified on the facts. She relied on the absence of any statement to that effect in the affidavits filed by the van Brandenburgs or the Council in opposition to the application for review. She submitted that, on the contrary, application RM150185 was apparently made and advanced because Mr van Brandenburg saw a mound of the as-built proportions as a legitimate response to the altered location of the building platform on the Speargrass land. Ms Rose drew attention to the following paragraphs of his affidavit:

Mr Meehan had reported my increased mound height to the Council. I received notice from the Council threatening an abatement notice — I was instructed to reduce the mound to comply with Flax’s condition of consent. However, if I did this, I would make the mound ineffective. Flax’s privacy would be destroyed — not just the site immediately adjacent to the Meehan Property, but the other sites in the Flax Development relied on the mound for privacy were also overlooked by the new Meehan structures. I therefore had no choice but to apply for retrospective resource consent to allow the height of the mound (and associated privacy) to remain.

As noted, by this time Mr Meehan had received other resource consents without my knowledge. I also noted that at this time the Deodar trees relied upon for screening the Meehan residence from Flax viewpoints had not been planted. I wrote to Mr Meehan pointing this out and although Council had become involved, it was still not too late to meet. Mr Meehan refused to do so.

[90] These statements by Mr van Brandenburg in his affidavit are consistent with what he said in an email exchange with Mr Meehan in March 2015. From the Flax Trust’s point of view, proceeding with RM150185 was justified given the history of the Speargrass and Flax Trust subdivisions, and the perceived need for privacy between the properties. It was also an appropriate response to the Council’s threat of enforcement action based on the absence of consent. Ms Rose claimed this would not have been any different if Speargrass had commenced its application for review at an earlier point in time. Since the Speargrass land had already been developed by the erection of structures, the Flax Trust might have taken the view that trying to preserve the as-built mound was the most practical course to follow notwithstanding the commencement of a High Court proceeding.
[91] However, we consider this is unrealistic. Application RM150185 sought to vary RM130766 to authorise the as-built mound. While it would not have been obliged to withdraw or abandon the application in the face of an application for review commenced by Speargrass seeking to have consent RM130766 set aside, we doubt that the Flax Trust would have proceeded with its application when faced with the prospect that RM130766 might itself be set aside by the High Court. And even if the Flax Trust had proceeded with the Council hearing on the application, we think it unlikely that the Environment Court would have dealt with an appeal when the substratum assumed by the application, consent RM130766, might be set aside. We think it more likely that if Speargrass had commenced an application for review at an earlier point the parties would have concentrated their efforts and resources on that litigation, with application RM150185 being put on hold.
[92] As to the position of the Council, it was obliged to process application RM150185 once it was made. Having turned it down it no doubt considered the appropriate course to follow was to defend its decision in the Environment Court.
[93] For these reasons we are satisfied that the Judge was correct to hold that the Flax Trust was prejudiced by the delay in the commencement of the application for judicial review. If relief were granted to Speargrass at this late stage the expenditure outlaid on RM150185 would have been wasted. The Flax Trust would be forced in effect to start again. A fresh application for resource consent could of course seek permission for a mound of the same proportions as the as-built mound, and to that extent the Flax Trust would be able to advance its case on the basis that was necessary to achieve its privacy objectives. But, as the Judge recognised, this would be simply putting the Flax Trust in the position it should have been in much earlier given a timely application to the Court by Speargrass.^[78] And in the meantime, expenditure had been incurred in the processes associated with RM150185.
[94] It is also necessary to consider the prejudice to Speargrass resulting from the refusal of relief. Ms Rose submitted that the Judge had not properly weighed the prejudice arising from the adverse impact of the mound on the Speargrass property. She relied on Mr Meehan’s affidavit evidence that he had never said that a mound of the size consented to would not have adverse consequences, simply that its impact would be less severe than the mound that had been built. The latter, in Mr Meehan’s professional opinion as a valuer, had reduced the value of the Speargrass property by $1.5 million.
[95] As has been seen, the Judge thought the evidence showed that Speargrass was “relatively unconcerned” about the mound permitted by the Council.^[79] She also said that the application for review appeared to be an afterthought designed to put pressure on the Flax Trust.^[80] It is clear that the as-built mound has an adverse effect on the amenity of the Speargrass property. Although the Environment Court evidently took the view that it was acceptable, the High Court disagreed.^[81] The present position is that the consent granted by the Environment Court has been set aside and the only consent for a mound is consent RM130766. In the further hearing that would be necessary under the High Court judgment there would be an opportunity for the parties to fully address the impact on the Speargrass property of a mound adjacent to the boundary and its location, slope, height and volume.
[96] In this respect we note that application RM150185 was made under s 127 of the RMA, and consequently required discretionary activity consent. Any consent could be granted subject to conditions. The combination of ss 127(3) and 108 of the RMA confer wide powers to impose appropriate conditions on any consent. We would not see the Environment Court as required to take as a given the location of the mound inferred from the imprecise plans that formed part of consent RM130766. Apart from any other consideration, the proposed dramatic increase in the size of the mound contemplated by application RM150185 must justify close scrutiny of its impact. Speargrass will be able to participate in this process before the Environment Court.
[97] We consider that justifies the discretionary refusal of relief in this case.
[98] In the result we consider the High Court took into account the various considerations relevant to the issue of whether relief should be granted. We do not consider the Judge made any error of principle or relied on irrelevant considerations. The Environment Court is an appropriate and expert forum in which the substantive issues concerning the height and precise location of the mound can be decided. In all the circumstances, we have not been persuaded that the Judge erred in deciding to refuse relief.

The PLA application

[99] Speargrass applied for an order that the mound be removed within 20 working days, under s 334 of the PLA. The relevant statutory provisions include ss 332 and 333(1)–(2) which provide as follows:

332 Application of this subpart

This subpart applies to—

(a) any structure that was erected on any land except a structure that—

(i) was erected with a building permit or building consent issued by the relevant territorial authority; or

(ii) was erected by the Crown, for which a building permit or building consent was not necessary, but would have been necessary had it been erected by a person other than the Crown; and

(b) any tree, shrub, or plant (tree) growing or standing on any land.

333. Court may order removal or trimming of trees or removal or alteration of structures

(1) A court may, on an application under section 334, order an owner or occupier of land on which a structure is erected or a tree is growing or standing—

(a) to remove, repair, or alter the structure; or

(b) to remove or trim the tree.

(2) An order may be made under subsection (1) whether or not the risk, obstruction, or interference that the structure or tree is causing—

(a) constitutes a legal nuisance; and

(b) could be the subject of a proceeding otherwise than under this section.

...

[100] There was an issue in the High Court as to whether or not the mound was a “structure” for the purposes of these provisions.^[82] That required the Judge to consider the relevant definition of “structure” in the PLA,^[83] which defines the term as meaning “any building, driveway, path, retaining wall, fence, plantation, or other improvement”. The Judge decided that the mound was a structure as defined and that issue has not been pursued before this Court.^[84]
[101] The Judge then considered the merits of the application, addressing the matters raised by Speargrass in under s 335.^[85] The matters raised included obstruction of views, interference with the use and enjoyment of the land for growing of trees or crops, access to “secondary light” and interference with the reasonable use or enjoyment of the land for residential living.
[102] The Judge concluded that in the short term, the mound clearly had an undue effect on views, but also thought that over time trees which were required to be planted as a condition of Speargrass’s resource consent would grow to a height at which they would also screen the views.^[86] The Judge referred to a finding of the Environment Court to that effect.^[87] She also concluded that there was no undue interference with the use of the land for growing trees, or access to light.^[88] However, the Judge also found:^[89]

... the mound is so dominant in scale, and so proximate to the house on the Speargrass property that it does have an undue effect on its use for residential living.

[103] In relation to this issue, the Judge also found that the growth of trees along the southern boundary of the Speargrass property would reduce the effects of the mound but not eliminate them.^[90]
[104] The Judge then considered whether she should make a “non-recurrence order” under the PLA to prevent the Flax Trust from seeking fresh approval for a higher mound, either through a further appeal to the Environment Court or through a fresh application for amendment of its existing earthworks consent.^[91] She concluded that she should not make such an order.^[92] While she was satisfied that the as-built mound unduly interfered with the use of the Speargrass property for residential purposes, and had an adverse effect on views, she was “not able to say at what height between the as-built and the consent mound those effects would be sufficiently ameliorated so that they are no longer ‘undue’”.^[93] She continued:

[271] Furthermore, while I do not encourage Flax Trust to do so, in the event it was to pursue an amendment to its current earthworks consent to allow a higher mound, that application would have to be assessed on the basis that the Meehans’ existing house formed part of the existing environment, which the previous Environment Court decision did not do. As the concerns of Speargrass and the Meehans will be fully ventilated in that process, I consider the prospect that a mound as high as the as-built mound would be approved is remote, if non-existent.^[[94]]

[105] The Judge observed that because the appeal against the Environment Court’s decision had been successful, with the result that the right to construct a mound higher than the currently consented mound would be the subject of a further decision under the RMA, she considered any changes to the mound would be better dealt with in the RMA process, rather than using the “blunt tool” of an order under s 333 of the PLA.^[95] Consequently, she declined to make the order sought.
[106] Ms Rose submitted the Judge’s approach was wrong. She submitted that the PLA application and consenting process under the RMA were separate processes which should operate independently of each other. The fact that a structure may be permissible under the RMA did not preclude the possibility of relief under the PLA. Ms Rose complained that the Judge had failed to give the parties any “certainty” about the permissible height of the mound and in the circumstances the judgment had failed to give effect to the PLA’s “remedial purpose”. She complained that the judgment was internally inconsistent in its findings that the originally consented mound would not have undue effects, while at the same time stating it was not possible to say at what height between the as-built and the consented mound the effects would be sufficiently ameliorated to render them undue. She contended that an order fixing the as-built mound’s maximum height was both necessary, fair and reasonable and that the Judge’s approach was inconsistent with other authorities.
[107] In their written submissions counsel for the Flax Trust pointed out that Speargrass had sought complete removal of the mound and the evidence called in support of the application dealt with the effects of the as-built mound, Mr Meehan expressing the view that complete removal was required to alleviate the undue interference it caused. Counsel claimed that Speargrass had abandoned this position at the High Court hearing, asking the Judge to evaluate for herself the point at which reduction in scale might make the effects acceptable. In the absence of evidence directed at that issue it was appropriate for the Judge to adopt the course she did, essentially leaving the optimum height to be dealt with in the RMA processes.
[108] We accept that submission. In the special circumstances of this case we consider it was open to the Judge to take the view that the appropriate height of the mound could be assessed by the Environment Court, which would again be seized with the matter as a result of the successful appeal against its decision. If the appeal were abandoned and no other application made, it would be for the Council to take enforcement action to secure compliance with the terms of consent RM130766. It was an abatement notice threatened by the Council that prompted application RM150185.
[109] We do not consider the terms of the judgment indicate the Judge was unaware that there were separate jurisdictions in play under the PLA and the RMA. Rather, she felt unable on the evidence to determine an optimum height for the mound. That being the case it was legitimate, given the Speargrass application was for complete removal, to decline it: she was not obliged to make a factual finding she felt unable to make. Having reached that position, there was then nothing to prevent her referring to the fact that the appropriate dimensions could be determined in the resumed RMA process. She was not obliged to ignore the existence of the Environment Court appeal or the scope for further applications that might be made under the RMA; to decide otherwise would be unreal.
[110] For these reasons we are satisfied that the appeal against the refusal of the PLA application cannot succeed.

Result

[111] The appeal is dismissed.
[112] The first appellant must pay the first and second respondents costs for a standard appeal on a band A basis and usual disbursements. In the case of the first respondents, such costs must not include any allowance for the hearing of the appeal.

Solicitors:
Bell Gully, Auckland for First Appellant
Gallaway Cook Allan, Dunedin for First Respondents
Meredith Connell, Wellington for Second Respondent

---

^[1] Flax Trust v Queenstown Lakes District Council [2016] NZEnvC 202 [Environment Court decision].

^[2] We use the term “Flax Trust” to embrace the van Brandenburgs and the Trust. The van Brandenburgs were named parties in both the High Court proceedings, but the Flax Trust was the appellant in the Environment Court. In most cases it is convenient simply to refer to the Flax Trust, and nothing turns on the names of the parties.

^[3] The Environment Court decision permitted a variation of a consent granted by Queenstown Lakes District Council for a smaller mound.

^[4] Speargrass Holdings Ltd v Queenstown Lakes District Council [2018] NZHC 1009 [High Court judgment].

^[5] At [116].

^[6] At [172].

^[7] At [183] and [188].

^[8] At [208].

^[9] At [267].

^[10] At [263]–[264].

^[11] At [262].

^[12] At [268] and [270].

^[13] At [272].

^[14] We understand that further steps have not been taken in that Court pending the determination of this appeal.

^[15] Speargrass Holdings Ltd v Queenstown Lakes District Council CIV 2016-425-121, 23 May 2018 at [2].

^[16] High Court decision, above n 4, at [8].

^[17] At [1].

^[18] The land was later purchased in March 2015 by Speargrass Holdings Ltd.

^[19] The consent was referred to as RM100318 in the Council’s records. The Council records allocate an RM number to both the application and the consent subsequently granted. We use the Council’s reference numbers for this and other relevant applications and consents.

^[20] These consents were referred to respectively as RM110186 and RM110820.

^[21] The consent was referred to as RM120327.

^[22] Option B involved a slightly different layout, but we do not need to address it because option A was the one implemented.

^[23] Environment Court decision, above n 1, at [15].

^[24] High Court judgment, above n 4, at [118].

^[25] Mr Winter is a registered professional surveyor and a licensed cadastral surveyor.

^[26] Environment Court decision, above n 1, at [178].

^[27] High Court judgment, above n 4, at [169]–[172].

^[28] At [170].

^[29] At [171].

^[30] At [187].

^[31] Environment Court decision, above n 1, at [16].

^[32] At [16].

^[33] At [17].

^[34] At [17].

^[35] This application was referred to as RM150185.

^[36] Notification took place in August 2015.

^[37] High Court judgment, above n 4, at [208].

^[38] At [201].

^[39] At [202].

^[40] At [202].

^[41] At [203].

^[42] RM150185.

^[43] At [203].

^[44] At [204].

^[45] At [206].

^[46] At [206].

^[47] At [207].

^[48] At [208].

^[49] Discount Brands Ltd v Westfield (New Zealand) Ltd [2005] NZSC 17, [2005] 2 NZLR 597; and Auckland Council v Wendco (NZ) Ltd [2017] NZSC 113, [2017] 1 NZLR 1008.

^[50] Discount Brands Ltd v Westfield (New Zealand) Ltd, above n 49, at [6] and [24] (per Elias CJ); [50] (per Keith J); [101], [106]–[108], and [114] (per Blanchard J); and [146], [147] and [150] (per Tipping J).

^[51] Auckland Council v Wendco (NZ) Ltd, above n 49, at [62]–[64].

^[52] At [37].

^[53] At [37].

^[54] The discussion here relates to the provisions of the RMA as they stood at the relevant time, that is, after the enactment of the Resource Management (Simplifying and Streamlining) Amendment Act 2009, and prior to enactment of the Resource Legislation Amendment Act 2017.

^[55] Resource Management Act 1991, s 95D(a)(i)–(ii). The legislative intent was apparently to forbid consideration under s 95A(2)(a) of effects that ought not to result in public notification, but rather, might lead to limited notification under s 95B.

^[56] Section 95D(c).

^[57] Section 95E(1).

^[58] Section 95E(2)(b).

^[59] The report wrongly referred at this point to “RM130327”, but in context the reference was clearly intended to be RM120327

^[60] High Court judgment, above n 4, at [148].

^[61] At [151].

^[62] At [30] above.

^[63] At [167].

^[64] By “consented”, we assume the Commissioner was referring to consent RM120327.

^[65] Sutton v Moule (1992) 2 NZRMA 41 (CA).

^[66] High Court judgment, above n 4, at [188].

^[67] At [172].

^[68] At [171].

^[69] Fraser v Robertson [1991] 3 NZLR 257 (CA) at 260.

^[70] Air Nelson Ltd v Minister of Transport [2008] NZCA 26, [2008] NZAR 139 at [60].

^[71] Just One Life Ltd v Queenstown Lakes District Council [2004] NZCA 66; [2004] 3 NZLR 226 (CA) at [39].

^[72] Stuart Allan Investments Ltd v Tasman District Council [2010] NZHC 397; (2010) 16 ELRNZ 137 (HC); Mills v Far North District Council [2018] NZHC 2082, (2018) 20 ELRNZ 453; and Vining v Nelson City Council HC Nelson CP23/99, 16 November 2000.

^[73] Counsel relied on, among other cases, Kapiti High Voltage Coalition Inc v Kapiti Coast District Council [2012] NZHC 2058 at [281]–[297] where the delays had been more extensive than here, but a remedy was nevertheless granted.

^[74] At [45]–[50] above.

^[75] The “Variation Application” referred to by Ms Rose was RM150185.

^[76] High Court judgment, above n 4, at [203].

^[77] At [206].

^[78] At [206].

^[79] At [208(c)].

^[80] At [207].

^[81] At [262].

^[82] At [215]–[232].

^[83] At [228]–[229].

^[84] At [232].

^[85] At [233]–[266].

^[86] At [241].

^[87] At [241].

^[88] At [251].

^[89] At [264].

^[90] At [266].

^[91] At [269]. As the Judge clarified in her minute of 23 May 2018, the effect of the High Court judgment was that the Environment Court appeal remained on foot. The Flax Trust could pursue it or abandon it and make a fresh application.

^[92] At [270].

^[93] At [270].

^[94] We think it likely the Judge meant to say “is remote, if not non-existent” at the end of the quoted passage.

^[95] At [272].