Auckland Council v Cable Bay Wine Limited [2021] NZDC 8837 (10 May 2021)

Last Updated: 18 June 2021

IN THE DISTRICT COURT AT AUCKLAND I TE KŌTI-Ā-ROHE KI TĀMAKI MAKAURAU

CRI-2018-004-007261 [2021] NZDC 8837

AUCKLAND COUNCIL Prosecutor

v

CABLE BAY WINE LIMITED DAVIDE MAZZOCCHINI MATTEO COZZOLINO Defendants

Date of Ruling:	10 May 2021
Appearances:	S Quinn and K Rogers for the Prosecutor K de Silva for the Defendants
Judgment:	10 May 2021

RULING OF JUDGE D A KIRKPATRICK

[1] I will make my ruling now on whether or not the measurements taken from 85 Church Bay Road are sufficient to prove any of the charges. The charges all relate to contravention of s 9(3) of the Resource Management Act 1991 by the use of land in breach of condition 25 of a particular resource consent. That condition controls noise from any activity on the site and says: “It shall comply with noise levels measured 20 metres from any adjacent dwelling or visitor facility (on another lot) and it is not to exceed the following limits.”

[2] I note on a preliminary basis that the words “site” and “lot” are similarly defined in the District Plan by reference to a Certificate of Title. I also note that those

AUCKLAND REGIONAL COUNCIL v CABLE BAY WINE LIMITED [2021] NZDC 8837 [10 May 2021]

two words are not defined in the Resource Management Act (RMA). I think in terms of one of the preliminary arguments of counsel for the council that in the way in which the condition is framed, the word “adjacent” applies to both a dwelling and a visitor facility and the words in brackets “(on another lot)” also apply to both the dwelling and the visitor facility so that the phrase “from any adjacent dwelling or visitor facility on another lot” is a single phrase.

[3] Having carefully considered the submissions of counsel, I consider that there is a possible interpretation of the words “another lot” to mean a separate property separate in the sense of capable of being dealt with separately. I think that this arises from the way in which separate interests may be differentiated from separate titles in terms of the way the Land Transfer Act is now worded. I think also that there are differences between the treatment of subdivision and the avoidance, remediation or mitigation of off-site effects under both the RMA and the District Plan and for what it is worth I think that different terms would be helpful particularly now that the term “Certificate of Title” is no longer used in the Land Transfer legislation.

[4] The upshot of these matters is that the words in the plan are unclear and it seems to me quite possible that the focus of the definition of site and of lot in the circumstances that apply to 85 Church Bay Road is in terms of considering whether or not the leasehold interest is for longer or less than 35 years, and that is of significant for the purposes of the Resource Management Act in terms of whether or not the lease amounts to a subdivision but that, of course, is not particularly relevant in this case.

[5] That brings me back to my view as to what “on another lot” means and I think in that context a reasonable interpretation is that it means a separate property. I consider that that is an interpretation which is available to the defendants in this case and as such it follows in my judgement that the prosecutor cannot prove that the noise as measured on or near 85 Church Bay Road was measured on another lot in terms of the charge.

[6] I therefore rule that any measurements of noise levels that were taken in respect of 85 Church Bay Road are insufficient to prove the charge of contravention of s 9 by non-compliance with condition 25 of the resource consent.

Judge D A Kirkpatrick

District Court Judge

Date of authentication: 08/06/2021

In an electronic form, authenticated pursuant to Rule 2.2(2)(b) Criminal Procedure Rules 2012.