Auckland Council v Davis Stables Limited [2024] NZDC 14867 (27 June 2024)

Last Updated: 6 July 2024

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

CRI-2023-004-005855 [2024] NZDC 14867

AUCKLAND COUNCIL Prosecutor

v

DAVIS STABLES LIMITED STEPHEN TREVOR DAVIS (aka DAVIS DAVIS) Defendants

Hearing:	20 June 2024
Appearances:	S Boon for the prosecutor P Stokes for the defendants
Judgment:	27 June 2024

DECISION OF JUDGE D A KIRKPATRICK ON APPLICATION TO DISMISS CHARGES

Introduction

[1] This case relates to a property at 21 Trig Road Whitford and its alleged use as an equestrian centre. The land is leased by the defendant Stephen Trevor Davis (also known as Davis Davis) who is the sole director of the co-defendant Davis Stables Limited, a company registered as providing sports coaching service – horse riding.

[2] The land is zoned Rural-Countryside Living under the relevant operative parts of the Auckland Unitary Plan. In the activity table for the Rural zones, Rule H19.8.1(A23) lists “equestrian centre” as a discretionary activity. Such activity

AUCKLAND COUNCIL v DAVIS STABLES LIMITED [2024] NZDC 14867 [27 June 2024]

therefore requires a resource consent under s 87A(4) of the Resource Management Act 1991 (RMA). Using such land as an equestrian centre without a resource consent would contravene s 9(3) of the RMA, which is an offence under s 338(1)(a). In this case, the Council has issued an abatement notice numbered ABC21496188 dated 19 June 2020 to Davis Stables requiring it to cease operating an equestrian activity on the property in terms of Rule H19.8.1(A23).

[3] The Council also issued an abatement notice dated 24 January 2020 to the owner of the land in essentially the same terms, but that person is not before the Court.

[4] The Council alleges that the use of the land as an equestrian centre has not ceased, and has laid charges against Davis Stables for:

• (a) contravening s 338(1)(c) of the RMA by contravening abatement notice ABC21496188; and
  
• (b) contravening ss 338(1)(a) and 9(3) of the RMA by using land in a manner that contravenes Rule H19.8.1(A23) of the Auckland Unitary Plan by operating an equestrian centre at 21 Trig Road, Whitford without a resource consent.
  

[5] Mr Davis faces similar charges for either the same contraventions or for permitting those contraventions as the sole director of Davis Stables.

[6] Both defendants now apply under s 147 of the Criminal Procedure Act 2011 (CPA) for all charges to be dismissed on the grounds that:

• (a) the use of the land is not an “equestrian centre” as that term is defined in the AUP;
  

(b) abatement notice ABC21496188 is invalid; and

• (c) the charges have been laid outside the limitation period in s 338(4) of the RMA.
  

[7] The Council opposes the application in its entirety.

Principles as to dismissal of charges

[8] Section 147 of the CPA relevantly provides:

(1) The Court may dismiss a charge at any time before or during the trial, but before the defendant is found guilty or not guilty, or enters a plea of guilty.

...

(4) Without limiting subsection (1), the Court may dismiss a charge if -- ...

(b) in relation to a charge for which the trial procedure is the judge-alone procedure, the Court is satisfied that there is no case to answer; ...

(6) if a charge is dismissed under this section the defendant is deemed to be acquitted on that charge. ...

[9] The “no case to answer” test requires the Court to consider if there is some evidence which, if accepted as accurate, would establish each essential element in the alleged offence: see Haw Tua Tau v Public Prosecutor.1 If the evidence in respect of any essential element of the offence is lacking, the Court may find no case against the defendant has been made out and may then dismiss that charge: R v Hong.2 The evidence presented by the prosecutor must be taken at its highest, that is, it must be given the construction most favourable to the prosecution: R v Flyger; Parris v Attorney-General.3

[10] The defendants’ application raises an issue about the interpretation of provisions of the AUP and in particular the definition of “equestrian centre”. The Legislation Act 2019 governs this for the following reasons:

• (a) a rule in a district plan has the force and effect of a regulation in force under the RMA (see s 76(2) of the RMA);
  
• (b) a district plan is an instrument made under the RMA that extends the provisions of the RMA in terms of the definition of “secondary legislation” in s 5(1) of the Legislation Act;
  
• (c) “legislation” is defined in s 5(1) of the Legislation Act to include any
  

1 Haw Tua Tau v Public Prosecutor [1982] AC 136 (PC).

2 R v Hong [2018] NZCA 97 at [28]- [30].

3. R v Flyger [2001] 2NZLR 721 (CA) at [16]-[20]; Parris v Attorney-General [2004] 1NZLR 519 (CA).

secondary legislation.

[11] The starting point for interpretation of a rule in a district plan is, therefore, s 10(1) of the Legislation Act:

• (1) The meaning of legislation must be ascertained from its text and in the light of its purpose and its context.
  

[12] As legislation, the interpretation of a rule in a district plan is a matter of law and not a matter of evidence: Toy Warehouse Limited v Hamilton City Council.4 The leading decision on the interpretation of plan provisions is Powell & Ors v Dunedin City Council.5 In that case the Court of Appeal said at [35]:

[35] In this case, the appellants argued that the Court should look to the plain meaning of the access rule and, having found that there is no ambiguity, interpret that rule without looking beyond the rule to the objectives, plans and methods referred to in the earlier parts of section 20 of the plan. While we accept it is appropriate to seek the plain meaning of a rule from the words themselves, it is not appropriate to undertake that exercise in a vacuum. As this Court made clear in Rattray [referring to its decision in J Rattray and Son Limited v Christchurch City Council [1984] NZCA 9; (1984) 10 NZTPA 59], regard must be had to the immediate context (which in this case would include the objectives and policies and methods set out in section

20) and, where any obscurity or ambiguity arises, it may be necessary to refer to the other sections of the plan and the objectives and policies of the plan itself. Interpreting a rule by a rigid adherence to the wording of the particular rule itself would not, in our view, be consistent with a judgment of this Court in Rattray or with the requirements of the Interpretation Act.

Relevant District Plan provisions

[13] The definition of “equestrian centre” in chapter J1 – Definitions of the AUP is:

Equestrian centre

Facility used for:

• paid lessons in horse riding; and
• training, racing or showing horses competitively. Includes:
  • accessory retail;
  • accessory restaurants and cafes; and
• animal feedlots. Excludes:
  

4 Toy Warehouse Limited v Hamilton City Council [1986] 11NZTPA 465 at 467-8 (HC).

5 Powell & Ors v Dunedin City Council [2004] 3NZLR 72[2004] NZCA 114; , [2005] NZRMA 174 (CA).

• pony clubs.

This definition is nested within the Rural nesting table.

[14] It is also relevant in this case to set out the definition of “farming” in the same chapter:

Farming

Land used for horticulture, beekeeping, or raising, caring, breeding and grazing of livestock.

Includes:

• arable, pastural and other forms of farming;
• keeping or training horses and facilities accessory to keeping or training horses, such as: agistment, arenas (e.g. for dressage), breeding, sand rolls, stables, provided they are not open to the public;
  • conservation planting;
  • viticulture;
  • equestrian activities; and
• free range poultry farming. Excludes
  • intensive farming;
• any form of racing, show jumping or other activity which the general public may attend free of charge or by payment of an entrance fee;
  • equestrian centres;
  • forestry;
  • rural commercial activities; and
  • rural industries.

This definition is nested within the Rural nesting table.

[15] Ms Stokes for the defendants drew attention to chapter J1.1 of the AUP relating to interpreting definitions, particularly:

• (2) Words and phrases used in the Plan have the meaning set out in their definitions in this chapter unless the context otherwise requires.

...

(5) Where a list is preceded by the word “includes”, that list is not limited to the matters listed.
(6) Where a list is preceded by the word “excludes”, that list is limited to the matters listed.

[16] Both counsel drew my attention to a number of the provisions in chapter H19

– Rural Zones in the AUP. Particular references included:

(a) H19.2.1 – the general rural objective applicable to all rural zones, which includes identification of rural areas where people recreate and where a range of activities and services are enabled to support this;

(b) H19.7.1, being the zone description for the Countryside Living zone;

(c) H19.7.2(1), being the objective of using land for rural lifestyle living as well as small-scale rural production; and

(d) H19.7.3(5), being a policy acknowledging that the rural character and amenity values associated with the zone reflect its predominant use for rural lifestyle living rather than for rural production activities.

[17] Ms Stokes also submitted that equestrian activities were more closely related to rural lifestyle than to rural production, referring to the definition of “rural production activities” in chapter J1 – Definitions as meaning:

Activities that involve the production of primary products such as those from farming, intensive farming, horticultural, or forestry activities, and which have a functional need for a rural location.

[18] Focussing on what an “equestrian centre” is, she accepted that the Council had presented sufficient evidence of riding lessons occurring on the property, but submitted that there was no evidence of “training, racing or showing horses competitively” and that the use of the conjunction “and” between the two bullet points required an additive approach, so that the prosecutor has to prove both elements in order to establish that the use is an “equestrian centre”.

[19] Ms Stokes referred to the decision of the Environment Court in Byerley Park Limited v Auckland Council6 where that Court referred to a definition of “equestrian centre” as used in PC30, a plan change which preceded the notification of the AUP. That definition was:

6 Byerley Park Limited v Auckland Council [2013] NZEnvC 90.

Means land or buildings where:

• people are trained to ride, or can ride horses, for a fee; or
• horses are raced or showed competitively (including trotting, galloping, show jumping, cross country and dressage).
  

[20] Counsel submitted that the change of conjunction between the bullet points from “or” in PC30 to “and” in the AUP was significant, as was the fact that the earlier definition did not include “training” in its second limb.

[21] In response to questions from me about the extent to which the elements of the definitions of “equestrian centre” (including accessory retail, restaurants and cafes) and “farming” (excluding facilities open to the public) did or did not involve the offer of commercial services to the public, Ms Stokes submitted that the Council had not presented evidence that any activities of the defendants were “open to the public”. In particular, she submitted that any evidence of advertising or of payments only went so far as to indicate commercial relationships, which did not amount to being “open to the public”. She did not go so far as to submit that her clients’ activities were those of a pony club.

[22] In response, Mr Boon for the Council pointed to a photograph taken on 12 January 2023 by an enforcement officer showing use of the arena on the property. There is also a photograph of a whiteboard headed “Davis Stables”, with a website address and a bank account number together with what appears to be a list of horses which have had work done by a farrier. Mr Boon also referred to the transcript of an interview of Mr David by two enforcement officers in which Mr Davis acknowledged that riders can use his facilities if the want to get their own trainers. Mr Boon submitted that this evidence, taken together, indicated that the facility was “open to the public”.

[23] Mr Boon made extensive submissions about the meaning of the second element of the definition of “equestrian centre”, on the basis that even if “and” were given a purely additive meaning, one could infer that “training” was occurring and that the training did not need to be “competitive”.

[24] In relation to the interpretation of the definitions, Mr Boon submitted that it was clear from the objectives and policies for the Rural zones generally and for the

Countryside Living zone in particular that the purpose of the definition of “equestrian centre” and its activity class in the Countryside Living zone as discretionary was to reduce or manage the adverse effects of activities that may detract from the quality of the environment or the amenity values of people who live on properties in the zone for lifestyle reasons. In his submission, to interpret the definitions in the way submitted for the defendants would mean that commercial equestrian activities could occur in the Countryside Living zone without any limits and with consequent adverse effects.

Evaluation

[25] While the principles of interpretation may be stated succinctly and, as in this case, be agreed on all sides, the application of the principles in a particular case is not always a straightforward exercise. The emphasis on purpose and context as well as text is clear in both the legislation7 and in case law.8 The need to go beyond a strict textual approach in the interpretation of subordinate planning legislation has been widely recognised. As Cooke J (as he then was) memorably put it in Sandstad v Cheyne Developments Limited & Ors:9

A purposive interpretation is particularly called for by a scheme of this kind, which has to be prepared piecemeal to some extent and does not necessarily aspire to finished Chancery draughtsmanship.

[26] Even an ordinary word as commonly used as the conjunction “and” can bear several senses depending on its context. As well as the simple additive or joint sense of related items, whether in a list or not,10 it may also be used in a coordinating or distributive or several sense where the words it connects are used and should be construed disjunctively.11

7 Legislation Act 2019, s 10.

8. R v Secretary of State for the Home Department ex p. Daly [2001] UKHL26 at 28 per Lord Steyn; McGuire v Hastings District Council [2001] UKPC 43; [2001] NZRMA 557 (PC) at 9 per Lord Cooke; Powell v Dunedin CC fn 5.

9 Sandstad v Cheyne Developments Limited & Ord (1986) 11NZTPA 250 at [13].

10 For example, Page and Crosbie v (Greater) Wellington Regional Council [2024] NZCA 51 at [22] and [46].

11 For example, Marlborough District Council v NZ Rail Limited [1995] NZRMA 357 (PT) at 364- 365; A-G v Moroney [2000] NZHC 1298; [2001] 2 NZLR 652 at [64]; Waitemata Health v A-G [2001] NZCA 312; [2001] NZFLR 1122 (CA) at [57]- [62]; University of Canterbury v Insurance Council of New Zealand Inc [2013] NZCA 471; [2014] 2 NZLR 12. See also the principles of clear drafting issued by the Parliamentary Counsel Office including the appendix of problematic words at A3.3 – A3.10 and Garner’s Dictionary of Legal Usage, 3rd ed. 2009, page 639, entry for “or ... And and”.

[27] In this case, the question is whether an equestrian centre must be a facility used both for paid lessons in horse riding and for training, racing or showing horses competitively, or whether the two limbs of the definition are several activities which may (but need not) occur there. Approaching that question in terms of the ordinary meanings of the words, it is not apparent that the two limbs are activities or uses that are in the same class or type, even though they both relate to horses. It seems a more natural meaning that a place where one might go for paid lessons in horse riding would be quite different to a place where one would go to race or show horses competitively.

[28] Against that meaning, the inclusion in the second limb of “training” together with “racing or showing horses” is problematic. While racing horses is inherently competitive, and showing horses may well be done competitively, it is difficult to understand how one might train horses competitively. Mr Boon for the Council argued that the second limb could be divided and interpreted in several different ways so that the adverb “competitively need not apply to all listed activities.

[29] It seems more likely that training horses is closer in sense to offering lessons in horse riding, albeit that the latter may involve training the rider rather than the horse. Rather than demonstrating that the two elements must be dealt with jointly, the better way of resolving that problem might be that training should be separated from racing or showing horses and could be included in the first bullet point, but this Court has no jurisdiction to change the AUP.

[30] In the meantime, the inclusion of “training” in the second limb can be interpreted as meaning that evidence of lessons involving riders and horses may satisfy both limbs and so prove the existence of an equestrian centre either or both ways.

[31] It is not apparent that treating the use or activity of paid lessons in horse riding as distinct from racing or showing horses competitively results in any uncertainty or ambiguity. It does not otherwise conflict with the exclusion of “pony clubs” from the definition or, in the definition of “farming”, with the inclusion of “keeping or training horses ... provided that [the facilities for doing so] are not open to the public”.

[32] I find the inclusion of “equestrian activities” as a permitted activity within “farming”, while classing “equestrian centres” as a separate discretionary activity, to present a question about the consistency of the definitions. It may be that “activities” are broader than a “centre” so that the general provision does not derogate from the specific one. That indicates that general activities relating to horses as part of farming do not require consent but an organised centre for commercial activity is required to be the subject of an application for resource consent.

[33] The objectives and policies of the AUP referred to by counsel are not specific in relation to equestrian matters. To the extent that their context offers any assistance, they tend to indicate that commercial activities are not generally classed as permitted activities in the Countryside Living zone and require a resource consent to be obtained.

[34] As for the previous definition of equestrian centre identified in the Byerly decision,12 s 10 of the Legislation Act requires legislation to be interpreted according to its text, rather than the text of previous legislation. While the history of legislation may assist in an understanding of the development of it, it cannot control the interpretation of current legislation.

[35] I therefore conclude that an “equestrian centre” may exist where relevant evidence proves that activities within either limb of the definition in the AUP are taking place. There is such evidence in this case.

Validity of abatement notice

[36] The defendants say that the abatement notice issued to Davis Stables is invalid on the ground that it directed the company to cease operating an equestrian activity but it did not specify what the offending activity was beyond reference to an equestrian centre. Counsel submits that there are several equestrian activities that could occur within “farming” which is a permitted activity in the Countryside Living zone.

[37] Ms Stokes referred to the decision of the Environment Court in Oman Holdings Limited v Auckland City Council,13 where the Environment Court held that blanket

12 Fn 6.

13 Oman Holdings Limited v Auckland City Council [2001] NZEnvC 449; (2001) 8 ELRNZ 68.

abatement notice procedures should not be used to prohibit activities which may or may not be legal on any particular occasion.

[38] That decision of the Environment Court was a decision on an appeal against an abatement notice under s 325 of the RMA. Counsel for Auckland Council cites the decision of the Court of Appeal in Page v Whanganui District Council14 where it was held that the validity of an abatement notice could not be challenged without exercising the right of appeal, and it was further confirmed that an abatement notice continues to have lawful effect until a stay is granted under s 325(3)-(H) of the RMA.

[39] In the face of that authority, Ms Stokes conceded that she could not pursue a full challenge to the abatement notice as part of this application. In my view that concession was properly made. The basic principle is that an action of the executive is treated as valid until it is found not to be so by a court of competent jurisdiction.15 I note that an exception may be made in the comparatively rare case of flagrant invalidity, but this is not such a case.

[40] Ms Stokes nonetheless submitted that proof of the charge of contravening the abatement notice still relied on proof that the use or activity carried on on the site was an “equestrian centre” and relied on her submissions as to the interpretation of that term. As I have found, there is evidence that the defendants’ activities can be proved to be an equestrian centre within the meaning of that term as defined in the AUP.

Limitation

[41] The maximum penalty for an offence under the RMA is, in the case of a natural person, imprisonment for a term not exceeding two years: s 339(1)(a) of the RMA. As a consequence, offences against the RMA are defined as category 3 offences in s 6(1) of the CPA and under s 25(2)(a) of that Act the time for filing a charging document in respect of a category 3 offence is five years after the date on which the offence was committed.

14 Page v Whanganui District Council [2012] NZCA 324 at [32]- [39].

15 A J Burr Limited v Blenheim Borough Council [1980] 2NZLR 1 (CA).

[42] That general limitation provision is overridden in this case by s 338(4) of the RMA, which provides:

(4) Despite anything to the contrary in s 25 of the Criminal Procedure Act 2011, the limitation period in respect of an offence against subsection (1), (1A) or (1B) ends on the date that is twelve months after the date on which the contravention giving rise to the charge first became known, or should have become known, to the local authority of consent authority.

[43] In this case all four charges were filed in the District Court at Manukau on 26 July 2023 and give the date of the offence as on or about 12 January 2023. Ms Stokes points to the fact that abatement notice ABC21496188 was issued on 19 June 2020 and submits that time began running on that date, if not before then.

[44] Mr Boon for the Council submits that the first date on which the defendants were seen carrying out lessons on the property by an agent of the Council was 12 January 2023 and that prior to this the Council officers had only observed that the defendants were advertising lessons online and that equestrian arenas were set up on site visits.

[45] Alternatively, Mr Boon submits that the offending is of a continuous nature, so that the limitation period would not begin until the date that the defendants ceased operating the alleged equestrian centre. In support of this submission, counsel refers to R v Gordon16 and Tauranga City Council v Jacko Basil Holdings Limited.17

[46] I am satisfied that the nature of the alleged offending in this case, being a use of land or an activity, is of an ongoing nature so as to constitute a continuing offence. Similarly, the ongoing contravention of the abatement notice is also a continuing offence. For continuing offences time runs from each and every day the offence continues.18

16 R v Gordon [2004] DCR 572, DC Auckland T024528 at [11].

17 Tauranga City Council v Jacko Basil Holdings Limited [2016] NZDC 17674 at [7].

18 Fn 17 at [7](a).

[47] Some of the evidence presented by the Council was obtained more than twelve months before the charges were filed. There may be an issue at trial as to whether any such evidence is relevant, but that should not be addressed now.

Conclusion

[48] For the foregoing reasons, I conclude:

• (a) The use of the land is within the definition of “equestrian centre” in the AUP;
  
• (b) The abatement notice is valid; and
  
• (c) The charges were not filed out of time.
  

[49] The defendants’ application for dismissal of the charges is refused.

Judge DA Kirkpatrick

District Court Judge | Kaiwhakawā o te Kōti ā-Rohe

Date of authentication | Rā motuhēhēnga: 27/06/2024