Robin QC DCJ
Conditions appeal – lack of State resource entitlement – part of parkland to be used as road for subdivision – Crown land but Council trustee – Council provided owners consent – park should have been regarded as State resource – developer acted in good faith – Department provided evidence of entitlement to State resource – minor change issues – ss. 350 and 820 Sustainable Planning Act 2009 – s. 3.2.1(5) Integrated Planning Act 1997
Facts: This was an appeal against conditions which was all but resolved between the Appellant developer and Respondent Council. Two issues required consideration before final orders could be made – one relating to a lack of State resource entitlement, and one relating to "minor change" matters.
The development application sought a reconfiguration of a lot, which included the use of an existing park to accommodate part of a road giving access to some of the new proposed lots. The park was owned by the Crown, but the Council was its trustee for management purposes. The Council provided the requisite owners consent to the development application. However, further consideration revealed that the Council could not give such consent as owner, because the park was a State resource which required evidence of an allocation of or entitlement to the resource under section 3.2.1(5) of the Integrated Planning Act 1997. Accordingly, the development application was not "properly made".
The Appellant had been able to secure full cooperation from the Department of Environment and Resource Management (DERM), which provided a letter advising that the development was consistent with an allocation of, or entitlement to, the State resource.
The Court also had to consider a proposed "minor change" issue under section 350 of the Sustainable Planning Act 2009. The proposed changes included reduction in the sizes of the proposed lots, an increased area of parkland, changed road configurations, and the alteration to the easement and covenant arrangements.
Decision: The Court held that:
- The retrospective validation of development applications that are not "properly made" is relatively easy where the cooperation of the State authority is forthcoming.
- The Appellant developer acted bona fide throughout the application and appeal, and had taken appropriate steps to regularise matters expeditiously. No rights or entitlements of members of the public had been limited or adversely affected by reason of the non-compliance.
- For the purposes of section 3.2.1(5) of the Integrated Planning Act 1997, the letter from DERM constituted sufficient evidence of the Appellant's resource entitlement. It would bring discredit upon the system if the Court didn't regularise the development application.
- It was appropriate to exercise discretion under section 820 of the Sustainable Planning Act 2009 and excuse the non-compliance.
- The proposed changes to the development application were matters of detail, and were considered "minor".
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