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"
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
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
The proposed changes to the development application were
matters of detail, and were considered "minor".
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