CONSENT, PURSUANT TO SECTIONS 357 OF THE RESOURCE MANAGEMENT ACT, IS DISMISSED. THE FULL DECISION IS SET OUT BELOW

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1 Decision following the hearing of an application for resource consent SUBJECT: Objection under section 357B of the Resource Management Act 1991 by Dirtworks Ltd to additional charges associated with processing resource consent application LP at 32 Kewa Road, Albany Heights held on Friday, 17 April 2015 commencing at 9.30am CONSENT, PURSUANT TO SECTIONS 357 OF THE RESOURCE MANAGEMENT ACT, IS DISMISSED. THE FULL DECISION IS SET OUT BELOW Hearing Panel: The Application was heard by Hearings Commissioners consisting of: Ms Rebecca Macky (Chairperson) Council Officers: Gerard McCarten Principal Planner Sandhira Naidoo Resource consent Processing Planner Tania Bonsall Democracy Advisor - Hearings Wendy Stephenson Democracy Advisor - Hearings For the applicant: Anita McKenzie Dirtworks Ltd APPLICATION DESCRIPTION Application and Property Details Application Number (s): Site Address: Applicant's Name: Lodgement Date: Hearing Commencement: Hearing Closed: CC Kewa Road, Albany Heights Dirtworks Ltd 9.30am 10.05am INTRODUCTION The Council has received an objection under section 357B of the Resource Management Act 1991 (the RMA) to additional charges imposed in relation to the processing of the above land use consent application, which was withdrawn following a section 92 request for further information under section 92.

2 The objector s notice of objection notes that a deposit of $2,500 was paid and subsequently a debit note no with a balance of fees payable of $1, was issued on 13 October 2014 The objector objects to the fees as detailed in the debit note for the following reasons: 1. The consent was put on hold under section 92 because of a further information request. The Council should not have continued to incur costs while the application was on hold. 2. The consent process ran for 10 working days before the section 92 notice issued. Total costs of $4, are high, given the volume of imported fill under consideration was 4,338m 2. Even $2,500 in the 10 days is excessive. 1 In other words, the total cost for processing appears high relative to the scale of the proposal and the application ran for only 10 working days and was then withdrawn. Although the objection did not specify what relief was sought, at the hearing, the objector confirmed that the whole additional amount of $1, was objected to. BACKGROUND The application was lodged on 8 September 2014 for consent import 4338m3 of clean fill onto the property at 32 Kewa Road, Albany to provide for improved drainage and usability of the land for pastoral purposes. 2 The site and its location are described in the AEE, along with the project details, management plans and reports, identification of effects on the environment, consultation and statutory assessment. Following lodgement, the proceeded as follows: 14 September 2014 Processing planner receives comments from the council s development engineering expert 16 September 2014 Processing planner receives comments from the council s erosion and sediment control expert 18 September 2014 Processing planner receives comments from the council s traffic engineering expert Processing planner discusses site history with the council s environmental health officers Section 92 letter sent 22 September 2014 Discussion between planner and applicant 25 September 2014 Letter sent advising of potentially affected persons 10 October 2014 Application withdrawn. 1 Refer letter of objection from Dirtworks to Council, 22 October Refer AEE by Dirtworks, section 1.4

3 STATUTORY PROVISIONS Section 36 of the RMA entitles the council to fix charges to recover costs of processing a resource consent application: 36 (1) A local authority may from time to time, subject to subsection (2), fix charges of all or any of the following kinds: (b) Charges payable by applicants for resource consents, for the carrying out by the local authority of [any 1 or more of] its functions in relation to the receiving, processing, and granting of resource consents : Section 36 goes on to state that the council is entitled to fix additional charges in order recover the actual and reasonable costs of processing a resource consent application where these exceed the fixed charge. 36 (3) Where a charge fixed in accordance with subsection (1) is, in any particular case, inadequate to enable a local authority to recover its actual and reasonable costs in respect of the matter concerned, the local authority may require the person who is liable to pay the charge, to also pay an additional charge to the local authority. Section 36(4) sets out the matters that the council must have regard to when fixing charges. 36 (4) When fixing charges referred to in this section, a local authority shall have regard to the following criteria: (a) The sole purpose of a charge is to recover the reasonable costs incurred by the local authority in respect of the activity to which the charge relates: (b) A particular person or persons should only be required to pay a charge (i) To the extent that the benefit of the local authority's actions to which the charge relates is obtained by those persons as distinct from the community of the local authority as a whole; or (ii) Where the need for the local authority's actions to which the charge relates is occasioned by the actions of those persons; or (iii) Section 357B of the RMA provides applicants with the right to object to an additional charge: 357B There is a right of objection, (a) for a person required by a local authority to pay an additional charge under section 36(3) to the local authority in respect of that requirement: Section 357D of the RMA sets out the range of actions the council may take when considering an objection to additional charges: 357D (1) The person or body to which an objection is made under sections 357 to 357B may (a) dismiss the objection; or (b) uphold the objection in whole or in part; or

4 (c) in the case of an objection under section 357B(a), as it relates to an additional charge under section 36(3), remit the whole or any part of the additional charge over which the objection was made. HEARING At the hearing Ms Anita McKenzie represented the objector Dirtworks Limited and presented a statement. Ms McKenzie confirmed the reasons for the objection as being: 1. Total costs of $4, in 10 days seem excessive, given the volume of fill to be imported. 2. By putting the application on hold under section 92, the clock was stopped and Council should not have incurred any cost during this period. However, after 18 September 2014, 4.5 hours of work was done, amounting to $657 (including GST), which included responding to neighbours queries. 3. The objector was surprised at the level of assessment and information required, compared with other proposals in Rodney and based on previous experience. Ms McKenzie tendered a list of consented sites showing a number of sites, the volume of imported fill, Council costs and the number of processing days, suggesting that this application was at the high end of those consents. For the Council, Gerard McCarten responded that the list of consented sites were all from Rodney and not from North Shore, and that the number of working days was not helpful even for the current application, the processing planner would not have spent all day on the one matter and the number of hours spent would be a more useful comparison. Also, no detail was provided on the complexity of the applications, and volume is not necessarily a linear exercise in calculating costs as sediment and erosion assessments are not volume-based, and the area involved and the receiving environment are all factors. Mr McCarten referred to the issues involved: The proposal raised several issues such as silt run-off into the gully, diversion of overland flow paths, drainage for the site and surrounding properties, traffic safety relating to the transport of fill on a road that as not designed to carry the loads being proposed, the frequency of trips to transport fill on a narrow road with steep banks, and the quality of fill being imported 3 In relation to the complaint that Council was continuing to work on the application when the clock has stopped, Mr McCarten noted that Council staff must respond when a neighbour rings, and that the application being the cause of the residents concerns, then the applicant should bear the cost. 3 Agenda, p8, second-to-last paragraph

5 In this case the Council was doing work after the clock had stopped with the applicant s knowledge and on the basis that it was better for the applicant to be aware of those parties whom the Council considered to be adversely affected so that this information could be considered when the section 92 request was being addressed. Mr McCarten agreed that in stating that the application is on hold the applicant might misunderstand that this did not necessarily mean that processing the application was on hold, but that Council was trying to do things in the right way. In response, Ms McKenzie submitted that the processing clock should stop when an application was on hold: it is misleading to state that it is on hold when further charges were being incurred under the section 95 notification assessment. Whilst Council staff cannot avoid speaking to neighbours if they ring up, calls should be limited to a reasonable length of time. The main point made was that charges should not have been charged for work past the 18 September letter. ASSESSMENT The planning report has followed the steps outlined in In Hill Country Corporation v Hastings District Council 4 and it is appropriate to follow the same process in this decision. i. What are its actual costs incurred in relation to the activity (including costs charged to it by external consultants)? The total processing cost was $4, of which the additional costs of $1, are objected to, including the sum of $657 incurred after 18 September ii. Are those costs reasonable in relation to the activity, that is, do they meet the section 36(4)(a) threshold? I find that the costs were reasonable in relation to the proposal, which required an assessment by a planner, a development engineer, a traffic engineer, and an earthworks specialist to consider issues related to planning, geotechnical matters, drainage, sediment control, road and traffic safety, and contamination. The time spent on the matters was not excessive given the scale and complexity of the proposal. Whilst it is reasonable for an applicant to assume that when an application is placed on hold then no further costs would be incurred, in this case the objector was aware that the reporting planner was continuing to process the application. Reference is made to the transactions summary at page 87 of the Agenda: 22/09/2014 Follow-up dis[cussion] with agent re s92 req[uest] and poss[ible] s95 req[uirements] 4 Hill Country Corporation v Hastings District Council [2010] NZRMA 539 (HC).

6 25/09/2014 s95 assessment of surrounding props using Kewa Rd, call from concerned neighbour to dis[cuss] app[lication] 26/09/2014 s95 assessment and verification of all property owners using Kewa Rd, s95 req prepared and sent to agent, more calls from concerned neighbours to dis[cuss] prop. Because the objector was aware that the reporting planner was continuing to process the application, the costs incurred while the application was on hold are not unreasonable and neither is the amount of 4.5 hours. Furthermore, because the council would not have to field queries from concerned neighbours if the application had not been made, it is reasonable for the Council to charge an applicant for the time spent, which was not excessive. The fact that the processing took place over 10 working days is irrelevant one way or the other as it is the number of hours spent that generates the costs. Given the nature of the application, the site, the issues raised and the involvement of a number of experts to assess the land use and regional controls that were triggered under both the operative district and regional plans, as well as the Proposed Auckland Unitary Plan, I do not find the costs unreasonable. As the reporting planner noted: While the proposal may appear simple or be simply described, it was not. The hours taken reflect the thorough assessment expected of consent auditing including the assessment of potentially affected parties and discussions with specialists regarding the issues. 5 iii. Are those costs satisfied by the fixed charge? The council s fixed charge was a $2,500 deposit, which did not cover the total costs. iv. If not, what additional charge should be levied to recover the balance of the actual and reasonable costs? The additional charge amounted to $1, v. Can that person who initiated the activity be required to pay that charge because they satisfy one of the criteria in s 36(4)(b)? In this instance, the benefit of Council s actions is obtained by the applicant and not the community at large; and the need for the council to process the application was occasioned by the applicant submitting the application. Thus two of the criteria in section 36(4)(b) have been met. vi. Is it a case where, in the exercise of the local authority's absolute discretion under section 36(5), either the whole or part of the fixed charge or the additional charge should be remitted? 5 Agenda page 9, second paragraph

7 FINDING I do not find that this is a case where, in the exercise of my discretion, either the whole or a part of the additional charge should be remitted, for the following reasons: 1. The fact that the consent process ran for only 10 working days, incurring high total costs of $4, is irrelevant. 2. Of relevance is the nature of the application, the site, the issues raised and the applicable planning rules. In this case, the application generated a prompt and appropriate response from Council staff. The actual time spent by Council staff in dealing with this application was reasonable, noting the number of issues and questions in the section 92 letter. 3. Whilst it is agreed that in normal circumstances an applicant would be entitled to consider that once a consent was put on hold under section 92, no further costs should be incurred while the application was on hold, in this instance the applicant was aware of the additional work being carried out and presumably accepted it. Given the situation, Council is entitled to charge for the additional work. 4. If the proposal generates calls from concerned neighbours, it is good practice for Council staff to respond to those calls and appropriate to charge the applicant for the time involved. 5. Dealing with matters concurrently such as requests for information and identification of affected persons reflects best practice and the need to manage applications efficiently in order to meet statutory timeframes for processing 6. No sound reasons have been advanced by the objector to uphold the objection in whole or in part as the additional charges accurately reflect the actual and reasonable costs of the Council in processing the application. Pursuant to section 357D of the Resource Management Act 1991, the objection is DISMISSED for the above reasons. Chairperson Date: 22 April 2015