Bronwyn Arthur, Crown Counsel, Land & Resource Management Team, Crown Law office.

Local authorities have greater freedom to impose conditions on resource consents than was previously assumed. Conditions can be more restrictive than the Building Code. They can take away the absolute right to freedom of expression.

The High Court has found in favour of the Christchurch City Council (CCC) imposing conditions requiring noise attenuation features to be included in dwellings built near the Christchurch International Airport. It has also decided that any condition which may otherwise lawfully, fairly and reasonably be imposed as a condition under the Resource Management Act 1991 (RMA) will not breach the right of freedom of expression provided for in the New Zealand Bill of Rights Act 1990 (NZBoRA).

The land surrounding the Christchurch International Airport is presently zoned rural. Dwellings associated with rural processes are classified as discretionary activities and require a resource consent. The CCC received, and granted, two applications for dwellings, imposing a noise attenuation condition (soundproofing of the building). It refused to impose a condition, sought by Christchurch International Airport Limited (CIAL), whereby the land use consent would only enure so long as the consent holder was not annoyed by airport noise and did not complain about the noise. By the third application questions were being raised on the legality of the noise attenuation condition as it may have breached the Building Act 1991 (BA). CIAL did not accept that the condition precluding complaints could not be legally imposed.

Declarations under s.310 of the RMA were sought from the, then, Planning Tribunal (PT) on the legality (as opposed to the merits) of both conditions. As an indication of the importance of these questions two Planning Tribunal judges sat - His Honour Principal Planning Judge Sheppard (presiding) and His Honour Planning Judge Skelton. Section 7(2) of the BA provides:

Except as specifically provided to the contrary in any Act, no person, in undertaking any building work, shall be required to achieve performance criteria additional to or more restrictive in relation to that building work

than the performance criteria specified in the building code.

The PT asked itself Can it really be said that by this subsection Parliament intended to prohibit a consent authority from requiring a building that is the subject of a resource consent, usually as part of a wider consent to use land, to perform in certain ways that would otherwise clearly be relevant to the exercise of that consent ? It was decided that Parliament could not have intended that result otherwise a consent

distinct from a building consent, for the purpose of promoting the sustainable management [of] natural and physical resources which, amongst other things, includes preventing or mitigating adverse effects on the environment.

The PT concluded that a consent authority granting a resource

consent is performing a different function from a territorial authority granting a building consent. Effect had to be given to the language of the BA as well, and so the PT clarified that the resource consent related to the residential activity; not for making the building conform with the Building Code.

If this decision was wrong, the PT also considered the Acts Interpretation Act 1924 (AIA) which defines "Act" to mean an Act of the General Assembly or of the Parliament of New Zealand, and includes all rules and regulations made thereunder. Counsel appear to have accepted that rules in a plan can be regarded as an Act. This was supported by s.76 of the RMA which provides that rules in district plans have the force and effect of a regulation. It therefore followed that rules requiring noise attenuation met the requirements in s.7(2) of the BA as there was a specific provision which provided for more restrictive criteria.

Repugnance

In relation to the second condition, the PT considered it to be repugnant to administrative justice and that in the light of the NZBoRA its repugnance became even more apparent. Not only would this condition mean that a person could not complain to their elected representative, but it would be an offence to do so as such a complaint would be a breach of a condition. To place a consent holder in such a position when the Bill of Rights affirms his or her rights to freedom of expression and opinion and the freedom to seek, receive and impart information of any kind in any form, has to be inimical to the whole concept of a free and democratic society, and for ourselves we condemn it wholly and unreservedly.

The Building Industry Authority (BIA) appealed the PT's decision on the noise attenuation condition and CIAL appealed the decision on the second condition. The appeals were considered together by the High Court by a Full Court comprising Their Honours Tipping J and Chisholm J, judgment being given in December 1996. In relation to the noise attenuation condition, there was agreement with the PT that section 108 of the RMA provides a general power to impose conditions on resource consents and therefore was not a specific provision which overrode s.7(2) of the BA.

The High Court did not accept the alternative reasoning of the PT that rules were within the definition of "Acts". Judge Chisholm concluded that the "rules" referred to in the definition of "Act" are those that are made through the legislative process by the Governor-General in Council or by a Minister of the Crown. Just because instruments made by local authorities have the statutory tag of "rules", this does not make them "rules" in terms of the AIA. He also noted that although "rules" might have the "force and effect of regulations" where there is an inconsistency between rules and regulations, the regulations shall prevail. Rules are therefore inferior to regulations and having the force and effect of a regulation is not the same thing as deeming rules to be regulations.

Having dismissed those arguments Judge Chisholm considered the specific wording of s.7(2) of the BA. He noted that the provision only applies to building work which is defined as work for or in connection with the construction, alteration, demolition or removal of a building; and includes sitework. Unlike other provisions in the BA, s.7(2) does not refer to the use of buildings. His Honour concluded it was not part of the statutory intention that building controls concerning the use of buildings or controls arising from the management of natural and physical resources under the RMA should be circumscribed by the Building Code.

Section 7(2) of the BA also refers to performance criteria specified in the Building Code. It was common ground that if the noise attenuation condition could be classified as performance criteria then they were additional to those specified in the Building Code. The BIA argued it was not up to territorial authorities to fill any gaps in the Code while the CCC argued that it was not filling gaps but exercising controls relating to the RMA and not the BA.

This proved to be the crucial point. Both judges recognised that the two Acts perform different functions but that there was the possibility of overlap. The key was seen to be the function performed. If the function related to the physical building structure then it was a BA function and s.7(2) applied. If the function was a RMA one then it would not be caught by s.7(2). Judge Tipping illustrated this point by acknowledging that a building consent could have been obtained without the extra insulation but without that insulation the building could not have been occupied and used, i.e. the intended activity could not have taken place.

Integrity

The BIA concern was that allowing such additional criteria would undermine the integrity of the Building Code which was intended to give nationally consistent rules. These decisions, however, confirm that for the purposes of granting building consents s.7(2) prevails and different territorial authorities cannot impose their own requirements on top of or in substitution for the Code. If, however, the territorial authority is facing a particular planning or resource management issue, whose appropriate solution lies in the imposition of a requirement going beyond the Code, s.7(2) does not prevent that course. Thus, in relation to the BIA appeal the High Court came to the same conclusion as the PT, but for different reasons.

In relation to the second condition, Judge Tipping considered the NZBoRA. The PT had not specifically dealt with the question of what the position was if a person consented to such a condition, appearing to view the condition with such abhorrence that consent did not enter the equation. His Honour concluded that if the person the subject of the condition/covenant is prepared to consent thereto, it cannot be said that the covenant/condition falls foul of the Bill of Rights Act. The simple reason is that the person concerned has voluntarily given up pro tanto the relevant rights affirmed under the Bill of Rights Act and such rights are not, ..., rights which should be regarded as incapable of surrender for reasons of public policy.

His Honour considered this applied whether consent was freely given or not. He noted that in many resource management areas it is commonplace for consents to be given from neighbours and the like and it has never in my experience been suggested previously that the Council has some obligation to second guess the consent or inquire into its nature or quality. The Judge then considered the position if consent was not given. He noted "No man is an island entire of itself; every man is a piece of the continent". There must be give and take. Rights are not absolute. A democratic society provides mechanisms to deal with such conflicts. In this case the arbiter is the consent authority, then the Environment Court.

His Honour concluded that s.108 of the RMA allows consent authorities to impose conditions. Provided those conditions are lawful, fair and reasonable then they can be imposed. The limitation on freedom of expression is a limitation which can be prescribed in law and can be demonstrably justified in a free and democratic society. The condition must still be considered from a RMA perspective, but if it can pass that test then it would not be in breach of the NZBoRA. CIAL therefore succeeded in its appeal on this point.

The lesson to be taken from these decisions is that s.108 provides a great deal of freedom and discretion to consent authorities when it comes to imposing conditions on resource consent applications. However, the conditions must be for a RMA purpose and not for any other. Provided the condition can be justified in terms of the RMA, then, even if is more restrictive than the Building Code or breaches a right, it can still be imposed.