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Council member and meetings
MINUTES OF A MEETING OF THE
SPECIALIST HEARINGS SUBCOMMITTEE
HELD ON TUESDAY, 3 NOVEMBER 2009 AT 9:30 AM
IN THE GROUND FLOOR MEETING ROOM
TOWN HALL, AUCKLAND
| PRESENT: |
Mr |
G |
Hill |
| |
Mr |
L |
Simmons |
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Mr |
C |
Stewart |
 APOLOGIES
There were no apologies.
APPOINTMENT OF CHAIRPERSON
That Mr Les Simmons be appointed as chairperson for this
meeting of the Specialist Hearings Subcommittee.
CARRIED
2A. CONFIRMATION OF MINUTES
That the minutes of the Specialist Hearings Subcommittee
meeting held on Tuesday, 6 October 2009, be confirmed as a true and correct
record.
CARRIED
EXTRAORDINARY BUSINESS
There was no extraordinary business.
PUBLIC FORUM
There were no requests to speak in public forum.
SECTION 357B OBJECTION TO COSTS FOR RESOURCE CONSENT APPLICATION AT 599-607 MT EDEN ROAD, MT EDEN
Mr
Stephen Brownhill, Counsel for the Applicant, spoke to his tabled submission
dated 2 November 2009 and clarified background information. Mr Colin Hardacre
tabled additional documentation which he also spoke to.
[ATTACHMENT 5B]
- That, pursuant to section
48.2(a)(i) of the Local Government Official Information and Meetings Act 1987,
the public be excluded from the deliberations of the Specialist Hearings
Subcommittee following the hearing of evidence in this matter, for the reason
that a right of appeal lies in the Environment Court against the final decision
of the subcommittee.
CARRIED
- That pursuant
to section 357D of the Resource Management Act 1991, and having taken into
account the relevant matters at sections 36(3) and (4) of the Act, the objection
by Hees Garden Restaurant (2003) Limited to the invoice issued in respect of
resource consent R/LUC/2008/2468 to undertake internal alterations and legalise
the overall restaurant activity at 599-607 Mt Eden Road, Mt Eden, be dismissed.
- That the
reasons for dismissing the objection are:
- It was
acknowledged by Mr Brownhill, the Barrister for Hees Garden Restaurant (2003)
Limited, that this objection related solely to the reasonableness of the charges
invoiced by the Council. The issue in contention was the notification and
hearing process that had been followed.
- It was Mr
Brownhill's submission that his client should not be required to pay the costs
incurred by the Council as a result of the Council's consideration that the
existing restaurant was operating without a resource consent and was not an
existing use. If the Council had accepted that existing use rights applied, he
considered that the application may have been processed on a non-notified basis,
but did acknowledge the possibility that it may still have been dealt with on a
notified basis. He also accepted that regardless of the existing use situation,
a resource consent would have required for the works proposed by the application
- and therefore costs would have been incurred. The Subcommittee does not
accept the submission relating to the issues of non-notification for the reason
that there is no certainty that the application would have been processed on a
non-notified basis, given the reporting officer's statement his notification
recommendation would have still been for full notification.
- Mr Brownhill
was very clear that it was not within the Subcommittee's jurisdiction to
determine whether, in fact, existing use rights did exist at the time the
resource consent application was lodged and being processed. The Subcommittee
accept this, and agree that its role was not to determine if existing use rights
applied. The Subcommittee's role was to determine if the costs were reasonable
for the processing of this application. In this respect it is noted that the
decision issued by the hearings commissioner for the application was to
"legalise an existing restaurant....." The commissioner also found that she did
not need to make a finding on the issue of existing use rights as the applicant
"has conceded the point in its own material". Given the above, the Subcommittee
has determined that its determination is limited to whether the costs associated
with the processing of the application (the one before them) was reasonable. As
set out below Mr Hardacre, the applicant's planner, conceded that they were.
- Mr Brownhill
acknowledged he had formed a different view to the Council with respect to the
question of existing rights. He fairly and appropriately also acknowledged that
the consent that had been granted by the Council had provided a benefit to his
client in that the existing restaurant had been legalised through this consent
process.
- In response to
questions, Mr Hardacre advised that the actual charges invoiced by the Council
were what would normally be expected in relation to an application such as this
one. In other words, the charges themselves were not at issue in terms of the
time spent and charged.
- The charges
invoiced by Council are only to cover the costs incurred through the processing
of the applicant's notified resource consent.
- The additional
charges are a reasonable and accurate reflection of the time spent by Council
officers, planning officers and the hearings commissioner in assessing and
determining the application. The total charges were accepted by Mr Hardacre as
being appropriate in relation to an application such as this one.
- The applicant
accepted the need to process the application on a notified basis and accepted
the costs of a fully notified process by paying the necessary deposit to
continue the application.
- The
incremental increase in floor area and the number of people accommodated at the
restaurant, and therefore the need to legalise the operation, was not of the
Council's making and the Council should not incur costs as a result of
regularising the matter.
- That the Specialist Hearings Subcommittee notes that a right of
appeal to the Environment Court, within fifteen days of the date of the
Subcommittee's determination, is available to the objectors.
CARRIED
There being no further business the Chairman declared the
meeting closed at 10:45 am.
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