Judicial review – Resource Management Act 1991, ss 9, 10 & 139 – existing uses of land – council certificate of compliance – lawfulness of certificate – setting aside

 Raukawa Charitable Trust v South Waikato District Council [2023] NZHC 2534.

Waotu Quarries Ltd owns a quarry overlooking the Waikato River at Lake Arapuni. The quarry, run by contractor J Swap Contractors Ltd, has operated since the middle of last century.

Raukawa Charitable Trust is the authority for Raukawa iwi. Raukawa’s area of tribal interest encompasses the land comprising the quarry, within which lies Pirauiti Pā, a significant site to the iwi. Rediscovered on land survey in 2014, Pirauiti is an archaeological site under the Heritage New Zealand Pouhere Taonga Act 2014, meaning it may not be modified or destroyed without appropriate authority under the Act.

The South Waikato District Council district plan did not permit quarrying and no resource consent allowed quarrying at Waotu. On 30 March 1999, the council issued a certificate of compliance under s 139 of the Resource Management Act 1991 for the contractor’s quarrying activities at Waotu. The contractor and owner intended to develop operations away from the pā site over the longer term and had sought comprehensive resource consents accordingly. In the meantime, however, they relied on the certificate of compliance.

Raukawa is concerned the pā site is being damaged by the quarry’s operation. Extensive discussions between Raukawa and the contractor and owner have not resolved Raukawa’s concerns.

Raukawa Charitable Trust sought judicial review of the council’s issue of the certificate of compliance.

A practice had developed among councils where pre-existing lawful uses of land contravening subsequent district plan rules were granted certificates of compliance under s 139.

In Duncan v Dunedin City Council (2004) 10 ELRNZ 315, the High Court determined the council had no jurisdiction to issue a certificate of compliance in these circumstances. As a result, s 139A of the Resource Management Act was enacted on 10 August 2005 to enable councils to issue “existing use certificates”.

In the present case, no existing use certificate was sought nor issued. The contractor and owner relied on the certificate of compliance issued in 1999 and argued that Duncan was wrongly decided.

Applicable principles: Resource Management Act 1991, ss 9, 10 and 139 – was the certificate of compliance lawfully issued by the council? – was Duncan v Dunedin City Council wrongly decided? – relevant factors in assessment of whether certificate of compliance should be set aside – are there ‘extremely strong reasons’ to decline relief?

Held: The application for judicial review is granted.  The council’s issue of the certificate of compliance to the contractor was unlawful. The certificate of compliance is set aside.

Raukawa Charitable Trust v South Waikato District Council [2023] NZHC 2534.