A council cannot be compelled to issue a section 224(c) certificate by way of enforcement order

A recent decision of the High Court has confirmed that an enforcement order cannot be used to require a council to issue a section 224(c) certificate. In doing so, the High Court overturned the Environment Court’s decision on this issue. This article examines the decision in Queenstown Lakes District Council v Hensman [2024] NZHC 2493.

Background

A subdivision consent was granted by Queenstown Lakes District Council (QLDC) to the Hensmans (consent holder) in 2021. The subdivision consent included several conditions related to the construction of an accessway (including a vehicle crossing), batter slope gradients, engineering works, and engineering review and acceptance processes, among other matters. A dispute arose between QLDC and the consent holder regarding whether the conditions had been complied with. QLDC considered that the conditions had not been met and withheld issuing a section 224(c) certificate to the consent holder, who disagreed.

As discussed by the High Court, section 224 of the RMA confers an administrative function or power on the Council, requiring it to form its own view on compliance with subdivision consent conditions. If a council is not satisfied, it cannot issue a section 224(c) certificate. Without that certification, a consent holder cannot deposit a survey plan for the subdivision.

In this case, the consent holder successfully sought an enforcement order from the Environment Court requiring QLDC to issue the section 224(c) certificate. QLDC appealed that decision to the High Court.

High Court’s findings

The High Court considered it inappropriate for an enforcement order to be issued requiring QLDC to exercise one of its administrative functions. It found that section 224(c) does not confer a statutory duty enforceable against a council; rather, it sets out a statutory power or function of a council as a consent authority. There was no jurisdiction for the Environment Court to issue the enforcement order. The appropriate mechanism for challenge in this case would have been to seek a declaration as to compliance with the subdivision consent conditions or judicial review of QLDC's decision to decline to issue the certificate.

The High Court expressed concern that if this statutory function (i.e., issuing or withholding section 224(c) certification) were subject to enforcement orders, it would set a precedent concerning other functions that a council exercises under the RMA. This would allow those who take issue with how a council exercises or carries out its functions to use enforcement orders as a means of reviewing a council’s decisions. The High Court did not accept that enforcement orders were intended to serve this purpose.

A further point of interest in this case is that the Environment Court had concluded that the accessway (excluding the vehicle crossing component) at the site did not need to be constructed in accordance with the conditions of the subdivision consent, as it was a permitted activity under the relevant District Plan. The High Court stated that the subdivision consent was granted on the basis that it would be constructed in accordance with the approved plans, including those for the entire accessway. It held that the consent holder cannot choose to carry out part of the subdivision works not in accordance with the conditions of the subdivision consent, regardless of whether that part of the works would, if done in isolation, qualify as a permitted activity.

The High Court also found that the Environment Court erred in its approach to interpreting the subdivision consent conditions and in requiring QLDC to prove non-compliance with the conditions, as opposed to placing the burden on the consent holder, as the applicant for enforcement orders, to prove that the conditions in question were complied with.

This decision provides useful guidance on the scope of legal mechanisms available to challenge local authority decisions in the RMA context, the burden of proof in enforcement proceedings, and the scope of consent conditions.