Regional Authority not unreasonable in approach to Council’s earthworks activity
Local Authority constructed walkway—Regional Authority took reasonable action against Council—whether application for resource consent should have been notified
A complaint was received about the actions of a Regional Council in relation to work carried out by the local District Council to construct a walkway around a lake. The work had exceeded the maximum exposed area permitted for small scale earthworks in a riparian management zone and so required resource consent.
The complainant was concerned that the Regional Authority had failed to take enforcement action against the District Council when it was discovered that the first half of the walkway had been constructed without obtaining resource consent. The Ombudsman considered that the Regional Authority had not acted unreasonably because when it became aware that the work had exceeded the maximum area, it immediately conducted a site visit and served an abatement notice on the District Council. Whether the Regional Authority should have taken any further steps was a matter for that agency to determine. In passing, the Ombudsman noted that given the District Council complied with the abatement notice, there appeared to be no basis for the Regional Authority to seek an enforcement order.
The Ombudsman did not agree with the complainant that it had been unreasonable for the District Council to commence work without a resource consent being issued because the earthwork was a ‘permitted activity’ under section 9 of the Resource Management Act and the Regional Plan, until it exceeded the disturbance limits of the regional plan.
The complainant was also concerned that when the resource consent was later sought, the Regional Authority considered that public notification was not required. The Ombudsman considered that the Regional Authority did not act unreasonably in this respect. This was because resource consent was required to be considered under the regional plan as a discretionary (restricted) activity and the plan allowed the resource consent application to be considered without notification of the need to obtain written approval from affected parties. The regional authority still had a discretion to require notification in special circumstances, but in this case, concluded that there were no special circumstances justifying public notification. The Ombudsman agreed with the Authority in this respect and noted the Authority had no ability under the regional plan to determine whether the walkway should be constructed or the method of construction.
The complaint was not sustained.
This case note is published under the authority of the Ombudsmen Rules 1989. It sets out an Ombudsman’s view on the facts of a particular case. It should not be taken as establishing any legal precedent that would bind an Ombudsman in future.