This page is not a current Christchurch City Council document. Please read our disclaimer.
26. 2. 97
REPORT BY THE CHAIRMAN OF THE
ENVIRONMENTAL COMMITTEE
17. BUILDING INDUSTRY AUTHORITY RR 4632
HIGH COURT DECISION
The purposes of this report are to advise on the outcome of the High Court decision on an appeal by the Building Industry Authority (BIA) to Declarations of the (former) Planning Tribunal sought by the Christchurch International Airport Limited (CIAL); and secondly to seek instructions from the Council as to whether this Council ought to appeal aspects of that decision to the Court of Appeal.
By way of background, the proceedings first arose as a result of several decisions in which this Council have sought to impose conditions on resource consents granted for the construction of residential dwellings in the vicinity of the Airport, for the purpose of protecting the consent holders from disturbance arising from noise emissions from the operation of the CIAL. Concerns arose firstly, regarding the validity of conditions sought by the CIAL (who in each case sought to protect its own interests as the owner and operator of the Airport); and secondly by the BIA, who has challenged the validity of the Council's noise attenuation standards for the construction of residential dwellings.
The proceedings have involved consideration of two issues, namely:
1. Where the noise attenuation standards for the construction of residential dwellings contained in the Council's Transitional District Plan (and now Proposed City Plan) have been rendered unlawful by operation section 7 of the Building Act 1991. That provision provided that it is not lawful for a Council to require that building work achieved performance criteria additional to or more restrictive than those contained in the building code, unless specifically authorised by any act; and
2. Whether it is contrary to s.5 of the Bill of Rights Act 1990 to require a landowner to enter into a covenant to the effect that he or she will not complain about the noise emissions from the aircraft using the airport, as a condition of a resource consent for the construction of a residential dwelling on land surrounding the airport.
The Planning Tribunal made declarations to the effect that:
1. It was lawful for the Council to impose conditions on a resource consent to provide attenuation of noise emission from the operation of the airport and such conditions are not rendered unlawful by section 7 of the Building Act 1991 in so far as the conditions relate to the activity of residential occupation of the dwellings, as distinct from a requirement to make the building conform to the building code, which is essentially the purpose of the Building Act 1991.
2. A "no complaint" covenant cannot lawfully be required as a condition of a resource consent as such a condition goes beyond the reasonable limits referred to in section 5 of the Bill of Rights Act, and cannot be demonstrably justified in a free and democratic society. The Tribunal said to restrict a right of freedom of expression and opinion such as that affirmed in the Bill of Rights Act is repugnant to administrative justice.
On a subsequent appeal by the BIA, the High Court upheld the decision of the Planning Tribunal in its conclusion that, notwithstanding the provisions of the Building Act 1991, conditions requiring noise attenuation standards to be achieved may be inserted into a District Plan or as a condition of a resource consent.
However, the High Court overturned the decision of the Planning Tribunal that a "no complaints" covenant offends against the New Zealand Bill of Rights Act. On this second point, the High Court said: "If a condition of that kind is on the facts of any particular case reasonable, it can be demonstrably justified in a free and democratic society." for the purposes of the Bill of Rights Act 1990.
Essentially the High Court's finding on this second issue means that it is unlawful to impose a "no complaints" covenant as a condition of a resource consent provided that in the circumstances of a particular case, it is reasonable The decision as to whether or not it is reasonable will be decided by the Council at first instance, or on an appeal to the (now) Environment Court.
It is on this second point that the Council could have grounds for an appeal to the Court of Appeal. Essentially the appeal would be on a question of law on the grounds that the High Court was wrong in finding that a "no complaints" clause can be demonstrably justified in a free and democratic society and it is not contrary to the Bill of Rights Act 1990.
In my opinion, there is nothing to be gained by taking such an appeal to the Court of Appeal as this issue assumes less importance given the Court's finding on the first point. The validity of a "no complaint" condition might have become important had the Court decided that the Council's noise attenuation standards were precluded by virtue of section 7 of the Building Act 1991 as an alternative device for protecting the occupier of the dwelling against noise, and satisfying the concerns of the CIAL. Now that those conditions are found to be lawful, it is unlikely that a situation will arise where the CIAL would ask that the Council impose a "no complaints" condition, except possibly in an exceptional case.
On the issue of the interface between the Building Act and the Resource Management Act I have received advice from the Building Industry Authority that it will not be appealing the High Court decision to the Court of Appeal.
Recommendation: That the Council not appeal that part of the High Court decision relating to the "no complaints" clause.
CONSIDERED THIS 26TH DAY OF FEBRUARY 1997
MAYOR