Late last year the High Court dismissed an appeal by an applicant for subdivision consent, upholding the former Waitakere City Council's decision to defer the application under section 91 of the RMA so that related consents for stormwater disposal and earthworks could be sought (Mawhinney v Auckland Council  NZHC 3566).
Section 91 of the RMA enables a Council to defer the processing of a resource consent application where it considers that other resource consents will also be required for the proposal, and that it is appropriate (for the purpose of better understanding the nature of the proposal) that such other consents be applied for before proceeding further.
In this case, Alex Simpson Limited and Peter Mawhinney, as trustees for the Waitakere Forest Land Trust ("Applicant"), applied to the Waitakere City Council (now the Auckland Council) ("Council") for two subdivision consents in April 2008. These were for the land to be subdivided into 18 lots, and an alternative application to subdivide the same land into 77 lots. The Applicant had made it clear that it did not intend to actually carry out the subdivision, or to carry out any construction work; the land was to be subdivided and then sold.
However, the Council considered that given the subdivision proposal was extensive and intensive, at least stormwater disposal and possibly earthworks consents would have to be sought (from the Auckland Regional Council, as it then was). In accordance with sections 91 and 92, the Council did not proceed with the notification of the application and requested more information.
The High Court rejected the Applicant's argument that because they proposed nothing apart from the creation of new titles (or "lines on a plan"), the applicant should not have to seek consents relating to building on the land, but rather that should be the duty of the future land owner. Such an argument has previously been rejected by the Court as an "entirely artificial construct", as subdivision is more than just a paper exercise and essentially allows for more intensive use of the land, having environmental ramifications.
The Court held that the expected extent of any new areas following subdivision or development should be taken into account, and it was logical that development would occur in this case if the subdivision were to be granted. The Court observed that section 91 focuses on "the proposal to which the application relates", and that term is wide enough to embrace not only the subdivision on paper, but also the works necessary to carry it out. Furthermore, the argument that the imposition of conditions could deal with future activities (here stormwater effects) was dismissed, as a consent cannot be granted by means of a condition to some other application.
This case highlights the need for applicants to approach resource consent applications with comprehensive proposals, having considered all the resource consents that are foreseeable for the ultimate development. This is the case even where the applicant is not intending to see the development through to its conclusion.