«Hearing Panel: The objection was heard by the following Independent Hearings Commissioner sitting alone: Ms Jenny Hudson (Chairperson) Council ...»
Decision following the hearing of an objection under s357B of the Resource
Management Act (RMA) to additional charges sought by the Council in relation to an
application for resource consent to undertake additions and alterations to a
dwelling at 44 Paice Ave, Mt Eden, held on Friday 5 February 2016 commencing at
PURSUANT TO SECTION 357D OF THE RMA, THE OBJECTION IS DISMISSED.
THE FULL DECISION IS SET OUT BELOWHearing Panel: The objection was heard by the following Independent
Hearings Commissioner sitting alone:
Ms Jenny Hudson (Chairperson) Council Officers: Mr Peter Kensington Principal Planner Mr Mark Weingarth Team Leader Ms Rose Mason Development Engineer, Thomas Civil and Environmental Consultants ('TCEC') Mr Scott Paton Senior Development Engineer Ms Emma Petrenas Democracy Advisor - Hearings
For the objector: Mr M Bham, the applicant/objector Mr Ragu Ragunathan - Principal Consultant, EMACS Group Limited Mr Haroun Ali - Vista Architects Limited 1. INTRODUCTION This decision is made on behalf of the Auckland Council by independent commissioner Jenny Hudson, appointed and acting under delegated authority pursuant to sections 34 and 34A of the Resource Management Act 1991 (‘RMA’).
The applicant was granted resource consent on 8 September 2015 to undertake additions and alterations to his dwelling at 44 Paice Ave, Mt Eden 1. The Council's charges comprised fixed charges of $2,500.00 (application deposit) and $280.00 (monitoring charge), and additional processing charges of $6,650.20, a total of $9,430.20 (including GST). Mr Bham has objected to the amount charged for engineering fees, being $6,418.50 and seeks that as a result of the delays in having the matter considered, this amount be remitted in full.
2. BACKGROUND The resource consent application for extensions to the existing dwelling owned by Mr Bham, including basement level additions, required consent as a non-complying activity for three reasons under the Operative Auckland Council District Plan (Auckland City Isthmus Section) and three Application reference R/LUC/2014/4228 44 Paice Avenue, Mount Eden 1 Application Number: R/LUC/2014/4228 reasons under the Proposed Auckland Unitary Plan. Of particular relevance to the disputed
charges were the following:
• non-compliance with the minimum freeboard height within a flood-prone area;
• increased impervious area for a site not connected to a stormwater network;
• building within an overland flow path; and
• a vulnerable activity within a flood plain.
Other reasons for consent related to external alterations and additions within a Residential 1 zone (operative plan) and height in relation to boundary infringements.
3. RELEVANT STATUTORY PROVISIONSSection 357B(a) of the RMA provides a right of objection for a person required by a local authority to pay an additional charge under section 36(3) to the local authority in respect of that requirement.
Section 357C establishes the procedure to be followed in determining an objection and section 357D provides that the objection may be dismissed or upheld in whole or in part, and the whole or any part of the disputed additional charge may be remitted.
Section 36(1)(b) of the RMA enables the Council to fix charges "to recover the costs of carrying out any 1 or more of its functions in relation to the receiving, processing and granting" of an application for resource consent.
Section 36(2) sets out the manner in which charges may be fixed.
Section 36(3) provides that where a fixed charge is inadequate to enable the Council "to recover its actual and reasonable costs in respect of the matter concerned" the Council may require an additional charge to be paid by the applicant.
Section 36(3A) requires the Council to provide an estimate of any additional charge likely to be imposed, if requested by any person liable to pay such a charge.
Section 36(4) sets out the criteria to which the Council must have regard in fixing charges. The
relevant parts of these criteria that are applicable in this case are:
In terms of Section 36(1)(b) of the RMA, there was no challenge to the Council's right to fix charges to recover the costs of carrying out its functions in relation to the resource consent application.
With reference to Section 36(3), the objector did not dispute that the Council was entitled to require an additional charge to be paid.
An estimate of the likely additional charges, as provided for under section 36(3A), was not sought.
The objector did not raise any issues which fall under section 36(4)(d), being the setting of a fixed charge where an activity undertaken by the applicant reduces the cost to the Council of carrying out its functions, powers and duties.
Under section 36(2), charges may be fixed under subsection (1) only if certain requirements are met, and must be in accordance with subsection (4). The nub of the issue is the reasonableness of the Council's charges under sections 36(4)(a), 36(4)(b)(i) and 36(4)(b)(ii) and specifically the additional charges, which include the engineering charge of $6,650.20. Accordingly, subsection 36(2)(c) is also potentially relevant.
5.1 Evidence of the objector Mr Ragunathan is an engineer with EMACS and was the principal spokesperson for Mr Bham.
He provided a written chronology of events relating to the engineering issues, following the lodgement of the resource consent application in June 2014.
He stated that Mr Bham had engaged Mr Donald Buchanan, a chartered civil engineer from Buchanan Collen Consulting Limited, who had prepared a flooding assessment report which was part of the application for consent. However, the consulting engineering firm engaged on behalf of the Council, Thomas Civil and Environmental Consultants ('TCEC') had sought additional information under section 92 of the RMA ('s92 request') and Mr Buchanan had reached an impasse with TCEC regarding the adequacy of the information sought. Mr Ragunathan was then approached for assistance.
Mr Ragunathan provided additional information to TCEC in response to further s92 requests but the application did not make progress. He contended that it was only as a result of a meeting with Mr Scott Paton, the Council's Senior Development Engineer, that an acceptable solution was reached and consent granted.
In Mr Ragunathan's opinion, the following were relevant concerns and reasons for the objection:
(i) In comparison with other flooding assessment reviews, of which he had considerable experience, the engineering fee was very high considering the flooding issues and, in his opinion, the minor extent of the proposed development.
(ii) There had been five engineers from TCEC involved in reviewing the application on behalf of the Council.
(iii) One of the assessments from TCEC was not recorded adequately and Mr Ragunathan considered this to be 'unprofessional'.
(v) Had the Council involved its own senior engineers in a review of the application, the issues would have been resolved on the basis of Mr Buchanan's report.
(vi) The engineering charges were not actual and reasonable. Except for the late Boyd Henderson, who was involved for a short period, the processing engineers were not chartered professional engineers and Mr Ragunathan considered that they lacked the experience to deal with the proposal. Had the Council agreed to engage an experienced engineer from within the Council at an early stage, Mr Bham would not have incurred significant delays and excessive engineering charges.
(vii) The cost of more than $10,000 for a flooding assessment only was very high for Mr Bham, in proportion to other costs. Mr Ragunathan referred to two other projects that he considered similar, but which had incurred engineering charges of around $1,500. 4
Mr Kensington, the Council's Principal Planner, Hearings and Resolutions, provided a precirculated written report outlining the nature of the resource consent application, the total costs charged to the applicant, and the relevant statutory matters to be considered under sections 36 and 357 of the RMA.
He advised that the Council's engineers considered that the development engineering officers'
charges were actual and reasonable for the following reasons:
• from an engineering perspective, the application was complex because of the dynamic flood hazard environment and the potential adverse effects that could result;
• given the complexity, a greater level of building design detail was required (including various iterations of design drawings) to be provided and analysed; and
• there were errors, inaccuracies and lack of detail in the various reports provided by the applicant during processing of the application.
Mr Kensington then discussed the matters to be considered in a review of the additional charges levied under section 36, with reference to the High Court's decision in Hill Country Corporation v Hastings District Council. 5 At the hearing, Mr Kensington, Ms Rose Mason of TCEC, Mr Scott Paton and Mr Mark Weingarth responded to the matters raised by Mr Ragunathan.
Ms Mason provided a detailed written chronology of the engineering issues and reasons for the multiple s92 requests. When the application was received and initially assessed, one of the key matters for consideration was identification of potential flooding to a 100 ARI level of 39.4m 6 whereas the addition would have a proposed FFL of 37.5m. A site visit by Peter Kovacevich, a TCEC senior engineer, identified complexities of the catchment and with the proposal that were not addressed in the flood report provided by the applicant. These included the effect of lava flow and development within the overland flow path that is not allowed for in the 2-dimensional Council modelling, and a narrow space between the dwelling and the fence. It was considered that the report did not suitably identify the extent of the flood footprint (entry/exit to site), impact on development and development impact on neighbouring properties.
27 Eaton Road, Hillsborough and 50 Olsen Ave, Hillsborough Hill Country Corporation v Hastings District Council  NZRMA 539 (HC) based on the Council's Flood Hazard Mapping - Meola 44 Paice Avenue, Mount Eden 4 Application Number: R/LUC/2014/4228 The first s92 request was sent on 22 October 2014 and a response received on 11 December 2014 from Buchanan Collen Consulting Limited. That response contained inaccuracies by referring to ponding at properties other than the subject site, and a 300mm stormwater line, neither of which are in the vicinity of the site. Photographs were attached to the report were for another property in another suburb.
This resulted in another letter to the applicant's engineers reiterating the required information on the entry point of the flowpath, provision of long-section and cross-section details and an estimate of volume displacement within the floodplain.
A response was received on 29 January 2015 which was considered unsatisfactory for reasons that included provision of a cross-section at too small a scale to be useful, no provision of crosssections or spot levels in terms of LINZ datum and the apparent window height on the west elevation being below the overland flow path depth, with an exterior wall being used as a barrier for the overland flow path (the latter not being considered acceptable).
A meeting was held on site on 24 February 2015 to discuss the outstanding issues and a further s92 request sent out on 26 February 2015 following that meeting, which asked for the plans to be revised to show that (amongst other things) there would be no windows or doors in the wall being proposed as a flood protection measure for the dwelling, and for horizontal and vertical dimensions to be shown on the available cross sections.
A response was received from Mr Ragunathan on 19 May 2015 and a further s92 request issued on 25 May 2015. Again, issues were identified by TCEC about the adequacy of the methodology adopted by Mr Ragunathan (for example, the estimate of runoff volume restricted to the peak 10 minute event instead of the 24 hour period used in TP108) and inconsistencies with the slope calculations compared with the contours on the Council's GIS viewer.
Another s92 issued in June 2015 and complaint from Mr Ragunathan resulted in a meeting being set up with Mr Paton on 21 July 2015 7. At that meeting, there was agreement as to what further matters needed to be addressed, for the application to be approved. These included removal of part of the basalt rock and an extension of the proposed impermeable flood wall to the downstream boundary and basement development.
In short, two overland flow path reports were submitted by Mr Buchanan and three reports by EMACS. The first four were considered by TCEC to be unsatisfactory in the level of detail, misleading calculations, plan quality, flood protection design, absence of cross-sections and longsections.
Owing to the complexity of the matters to be considered, Ms Mason said that TCEC's charges were fully justified and that where another engineer had stepped in to cover for one of TCEC's unavailable staff, no additional time had been charged. She acknowledged that it was unusual to have more than two engineers involved but it was their practice, if more time was taken than considered reasonable, to flag that with the Council. In this instance, she did not believe that was the case.
Mr Paton considered that his involvement had been oversimplified by Mr Ragunathan and that because "the building is in a hole" it was more difficult, and "the devil is in the detail". He commented that applications which are front-loaded with engineering detail are dealt with more quickly.