BEFORE THE ENVIRONMENT COURT AT CHRISTCHURCH

I MUA I TE KOTI TAIAO O AOTEAROA Kl OTAUTAHI

IN THE MATTER

AND

AND

BETWEEN

AND

Decision No. [2020] NZEnvC 125

of the Resource Management Act 1991

of an appeal under clause 14 of the First Schedule of the Act

of an application under section 281 of the Act to extend the timeframe for filing a notice of appeal

CHRISTINE BYRCH

(ENV-2020-CHC-002)

Appellant

QUEENSTOWN LAKES DISTRICT COUNCIL

Respondent

Court: Environment Judge J J M Hassan Sitting alone pursuant to s279 of the Act

Hearing : In Chambers at Christchurch

Date of Decision: 12 August 2020

Date of Issue: 12 August 2020

DECISION ON AN APPLICATION FOR WAIVER

A: Under s281 (1 )(a)(ii) of the Resource Management Act 1991 , the application for

waiver for the timeframe to lodge a notice of appeal is declined.

B: Costs are reserved . However, applications are not encouraged.

Christine Byrch v QLDC - Waiver Decision

2

REASONS

Introduction

[1] Queenstown Lakes District Council ('QLDC') is undertaking a staged review of its

operative District Plan ('ODP'). While this is a partial review, it encompasses much of

the ODP and is conveniently called the Proposed District Plan ('PDP'). Appeals are also

being addressed in stages, and there are several against decisions in Stages 1 and 2 of

the PDP.

[2] As a submitter, Ms Byrch lost her right of appeal because she did not file her

notice of appeal within the statutory time period. She now seeks a waiver, having filed

an appeal some eight months after the expiry of that period. 1 She seeks to appeal

QLDC's decision on the PDP's definition of 'visitor accommodation' . There are five other

appeals on that definition.2 Ms Byrch is a s274 party to two of those. 3 Her application is

opposed by another appellant, Matakauri Lodge Limited ('MLL') .4 QLDC does not

oppose the waiver. No other party has stated a position.5

Statutory framework and principles

[3] Section 281 (1)(a)(ii), RMA relevantly provides:

A person may apply to the Environment Court to-

or

(a) waive a requirement of this Act or another Act or a regulation about-

(b)

(ii) the time within which an appeal or submission to the Environment

Court must be lodged; or

(i) the time within which or the method by which anything is to be served ;

QLDC's decision was made in March 2019, with the appeal period closing that April. Ms Byrch's appeal and waiver application were filed on 13 January 2020. Glencoe Station Limited (ENV-2019-CHC-078) ; Mt Christina Limited (ENV-2019-CHC-079); Glendhu Bay Trustees Limited (ENV-2019-CHC-081); Darby Planning Limited (ENV-2019-CHC-085); Henley Downs Farm Holdings Limited and Henley Downs Land Holdings Limited (ENV-2019-CHC-095). Glencoe Station Limited (ENV-2019-CHC-078) and Mt Christina Limited (ENV-2019-CHC-079). Email from Ms Shaw to Registry on 22 January 2020. The registry's email stated if a response is not received the court will assume there is no opposition. QLDC and Heritage New Zealand/Pouhere Taonga both advised they did not object to the late appeal.

3

(2) The Environment Court shall not grant an application under this section unless it is

satisfied that none of the parties to the proceedings will be unduly prejudiced .

(3) Without limiting subsection (2), the Environment Court shall not grant an application

under this section to waive a requirement as to the time within which anything shall

be lodged with the court (to which subsection (1)(a)(ii) applies) unless it is satisfied

that-

(a) the appellant or applicant and the respondent consent to that waiver; or

(b) any of those parties who have not so consented will not be unduly prejudiced .

(4) Without limiting subsections (2) and (3), the Environment Court may waive a

requirement as to time under this section whether or not an application is made under

this section before the requirement has been breached.

[4] A waiver must be declined unless the court is satisfied no party to the proceedings

will be unduly prejudiced by granting it. 6 For prejudice to be 'undue', it must be greater

than that which can reasonably be expected to flow from waiving the requirement for

compliance with a time limit.7

[5] If there is no undue prejudice, the court has a discretion whether or not to grant a

waiver. In Omaha Park Limited v Rodney District Counci/, 6 the court helpfully identified

as relevant factors the length of and reasons for the delay, the scheme of the RMA

relating to public participation, what has occurred in the proceeding in the meantime and

what effect introducing new parties might have on progressing the appeal to resolution.9

While Omaha assists in those terms, I am also mindful that I am to exercise that discretion

in light of the particular facts and circumstances.

Background

[6] To help put the parties' respective positions in context, it is helpful to provide some

background to the PDP definition of 'visitor accommodation' in issue. This draws from

counsels' submissions. 10

'Visitor accommodation' is defined in both the ODP and PDP to serve related

Section 281 (2) Resource Management Act 1991 . Reilly v Northland Regional Council (1993) 2 NZRMA 414. Omaha Park Limited v Rodney District Council (EnvC) A46/08. Omaha Park Limited v Rodney District Council (EnvC) A46/08 at[?]. MLL legal submissions in response to waiver application at [14]-[22] .

4

rules and other provisions governing activities in applicable zones. For example, under

QLDC's decision version ('DV') of the PDP, in Ch 22, 'Rural Residential & Rural Lifestyle',

r 22.4.1 O in Table 1 classes "visitor accommodation including the construction or use of

buildings for visitor accommodation" as a discretionary activity. By contrast, any other

activity not listed in Table 1 is a non-complying activity.

[8] The ODP defined 'visitor accommodation' as follows:

Visitor Accommodation

Means the use of land or buildings for short-term, fee paying, living accommodation where

the length of stay for any visitor/guest is less than 3 months; and

(i) Includes such accommodation as camping grounds, motor parks, hotels, motels,

boarding houses, guest houses, backpackers' accommodation, bunkhouses, tourist

houses, lodges, homestays, and the commercial letting of a residential unit; and

(ii) May include some centralised services or facilities , such as food preparation, dining

and sanitary facilities, conference, bar and recreational facilities if such facilities are

associated with the visitor accommodation activity.

For the purpose of this definition:

(a) The commercial letting of a residential unit in (i) excludes:

A single annual let for one or two nights.

Homestay accommodation for up to 5 guests in a Registered Homestay.

Accommodation for one household of visitors (meaning a group which functions

as one household) for a minimum stay of 3 consecutive nights up to a maximum

(ie: single let or cumulative multiple lets) of 90 nights per calendar year as a

Registered Holiday Home.

(Refer to respective definitions) .

(b) "Commercial letting" means fee paying letting and includes the advertising for that

purpose of any land or buildings.

[9] The notified version ('NV') for the PDP proposed a small change to that definition.

That was to add to the part of the definition commencing "For the purposes of this

definition", a subclause (c), i.e.:

For the purpose of this definition

(c) Where the provisions above are otherwise altered by Zone Rules, the Zone Rules

shall apply.

5

[1 O] The relief Ms Byrch seeks in her appeal is to reinstate that NV definition. I will

explain the significance of that for related activity class rules shortly.

[11] Under QLDC's staged review process, QLDC received submissions on that NV,

including from Ms Byrch. However, after having heard those submissions, QLDC's

independent commissioners did not make any recommendation, and QLDC did not make

any related decision. In essence, that was because QLDC had, by then, notified a

variation to the PDP that effectively overtook any need for a Stage 1 decision on the

definition to be made. 11

[12] That variation, notified as part of Stage 2 of the review, proposed the following

revised definition ('NW') (additions to the NV shown below by underlining and deletions

by strike through): 12

Visitor Accommodation

Means the use of land or buildings (excluding the use of a residential unit or residential flat)

for short term, fee paying, living accommodation to provide accommodation for paying

guests where the length of stay for any VIBitorlguest is less than 3 months 90 days; and

(i) Includes such accommodation as camping grounds, motor parks, hotels, motels,

boarding houses, guest houses, backpackers' accommodation , bunkhouses, tourist

houses, lodges, timeshares and managed apartments homestays, and the

commercial letting of a residential unit; and

(ii) May-!nclude§ some centralised services or facilities that are directly associated with,

and ancillary to, the visitor accommodation, such as food preparation, dining and

sanitary facilities, conference, bar aoo recreational facilities and others of a similar

scale and nature if such facilities are associated with the visitor accommodation

activity . The primary role of these facilities is to service overnight guests of the

accommodation however they can be used by persons not staying overnight on the

site.

(iii) Includes onsite staff accommodation.

(iv) Excludes Residential Visitor Accommodation and Homestays.

For the purpose of this definition

(a) The commercial letting of a residential unit in (i) excludes:

/1. single annual let for one or two nights.

Homestay accommodation for up to 5 guests in a Registered Homestay.

Denis Nugent & Trevor Robinson Report and Recommendations of Independent Commissioners Regarding Whole of Plan, Chapter 2 (Definitions) and Chapter 28 (Natural Hazards) (31 March 2018) at [430]. Variation to Stage 1 PDP Chapter 2 - Definitions (23 November 2018).

(b)

(c)

6

Accommodation f-or one household of visitors (meaning a group which functions

as one household) f-or a minimum stay of 3 consecutive nights up to a maximum

(ie: single let or cumulative multiple lets) of 90 nights per calendar year as a

Registered Holiday Home.

(Refer to respective definitions) .

"Commercial letting" means fee paying letting and includes the advertising f-or that

purpose of any land or buildings.

\t\lhere the provisions above are otherwise altered by Zone Rules, the Zone Rules

shall apply.

[13] Of particular concern to Ms Byrch is how the NW's definition is expanded to

encompass use of visitor accommodation by non-guests. In the NW, that is in cl (ii), in

particular as follows :

The primary role of these facilities is to service overnight guests of the accommodation

however they can be used by persons not staying overnight on the site.

[14] Ms Byrch made a submission on the NW definition expressing opposition to this

change. 13 Some other submissions were also made on that issue. 14

[15] However, the hearing commissioners did not accept Ms Byrch's submission that

the definition be revised . Rather, their recommendation, accepted by QLDC, changed

the definition only in the following respects: 15

13

14

15

Visitor Accommodation

Means the use of land or buildings (excluding the use of a residential unit or residential flat)

to provide accommodation for paying guests where the length of stay for any guest is less

than 90 days; and

(i) Includes such accommodation as camping grounds, motor parks, hotels, motels,

backpackers' accommodation, bunkhouses, tourist houses, lodges, timeshares and

managed apartments; and

(ii) Includes services or facilities that are directly associated with, and ancillary to, the

visitor accommodation, such as food preparation , dining and sanitary facilities,

conference, bar recreational facilities and others of a similar scale and nature if such

facilities are associated with the visitor accommodation activity. The primary role of

these facilities is to service overnight guests of the accommodation however they can

be used by persons not staying overnight on the site.

(iii) Includes onsite staff accommodation.

C Byrch submission 2357. N Gladding submission 2411 and MLL submissions 2611 and 2735. Queenstown Lakes District Council - Proposed District Plan Decisions Version (May 2020) .

7

(iv) Excludes Residential Visitor Accommodation and Homestays.

[16] That is the version of the definition that Ms Byrch now seeks to appeal.

[17] For completeness, various other changes have been made by QLDC decisions

to visitor accommodation provisions. Notably, as notified, Ch 22 (Rural Residential and

Rural Lifestyle Zones) provided for visitor accommodation as a controlled activity within

a visitor accommodation subzone and 'non-complying activity' classification outside that

subzone. However, Ch 22 now provides, in r 22.4.10 in Table 1, that "visitor

accommodation including the construction or use of buildings for visitor accommodation"

is a discretionary activity. By contrast, any other activity not listed in Table 1 is a non­

complying activity.

[18] Ms Byrch filed a s27 4 notice to join the MLL appeal. That appeal is in relation to

the objectives, policies and rules in Ch 22. A number of the aspects of MLL's appeal

concern matters as to the visitor accommodation sub-zone and its re-instatement on the

planning maps. This is the subject of a consent order. The appeal also seeks some

further and consequential relief.

[19] Ms Byrch 's s274 notice for the MLL appeal relevantly states:16

I oppose the relief sought because -

The primary purpose of the Rural Living Zone is to provide for rural residential living. This

should be (but is not yet) clearly set out in the objectives, policies, and other provisions and

rules for this zone. The Proposed District Plan (decision version) does not achieve a suitable

balance between residential housing and visitor accommodation; it gives too much leniency

to visitor accommodation . QLDC has stated (section 32 report on visitor accommodation)

that visitor accommodation and residential living are not compatible, and yet the Proposed

District Plan does not follow through with the controls that will protect residential zones from

visitor accommodation . Visitor accommodation sub-zones and visitor accommodation as a

discretionary activity, would allow for developments of a scale that are not compatible with

the low density rural living anticipated for the zone. The situation is exacerbated by other

part [sic] of the plan, including the unclear definitions of residential activity, residential flat,

residential unit; and confusion amongst the rules concerning buildings, building platforms,

numbers of buildings as to whether they apply to all buildings, or only residential buildings.

All these need to be carefu lly considered and consistent.

C Byrch s274 notice to join an appeal by Matakauri Lodge Limited , dated 8 July 2018.

8

I agree to participate in mediation or other alternative dispute resolution of the proceedings.

[20] Ms Byrch's status to give notice under s27 4 is by virtue of having made a

submission about the subject matter of MLL's appeal (as provided by s274(1)(e)).

Section 27 4 specifies the following relevant limits on the nature and scope of her

participation as a party to that appeal:

(4A) Evidence must not be called under subsection (4) unless it is on matters within the

scope of the appeal , inquiry, or other proceeding.

(48) However, in the case of a person described in subsection (1 )(e) or (f), evidence may

be called only if it is both-

(a) within the scope of the appeal , inquiry, or other proceeding ; and

(b) on matters arising out of that person's submissions in the previous related

proceedings or on any matter on which that person could have appealed.

(5) A person who becomes a party to the proceedings under this section may not oppose

the withdrawal or abandonment of the proceedings unless the proceedings were

brought by a person who made a submission in the previous proceedings on the

same matter.

[21] In effect, as a party to MLL's appeal , Ms Byrch is not able to call evidence on

concerns or issues beyond those within the scope of MLL's appeal.

[22] It is in view of those statutory constraints that Ms Byrch now seeks leave to

appeal, such that she can present a case to have the Stage 1 NV definition of 'visitor

accommodation' reinstated.

Submissions

Ms Byrch

[23] Ms Byrch explains that she did not file her appeal on time because she had

misunderstood the ambit of matters she was entitled to pursue as a s274 party. She only

appreciated her mistake when QLDC staff explained it to her. 17 She comments that the

court's decision to decline her application for fee waiver reflects a similar

misunderstanding of the scope of her rights as a s27 4 party. 18

17

18 C Byrch reply to MLL opposition to waiver to file late appeal pp 1, 2. Referring to Byrch v Queenstown Lakes District Council [2020] NZEnvC 28.

9

[24] Ms Byrch acknowledges that there may be some procedural prejudice for other

parties were she to be granted waiver. However, she submits that is properly justified. 19

In essence, her need to appeal arises because a definition that was fundamental to Stage

1 decisions on related PDP provisions has been subsequently and substantially

amended at Stage 2. 20 As such, she characterises the commercial aspects of the visitor

accommodation definition as having slipped through the PDP process without the

necessary scrutiny.21 She seeks that all implications of the revised definition, including

the use of visitor accommodation facilities by persons other than overnight guests, be

scrutinised. In any case, she points out that mediation has not yet started and, as such,

granting her waiver would not add extra time or cost. 22

[25] Ms Byrch submits that QLDC has failed to follow due process in the manner it has

amended the definition of 'visitor accommodation' , and failed to give due consideration

to the implications of its decisions.23 Specifically, given the inherent relationship of the

definition to the activity rules , she argues that both should have been considered

together. 24 She says what has instead occurred is that a Stage 2 change to the definition

has expanded what is provided for in rules determined in Stage 1 for activity classification

for commercial visitor accommodation. By way of example, Ms Byrch refers to the

addition of staff accommodation, public use of commercial visitor accommodation

activities, bars, restaurants , health spas, conference facilities and the like.25 Ms Byrch

submits that QLDC has failed both in not allowing for proper informed debate about those

changes before QLDC's hearings commissioners and in not properly assessing the

associated consequences of changes to the definition.26

[26] As such, Ms Byrch submits that granting waiver to her appeal would serve the

public interest. That is by ensuring proper holistic scrutiny is given to the provisions,

helping ameliorate the prejudice that QLDC's defective processes have caused people.

She says other people, like her, participated in Stage 1 in order to seek to maintain the

amenity within residential zones.27

19

20

21

22

23

24

25

26

27

C Byrch reply to MLL opposition to waiver to file late appeal p 4 . C Byrch application for waiver. C Byrch reply to MLL opposition to waiver to file late appeal p 3. C Byrch reply to MLL opposition to waiver to file late appeal p3, and 7 July 2020 further reply, p 1. C Byrch reply to MLL opposition to waiver to file late appeal p 2. C Byrch reply to MLL opposition to waiver to file late appeal p 2. C Byrch response to MLL legal submissions p 2. C Byrch response to MLL legal submissions p 1-2; Byrch reply to MLL opposition to waiver to file late appeal p 1-4. C Byrch reply to MLL opposition to waiver to file late appeal p 2.

10

[27] On the other hand, Ms Byrch doubts MLL's claims that there are commercial

visitor accommodation providers who would suffer prejudice by a grant of waiver to her

appeal. In particular, she points out that any such providers would need to apply for

resource consent to pursue visitor accommodation proposals and consent applications

would continue to be considered under both the ODP and PDP. 28 That is in the sense

that they would have their amenity impacted by the expansion of the visitor

accommodation definition without proper consideration of the implications of that

change. 29

MLL

[28] Counsel for MLL, Ms Morrison-Shaw, submits Ms Byrch has not provided a

reasonable explanation as to why she did not file the appeal within the required

timeframe. 30 Inferring that Ms Byrch had adequate time to participate, Ms Morrison-Shaw

notes that Ms Byrch appeared at the Stage 2 hearing and is an interested party to two of

the appeals. 31

[29] In addition, Ms Morrison-Shaw submits that granting waiver would prejudice other

parties.

[30] Ms Morrison-Shaw points out that the present appeals on the definition of 'visitor

accommodation' are confined to whether a compliant or non-compliant residential visitor

accommodation or homestay activity can be included within the definition. Those appeals

do not seek to delete or remove any aspect of the definition.32 By contrast, Ms Byrch's

appeal would open up broad additional issues such as whether persons other than

overnight guests are able to make use of visitor accommodation facilities. 33 In those

terms, granting waiver would prejudice other parties.

[31] Counsel points out that this has implications in terms of delay and cost including

28

29

30

31

32

33

C Byrch reply to MLL opposition to waiver to file late appeal p 2. C Byrch reply to MLL opposition to waiver to file late appeal p 2. MLL notice of opposition to waiver application at [3(a)]. C Byrch reply to MLL opposition to waiver to file late appeal at [1] ; MLL legal submissions in response to waiver application at [22]. I note these are conflicting submissions as to Ms Byrch's attendance at the stage two hearing . MLL submits Ms Byrch attended the Stage 2 hearing, while Ms Byrch's submission states she attended the Stage 1 hearing but not Stage 2. MLL notice of opposition to waiver application at (3(c)] . MLL notice of opposition to waiver application at [3(c)] .

11

for scheduled mediation. An aspect of this would be that those interested would need to

be given the opportunity to join Ms Byrch's appeal under s274. 34 That could include

visitor accommodation providers who are not involved in the current appeal proceedings

and are unaware of the fact that Ms Byrch now seeks to appeal. This is at a time when,

in light of COVID-19, businesses may already be under financial stress. 35

[32] Counsel further submits that allowing the appeal at this late stage has the

potential to adversely affect visitor accommodation providers who have relied on the

Stage 2 decisions definition by allowing the use of their facilities by persons other than

overnight guests.36

[33] Overall, counsel submits that granting waiver would cause prejudice in those

terms and be contrary to the interests of justice.37

[34] Ms Morrison-Shaw submits that Ms Byrch's criticisms of QLDC's processes are

unwarranted. Rather, QLDC simply adhered to its responsibilities as the RMA planning

authority by reviewing the ODP according to the RMA's processes. Counsel submits that

the changes sought to the visitor accommodation definition were clearly signalled in the

PDP. As such, the public had the opportunity to have their say through the notified PDP

process. 38

[35] Ms Morrison-Shaw says that Ms Byrch has failed to properly explain why she

considers the definition needs to be amended.39

Discussion

[36] On the matter of any prejudice that waiver would cause, I start by considering

what would be suffered by other parties to the proceeding. I can put aside QLDC, as it

is not opposed to a grant of waiver. Rather, on the threshold question of whether undue

prejudice would result, the proper focus is on the only party who opposes waiver, namely

MLL.

MLL notice of opposition to waiver application at [3(b)]. MLL notice of opposition to waiver application at [3(b)]. MLL notice of opposition to waiver application at [3(b)]. MLL legal submissions in response to waiver application at [25] . MLL legal submissions in response to waiver application at [10], [13], [23] . MLL notice of opposition to waiver application at [3(e)].

12

[37] Granting waiver would mean that the scope of matters in issue for MLL would be

significantly expanded. Apart from having to face Ms Byrch's case, MLL could be faced

with other s27 4 parties to Ms Byrch's appeal. That would mean additional delay, cost

and uncertainty beyond what could be reasonably anticipated with the present appeals.

On the other hand, while Ms Byrch's appeal was filed some eight months out of time, the

proceedings have not advanced significantly. Rather, mediations have not yet taken

place.

[38] Overall, I find that the prejudice that would ensue for MLL is not greater than that

which could reasonably be expected to flow from waiving the requirement for compliance

with a time limit.40 As such, while I find that the prejudice MLL would suffer would be

significant, it would not be so significant as to be undue prejudice.

[39] Therefore, there is no jurisdictional bar to my considering whether or not to grant

the waiver application, as an exercise of discretion.

[40] In my exercise of that discretion, I find that the primary consideration is as to the

overall interests of justice.

[41] Were I to have found substance in Ms Byrch's claims that QLDC's plan review

processes were deficient such as to deny her just opportunity to participate, that would

have strongly favoured Ms Byrch's case for waiver.

[42] However, I find QLDC's staged approach did not materially disarm or otherwise

prejudice Ms Byrch in those terms. Ms Byrch made a submission opposing the Stage 2

NW definition. QLDC made its related decision on that definition having considered

submissions. While Ms Byrch is unhappy with that decision, she had opportunity to

appeal within the usual statutory time period.

[43] As there is no waiver application before me from any other person whom Ms

Byrch's claims to have been prejudiced, I put those claims to one side.

[44] I am not persuaded by Ms Byrch's claim that she did not realise that, as a s274

party, she would not be able to raise the broad issues she now seeks to raise. It ought

Reilly v Northland Regional Council (1993) 2 NZRMA 414.

13

not to have been surprising to Ms Byrch that, in joining an appeal seeking particular relief,

she would not enjoy licence to pursue other relief. In any case, s274 is clear on its face

as to the scope of what she can contest or pursue, in evidence as a party to MLL's appeal.

It is incumbent on a person seeking to participate in court proceedings to make proper

enquiries about what is required of them. 41

[45] I acknowledge that, in a decision of 16 March 2020 concerning Ms Byrch's

application for waiver of filing fees for this late appeal, there is an observation as follows

concerning public interest dimensions:42

In essence, therefore, proceedings are already alive and likely to continue to remain so on

the matters that Ms Byrch now seeks to appeal. I am satisfied that is likely to remain the

case even if the fee waiver sought by Ms Byrch is declined.

[46] However, that observation was made in light of Ms Byrch having already filed her

appeal. As such, I am satisfied that it is not material to what I must now consider.

[47] Against those matters, I weigh the prejudice that would ensue for MLL were I to

grant waiver. Waiver has the potential to impose on MLL the prejudice of significant

additional delay, cost and uncertainty.

[48] In addition, as I have noted, Ms Byrch has not provided a satisfactory or sufficient

reason to justify why she did not file her appeal in time. All things considered, I find that

the overall interests of justice lies against waiver.

[49] Having accounted for the respective interests of Ms Byrch and MLL, I find public

interest considerations also favour declining waiver. That is the public interest in

resolving and determining the remaining issues fairly and efficiently so as to bring finality

to these PDP provisions.

Outcome

[50] Therefore, Ms Byrch's application for waiver of the late filing of her appeal is

declined.

41

42 Burkhart Fisheries v Marlborough District Council [2018] NZEnvC 33 at [1 OJ. Byrch, at [12] .

14

[51] Costs are reserved. However, as all parties have responsibly and efficiently

addressed matters raised , applications are not encouraged.

J J M Hassan

Environment Judge