Queenstown Lakes District Council's (QLDC) actions regarding Wānaka company Tussock Rise Ltd (TRL) are "crazy," says Graham Todd of Todd & Walker Law Wānaka.
In a decision earlier this month, Environment Court Judge Jon Jackson ordered the QLDC to pay TRL $5250, or 66 per cent of the costs the company incurred in an appeal in the Court against the Council.
The costs arose from a 2018 hearing before Jackson during which the Council applied to have Tussock Rise's appeal, relating to the Council's review of the district plan, struck out.
If a case is 'struck out' it means the Court has dismissed it without a full hearing of all of the evidence. ... In other words, one of the sides can apply to the Court for a strike out, or the Court can just decide to apply one should the need arise.
"As I found in the strike out decision, the method by which the Council has
conducted its Plan Review/Plan Change, was "contradictory and confused," said Jackson.
"The Council, in reliance on that flawed process, still made its application for strike out despite TRL attempting to communicate to the Council that the purported lack of jurisdiction was misconceived."
“As to quantum, I consider that the Council has either not met the procedural requirements of section 79 RMA as to the review of plans or, if it has, it has done so confusingly and misleadingly as explained in the substantive decision,” Jackson said.
Todd said: "Tussock Rise Ltd has two (substantive) submissions to the Proposed District Plan (PDP) and two avenues for rezoning “
The first was one on Stage One they inherited from the Gordon Trust when they purchased the land, he said. That sought residential zoning for the land which was proposed to be zoned "industrial."
The Council hearings panel refused to hear the submission arguing it wasn't "on "Stage 1”.
"We appealed, and the Council tried to strike out that submission to Stage 1 of the Plan as they said they were not dealing with "industrial" zoned land until Stage 3.
"We (Todd & Walker) argued this was the problem with the Council dealing with the PDP in stages as by the time we got to Stage 3 it would be too late to have the land zoned "residential" as the submissions on the rezoning of residential land would have already been dealt with.
"We opposed the Council's submission to strike out our Stage 1 submission on that basis,” said Todd.
The Tussock Rise appeal on that Stage 1 submissions is yet to be heard, but the Council now has a problem as they have never actually given a decision on the Stage 1 submission, as they said it wasn't "on" Stage 1, he said.
"The Court agreed with us and dismissed the strike out application ( the substantive decision). We then sought costs which is highly unusual in a District Plan Review process. The Court in the costs decision has granted costs at a much higher percentage than is ever normal." Todd said.
"When Stage 3 was notified, and they sought to zone the land "industrial" we submitted in opposition as by that stage we felt the land was better rezoned a "business mixed-use" zone.
"The crazy thing is we now have two avenues for rezoning, but again this is a consequence of Council’s own making by dealing with the PDP in stages which is what Judge Jackson was saying was "confusing etc..…." in his decision.
The second part is that they have been ordered to pay costs which is highly “unusual in a District Plan process, Todd said.
“I can't say anything publically about the Tussock Rise decision because it the "substantive case" is still before the Court,” he said. (Substantive case meaning the actual rezoning.
Tussock Rise land is back off Ballantyne Rd and Gordon Rd- it sits in behind the businesses that front on to the southern side of Ballantyne Rd.
TRL want to change the land from an industrial zone land to a business-mixed- use zoned land, Todd said.
“TRL is saying there is no demand for industrial land, but there is for business-mixed-use, he said.
View edition 984 of the Wānaka Sun here.