Beware informal application processes

LG Leader October 2014

The recent ERD Court judgment of Paior contains 3 findings which are of great significance to all councils and which are relevant to the way in which:

  1. development applications for detached, semi-detached and row dwellings must be processed in circumstances where the proposed dwelling site does not comprise a single allotment with its own Certificate of Title;
  2. minor variations to Development Plan consents must be processed; and
  3. development applications proposing retaining walls should be Categorised, in particular, whether retaining walls can be considered to be “minor” Category 1 developments pursuant to clause 2(g) of Schedule 9 to the Development Regulations 2008.

The first finding was discussed in our recent LG Alert which can be accessed here.

This article discusses the second finding.  The third finding is the subject of the subsequent article in this current edition of the LG Leader, available here.

The judgment in Paior determined two applications for review made pursuant to section 86(1)(f) of the Development Act in respect of two development applications proposing the construction of a dwelling on the same site.  One application was lodged in 2011 and the other was lodged in 2013.

Land Division Documents Training Session

At the time that the 2011 application was lodged, a moss rock retaining wall existed on the subject land, in between the site of an existing dwelling and the site of a proposed dwelling.  Both dwellings were, at the time, on the same allotment of land.

The 2011 application plans showed that the retaining wall was to remain in place.  When the application was assessed for Building Rules consent, it became apparent that the retaining wall would need to be replaced.

A plan depicting a new retaining wall was approved for Building Rules consent and provided to the Council.  The new wall was in the same location as the existing wall and was around the same height.

The Council determined that the wall was a Category 1 form of development and that it warranted Development Plan consent.  For this reason and to avoid the inconvenience of requiring a formal variation application to be lodged and fees paid, the Council waived the requirements to lodge a formal variation application, determined that the variation warranted approval, struck out the superseded plans and stamped the new plan as having received development approval.

The ERD Court took a dim view of this “informal” variation process, stating that “the Act required formal steps to be taken” and that to “maintain the integrity of processes under the Act, and the integrity of local government generally”, variation applications must occur by way of a formal application process.

If your council is one of the many that allow waive the requirements for lodgement of a formal variation application or otherwise allow informal processes to occur for some forms of variations to development authorisations, we recommend that these processes be reconsidered in the light of the Paior judgment as such processes are unlikely to withstand legal scrutiny.