Well the emails were flying yesterday. I tried my best to convince the lead planner at the Papakura area office that they cannot put the clause in my resource consent I mention here.
Owen McShane kindly provided me with a couple of legal opinions which only add more weight:
Mackay v North Shore City Council W 146/95 – a condition cannot require the agreement or compliance of third parties or infringe on their legal rights.
Here it is again:
Third party rights must not be affected
Consent conditions cannot require the agreement or compliance of a third party, or infringe their legal rights (seeMackay v. North Shore City Council W 146/95; Campbell v. Southland District Council W 114/94).
Consent conditions must not infringe on the rights of earlier resource consents, as recently held by the High Court in Dart River Safaris Ltd v. Kemp (unreported judgement, HC Wellington, AP600/2000, Panckhurst J, 15 June 2000):
DRSL has legal rights by virtue of its resource consent. I do not accept that such rights may be deprecated because they are not founded in land law. They remain rights which may not be denied or eroded by imposition of a condition on another person’s resource consent.
Did the council take any notice of this information? Did they heck. Here is the response from the planner:
Thank you for your latest emails of today.
I understand all of the points that you have raised in your various emails, including the comments made in respect of the District Plan requirements insofar as they relate to the balconies in question; the history of the development; and the legality of the commencement clause within the decision.
I have taken advice from the relevant experts at Council, and the resulting decision is the outcome of such advice. I realise that you have a different view, and I respect such view. The requirement for an airspace lease has been considered carefully in the context and history of the site.
At this stage, based on your advice that Helpful Local Board Chairperson will be meeting with Resource Consents Manager in the next week, I believe that little will be gained by us meeting prior to his meeting with Resource Consents Manager. I would also like to note that while I would (and always do) listen to your viewpoint, I am unable to change the requirement that an airspace lease is required.
As always I am happy to discuss this further with you if necessary.
At this point I got pretty exasperated and replied with a somewhat cheeky email:
Oh well, I guess you can lead a horse to water, but you can’t make it drink.
I won’t let this drop. I’m confident I’m correct on this issue.
I thought you might reconsider with the compelling arguments I’ve made. But it seems you can ignore my initial resource consent (which would have included consultation with the applicable roading people at the time), the district plan and some legal opinions.
You haven’t even had time to consider the legal opinions. But then you made your decision some time ago didn’t you?
You say you’ve consulted with council experts. Might I suggest asking Auckland Transport if they would like some free money each year, in perpetuity at no cost to them is just blatantly ridiculous. It’s a bit like me asking my solicitor or my wife if I should be allowed to do something. They’re in my corner so of course they will back me.
Perhaps I should charge the council for the use of the footpath beneath my balconies? Perhaps I should install a pedestrian counter (at council’s cost) and bill council monthly for letting people walk under my 45 metre verandah and stay dry? I’ve just asked my 4 year old son if he’d like more money for lollies and he agrees we’d like an extra income stream,. So council now needs to fill out an application form for a lease with me please. And of course pay a deposit to do so, I’ll set the terms and conditions etc. And then council pays for both sets of solicitors to battle it out. All perfectly normal – and it’s for your own benefit – I or a future owner might be able to stop people walking down the footpath under my verandah, so I’m only thinking of the council.
In all seriousness, if the meeting with Resource Consents Manager does not resolve this to my satisfaction, the next step is the media.
You’ve had more than enough chances and enough advice from me to have made the right decision by now.
Oh and when this is all over I’ll be billing council for my time and the time of those I’ve had to consult with.
I would suggest you look again at the weight of evidence before you but I know I’d be wasting my words.
I didn’t get a reply to this and didn’t expect to. I’m still pretty exasperated that they feel they can ignore a) My resource consent giving me the right to have the balconies there, b) The district plan section that says I can have the balconies there – and no mention of a lease with Auckland Transport and c) A few legal opinions that point out that they have no legal basis to put this clause in my resource consent.
And what rationale do they give for ignoring this small mountain of evidence? None. Yep that’s right, they say they have spoken about it internally and decided they (surprise, surprise) WANT THE MONEY!!!!!
I’ll win this one, there’s no way I can’t. The evidence of the council’s illegal activities just keeps mounting.