Baxter v Tasman District Council.

On 8 June 2010 Brian Eric Baxter and Jill Dianne Baxter filed a notice of appeal against an abatement notice issued by Tasman District Council together with an application for stay of the abatement notice. The appeal and application for stay both involved compliance with a condition of a resource consent which the Council had granted to Mr and Mrs Baxter on 15 January 2009. The resource consent (RM 080962) authorised the construction of a second dwelling on the Baxters' property. In granting consent to the application the Council imposed the following condition: the second dwelling shall not provide a basis for any future subdivision of the title; and (b) the existing dwelling shall be removed from the properly within three months of the occupation of the new dwelling or the property sold. When the Council inspected the site on 14 May 2010 and found the original dwelling in situ and occupied by tenants it issued an abatement notice requiring compliance with Condition 2. A stay of the abatement notice was granted until 30 October 2010 being the date suggested by the Council itself. In assessing the likely effect of granting a stay on the environment the judge observed that it would appear that in the short—term there is likely to be no more than minor adverse effect on the environment (in a purely physical sense) of allowing the existing dwelling to stay on the site until it is practicable to have it removed. Although there may not be any immediate physical impact on the environment by allowing the status quo to remain, in the long term there are potential environmental effects which must be taken into account, as second dwellings have been a major cause of subdivision proposals that, if granted, can lead to unsustainable land fragmentation of productive rural land. Nothing contained in Mr and Mrs Baxter's notice of appeal challenges the validity of the abatement notice they failed to comply or the vires of the condition upon which it is based, in any way. The appeal simply sought more time to comply, time which the Court granted. In summary, the Baxters' current inability to comply with the abatement notice is entirely the result of their own failure to take any steps to comply with the condition as to removal of the original dwelling which they themselves tendered as part of their resource consent application. After the grant of stay of abatement notice on 13 July 2010, no apparent steps to arrange removal (of the dwelling or the tenants) were made by Mr and Mrs Baxter until about 15 November 2010, notwithstanding that the original stay of abatement notice was granted only until 30 October 2010. Allowing ongoing non-compliance with the condition of resource consent, which was clearly a significant factor in the grant of approval, challenges the integrity of the resource consent process. In light of Mr and Mrs Baxter's failure to make any real attempt to comply with the condition during the period of the original stay the Council has changed its stance in that regard and now considers that no further stay should be granted. The application for a further stay is hereby declined accordingly. The Baxters' appeal discloses no reasonable or relevant case in respect on the proceedings and that it would otherwise be an abuse of the process of the Environment Court to allow the case to be taken further. The Baxters' appeal discloses no reasonable or relevant case in respect on the proceedings and that it would otherwise be an abuse of the process of the Environment Court to allow the case to be taken further. Accordingly the judge cancelled the stay and stroke out the appeal.