John and Helen Schwartfeger standing on a pontoon at the centre of a protracted battle with the Northland Regional Council. Photo / John Stone
John and Helen Schwartfeger standing on a pontoon at the centre of a protracted battle with the Northland Regional Council. Photo / John Stone
The Northland Regional Council has shelled out nearly $99,000 in a protracted stoush with a couple over the remission of annual fees for a mooring structure.
Figures obtained under the Official Information Act (OIA) show the bulk of the money or $83,201 was spent on legal fees, $9445 on anexternal commissioner and investigator, $3257 which the Environment Court ordered NRC to pay Helen and John Schwartfeger, and a further $3098 in ex-gratia payment to the couple.
The court recommended that NRC consider making an ex-gratia payment but made no ruling to that effect.
The $98,996 in total spent between November 2014 and October 2019 excludes NRC staff costs.
John Schwartfeger said he could not comment on NRC's expenditure on the case.
The couple bought a property adjacent to the Hatea River in Whangārei in 2006 and there was a retaining wall going into the Hatea River.
The resource consent for that wall, held by the previous owner, didn't expire until 2042 but a disagreement arose between NRC and the Schwartfegers after they disavowed interest in the structure.
By 2010, the wall was in extremely poor state and required major maintenance.
Discussion took place between the parties, and it was suggested the Schwartfegers obtain a transfer of the existing consent to their name and apply for a new consent in respect of the site.
In 2012, they obtained a new resource consent for the retaining wall and maintenance, together with an accessway and pontoon.
John and Helen Schwartfeger have won a five-year battle with the Northland Regional Council over annual fees for a mooring structure. Photo / John Stone
NRC indicated through a letter it would not charge for the transfer of the existing consent, and would only require the initial payment of $670 for the new consent.
"Please note that this situation is not the norm but in your particular circumstances, NRC has chosen to waive the annual fee," the letter quoted.
But during a review of its consents in 2014, NRC advised the Schwartfegers that it was reviewing the waiver and would start charging for the consent for the 2015/16 year.
The Schwartfegers objected to it on the basis there was an explicit agreement with NRC that it would waive the fee. NRC argued the waiver only covered the retaining wall, not the pontoon and access structure for which consent was sought and granted.
In October 2015, NRC appointed independent commissioner Sharon McGarry to hear and decide on an objection to the annual charge and she ruled in NRC's favour.
The Schwartfegers filed a complaint with the Ombudsman, who provided a preliminary opinion in April 2018 that NRC had acted unreasonably.
A month later, NRC remitted all charges until 2042 but this did not apply to any new owner of the consent before its expiry.
When the Schwartfegers filed for declarations in the Environment Court early this year, NRC confirmed it had remitted all past and future charges for them and for any new owners until 2042.
The court ruled it wasn't possible for NRC to resile from an earlier agreement that it would not charge for the transfer of the consent.
"Once the remission has occurred, it must be absolute."
Whatever the legal position may be, the court said the situation was entirely of NRC's making in that it granted, then without any notice to the Schwartfegers, resiled from the waiver it granted in unequivocal terms.
