Cash for Scraps (CFS) operated a scrap metal business. CFS’ business caused the local authorities concern as a result of car bodies and drums leaking oil and other contaminants into the ground. The Environment Court made enforcement orders requiring CFS to cease operating and take steps to contain the contaminants on the site. The court was of the view that the scrap metal business was not a permitted activity under the District Plan and that there were no existing use rights. It emphasized that under the District Scheme CFS’ use of the land was a restricted discretionary activity, not a permitted activity when certain requirements were not met. The Environment Court found that those requirements were not met.
CFS appealed to this court. It said that the land use was clearly a permitted activity and the fact that it had failed to comply with performance standards merely raised an issue of compliance with the standards but did not affect the permitted activity status of the scrap metal yard.
There was a question, therefore, whether failure to comply with performance standards affected the status of a permitted use. The court held that there was no challenge to the finding that CFS’ business was being conducted within 30 metres of a residential zone. This fact rendered the use a controlled activity under the District Plan. Thus, even a successful appeal on this point could not alter the result. The business was not a permitted activity.
Among others, it also held that remediation and restoration of contaminated areas of the site and neighbouring property was not yet completed. Therefore the corresponding enforcement orders could not be successfully challenged by CFS.