Aspros v Wellington City Council
[2019] NZHC 1684
•26 September 2019
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2018-485-655
[2019] NZHC 1684
UNDER THE Judicature Amendment Act 1972 IN THE MATTER OF
Decisions made pursuant to Sections 95A, 95B and 104 of the Resource Management Act 1991
BETWEEN
PERRY ARCHIE ASPROS AND BEVERLEY MAY ASPROS
Plaintiff
AND
THE WELLINGTON CITY COUNCIL
First Defendant
AND
PAUL ALEXANDER LEE, DIANA MARION LEE and NIGEL WARREN HUGHES
Second Defendants
Hearing: 4-6 March 2019 Appearances:
A F D Cameron for Plaintiffs
N M H Whittington and A R Linterman for First Defendant C Anastasiou for Second Defendants
Judgment:
26 September 2019
JUDGMENT OF CULL J
TABLE OF CONTENTS
Background 4
The Council’s Decision 11
The approach to judicial review 15
Error of law 17
Issues and grounds for review 18
Issue One: Adequacy of information under s 88 19
Legal requirements of s 88 23
Adequacy of information 34
The information which informed the Council’s Decision 44
ASPROS v WELLINGTON CITY COUNCIL & ANOR [2019] NZHC 1684 [26 September 2019]
Conclusion 52
Issue Two: Application of the rules and standards 54
The recession plane standard 62
The site coverage standard 70
The permitted baseline 82
Conclusion 92
Issue Three: Notification decision 95
Public or limited notification 95
Pre-determination/conflation of decisions 110
Conclusion 113
Issue Four: Conditions of consent 114
Relief 121
Costs 122
[1] Mr and Mrs Aspros (the plaintiffs) seek judicial review of the decision made by the Wellington City Council (the Council) under the Resource Management Act 1991 (the RMA) to grant resource consent, on a non-notified basis, for the construction of a residential dwelling house in Brooklyn, Wellington.
[2] At the heart of this review is whether the resource consent application submitted to the Council by the second defendants (the Owners) should have been granted, particularly on a non-notified basis. The Owners are the trustees of the P & D Lee Family Trust (the Family Trust) and are the plaintiffs’ neighbours. The application seeks to demolish an existing cottage and single garage on the Owners’ property in Brooklyn, Wellington (the development site), and to construct a new single residential dwelling. The development site is next door to the plaintiffs’ property.
[3] The challenge is to the Council’s decision not to notify the plaintiffs of the resource consent application either by way of public notification under s 95A of the RMA or limited notification under s 95B of the RMA, and its decision to grant consent under s 104 of the RMA, subject to conditions, to the Owners for their proposed development.1 The Council made its decision on 21 December 2017 and I will refer to both aspects of the Council’s decision as “the Decision”.
1 All references to the Resource Management Act 1991 are references to that Act as at 13 March 2017, when the resource consent application was lodged: see Resource Legislation Amendment Act 2017, sch 12, cl 12.
Background
[4] On 13 March 2017, the Owners through the Family Trust applied to the Council for resource consent to demolish the existing cottage and single garage on the development site and to construct a new single residential dwelling. The site is zoned Outer Residential. The application was reviewed for completeness under s 88 of the RMA and formally accepted by the Council for processing on 16 March 2017.
[5] Shortly after the application was lodged, the Owners advised the Council they were working with the plaintiffs to obtain their written consent. The Council put the application on hold to enable this to occur. The Council’s processing planner, Ms Lord, met with the plaintiffs at their home on 10 April 2017, at the plaintiffs’ request.
[6] On 24 April 2017, the Council’s transport engineer provided a transport and vehicle access assessment of the proposal. On 3 May 2017, one of the Owners provided a diagram showing how the building recession plane had been applied for the purpose of the application.
[7] On 26 May 2017, the Council issued a request for further information under s 92 of the RMA. It covered three topics: boundary lines, the building recession plane, and the permitted baseline. The plaintiffs submit that the information request should have addressed earthworks. At that point, the Owners had asserted that the proposal complied with the permitted activity limits for earthworks in the District Plan. As a result of further correspondence with the Owners, the plaintiffs’ surveyor Mr Kuus, the plaintiffs’ lawyer, and receipt of a summary of design changes together with amended plans, the Council decided that the earthworks rules were engaged and sought further information from the Owners.
[8] On 27 November 2017, the Owners sought consent for the earthworks, a site management plan, an earthworks construction methodology, and provided a full amended set of plans, with shading diagrams and 3D visuals.
[9] On 4 December 2017, the Council’s earthworks engineer provided an earthworks assessment of the proposal, and on 13 December the transport engineer provided an updated transport and vehicle assessment of the proposal. Between 13
December and 18 December, the Council received from the Owners further survey advice and comments on a draft construction management plan condition.
[10] The Council submits that it is all of this information, taken together, that forms the “record” of the Council’s Decision.
The Council’s Decision
[11] The Council then issued its Decision on 21 December 2017 which is the subject of this review. The Council decided to grant resource consent to construct a dwelling with associated earthworks at the development site, subject to conditions. The conditions involve the monitoring of the excavation and the construction of the retaining works by a chartered professional engineer, the earthworks construction methodology was approved in principle but requires monitoring by the Council’s compliance monitoring officer, the grassing of earthworks, survey certification, and monitoring and review of the land use consent.
[12] The application for resource consent was granted under s 104 of the RMA. The Council decided that, under s 95A and 95D of the RMA, the effects of the proposal on the environment will be less than minor. It did not publicly notify the application. The Council considered there were no special circumstances and the proposal was in accordance with the relevant objectives and policies of the District Plan and Part 2 of the RMA.2
[13] Under ss 95B and 95E, the Council also decided that any adverse effects on any person from whom written approval has not been obtained are less than minor, and no parties will be adversely affected. Therefore, the Council did not give limited notification of the application. Although the neighbours are noted as registering an interest in works occurring on the subject site, the Decision notes that neighbour interest does not deem them to be affected parties under the tests of the RMA or qualify special circumstances.
[14]In summary, the Council decided:
2 Resource Management Act 1991, s 95A(4).
(a)to grant the application under s 104 of the RMA; and
(b)not to notify the plaintiffs by way of either limited notification under s 95B or by way of public notification under s 95A of the RMA.
The approach to judicial review
[15] All parties agree that the principles applicable to judicial review in these circumstances are those in Coro Mainstreet (Inc) v Thames-Coromandel District Council:3
It is not the function of the Court on an application for review to substitute its own decision for that of the consent authority. Nor will the court assess the merits of the resource consent application or the decision on notification. The inquiry the Court undertakes on an application for review is confined to whether or not the consent authority exceeded its limited jurisdiction confirmed by the Act. In practice the Court generally restricts its review to whether the Council as decision maker followed proper procedures, whether all relevant and no irrelevant considerations were taken into account, and whether the decision was manifestly reasonable. The Court has a discretion whether or not to grant relief even if it is persuaded that there is a reviewable error.
[16] The role of the court is not to substitute its opinion for the opinion of the decision-maker; the role of the court is to consider the process which the decision- maker went through in making the decision. Consent authorities such as the Council are specialist bodies, with the advantage of both democratic election and local knowledge.4 Importantly, as the courts have previously warned, judicial review is not an opportunity to revisit the merits of Council’s decision to proceed on a non-notified basis or to grant a consent.5 The court does not exercise an appellate function on review.6
3 Coro Mainstreet (Inc) v Thames-Coromandel District Council [2013] NZHC 1163 at [40] (emphasis added and footnote omitted); upheld in Coro Mainstreet (Inc) v Thames-Coromandel District Court [2013] NZCA 665.
4 Progressive Enterprises Ltd v North Shore City Council [2006] NZRMA 72 at [63].
5 Ennor v Auckland Council [2018] NZHC 2598 at [30].
6 Auckland Regional Council v Rodney District Council HC Auckland CIV-2007-404-3436, 24 August 2007 at [44].
Error of law
[17] It is fundamental to administrative law that a decision-maker is bound to act “in accordance with the law”.7 As McGrath held in Unison Networks Ltd v Commerce Commission, “[a]ny material error of law by a public body in exercising its statutory powers will be reviewed by the courts”.8 Examples of errors of law include asking the wrong question,9 misconstruing a statute, rule or instrument,10 and misconstruing the evidence.11
Issues and grounds for review
[18]The matters at issue are whether the Council, in reaching its decision:
(1)erred in law by accepting an application which did not comply with s 88 of the RMA;
(2)erred in its application of the recession plane standard, the site coverage standard, and the permitted baseline standard to the proposed dwelling and so committed an error of law in wrongly applying ss 92 and 104 of the RMA;
(3)erred in law in failing to publicly notify or limited notify the application under ss 95A and 95B of the RMA and/or came to an unreasonable decision; and
(4)erred in law in imposing unenforceable conditions to augment the deficient application.
7 New Zealand Fishing Industry Association Inc v Minister of Agriculture and Fisheries [1988] 1 NZLR 544 (CA) at 552.
8 Unison Networks Ltd v Commerce Commission [2007] NZSC 74, [2008] 1 NZLR 42 at [75].
9 Discount Brands Ltd v Westfield (New Zealand) Ltd [2005] NZSC 17, [2005] 2 NZLR 597 at [28]– [29].
10 Queenstown Airport Corp Ltd v Skipworth [2001] 2 NZLR 621 (CA) at [34].
11 MPR v Refugee Status Appeals Authority [2012] NZHC 567 at [13].
Issue One: Adequacy of information under s 88
[19] The key question under this issue is whether the Council erred in law by accepting a resource consent application which purportedly did not comply with s 88 of the RMA.
[20] The plaintiffs submit that the Owners’ application was so deficient in respect of three matters that the application should have been returned under s 88(3A). The three matters are the recession plane standard, site coverage, and use of the permitted baseline, which I canvass under Issue Two. It is not necessary to discuss these matters at this stage as my determination on this issue relies on a more general, but fundamental, understanding of the statutory scheme.
[21] Following the hearing, Mr Cameron for the plaintiffs filed, with leave, further submissions on whether inadequate information triggers a standalone ground of review. The defendants replied, submitting that the plaintiffs have confused the issues of completeness with adequacy of information.
[22] To be clear at the outset, the completeness of an application is determined under s 88(2) of the RMA within 10 working days of the application being made. In contrast, the question of adequacy of information is relevant at the time of the making of the Decision. I propose to deal with this issue by addressing:
(a)the legal requirements under s 88 of the RMA;
(b)adequacy of information; and
(c)the information which informed the Council’s Decision.
Legal requirements of s 88
[23] The plaintiffs’ submission is that the Council accepted an application which failed to comply with the formal requirements of s 88 of the RMA, when it should have returned the defective application under s 88(3A). The Council, they say, therefore had no jurisdiction to grant the application it received under s 104.
[24] Under s 88(2) of the RMA, an application for a resource consent must be made in the prescribed form (Form 9) and manner and must include the information relating to the activity, including an assessment of the activity’s effects on the environment, as required by sch 4.12 Schedule 4 of the RMA specifies the information that is required in all applications for resource consent. Of particular relevance to this case, sch 4 requires:
(a)an assessment of the activity against any relevant provisions of a document referred to in s 104(1)(b) of the RMA, including the “plan or proposed plan”;13
(b)an assessment of the actual or potential effect on the environment of any proposed activity;14
(c)identification of the persons affected by the activity, any consultation undertaken and any response to the view of any persons consulted;15 and
(d)the assessment to address any effect on those in the neighbourhood and the wider community.16
[25] The essence of the plaintiffs’ case is that s 88 of the RMA, sch 4, and Form 9 are mandatory requirements with which the Council is obliged to ensure applications for resource consent are compliant. They submit that the Council, however, accepted the Owners’ application when it did not include some of these fundamental elements, such as an adequate assessment of environmental effects of the activity against the relevant objectives and policies of the District Plan, or an assessment of possible alternative locations for undertaking the activity within the site.
[26] The plaintiffs say the inadequacy of such assessments arose because of the Council’s incorrect understanding of the recession plane standard, site coverage, and
12 Resource Management Act 1991, s 88(2).
13 Schedule 4, cl 2(1)(g); and s 104(1)(b)(vi).
14 Schedule 4, cl 6(1)(b).
15 Schedule 4, cl 6(1)(f).
16 Schedule 4, cl 7(1)(a).
the permitted baseline. They say the Council erred by seeking to fill the information gap in the Owners’ application by requesting further information under s 92(1) of the RMA, instead of rejecting the application under s 88(3A) of the RMA.
[27] Section 88 confers a discretion on the Council to decide whether or not to regard an application as complete for the purposes of accepting the application for processing.17 Under s 88(3), a consent authority may determine that an application is incomplete if it does not contain the information required by s 88(2), as outlined above.
[28] In Wakatu Incorporation v Tasman District Council, McKenzie J held that in deciding whether to accept an application for resource consent as complete, the Council is acting wholly within its administrative decision-making capacity, rather than as a quasi-judicial decision-making.18 More recently in New Zealand King Salmon Co Ltd v Marlborough District Council, Clark J reviewed the provisions of s 88 and sch 4, and drew attention to the Ministry for the Environment’s Guide to assist practitioners to understand and implement the 2013 amendments to the RMA.19 This Guide explained that sch 4 was introduced to bridge a gap that previously existed between information required to be provided with an application and information needed to reach a decision.20 The Judge concluded that s 88 of the RMA confers on consent authorities a discretionary power to determine an application is incomplete if it does not contain the prescribed information.21
[29] Thus, the discretion to decide whether an application is complete is an administrative decision to be made in the light of that particular application. It is not a merits-based consideration, which comes later in time. There is therefore a critical distinction between the time at which an application is made and the time at which the resource consent decision is made. This is borne out by s 92, which gives the consent authority, once it has accepted the resource consent application, an opportunity to
17 New Zealand King Salmon Co Ltd v Marlborough District Council & Marlborough Aquaculture Ltd [2018] NZHC 1357 at [57].
18 Wakatu Incorporation v Tasman District Council [2008] NZRMA 187 (HC) at [24].
19 New Zealand King Salmon, above n 17, at [51].
20 At [51], citing Ministry for the Environment A Guide to Section 88 and Schedule 4 of the Resource Management Act 1991: Incorporating Changes as a result of the Resource Management Amendment Act 2013 (December 2014) at 6.
21 At [57].
request further information related to the application.22 The wording of s 92(1) is instructive:23
92 Further information, or agreement, may be requested
(1) A consent authority may, at any reasonable time before the hearing of an application for a resource consent or before the decision to grant or refuse the application (if there is no hearing), by written notice, request the applicant for the consent to provide further information relating to the application.
[30] The information at the time the application is made must conform with the requirements of sch 4, in order for the application to be accepted as complete. At the time of the decision to refuse or grant the application, however, the question then arises whether the Council had adequate information to make its decision. This second inquiry has no place in the s 88 consideration of completeness of the application.
[31] In terms of the completeness of the application required under s 88, the Council was satisfied the sch 4 and other s 88 requirements were met by the application provided by the Owners. The authorities made clear that the court’s supervisory jurisdiction will be rarely engaged when assessing whether a consent authority has exercised its discretion properly under s 88.24 I also accept the submission from the defendants that the material provided under s 88(2) of the RMA should be proportionate to the potential effects of the activity. Here, the application seeking consent for a residential dwelling is different in scope and relatively straightforward compared the assessment required in other cases, to which I have been referred.25 In these circumstances, and consistent with the level of judicial scrutiny appropriate to bear on the Council’s determination of whether an application is incomplete, it is clear the Council acted within its statutory authority to accept the application under s 88 of the RMA.
22 Resource Management Act 1991, s 92.
23 Emphasis added.
24 New Zealand King Salmon, above n 17, at [59].
25 See, for example, Affco New Zealand Ltd v Far North DC (No 2) [1994] NZRMA 224, where the assessment was for a meatworks, and the Court concluded that “the proposed activity has to be described in detail sufficient to enable the effects of carrying it on to be assessed in the way described by the Fourth Schedule.”
[32] The plaintiffs’ concerns about the recession plane standard, the site coverage, and the permitted baseline were addressed by the Council in its requests for further information, as it was lawfully entitled to do under s 92 of the RMA. The responding material is relevant to the inquiry into whether there was adequate information before the Council when it made its ultimate Decision.
[33]I turn, then, to consider the submissions on adequacy of information.
Adequacy of information
[34] The overarching principle in judicial review is the duty upon decision-makers to know the essential facts and information before making a decision or lawfully exercising their discretion.26 There is no dispute in this case that a decision based on inadequate information must be susceptible to review, on general administrative law principles. The peripheral questions of whether “adequacy of information” for decisions under the RMA is a standalone ground of review or which standard applies to assess the adequacy of information remains the subject of debate.27
[35] In his supplementary submissions, Mr Cameron for the plaintiffs relies on Ennor v Auckland Council where Whata J reiterates that there must be adequate information upon which to make non-notification decisions, being a basic requirement of reasonable and procedurally fair decision-making.28 In a footnote, Whata J suggests that inadequate information may well trigger a proper ground of review.29
[36] The question as to whether inadequacy of information is a standalone ground of review appears to confuse, in my view, the previous statutory wording under s 93 of the RMA, with decisions which are based on insufficient information or facts.
26 Minister of Conservation v Māori Land Court [2009] 3 NZLR 465 (CA) at [114].
27 See Discount Brands, above n 9, at [25]–[26] and [114]–[116]; Auckland Council v Wendco [2017] NZSC 113, [2017] 1 NZLR 1008 at [47]; and Coro Mainstreet, above n 3, at [34]–[41]. It should be noted that these decisions are all referring to the consent authority’s decision to notify (or not) certain parties under the RMA, as opposed to the authority’s decision to grant the consent application in the absence of notification. For the purposes of this case, I consider the same analysis applies to both considerations.
28 Ennor v Auckland Council, above n 5, at [31].
29 At [31].
[37] Under the previous s 93 of the RMA, applications for resource consent required that once the consent authority was “satisfied” that it had received “adequate information” the application was to be served on named participants to whom the application related and persons likely to be directly affected, including adjacent owners and occupiers of land. The Supreme Court in Discount Brands Ltd v Westfield (NZ) Ltd, in assessing the approach to be taken to the adequacy of information under the former s 93, identified the approach to be taken by consent authorities.30 Section 93 was then amended in 2003 and the requirement of “adequate information” has been removed from the statute. In light of this, there has been doubt expressed as to whether the adequacy of information remains a separate reviewable element of a consent authority’s decision-making process on non-notification decisions.31 However, decisions based on wholly inadequate or insufficient information will always be amenable to judicial review, whether made in the RMA context or otherwise.32
[38] The most recent and highest appellate authority on what constitutes adequate information in the RMA context, as submitted by Mr Whittington for the Council, is Auckland Council v Wendco, where the majority of the Supreme Court said:33
[47] It is arguable that subsequent changes to the RMA mean that an approach to non-notification decisions which is less exacting than that required by Discount Brands should now be adopted. This is discussed in some detail in Coro Mainstreet (Inc) v Thames-Coromandel District Council. Given that the Court below proceeded on the basis of Discount Brands and we are satisfied that the Discount Brands standard was in fact met, we see the associated arguments as best left for another case.
[39] For the reasons which I set out below, I consider the Discount Brands standard is met in this case. Its effect on non-notification decisions generally and the scope of “adequacy of information” should therefore be left for another case.
30 Discount Brands, above n 9, at [114]–[116].
31 Auckland Council v Wendco, above n 27, at [47]; Coro Mainstreet, above n 3, at [34]–[41], Tasti Products Ltd v Auckland Council [2016] NZHC 1673 at [44]–[45]; Gabler v Queenstown Lakes District Council [2017] NZHC 2086 at [65]; and Mills v Far North District Council [2018] NZHC 2082 at [142].
32 Minister of Conservation v Māori Land Court, above n 26, at [114].
33 Auckland Council v Wendco, above n 27 (footnote omitted, emphasis added).
[40] The plaintiffs rely on Discount Brands Ltd v Westfield (NZ) Ltd to submit the Council had insufficient information to make the Decision. In that case, Blanchard J said:34
[114] So, in summary to this point, the information in the possession of the consent authority must be adequate for it: (a) to understand the nature and scope of the proposed activity as it relates to the district plan; (b) to assess the magnitude of any adverse effect on the environment; and (c) to identify the persons who may be more directly affected. The statutory requirement is that the information before the consent authority be adequate. It is not required to be all-embracing but it must be sufficiently comprehensive to enable the consent authority to consider these matters on an informed basis.
[115] The statutory requirement addresses more than the scope of the information. The consent authority must necessarily be satisfied as well that the information is reliable, especially so where an expert opinion is tendered. The authority will need to consider whether the author of the opinion is both appropriately qualified to speak on the subject and sufficiently independent of the applicant so as to be seen as giving expert advice rather than acting as an advocate for the applicant.
[41] In a number of subsequent cases, the High Court has proceeded on the basis that Discount Brands was still good law, despite the presumption in favour of notification being legislatively removed.35 In Ferrymead Retail Ltd v Christchurch City Council, Chisholm J said that the Court should not set the bar for consent authorities unrealistically high.36 An authority is not required to check every last detail or piece of underlying data, but if there was doubt about the reliability of the data in an application then further enquiry might be expected, with the nature of inquiry being a matter of judgment for the consent authority.37
[42] In this case, the Council had the further information it sought under s 92 of the RMA before it made its Decision on 21 December, nine months after the application was made. Thus, the Council had the relevant information before it when it made its Decision to grant resource consent and not notify it. That included the earthworks assessment and the information about the other three matters in contention, which informed the Council’s Decision. To clarify, nothing further turns on the s 88 argument
34 Discount Brands, above n 9.
35 Ferrymead v Christchurch City Council [2012] NZHC 358 at [92]; and Tasti Products Ltd, above n 31, at [48].
36 At [92].
37 At [92]–[103].
that the application was incomplete because the “further information” was before the Council at the time of the Decision.
[43] I turn, then, to consider the information which the Council had obtained to inform its Decision.
The information which informed the Council’s Decision
[44]The information before the Council comprised the following:
(a)resource consent application on the Council’s form;
(b)written approval in New Zealand Fire Service;
(c)assessment against district scheme requirements;
(d)the assessment of design and context;
(e)detailed design assessment;
(f)assessment of effects;
(g)photographs of existing site;
(h)architectural drawings;
(i)shading diagrams;
(j)topographical survey plans;
(k)detailed plans of recession planes at boundary;
(l)three-dimensional permitted baseline model and comparison with proposed dwelling;
(m)letter amending resource consent application;
(n)site management plan;
(o)earthworks methodology and stability assessment; and
(p)information from the plaintiffs’ surveyor, and the Owners’ surveyor on the accuracy of survey.
[45] The documentation comprised 219 pages. In addition to the material provided by Mr Lee who is an architect and one of the Owners, Ms Lord, the Council’s planner, did the following:
(a)conducted a site visit;
(b)met with the plaintiffs;
(c)received extensive correspondence from the plaintiffs;
(d)received representations from the plaintiffs’ planner;
(e)received correspondence from Mr Kuus, the plaintiff’s surveyor;
(f)received correspondence from Mr Cameron, the plaintiffs’ counsel;
(g)consulted with colleagues within the Council;
(h)received a traffic assessment from a Council traffic engineer;
(i)received an earthworks assessment from the Council’s earthworks engineer;
(j)received advice from the Council’s solicitors on the boundary issue; and
(k)received advice from a peer reviewer, Mr Dean.
[46] From her affidavit evidence, Ms Lord, who met with the plaintiffs, considered that the Owners’ application not only met the requirements of s 88, but that a greater level of detail and clarification was obtained through s 92, by way of requesting correspondence through the consent process, to enable the Council to make its Decision.
[47] Overall, I consider the Court’s approach in Discount Brands to adequacy of information was met here because:
(a)the information before the Council was adequate for it to understand the nature and scope of the proposed activity as it related to the District Plan;
(b)there was adequate information before the Council to assess the magnitude of any adverse effect on the environment;
(c)the Council could identify the persons who may be directly affected; and
(d)the Council was able to be satisfied the information was reliable.
[48] I turn, then, to consider the plaintiffs’ additional submission that the Owners’ application was prepared by Mr Lee, an architect and one of the Owners, not an appropriately-qualified planner. Mr Cameron submits that Mr Lee could not be considered to be giving expert advice, but was acting as an advocate in his own interests.
[49] I can deal with this point in short order. There is no requirement that a resource consent application must be prepared by a qualified planner, nor that resource consent applicants are not able to prepare their own applications. There is no provision within the RMA which suggests such restrictions should be applied to applicants, and nor is it supported by the evidence. Here, Mr Lee has undertaken an assessment of effects and has had experience in preparing resource consent applications.
[50] In Discount Brands, the Court sounded a caution that the consent authority will need to consider whether the information provided is reliable, especially if an expert opinion is given which is not independent of the applicant.38 However, the Court also said “[t]he information before the authority can be supplied by the applicant, gathered by the authority itself or derived from the general experience and specialist knowledge of its officers and decision makers concerning the district and the district plan.”39
38 Discount Brands, above n 9, at [115].
39 At [107].
[51] The fact that Mr Lee undertook the initial assessment of effects must be viewed in proportion to the scale of the activity and the significance of effects. This involves a single residential dwelling in a residential area. As a qualified and experienced architect, Mr Lee can supply information to the authority, in this case the Council, which in turn scrutinises the information by its specialist advisers, as it did here. Again, nothing turns on this point, as the Council subjected the application to rigorous assessment and required further information before it made its Decision.
Conclusion
[52] I find that the Council did not err in law by accepting the Owners’ application, as it complied with s 88 and sch 4 of the RMA and was considered to be complete. The further information sought by the Council was authorised under s 92 of the RMA, and was obtained before the hearing of the application for resource consent. I therefore find in making the Decision the Council had “adequate information” before it. That the application was filed by Mr Lee, an Owner but not a planner, is proportionate to the nature of the consent sought, that is, a dwelling house. His assessments were nevertheless subject to scrutiny by the Council’s specialist advisors, including Ms Lord, the Council’s planner.
[53]This ground of review fails.
Issue Two: Application of the rules and standards
[54] The next issue is whether the Council erred in its application of the rules and standards to the resource consent application and wrongly applied ss 92 and 104 of the RMA in granting the application.
[55] Under s 104 of the RMA, when considering an application for a resource consent, the Council must have regard to any actual and potential effects on the environment of allowing the activity,40 and any relevant provisions of a plan or proposed plan.41 The Council may disregard an adverse effect of the activity on the environment if a national environmental standard or the plan permits an activity with
40 Section 104(1)(a).
41 Section 104(1)(b).
that effect (the “permitted baseline”).42 The application of the permitted baseline by the Council is discretionary.
[56] The Council’s Decision records that because the proposal did not comply with standard 5.6.2.8 – Building Recession Planes of the District Plan, and the earthworks did not meet the permitted area of earthworks, overall the proposal was to be assessed as a Discretionary (Restricted) Activity under the District Plan.43 Because the application was for a Discretionary (Restricted) Activity, the Council’s discretion was limited to the effects of the standards not complied with, namely, the recession plane and earthworks.
[57]The Decision then noted:
In the assessment below the adverse effects of activities that are permitted by the relevant District Plan rules were disregarded. The applicant has demonstrated a dwelling up to 8m in height, complying with the building recession planes, site coverage and other standards in the district plan could be built as of right on this site … Disregarding permitted activity effects was appropriate in this case as the use of the permitted baseline is not fanciful and is consistent with the wider context of the District Plan and Part 2 of the Act.
[58] The plaintiffs submit that in the Owners’ application for consent, the measurements of the recession plane and the site coverage were incorrect. Therefore, they say, the permitted baseline concept allowed for in s 104(2) of the RMA should not have been applied, because although the application may have been “complete” under s 88 of the RMA, it was incorrect. The plaintiffs submit this amounts to an error of law.
[59] The defendants’ position is that the Council correctly applied the standards to the recession plane and site coverage and the permitted baseline assessment was available and appropriate. Both defendants submit that there is no error of law and the discretion to apply the permitted baseline is not amenable to review.
42 Section 104(2).
43 The Decision record that the proposal will breach the building recession plane on the northern boundary by 1.7 metres maximum and 1.54 metres on the southern boundary, while the earthworks did not meet the permitted area of earthworks of 250 metres square.
[60] It is important to restate that judicial review is not an opportunity to revisit the merits of a decision made by the Council, unless the decision-making process followed by the consent authority and its lawfulness is under consideration. The High Court is not exercising an appellate function on review.44
[61] I turn now to consider the three issues raised by the plaintiffs and their contention that there has been an error of law in the Council’s application of the standards and permitted baseline to this resource consent proposal.
The recession plane standard
[62] Recession planes are controls which define an envelope within which a complying building can be erected as of right. Standard 5.6.2.8.2 of the District Plan requires that “each recession control line shall rise vertically for 2.5 metres from ground level at the boundary and then incline inwards, at 90 degrees to the boundary in plan”. All buildings and structures, including fences and walls, are to be contained within such a building recession envelope. Under r 5.3.4 of the District Plan the construction of a residential building that does not comply with building recession plane standard is a Discretionary (Restricted) Activity.
[63] The flat roof design of the Owners’ proposal meant that although it was within the District Plan height limits, it exceeded the building recession plane standard on its northern and southern sides, as the Decision records. The disagreement between the parties is about the extent to which the proposal exceeds the standard on its southern side, due to the presence of a retaining wall on that side.
[64] Recession plane measurements are taken from ground level at the boundary. The District Plan provides “[w]here a retaining wall or retaining structure is located on the boundary the ground level shall be taken from the front surface of the retaining wall/structure at the boundary.” The location of the boundary between the development site and the plaintiffs’ property is therefore relevant because it determines the point of origin of the building recession plane site on that boundary.
44 Auckland Regional Council v Rodney District Council, above n 6, at [44].
[65] Based on information provided by the Owners’ surveyor, and by Mr Kuus, the Council determined that at no point does the retaining wall intersect with or occupy the same space as the property boundary; it sits fully within the Owners’ property. The plaintiffs’ argument is that this is incorrect, and the retaining wall between the two properties is “on the boundary” for the purpose of applying standard 5.6.2.8.2 of the District Plan. Therefore the measurement of the recession plane was incorrect. They point to the evidence of their surveyor, Mr Kuus, who has since given evidence that the back edge of the wall over the relevant section of the boundary is within 0.04 metres to 0.06 metres of the “infinitely thin boundary line”. They say it therefore lies within the “margin of error” of the New Zealand Institute of Surveyors’ guidelines for tolerances for building envelopes and is therefore on the boundary.45
[66] In its Decision, the Council specifically noted that the plaintiffs had raised concerns around the correct placement of the building recession plane in relation to the boundary and the close proximity of the retaining wall, relying on the recent High Court decision of Wellington City Council v Aitchison.46 The Decision records that the circumstances here are materially different from those in Aitchison. The Council found that the Owners have provided information to the Council from a registered surveyor that demonstrates that the back edge of the retaining wall is physically clear of the boundary line along the entire length of the boundary of the site. This measurement applied a survey tolerance of three centimetres.
[67] In Aitchison, the Court held that a retaining wall is “on the boundary” when the physical space occupied by the wall is “in contact with” the space theoretically occupied by the boundary, with some allowance for de minimis deviation.47 In that case, the bulk of the retaining wall was occupied by the same space as the boundary between the two properties, except at its ends, where it veered away from the boundary slightly. Here, as the Council and the Owners point out, the factual circumstances differ from Aitchison because the retaining wall does not intersect with the property boundary at all. Even applying a tolerance or margin of error of three centimetres, at
45 Donald F Mckay (ed) Land Title Surveys in New Zealand (2nd ed, New Zealand Institute of Surveyors, Wellington, 2009).
46 Wellington City Council v Aitchison [2017] NZHC 1264.
47 At [64].
no point along the length of the wall does it ever occupy the same space as the boundary.
[68] As stated, this Court is not exercising an appellate function on review, but is considering the decision-making process and its lawfulness. The Council has carefully reviewed the plaintiffs’ concerns and submissions, and reached its Decision on an assessment of the measurement of the building recession plane. I can find no error in the Council’s position that the existence of the wall and fence does not change the measurement of the recession plane, as they are close to but not “on” the boundary line. Its measurement of the recession plane was therefore open to it.
[69] In the absence of clear error, I do not uphold the plaintiffs’ submission that the Council erred in the measurement of the recession plane.
The site coverage standard
[70] The District Plan defines the site coverage as the “portion of the site area that may be covered by buildings and structures” but does not include “uncovered decks less than one metre above ground level” or “paths, driveways and other paved surfaces on the ground.”
[71] Under standard 5.6.2.4, site coverage for Outer Residential areas must not exceed 35 per cent, though this may be increased to 40 per cent if the extra site coverage comprises only uncovered decks over one metre high. Importantly, under r 5.3.4, the construction of a residential building that does not comply with the site coverage standard is a Discretionary (Restricted) Activity. If the total site coverage exceeds 42 per cent in the Outer Residential area, the construction of a residential building is a Non-Complying Activity under r 5.5.
[72] The plaintiffs submit that the Owners’ proposal exceeded the site coverage standard, as the initial proposal was at 37 per cent. Not only that, the plaintiffs assert that the total site coverage by buildings and structures, including uncovered balconies and the elevated driveway, gives a total of 47.9 per cent of the site. As such, they say the entire application should have been considered as a Non-Complying Activity,
rather than a Discretionary (Restricted) Activity. The plaintiffs submit this is a significant error of law.
[73] The Council submits that while the initial proposal may have been 37 per cent, in the final package of information provided by the Owners on 27 November 2017, the proposed dwelling had been reduced in size, and the site coverage had decreased from 37 per cent to 34.7 per cent. This reduction was made in response to the concerns raised by the plaintiffs. Ms Lord explains in her affidavit that the 34.7 per cent figure refers to the amount of site coverage without uncovered decks over one metre in height. She says:
Even though the proposal had been reduced, I needed to be clear whether the amended proposal complied with the site coverage rules. I queried with Mr Lee whether the site coverage was, in fact, greater than 35%. In response, on 7 November 2017 Mr Lee provided me with a diagram showing that the total site coverage, excluding the uncovered decks over 1 metre in height, was 34.7% … The diagram also confirmed that with the decks included, the total site coverage did not exceed 40%. I note that my decision report at page 8 records that site coverage is 34.7%. This figure obviously refers to the site coverage without the uncovered decks over 1 metre in height.
[74] There are a number of problems with the plaintiffs’ interpretation of the site coverage issue and the evidence. First, it is clear from their submissions that the plaintiffs’ calculation of 47.9 per cent includes uncovered decks. As the District Plan makes clear, these are excluded from the site coverage calculation. However, the site coverage standard may be increased from 35 per cent to 40 per cent if the extra site coverage comprises only uncovered decks over one metre in height. The Council ultimately accepted Mr Lee’s calculation of the site coverage as 34.7 per cent, with an additional 2.1 per cent for uncovered decks. Accordingly, the site coverage was within the 40 percent standard for permitted activities in the Outer Residential area.
[75] Second, in coming to the 47.9 per cent figure, Mr Kuus for the plaintiffs made the assumption that cladding had not been accounted for in Mr Lee’s calculations. This is incorrect. Ms Lord’s evidence is that the usual practice is to assume that cladding is included within the proposed plans. This is particularly because plans submitted with resource consent applications are usually at a concept level and often do not include details such as cladding. The Council must therefore rely on the plans as including cladding in the submitted calculations.
[76] Third, the plaintiffs figure of 47.9 per cent includes the driveway within the site coverage calculations. The plaintiffs submit that the proposed driveway is a “structure” for the purposes of the plan and therefore should be included in the site coverage as, to be excluded, it must be “on the ground”, and not on “backfill”, which the plaintiffs assert the Council understood it was to be. “On the ground”, they say, cannot include a situation where the ground level is altered by, for example, earthworks. The plaintiffs therefore submit the Council in the course of its Decision did not appreciate the site coverage issue, as the elevated driveway was incorrectly omitted, and the site coverage calculations are therefore incorrect.
[77] The evidence from Ms Lord clarifies that “raised, backfilled driveways that are effectively at a new ground level are excluded from site coverage. This is particularly because the earthworks component will either meet the permitted activity limits or will undergo assessment through an earthworks consent requirement, as was the case here.” On the basis of Ms Lord’s evidence, the driveway should not and was not considered to be part of the site coverage calculations. However, Mr Cameron for the plaintiffs argued that the Council did not consider that a portion of the driveway structure is over a void, being a constructed part of the driveway immediately before the garage that bridges a void beneath it.
[78] The Council did not include the area of the void in its site coverage calculations because the definition of “site coverage” excludes any part of a building or structure where the walls of that part are located below the surface of the ground, provided that the roof of that part does not project above the finished ground level at the completion of the building or structure. Here, the void is located below the surface of the ground. The Council says the void is covered by the roof that links the driveway to the garage and does not project above the finished ground level. On that basis, it is excluded for structures of this type.
[79] This Court is in no position to determine on judicial review whether the Council’s exclusion in those circumstances is correct. I am driven to the conclusion that, as Council submits, even if the exclusion from the definition did not apply, the site coverage standard provides that the 35 per cent allowable site coverage may be increased to 40 per cent if the extra site coverage comprises only uncovered decks
over one metre in height. Thus, if a proposal consists of a dwelling with 32 per cent site coverage and uncovered decks with eight per cent site coverage, it would comply with the standard nevertheless. The Council relies on the evidence which establishes that the relevant surface bridging the “void”, is 18.4 metres squared, or 2.9 per cent of the total site area. If that is added to the 34.7 per cent dwelling coverage and 2.2 per cent coverage made up by the other two uncovered decks, the total reached is 39.8 per cent. This is still less than the 40 per cent maximum and therefore compliant.
[80] I am satisfied that there is no error of law here. The process which the Council followed was guided by the rules under the District Plan and I can see no reviewable error into which the Council fell. Even if there was a factual error in the Council’s assessment of site coverage, it was an insignificant one that had no ultimate bearing on the correct legal application of the site coverage rules to the proposed dwelling. On any view of the evidence, the site coverage is less than the 40 per cent maximum and is compliant with the rules. Thus, the construction of the building as proposed is a complying activity under r 5.5.
[81] I therefore reject the plaintiffs’ submission that the proposed building exceeded the site coverage standard. There was no error of law by the Council.
The permitted baseline
[82] The permitted baseline is the existing environment overlaid with such relevant further activity as is permitted by the District Plan. Thus, if the activity permitted by the plan will create some adverse effect on the environment that adverse effect does not count in the s 104 assessment.48 It is part of the permitted baseline in the sense that it is deemed to be already affecting the environment.49 Whether or not the permitted baseline concept is to be applied is a discretionary decision under s 104(2) and ss 95A and 95B of the RMA.50
48 Arrigato Investments Ltd v Auckland Regional Council [2002] 1 NZLR 323 (CA) at [29].
49 At [29].
50 Rodney District Council v Eyres Eco-Park Ltd HC Auckland CIV-2005-485-33, 13 March 2006 at [106].
[83] The plaintiffs submit a credible permitted baseline needs to comply with the full package of permitted activity rules, including those for site coverage, vehicle access, set back from balconies and between houses, minimum areas of open space and side access to that space and height recession plane. They submit that in this case, the permitted baseline concept could not be applied because a further consent under the earthworks rules had to be obtained, and the building recession plane and site coverage were incorrectly measured. As such, the plaintiffs submit there was no discretion to apply the permitted baseline.
[84] In the event they are wrong on that point, the plaintiffs submit that the discretion should not have been used, for the following reasons:51
(a)the application did not provide for a permitted activity from which a reasonable comparison of adverse effects could conceivably be drawn;
(b)the permitted activity compared in this case to the adverse effects was not credible;
(c)the evidence regarding the proposal was never compared with a non- fanciful development under a relevant permitted activity such as to allow for an adequate comparison of adverse effect;
(d)the model compared is so different in kind and purpose within the plan’s framework that the permitted baseline ought not to be invoked; and
(e)the permitted baseline would have the effect of overriding Part 2 of the RMA.
[85] Finally, the plaintiffs submit that an application of the permitted baseline requires a consideration of whether the comparison of effects from the proposed dwelling are sufficiently similar to properly permit the exercise of the discretion in
51 These are all relevant considerations in assessing whether the permitted baseline should be invoked, as held in Lyttleton Harbour Landscape Protection Association Inc v Christchurch City Council [2006] NZRMA 559 at [19]–[21]. I note this decision was an appeal against the Environment Court’s decision, not a judicial review.
favour of the application of the permitted baseline concept. To undertake that exercise, there must be a comprehensive assessment of effects of the proposal to enable the actual effects of what is proposed to be compared with a genuinely permitted activity on the site. The plaintiffs submit the Council did not undertake that comparison in applying the permitted baseline concept. Again, the plaintiffs submit there was an error of law.
[86] The plaintiffs’ submissions, which are more in the nature of grounds of appeal, must fall away in light of my finding that the Council was not in error in applying the building recession plane or the site coverage standard. I accept the Council’s submission that the application of the permitted baseline does not require comparison with a hypothetical proposal that complies with the permitted activity limits in all respects. Instead, the permitted baseline identifies the level of adverse effects allowed to occur on land as of right. Further, the application of the permitted baseline is at the consent authority’s discretion. Unless the authority has exercised that discretion unlawfully, procedurally unfairly, or unreasonably, there is no reviewable error.
[87] That leaves the plaintiffs’ assertion that the permitted baseline could not be applied because consent was required for earthworks and it was absent from the application. The Council argues that earthworks did not come within the permitted baseline. So long as earthworks receive full and separate consideration, as they did here, after requiring the applicant to apply for resource consent and to supply amended earthworks plans, a site management plan, and an earthworks construction methodology, the Council’s earthworks engineer was able to conclude the effects would be less than minor.
[88] It is plain from the Decision that the proposed earthworks did not meet the permitted area of earthworks under r 30.2.1 of the District Plan, and for that reason the proposal was considered to be a Discretionary (Restricted) Activity. The earthworks effects were separately considered and following assessment by the Council’s earthworks engineer and the transport engineer, were found to be less than minor on the direct and wider environment.
[89] Again, I can find no error in the Council’s approach. The Council considered the earthworks effects and assessed them, giving reasons for its conclusions. There has been no identifiable error, as the Council specifically applied the baseline approach in accordance with the wider context of the District Plan and, as its Decision records, Part 2 of the RMA.
[90] On review, this Court should not be involved in the merits of the Council’s Decision. I reject the plaintiffs’ submission that the Council erred by not finding the proposal was contrary to the relevant provisions of the District Plan under s 104(1)(b)(vi) of the RMA, and that the application could be determined as a Discretionary (Restricted) Activity rather than a Non-Complying Activity. This again relates to whether there were errors in the calculations of the recession plane or the site coverage, and in the absence of finding that the Council’s Decision did not comply with the site coverage restrictions and building recession plane standards, there is no basis upon which to uphold the plaintiffs’ submissions.
[91] There is no reviewable basis upon which to disturb the conclusions reached by the Council. It is correct, as the plaintiffs submit, that their experts have a different view, but the fact that the plaintiffs disagree with the Council’s experts or dislike the result does not amount to reviewable error.
Conclusion
[92] I have found that the Council’s application of the recession plane standard and site coverage standard were applied without error and its application of the permitted baseline was lawfully available.
[93] The Council’s decision to disregard permitted activity effects was appropriate in this case. The nature and scale of development permitted on the site was not fanciful, as the proposal is for precisely the type of activity anticipated in the zone: a residential dwelling. Further, the application of the permitted baseline was consistent with the wider context of the District Plan and Part 2.
[94] There is therefore no error of law in the Council’s Decision to grant the application under s 104 of the RMA. These grounds of review are not upheld.
Issue Three: Notification decision
Public or limited notification
[95] The third issue is whether the Council, in failing to publicly notify or give limited notification of the application, made an error of law under ss 95A and 95B of the RMA and/or came to an unreasonable decision.
[96] In making its Decision, the Council used the notification provisions of the RMA that were in force as at 13 March 2017, when the Owners made their application (the “old” notification provisions). Since then, the Resource Legislation Amendment Act 2017 (the Amendment Act) amended the notification provisions (the “new” notification provisions). This Amendment Act came into force on 18 October 2017. The plaintiffs do not state which version they rely on, though it appears they have referenced the “new” notification provisions.
[97] It is the “old” notification provisions which apply to this decision under review. The Amendment Act inserted transitional provisions into sch 12 of the RMA to clarify the position for existing resource consent applications. Clause 12 of sch 12 provides that any amendment made by the Amendment Act does not apply in respect of an application for resource consent that, before the commencement of the amendment, has been lodged with a local authority but has not proceeded to the stage at which no further appeal is possible. Therefore, the “old” notification provisions in force prior to the Amendment Act continue to apply to the Owners’ application.
[98] To summarise the statutory scheme, the Council, as a consent authority, is required to determine whether a resource consent application should receive one of the following: public notification, limited notification or no notification.52 The Council has a discretion whether to publicly notify an application under s 95A(1) of the RMA. However, the Council must publicly notify the application if it decides that, under s 95D, the activity will have or is likely to have adverse effects on the environment that are more than minor.53 In so determining, the Council must disregard any effects on persons who own or occupy adjacent land to that on which the proposed
52 The Resource Management Act 1991, ss 95-95E as at 13 March 2017.
53 Section 95A(2)(a) and 95D.
activity will occur.54 The purpose of this exclusion is to prevent consideration at the public notification stage of effects that are personal to owners and occupiers of adjacent land. Those effects are different in nature and are instead expressly addressed through the limited notification assessment.55
[99] Further, the Council may publicly notify an application if it decides that special circumstances exist in relation to the application.56 Special circumstances are circumstances which make notification desirable despite the general provisions excluding the need for notification.57 Being aware of public opinion stacked against a contentious proposal will not determine whether “special circumstances” exist, but may be a contributing factor.58 If what is proposed is specifically envisioned by the District Plan, it cannot be described as giving rise to special circumstances.59
[100] If the Council does not publicly notify an application because it is not obliged to under s 95A(2) and it decides not to under s 95A(4), the consent authority must decide whether to give limited notification of an application to any “affected person” in accordance with s 95B. The Council must give limited notification to any affected person unless a rule or national environment standard precludes it.
[101] Under s 95E of the RMA, a person is an affected person in relation to an activity if the activity’s adverse effects on the person are minor or more than minor.60 In determining who is affected, the Council may disregard adverse effects on a person if those effects are permitted by rules in the District Plan.61 Despite the plaintiffs submissions, there is no similar provision for “special circumstances” in relation to limited notification in the version of the RMA that applies.
54 Section 95D(a).
55 Royal Forest and Bird Protection Society Inc v Kapiti Coast District Council [2009] NZCA 73 at [26]–[27].
56 Section 95A(4).
57 Murray v Whakatane District Council [1999] 3 NZLR 276 (HC) at 310.
58 At 310-311.
59 At 310–311, and see also Stephen Blakeley (ed) Resource Management (online ed, Thomson Reuters, at [A95A.05]).
60 Section 95E(1).
61 Section 95E(2)(a).
[102] Finally, the Council must not grant resource consent if the application should have been notified but was not.62
[103] The plaintiffs submit that, in determining that the resource consent application could be processed without public notification under s 95A of the RMA, the Council made errors of law in finding that the adverse effects of the proposal will be no more than minor and are effects permitted under the relevant plans. In addition to the alleged errors associated with the building recession plane, site coverage, and permitted baseline claims, the plaintiffs submit the Council failed to require the applicant to seek an earthworks consent as required by sch 4 of the RMA and thus failed to have regard to the effect that the granting of any earthworks consent may have had on the surrounding environment. Consequently, they allege that the Council did not have all the relevant information required to make the assessment on notification, and failed to consider all actual or potential adverse effects of the proposal relevant to public notification.
[104] I have already dealt with the plaintiffs’ submissions in relation to the earthworks consent under the previous issue. I find that the Council did have all the relevant information at the time of making its Decision both in granting the consent and doing so on a non-notified basis, including assessments on the earthworks construction methodology and management plan. I accept the defendants’ submissions that if the application were to be publicly notified, the Council would have had to decide that the effects on the environment, beyond the adjacent properties, would be more than minor. This is a single residential dwelling in a residentially- zoned site, and there is no evidence of effects that are more than minor. I find no error in the Council’s Decision not to publicly notify the application.63
[105] Turning to limited notification, the plaintiffs submit that Council’s consideration focused on affected “sites” and not “persons”, as required under s 95E(1). The plaintiffs say this was an error of law, relying on Tasti Products Ltd v
62 Section 204(3)(d).
63 This includes the Council’s finding that there were no “special circumstances” requiring public notification.
Auckland Council, where the Court held the Council’s focus on sites and not on persons was in error.64
[106] In its Decision, the Council identified that the proposal had the potential to affect residential amenity, causing shading, privacy, character, bulk and dominance effects, which affect persons not sites. The Council points out that persons were referred to as opposed to sites in numerous places in the Decision. The Council contrasts the facts in Tasti Products Ltd v Auckland Council where the consent authority’s consideration and conclusion was indeed focussed on sites.65 In Tasti, the Court held:
[57] Here, Midpoint’s application did not identify the owners/occupiers of adjoining sites… Moreover, there is nothing to suggest that the Council made any effort to identify the persons who owned or occupied other sites in the zone; nor did it consider whether or not it would have been unreasonable to require Midpoint to seek the written approval of those owners/occupiers pursuant to s 95E(3)(b). Rather, the Council’s decision suggests that its consideration was primarily focussed on “sites”.
[107] I consider the facts in Tasti are distinguishable from these. Wylie J found that the Council erred in its notification decision by considering sites, not persons, as required by s 95E(1); the Council did not consider potential reverse sensitivity effects other than noise; it applied the wrong test posed by s 95E(1); and it did not address the objectives and policies in the relevant planning documents.66 In this case, the chronology of events, since the Owners filed their application in March 2017 to the Council’s Decision on 21 December 2017, shows the steps the Council took to address the aspects of the Owners’ application which was causing concern to their neighbours, the plaintiffs, and the Council’s actions in visiting the plaintiffs at their home and communicating and liaising with the plaintiffs’ experts throughout. On a comparison of the facts in Tasti to these, I do not accept the plaintiffs’ submission that the Council considered the plaintiffs as sites rather than as persons, as required under s 95E(1) of the RMA.
64 Tasti Products Ltd, above n 31, at [53]–[58].
65 At [53]-[58].
66 Tasti Products Ltd, above n 31, at [85].
[108] I am also satisfied that the Council’s identification of potential shading effects were properly and adequately assessed, as the shading diagrams and the reasons in the Decision show. The Council reached a decision that the effects of the proposal will be minor. I can find no error in the decision-making process and there is no basis for a finding of Wednesbury unreasonableness.
[109] I turn, then, to the last submission raised in relation to the notification decision and that is an allegation by the plaintiffs that the Council predetermined its Decision and conflated the decision to grant consent under s 104 of the RMA with the notification decision.
Pre-determination/conflation of decisions
[110] The plaintiffs submit that the Council pre-determined the notification decision by requiring the application to address only effects which exceeded the perceived permitted baseline, and by conflating the decision to grant consent under s 104 of the RMA with the notification decision.
[111] The plaintiffs’ submission arises because the decision to grant consent under s 104 of the RMA is in the same decision as the notification decision. In this decision, I have referred to both as the Decision throughout. In Sydney Street Substation Ltd v Wellington City Council, Ellis J doubted the wisdom of the Council’s “conflationary practice”, to use the plaintiffs’ wording, where the reasoning in relation to the decision to notify the application is dependent on the reasoning in relation to the substantive s 104 decision.67 In that decision, the Council’s decision on notification was worded by reference to its ultimate conclusion as to whether it was going to grant or decline consent.68 However, that is not the case here. The issue of earthworks was given its own consideration in the notification decision, and this was not dependent on the substantive decision. I do not consider there has been conflation or predetermination. Although the notification decision is contained in the ultimate Decision, it is separately assessed under “Earthworks Effects”. The “effects on the environment” for the substantive decision were reached on a separate assessment, which found that the
67 Sydney Street Substation Ltd v Wellington City Council [2017] NZHC 2489 at [91].
68 At [51]–[53].
residential amenity effects on the neighbouring properties were considered to be less than minor. I also note there are other Council decisions in which the notification and substantive decisions have been made in the same documents, without adverse comment from this Court.69
[112] I do not uphold the plaintiffs’ submission that there has been predetermination, or the fact that the Decision contains the two separate decisions of notification and the substantive decision, that the Council has conflated the two.
Conclusion
[113] I find that the Council made no error of law in applying ss 95A and 95B of the RMA in its decision not to notify the application, nor is there any issue with predetermination or conflation. I can find no error in the decision-making process and the Council did not make an unreasonable decision.
Issue Four: Conditions of consent
[114] The final issue is whether the Council erred in failing to impose enforceable conditions of consent.
[115] The plaintiffs submit that the Council erred in law by imposing conditions which retained a discretion for future decisions and were therefore unenforceable. They say the conditions required consideration at the time of granting the application.
[116] Various conditions of consent allow for the approval of the design and the construction of earthworks to be provided later, on the basis that they be designed by a professional engineer. I consider the plaintiffs’ allegation that the Council has unlawfully delegated its judicial functions is misplaced here. Although the Council has asked a third party to complete the design requirements and standards on the assumption that the adverse effects of what will ultimately be designed will comply with the objectives, policies, and requirements of the plan, this is the function of the resource consent assessment process.
69 Millar v Ashburton District Council [2016] NZHC 3015 at [36]; and Seafield Farm v Hastings District Council [2018] NZHC 1980 at [33]–[34].
[117] I accept the Council’s submissions that a consent authority is not required to settle every detail of the conditions imposed. A condition may leave the certifying details to a delegate, using that person’s skill and expertise, but a council cannot delegate the making of substantive or arbitrative decisions. The Council submits the conditions are all of the former nature. These are known as “certifier” conditions, which have been held to be lawful.70
[118] In Turner v Allison, the Court of Appeal distinguished between “certifier” conditions, meaning those where the delegated task is to set a standard using expert skill and judgment, and “arbiter” conditions, meaning those where the delegated task purports to confer upon the delegatee the powers of an arbitrator and so goes beyond the power of the delegator to impose such conditions.71 Richmond J found that the consent conditions imposed by the Council in that case, which were to be carried out to standards set by the delegate by reference to her own skill and experience, did not confer upon her arbitral status or a judicial function.
[119] I consider the same analysis applies here. The approval of the design and the earthworks engineering plan falls within a skill and experience function and are not delegated arbitral or judicial functions.
[120] I find that the Council did not err in imposing consent conditions, which are both lawful and enforceable.
Relief
[121]The application for judicial review is declined.
Costs
[122]2B costs and reasonable disbursements are awarded to the defendants.
[123] If the parties cannot reach agreement on costs, counsel are to file memoranda not longer than 10 pages as follows:
70 Turner v Allison [1971] NZLR 833 (CA) at 855-857; and Olsen v Auckland City Council [1998] NZRMA (HC) at 70.
71 Turner v Allison, above n 70, at 855-857.
(a)The plaintiffs are to file a memorandum within 10 working days of this decision;
(b)The defendants are to reply within a further 10 working days; and
(c)The plaintiffs may reply within five working days.
Cull J
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