Associated Churches of Christ Church Extension and Property Trust Board v Auckland Council
[2014] NZHC 3405
•22 December 2014
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2014-404-001832 [2014] NZHC 3405
UNDER the Judicature Amendment Act 1972 IN THE MATTER
of a decision made pursuant to section
95A of the Resource Management Act
1991BETWEEN
THE ASSOCIATED CHURCHES OF CHRIST CHURCH EXTENSION AND PROPERTY TRUST BOARD
Plaintiff
AND
AUCKLAND COUNCIL Defendant
Hearing: 17 November 2014 Appearances:
HA Atkins and P Mason for Plaintiff
NMH Wittington for DefendantJudgment:
22 December 2014
JUDGMENT OF TOOGOOD J
This judgment was delivered by me on 22 December 2014 at 2:30 pm
Pursuant to Rule 11.5 High Court Rules
Registrar/Deputy Registrar
THE ASSOCIATED CHURCHES OF CHRIST CHURCH EXTENSION AND PROPERTY TRUST BOARD v
AUCKLAND COUNCIL [2014] NZHC 3405 [22 December 2014]
Table of Contents Paragraph
Number
Introduction and result [1]
Result [3] The factual background [6] The origins and history of the Old Homestead [6] Assessments of the building’s historical significance [8]
The physical state of the building [9]
The Parish’s plans for the building [11]
The events leading up to the present application for resource consent for removal
Steps taken to remove the building after resource consent granted
The resource consent application for permanent removal – the material before the Hearings Committee
[13] [20]
[24]
The Bollard Report [28]
The advice of the Council’s officers [35]
The policies and process for the decision about notification [37]
The decision of the Hearings Committee [41]
The grounds for the plaintiffs’ challenge to the decision to
require notification
[43]
The plaintiff ’s case for unreasonableness [44]
The defendant’s position [46]
The applicable principles for judicial review of a notification decision under s 95A
[51]
The nature of the review [51]
Decision required to be made in accordance with statutory purpose
Analysis of the Committee’s reasons for its decision to require notification
Was the Committee entitled to conclude s 95A(2)(a)
applies?
Was there a reasonable basis to require notification under s 95(1)?
[54] [57] [58] [67]
Table of Contents Paragraph
Number
Does notification in this case meet the RMA’s objective
of efficiency in the consent process?
Conclusion that decision to require notification was unreasonable
[69]
[70]
The other grounds for the plaintiff ’s application [71] The nature of the relief to be granted [73] Orders [76] Costs [77]
Introduction and result
[1] The Old Homestead at 92 Point Chevalier Road is a late-Victorian villa said to be one of only two houses remaining in Point Chevalier which were constructed before 1900. Its owner, the Associated Churches of Christ Church Extension and Property Trust Board (“the Trust Board”), has decided that it is so badly run down that it is no longer fit for its intended use and that renovation is not an economic prospect. The Trust Board wants to remove the building from its site and replace it with a new building having the same footprint and exterior appearance. It has applied to Auckland Council for resource consent to do so and says its consultants and the Council’s advisers agree that the application should be considered on a non- notified basis.
[2] The Hearings Committee of elected councillors, however, decided by a majority that the resource consent application should be publicly notified because the building would have a more than minor adverse effect on the environment. In this judicial review proceeding, the Trust Board challenges that decision and asks that it be set aside.
Result
[3] I have decided, for the reasons given below, that the Council’s decision to require public notification was unreasonable and that it should be set aside on the grounds that:
(a) There was no reasonable basis on which the Council could have concluded that removal of the building would have a more than minor adverse effect on the environment, so as to engage s 95A(2)(a) of the Resource Management Act 1991 (“the RMA”) and require notification.
(b)There is no evidence the Committee asked itself the essential question under s 95A(1) of the RMA, whether notification would be likely to result in the Council receiving further information relevant to the
issues for determination on the substantive application to remove the building.
(c) Public notification of the application is unlikely to produce any significant additional material on the issue of the age and heritage status of the building, or on any of the other issues relevant to the resource consent decision.
(d)The Committee’s decision to require notification is contrary to one of the purposes of 2009 amendments to the notification regime which was to increase efficiency in the consent process.
[4] I have decided also that the decision should not be referred back to the Committee for further consideration. In my view, reconsideration by the Committee on a proper basis would inevitably result in a decision that notification should not be required.
[5] Accordingly, in the orders made at the conclusion of this judgment, I set aside decision of the Hearings Committee (Resolution number HEA/2014/53) dated
11 June 2014. I direct the Council to process the plaintiff’s application for resource consent for permanent removal of the Old Homestead at 92 Point Chevalier Road, Point Chevalier forthwith on the basis that it is not required to be publicly notified.
The factual background
The origins and history of the Old Homestead
[6] According to research done in conjunction with the resource consent application, the Old Homestead was built in the 1880s on what was then farmland, probably as two cottages which were subsequently amalgamated into one dwelling. It was owned by the Hankin family for around 80 years until 1980, when the land (comprising two lots) and the building were purchased by the Trust Board which now holds it in trust for the benefit of the Point Chevalier Co-operating Parish (“the
Parish”).1 For the five years prior to the purchase, the Trust Board leased the property from the Public Trustee; so, for nearly 40 years, the Parish has operated the Old Homestead as a church and community centre.
[7] The dwelling underwent alteration during the Hankins’ ownership, with lean- to’s and outbuildings being added. A 200-seat auditorium or community lounge was added at the rear of the building shortly after the purchase by the Trust Board, and other alterations were undertaken.
Assessments of the building’s historical significance
[8] Although it is over 125 years old, the building has no heritage listing under the Historic Places Act 1993. In 2007, Council officers assessed it as not meeting the threshold for scheduling as a heritage building under the Auckland Isthmus Operative District Plan 1999; it rated only 27 points out of a total of 100 points available in the evaluation, being described, among other things, as “[s]omewhat familiar but not a landmark.” It is not listed as a building worthy of heritage protection in the Proposed Auckland Unitary Plan which came into effect on
30 September 2013. Two old and imposing magnolia trees situated immediately adjacent to the front verandah, however, are listed in the Schedule of Notable Trees in the Operative District Plan and the Proposed Unitary Plan.
The physical state of the building
[9] In 2010, the Parish commissioned a building survey which confirmed that the Old Homestead was no longer fit for purpose: among other things, it was shown to be borer-ridden and decaying, with inadequate electrical and other services; it was suspected that damaged asbestos was present in the deteriorating roof; the building lacked insulation; the front verandah was considered unsafe; and the foundations
were found to be unstable.
1 In this judgment, “the Trust Board” is most properly used to identify the owner of the building and “the Parish” to identify the occupier and manager of the building, and the operator of activities conducted within it. There is no practical distinction between the two entities.
[10] Furthermore, the evidence includes a letter, a copy of which was provided to the Hearings Committee, from a retired building contractor, Mr Ross Hasselberg, who was evidently familiar with the building. Mr Hasselberg’s view is that the building is in very poor condition, having been altered occasionally to suit the community needs over time. He observes that, apart from the verandah, the building was not in a very original state. He refers to the exterior comprising a mismatch of weatherboard profiles, of which many were showing signs of decay. He refers also to the exterior joinery, the verandah, and interior of the building as showing mismatches of styles and timber profiles, and different joinery resulting from extensive alterations.
The Parish’s plans for the building
[11] During 2011, the Parish considered its options for the building and decided it would renovate it, notwithstanding that restoration would require re-piling, repairs to the verandah, and the complete replacement of all interior walls, ceilings and floorboards. In February 2012, the Parish notified the local community of over
2,000 homes of its intention “to re-build the entire building, retaining the outside appearance and recycling materials where possible.” The proposed restoration received publicity in local newspapers during March 2012.
[12] After further consideration, however, the Parish decided that the restoration option would not be cost-effective. A decision was made in September 2012 to remove the Old Homestead and replace it with a new building which would retain the existing profile and would have similar external features (weatherboards, balustrades, fretwork, posts, and windows) and colour scheme to maintain the character and look of the old building.
The events leading up to the present application for resource consent for removal
[13] Under the Operative District Plan, the building could be demolished or removed from the site without the need for Council consent. A contract was entered into in March 2013 to sell the Old Homestead to a building removals company. The Parish then consulted with Council officials to obtain advice about what process it
should follow to remove the building and construct its replacement. It is apparent from the minutes of a pre-lodgement meeting between the Presbyterian minister for the Parish, the Reverend Sandra Warner; an architect engaged by the Parish; and Council officials, that the principal concern about the project was to protect the two historic magnolia trees. It was accepted that a resource consent application for the erection of a new building under the drip line of the scheduled trees would be required, and that application was filed on 5 September 2013.
[14] Although the application was made on a non-notified basis, the Parish circulated further information about the revised plan to remove the Old Homestead and replace it with a new building. It invited public attendance at an information meeting which was publicised through the Point Chevalier community email, a notice to users of the community facilities placed on the notice board at the Old Homestead, and a mailbox drop to immediate neighbours. The three members of the public who attended the meeting expressed their support for the project.
[15] On 15 October 2013, the resource consent application was granted on a non- notified basis, authorising the removal and rebuilding work within the drip line of the protected magnolias, subject to conditions related solely to the protection of the trees.
[16] The Parish was not aware, however, that restrictions in the Proposed Auckland Unitary Plan on the demolition of buildings which existed prior to 1944 had come into effect on 30 September 2013. Under the new controls, the Trust Board was obliged to apply for resource consent for the removal and/or demolition of the pre-1944 building. Although the new provisions had been in the public arena as part of the draft Unitary Plan since March 2013, Reverend Warner was not told of this potential requirement at the pre-lodgement meeting she held with Council officers in June 2013.
[17] Significantly, the consent document provided by the Council om 15 October
2013 informed the Trust Board, among other things, that the reasons for the consent were that:
(a) the works would have a “less than minor” adverse effect on the visual
amenity of the local area;
(b)any actual or potential environmental effects of the proposed activity would be “less than minor” provided the conditions of the consent were adhered to; and
(c) the granting of a consent would “not be contrary to the relevant objectives and policies of the Operative District Plan 1999, the proposed Auckland Unitary Plan or the Resource Management Act’s focus of sustainable management of physical and natural resources”.
[18] The resource consent also included a statement under the heading “Relevant Plan Provisions” that “[t]here are no new relevant matters that require consideration under the proposed Auckland Unitary Plan”.
[19] The consent decision noted, however, that the consent was “solely in respect of tree works” and that it conferred no rights or expectations in respect of any building or construction works. It was reasonable for the Trust Board to infer, however, that the removal of the old building had been approved by the Council, and that there was nothing in the Proposed Auckland Unitary Plan to prevent it.
Steps taken to remove the building after resource consent granted
[20] Preparatory steps were taken for the removal of the building, including demolishing a lean-to at the back of the building, the toilets, the kitchen and two chimneys. The roof was collapsed down for transport and the house was disconnected from its piles. On 6 November 2013, however, the Reverend Warner was informed by a senior compliance investigator with the Auckland Council that the Parish had to stop work on the site because “it did not have the proper consent to remove the building”. An abatement notice requiring the Parish to cease all activities immediately was served on 7 November 2013.
[21] Later that day, the building was inspected by Mr Richard Bollard, a senior heritage consultant for the Council. By the time of the inspection, the Old Homestead was off its piles, with the chimneys removed, sitting on the back of the removal company’s trailer. Mr Bollard inspected it to perform a heritage assessment.
[22] On 12 November 2013, although she had been told by Council staff that Mr Bollard’s heritage report was not available, Reverend Warner was contacted by a journalist from the New Zealand Herald, Mr Bernard Orsman, who said that an Auckland councillor had provided him with a copy of the draft report and that an article would be published about it the following day. Mr Orsman’s article of
13 November 2013 recorded that despite the protection afforded the building by the new heritage control, “a council spokesman said the [Parish] had arranged to move the building without consulting the council” and the old villa was sitting on a removal trailer. He reported that Mr Bollard had written a draft assessment saying that the building was “of considerable local significance warranting scheduling as [a] Category B” heritage building.
[23] The immediate solution to the dilemma imposed by the partial removal of the dwelling was that the abatement notice was cancelled and the Council granted temporary removal consent, pending a decision on a resource consent application for permanent removal. The building was taken to the removal company’s yard where it remains in storage.
The resource consent application for permanent removal – the material before the
Hearings Committee
[24] A resource consent application for the permanent removal of the building from the site was filed on behalf of the Trust Board, by a consultant planner Mr Childs, on 11 November 2013. The application included an assessment of environmental effects which corresponded with the scale and significance of the effects the proposed activity could have on the environment. The assessment related both to the question of whether the application should be notified and to the merits of the application. Mr Childs provided further information to the Council on
18 February 2014, and again on 5 May 2014.
[25] The application was placed on the agenda for the Council’s Hearings Committee on Wednesday 11 June 2014. The documents provided to the members of the Hearings Committee comprised 434 pages, including what Reverend Warner summarised as “nearly 400 supporting signatures from the public, 14 letters of support from community organisations, two letters of support from individuals, as well as a letter of support from the Albert-Eden Local Board” which is the Local Board for the Point Chevalier area.
[26] The letter from the Local Board was highly critical of the delays and what it considered to be the unfair manner in which the Council’s officers had dealt with the Parish’s application for resource consent. The letter included criticism of the requirement that the Parish should comply with the pre-1944 demolition controls in circumstances where the Parish had consulted Council officials prior to and during September 2013 without any Council officer referring them to the imposition of the controls with effect from 30 September 2013.
[27] The material which was provided to the Hearings Committee included the comprehensive plans prepared by the Parish’s architectural consultant for the construction of the replica building. So far as it is possible to tell from the drawings, the intention is to replicate the external appearance of the original building within the existing footprint and respecting the need for protection of the historic magnolia trees adjacent to the front verandah.
The Bollard Report
[28] After inspecting the building while it was sitting on the back of the removal trailer, Mr Bollard concluded that it warrants Category B scheduling under the Historic Heritage provisions of the Proposed Auckland Unitary Plan. He assessed the building as being “of considerable local historical value” as a tangible reminder of the early development of Point Chevalier. He said that the dwelling was “extremely rare if not unique in the area” and that it was an example of a “locally rare and endangered building.”
[29] Nevertheless, he noted that the architect/designer of the building was unknown and that the building had no early associations with any important persons or events. Moreover, Mr Bollard’s assessment of the historical significance of the building relied in part on the fact that in recent times the Parish had served the local community by making its buildings and facilities available. As to the social significance of the building, Mr Bollard noted that it was the leasing and ownership of the building by the Parish since 1974 which had increased the profile of the Old Homestead to the congregation and local community. He acknowledged that the attachment and community identification with the Old Homestead did not appear to relate to the building itself, and that extensive canvassing of community opinion around the removal of the original and its replacement seemed to have produced no significant objections. My examination of the material before the Committee satisfies me that, in fact, there was no evidence of any person having objected to the removal.
[30] Mr Bollard observed that the Herald article of 13 November 2013 on the future of the Old Homestead did not appear to have stimulated any debate or discussion, or letters to the editor. Mr Bollard assessed the physical attributes of the building as being a good representative example of the late Victorian vernacular cottage style. He said its method of construction, craftsmanship and use of materials was representative of the period. He referred to the overall design, the elaborate chimneys (removed by the time of the report), the Chicago windows, the decorated front door gable, and extensive use of rusticated weatherboards as setting the place above the more ordinary examples of the style.
[31] Mr Bollard’s comments about the design may be contrasted by those
expressed in Mr Hasselberg’s letter.2
[32] Mr Bollard considered that the aesthetic and contextual values had been of high significance until the demolition of the chimneys and the removal of the building onto the removal trailer. Of the eight significance criteria set out in the table included in his report, Mr Bollard rated the historical value as “considerable”
but, as I have observed, as much for the Parish’s contribution to the community
2 Referred to above, at [9].
through the use of the Old Homestead over 40 years as for its age and rarity. Under six of the significance criteria (social, knowledge, technological, physical attributes, aesthetic and context), the building was regarded as having only moderate value. The significance to mana whenua was not assessed, there being no evidence of any engagement with the property by local Māori.
[33] Mr Bollard’s lone opinion may be summarised, therefore, as arguing that what he considered to be the considerable historical significance of the building was related to its age, its rarity as an example of late-Victorian architecture, and the widespread community use to which the building had been put by local residents since the mid-1970s.
[34] Mr Bollard was not qualified to express a view about the effect of the removal on the environment in terms of the RMA or the need for notification of the resource consent application, and did not do so.
The advice of the Council’s officers
[35] Significantly, however, the Council’s consultant planner, Mr Craig Magee, agreed with Mr Childs that the application should be dealt with on a non-notified basis because it would have no more than a minor adverse effect on the wider environment and a less than minor effect on persons located on adjacent sites. Mr Magee’s advice to the Hearings Committee was based on a consideration of all material factors, including Mr Bollard’s assessment. The advice noted that, externally, the replacement building would be a replica of the building to be removed but with an improved internal layout that better provides for the established Church activities.
[36] It appears from the material provided to the Hearings Committee that of all of the people, including professional advisers, who provided evidence or information to the Committee, Mr Bollard was the only one expressing a view which might arguably support public notification of the removal application.
The policies and process for the decision about notification
[37] The Council’s hearings policy includes provision for the allocation of decision-making responsibility between elected members, independent commissioners and staff. This includes procedural decisions about whether to notify resource consent applications publicly. The policy requires that, in deciding who is the most appropriate decision-maker, the Hearings Committee would take into account recommendations from staff, the significance of a particular matter, and whether it is contentious.
[38] One of the officers’ reports before the Hearings Committee indicated that the application by the Parish fell into the definition of a contentious application “due to different perspectives between elected officials and the building’s previous media coverage”. No evidence of the perspectives of elected officials was provided. Moreover, the “previous media coverage” merely reported the events without editorial comment as to the merits of the removal and, as Mr Bollard observed, it generated no public discussion.
[39] Nevertheless, the view that the application was contentious meant only that the Hearings Committee should determine in accordance with its policy whether the application should be notified or the substantive decision on the resource consent application should be delegated to an independent commissioner or commissioners.
[40] The recommendations to the Hearings Committee included an observation:
(a) that the application was supported by the Albert/Eden Local Board
Planning chairperson on behalf of a Local Board; (b) that there were no adversely affected parties;
(c) that extensive informal public consultation had been undertaken and that a petition signed by persons from the local community and letters of support from local groups and residences supported the application.
The decision of the Hearings Committee
[41] Nevertheless, in Resolution number HEA/2014/53 dated 11 June 2014, the Hearings Committee decided by a majority that the application to remove the Old Homestead and construct a replacement building should be publicly notified pursuant to s 95A of the RMA because:
(a) The building had considerable heritage and historic significance within its local context.
(b)The removal of the building had the potential to destroy the historic connection between the heritage building and the local area and result in more than minor adverse effects on the local Point Chevalier and wider Auckland environment.
[42] The Hearings Committee appointed three people to hear submissions and to make a decision on the application under s 104 of the RMA, and appointed one of those people to determine the application if no hearing is required.
The grounds for the plaintiffs’ challenge to the decision to require notification
[43] It is against that background that the Trust Board challenges the Hearings Committee’s decision (which must for all purposes be regarded as a decision of the defendant Council) as having been made:
(a) for an improper purpose; (b) for an unlawful purpose; (c) irrationally;
(d) unreasonably; and
(e) in breach of the Parish’s legitimate expectation.
The plaintiff ’s case for unreasonableness
[44] The plaintiff argues that there is “a wide gap” between the evidence provided to the Hearings Committee and the Committee’s decision. It says that the reasons for the decision did not address the gap, leading to the conclusion that there were no reasons which could reasonably support the decision to require notification.
[45] Essentially, the plaintiff’s position is that the Council’s decision was unreasonable in that:
(a) it was not based on the available evidence;
(b) it departed from the recommendations of those advising the Council;
and
(c) it failed to provide reasons for not following those recommendations.
The defendant’s position
[46] Responding to the criticism by Ms Atkins, counsel for the plaintiff, that it is not clear from the Committee’s decision whether it was based on an application of s 95A RMA, the Council argues that it is clear that the provision was and is the only relevant provision of the legislation.
[47] Section 95A provides:
Public notification of consent application at consent authority's discretion
(1) A consent authority may, in its discretion, decide whether to publicly notify an application for a resource consent for an activity.
(2) Despite subsection (1), a consent authority must publicly notify the application if—
(a) it decides (under section 95D) that the activity will have or is likely to have adverse effects on the environment that are more than minor; or
(b) the plaintiff requests public notification of the application; or
(c) a rule or national environmental standard requires public notification of the application.
(3) Despite subsections (1) and (2)(a), a consent authority must not publicly notify the application if—
(a) a rule or national environmental standard precludes public notification of the application; and
(b) subsection (2)(b) does not apply.
(4) Despite subsection (3), a consent authority may publicly notify an application if it decides that special circumstances exist in relation to the application.
[48] The plaintiff does not claim that public notification was precluded by the application of s 95A(3). The Council’s position, therefore, is that the decision to require notification was made under s 95A(2) on the ground that the activity will have or is likely to have adverse effects on the environment that are more than minor. Alternatively, it is argued that the Council was entitled to require notification in the exercise of its general discretion under s 95A(1).
[49] The Council submits that there was evidence on which the Hearings Committee could reasonably decide that the adverse effects of the removal and replacement of the original building were more than minor. It contends that the potential adverse effects relating to heritage and historic significance were matters upon which the publicly elected members of the Committee were well placed to determine in the context of the notification decision.
[50] The Council also argues that:
(a) there is no basis for what it describes as a “nonsensical” allegation
that the decision was made for an unlawful purpose;
(b)the decision by the Council to not follow the recommendation of its advisers about notification does not make the decision irrational or unreasonable; and
(c) the Council applied s 95A of the RMA in good faith, based on an assessment of relevant facts and taking into account the recommendations of its advisers.
The applicable principles for judicial review of a notification decision under s 95A
The nature of the review
[51] Counsel engaged in a preliminary debate about the appropriate degree of intensity of the Court’s review of a decision under s 95A RMA to require notification of a resource consent application. The argument focused on whether the judgment of the Supreme Court in Discount Brands Ltd v Westfield (NZ) Ltd3 remains good law for the application of notification provisions under the RMA, having regard to subsequent legislative changes, and to the effect of the obiter observations of O’Regan P in in Coro Mainstreet (Inc) v Thames-Coromandel District Council.4 I note that the discussion in Coro Mainstreet was related to the intensity of review required for Council decisions not to notify applications. It is arguable that where a non-notification decision has been made, considerations of natural justice and the right of members of the public to be heard on decisions arguably affecting them might require greater scrutiny than where the decision is for notification. I express
no view on that point, however.
[52] I do not need to address these issues in the present context. In my view, the principles to be applied to the plaintiff’s contention that the Council’s decision in this case was unreasonable are well settled and follow the Wednesbury test.5 The Council’s decision may be set aside if the decision was so irrational that no decision
maker, acting reasonably, could have arrived at that decision.6
3 Discount Brands Ltd v Westfield (NZ) Ltd [2005] NZSC 17, [2005] 2 NZLR 597.
4 Coro Mainstreet (Inc) v Thames-Coromandel District Council [2013] NZCA 665, [2013] NZRMA 73 at [41].
5 Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223; [1947] 2
All ER 680 (CA).
6 See the discussion of Wednesbury unreasonableness in Wellington City Council v Woolworths
New Zealand Ltd [1996] 2 NZLR 537 (CA); Videbeck v Auckland City Council [2002] 3 NZLR
842 (HC) at [29], [32].
[53] While judicial review of the Council’s decision does not require or permit the Court to determine the merits of the decision, an assessment of the merits will be called for if there is a tenable argument that the decision was one no reasonable Council could have made. The merits must also be assessed, if it is determined that the Council has erred and the decision should be set aside, in considering the remedy. Here the plaintiff seeks an order directing the Council to process the application on the basis that notification is not required because there are no grounds upon which the Council could reasonably conclude otherwise.
Decision required to be made in accordance with statutory purpose
[54] The Proposed Auckland Unitary Plan provides, in r J.3.6.2, that “an application for the total demolition, substantial demolition or removal of a building constructed prior to 1944 will be subject to the normal test for notification under the relevant section of the RMA”. That means that the considerations to be taken into account are those described in s 95A which, themselves, must be applied in light of the general purposes of the RMA.
[55] The rationale for the notification provisions of the RMA must be understood with reference to the overarching purpose of the Act itself, which is the sustainable management of natural and physical resources.7 Section 5(2) of the RMA defines sustainable management as:
(2) Managing the use, development, and protection of natural and physical resources in a way, or at a rate, which enables people and communities to provide for their social, economic, and cultural well- being and for their health and safety while –
(a) sustaining the potential of natural and physical resources (excluding minerals) to meet the reasonably foreseeable needs of future generations;
(b) safeguarding the life-supporting capacity of air, water, soil, and ecosystems; and
(c) avoiding, remedying, or mitigating any adverse effects of activities on the environment.
7 RMA, s 5(1).
[56] The process of notification is tied to this purpose in that it allows the consent authority, so far as possible, to have access to all relevant information in order to make a determination as to the environmental impact of a proposed action. Public notification allows the authority to gather information from people who are likely to be affected by the proposed action, and gives those people a right to be heard.8 In general terms, where a consent authority exercises a discretion to decide whether to publicly notify an application for a resource consent for an activity, notification should be made where it will assist the objective of sustainable management.
Analysis of the Committee’s reasons for its decision to require notification
[57] It is helpful to repeat that the Hearings Committee decided that the application to remove the Old Homestead and construct a replacement building should be publicly notified for the reasons that:
(a) The building has considerable heritage and historic significance within its local context.
(b)The removal of the building has the potential to destroy the historic connection between the heritage building and the local area and result in more than minor adverse effects on the local Point Chevalier and wider Auckland environment.
Was the Committee entitled to conclude s 95A(2)(a) applies?
[58] Although they are not written conjunctively, I do not understand the two paragraphs as stating separate grounds for the decision. It is clear that they are intended to be read together as addressing the criterion under s 95A(2)(a) of whether the application would have a more than minor adverse effect on the environment.
[59] The reference to “considerable heritage and historic significance within its
local context” in relation to the building was taken directly from Mr Bollard’s report. Mr Bollard’s conclusion to that effect was based on two propositions: first, that the
8 See the general discussion about the purposes of public participation by Keith J in Discount
Brands Ltd, above n 3, at [46].
building was only one of two in the Point Chevalier locality built before 1900 and, second, the use to which the building had been put by the Parish over the past
40 years.
[60] The removal of the original building with a view to replacing it with a very close, if not exact, replica at which the activities of the Church would continue to serve the community will result in the continuation of what what Mr Bollard accepted was an historic use of a building providing an example of late-Victorian architecture. Consideration of that aspect of the heritage and historic significance attached to the building by Mr Bollard could not reasonably result in a conclusion that the adverse environmental effect was more than minor since the removal of the original building would not affect it.
[61] It follows that the basis for the Committee’s decision must have been that removing from the site a building erected in 1880 had the potential to result in a more than minor adverse effect on the environment merely because it was one of the two oldest buildings in the local area.
[62] The Committee did not refer to any evidence which supported that view, and I do not accept the submission that the heritage values of a community are matters which elected members of a local authority were best placed to determine without reference to evidence and the purposes of the legislation. In making the decision, the Committee members were entitled to bring their own perspectives to bear on the information provided, but they were not permitted to decide such matters on a whim.
[63] Furthermore, the Committee reached their conclusion despite the many contra-indicators:
(a) The building is clearly no longer in its original state.
(b)The nature of the decay and disrepair of the building is such that the extensive renovations necessary to restore it for continued use would restore its appearance only, not the integrity of the original structure.
Retention of the appearance is what is proposed by the Parish in its design of the replacement building.
(c) The description of the building as a “heritage building” is inconsistent with prior determinations that it scores poorly in the assessments for heritage status, does not qualify as such, and does not merit protection.
(d)It is evident from the petition signed by hundreds of members of the community and the letters of support that local residents have no affinity for the building itself, a factor recognised by Mr Bollard in his report.
(e) There is no evidence that the removal of the building would have an adverse effect of any kind on the occupants of neighbouring properties or the local area generally.
(f) There was no public response to the Herald article, which merely reported the circumstances and did not in itself contain any criticism of the Parish’s proposals.
(g)The view of Council staff that the removal of the building would not have an adverse effect on the environment that was more than minor was based on what Mr Magee described as a thorough analysis of numerous expert reports, site meetings with the plaintiff, informal public consultation in the form of petitions of support and Albert/Eden Local Board support for the proposal.
[64] I have not decided that a council needs to explain in every case why it has made a decision to depart from the advice of officers. The need for proper written reasons for transparency and accountability purposes are well recognised. Had the Committee failed to give any reasons for its notification decision, this would amount
to a “proper and distinct ground of judicial review” capable of setting aside the
Committee’s decision. 9
[65] The absence of reasons addressing and rebutting the carefully articulated views of the expert advisers in this case, however, leads to an inference that they were disregarded by the Council.
[66] I am satisfied that the Committee’s decision that s 95A(2)(a) applied could only have been reached on the basis that the Committee failed to take into account the compelling evidence and advice to the contrary. It was not a decision a reasonable committee could have made in the circumstances.
Was there a reasonable basis to require notification under s 95(1)?
[67] Nevertheless, it was open to the Committee to consider whether notification should be required in the exercise of its general discretion under s 95A(1); that is, whether notification would serve a useful purpose related to the objectives of the RMA. The essential question the Committee was required to ask itself was whether notification would be likely to result in the Council receiving further information relevant to the issues for determination on the substantive application to remove the building. There is no evidence that it did so.
[68] There may be a concern among elected members of the Council about the proposal to remove an old but decaying building from the site, and the Council will have the opportunity to address that issue in considering the resource consent application. The large volume of material which the Committee had before it included Mr Bollard’s report containing detailed information about the history of one of the two oldest buildings in Point Chevalier. I am satisfied, therefore, that public notification of the application is unlikely to produce any significant additional material on that issue, or on any of the other issues relevant to the substantive
decision.
9 Lewis v Wilson & Horton Ltd [2000] 3 NZLR 546 (CA) at [87]. See also, Discount Brands Ltd,
above n 3, at [56]; Hanna v Whanganui District Council [2013] NZHC 1360, (2013) 17 ELRNZ
314 at [14]-[15].
Does notification in this case meet the RMA’s objective of efficiency in the consent process?
[69] The conclusion that the Committee’s decision was not one that it could reasonably have made is supported by reference to the 2009 amendment to the RMA which was designed to increase efficiency in the consent process.10 The Court of Appeal in Coro Mainstreet held that the amendment was intended by Parliament “to provide greater certainty to councils in relation to non-notification decisions and to facilitate the processing of resource consents on a non-notified basis”.11 The Court pointed to various factors in support of this interpretation, such as the fact that the presumption in favour of notification had been removed and was replaced with a discretion whether to notify an application.12 The amendment provides limited scope to challenge Council’s decisions not to notify. If Parliament’s intention was to allow things to be done more speedily, requiring notification when it is pointless runs contrary to the purpose of the 2009 Amendment Act.
Conclusion that decision to require notification was unreasonable
[70] I have decided that the Council’s decision to require notification was
unreasonable and that it should be set aside:
(a) The Committee’s decision that s 95A(2)(a) applied could only have been reached on the basis that the Committee failed to take into account the compelling evidence to the contrary. There was no reasonable basis on which the Council could have concluded that removal of the building would have a more than minor adverse effect on the environment, so as to engage s 95A(2)(a) and require notification.
(b)There is no evidence the Committee asked itself the essential question under s 95A(1), whether notification would be likely to result in the Council receiving further information relevant to the issues for
determination on the substantive application to remove the building.
10 The Resource Management (Simplifying and Streamlining) Amendment Act 2009.
11 Coro Mainstreet, above n 4, at [40].
12 At [39].
(c) Public notification of the application is unlikely to produce any significant additional material on the issue of the age and heritage status of the building, or on any of the other issues relevant to the resource consent decision.
(d)The Committee’s decision to require notification is contrary to one of the purposes of 2009 amendments to the notification regime which was to increase efficiency in the consent process.
The other grounds for the plaintiff ’s application
[71] Having concluded that the decision to require notification should be set aside on the grounds of unreasonableness, I do not need to discuss the other grounds relied upon by the plaintiff. I am satisfied, however, that although I have held that the Committee’s decision was unreasonable, there is no basis for a conclusion that the decision had an unlawful or improper purpose.
[72] Furthermore, I am not persuaded in the present context that the argument based on legitimate expectation adds anything to the nature of the enquiry the Court is required to undertake in the judicial review of an administrative decision.
The nature of the relief to be granted
[73] Because the notification decision was unreasonable it should be set aside.
[74] I am required to consider whether the decision should be referred back to the Committee for further consideration. I would do so if the matter was open for balanced reconsideration but I have concluded that it was unreasonable for the Committee to decide notification was required by s 95A(2)(a), and that no reasonable committee could decide under s 95A(1) that notification would meet the purposes of the RMA.
[75] Since reconsideration by the Committee on a proper basis would inevitably result in a decision that notification should not be required, I will direct that the
application for resource consent shall be processed by the Council on a non-notified basis. In view of the delays to date, that should occur forthwith.
Orders
[76] Accordingly I order:
(a) The decision of the Hearings Committee (Resolution number
HEA/2014/53) dated 11 June 2014 is set aside;
(b)The Council shall process the plaintiff ’s application for resource consent for permanent removal of the Old Homestead at 92 Point Chevalier Road, Point Chevalier forthwith on the basis that it is not required to be publicly notified.
Costs
[77] The plaintiff is entitled to costs. If the parties cannot agree, the plaintiff shall have until 30 January 2015 to file and serve a memorandum. The defendant shall have until 20 February 2013 to file and serve a memorandum in reply. Unless the Court directs otherwise, costs shall be determined on the papers.
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Toogood J
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