Classic Developments NZ Ltd v Tauranga City Council
[2020] NZHC 945
•8 May 2020
IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY
I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE
CIV-2019-470-000097
[2020] NZHC 945
UNDER the Judicial Review Procedure Act 2016 BETWEEN
CLASSIC DEVELOPMENTS NZ LTD
Plaintiff
AND
TAURANGA CITY COUNCIL
First Defendant
FELTON DEVELOPMENTS LIMITED
Second Defendant
Hearing: 3 March 2020 Appearances:
K Barry-Piceno for Plaintiff
M G Conway and T R Fischer for First Defendant V J Hamm and T J Conder for Second Defendant
Judgment:
8 May 2020
JUDGMENT OF VENNING J
This judgment was delivered by me on 8 May 2020 at 3.30 pm, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date……………
Solicitors: Max Hamilton, Tauranga
Simpson Grierson, Auckland Holland Beckett Law, Tauranga
Counsel: K Barry-Piceno, Mt Maunganui
CLASSIC DEVELOPMENTS NZ LTD v TAURANGA CITY COUNCIL [2020] NZHC 945 [8 May 2020]
Introduction
[1] Classic Developments NZ Ltd (Classic) seeks to judicially review decisions of the Tauranga City Council (TCC) relating to the grant of a land use consent RC26847 for a retail commercial development applied for by Felton Developments Ltd (Felton).
[2] Classic challenges both the decision to not notify Felton’s application for the consent and also the substantive decision granting the consent.
The parties
[3] Classic is a property developer with its head office in Tauranga. Classic and its affiliated companies purchase, develop and sell residential and commercial land. Classic has purchased and developed land in the Papamoa Medium Rise Plan area (PMRP) of the TCC’s City Plan (TCC Plan).
[4] Felton is also a residential, commercial and industrial developer. The decisions in issue relate to one of its developments on an area of land of approximately 1.274 ha within the PMRP which runs from the Sandhurst Drive interchange off State Highway 2 to 520 Gloucester Road (the site). Classic owns an area of land in the vicinity of the site and within an area known as the Coast Commercial Area. Classic’s development includes a supermarket.
[5] TCC is a territorial authority as defined by s 5(1) of the Local Government Act 2002.
Existing consent and former applications
[6] The proposed development only takes up part of the site. In October 2014, Felton obtained resource consent RC24137 (the first consent) for a childcare and health centre on part of the site. The first consent was for a multi-staged project. Stage 1 consisted of the childcare centre and stage 2 consisted of the health centre. The area of land involved in the first consent was 4,258 m². In September 2015, the first consent was varied to increase the ground floor area of the childcare centre. The childcare
centre has been built and is in operation. The health centre has not yet been established.
[7] In early 2017, Felton applied for resource consent RC25777 to develop a mixed-use retail convenience shopping centre on the site, including a supermarket and 16 apartments (the second application). The second application was publicly notified on 15 May 2017. A number of submitters (including Classic) opposed it. A hearing was set for 26 and 27 April 2018. At Felton’s request the hearing was vacated. The second application was subsequently withdrawn.
[8] In early December 2018, Felton then made application for the resource consent in issue in this proceeding (the current application). The current application is for a retail convenience centre including the construction of a purpose-built building with a gross floor area totalling 1,100 m² to be divided into a number of separate tenancies. The development also requires consent for a number of associated activities such as signage, carparking, vehicle access, landscaping and ancillary earth works.
[9] Felton’s current application was treated as an application for a non-complying activity for the establishment of a business activity within the TCC’s suburban residential zone under r 14B.8(e) and table 14B.1 of the TCC’s Plan.1
The decisions in issue
[10] On 21 March 2019, the TCC resolved, pursuant to ss 95A and 95B of the Resource Management Act 1991 (RMA), that the application for resource consent made by Felton to establish a convenience centre at the site be processed without notification (the notification decision).
[11] The notification decision followed a recommendation and assessment by Ms Ladyman, the Senior Environmental Planner employed by TCC. The notification decision was made by Mr Miles, the Manager, Environmental Planning. The decision recorded:
1 Consent was also required to the application for restricted discretionary activities in relation to car parking, new vehicle access, earthworks associated with a non-complying activity and for signage under TCC Plan, rr 4B.4(b), 4B.4(d), 4C.3 and 4D.3.
Having regard to the criteria in s 95A(3) public notification is not required. Notification is not precluded by any of the criteria in sections 95A(5) or 95B(6) nor is the activity subject to a rule or national environmental standard that requires notification. The application does not relate to land that is the subject of a statutory acknowledgement, nor does it affect protected customary rights groups or customary marine title groups (s95B(3)) and there has been no request made by the applicant for the application to be publicly notified.
In relation to section 95A(8)(b) and 95B(8) of the RMA it has been determined that the establishment of the convenience centre will not have adverse effects on the environment that are more than minor and there are no affected persons. The effects of existing environment established by the childcare centre and health centre and the permitted baseline of 21 dwellings have been taken into account when assessing the effects of the convenience centre. … the proposed development will be serviceable and will avoid adverse effects on the transportation network. In relation to the residential amenity of the surrounding area, the separation distances and the landscaping provides mitigation to the visual effects of the building and car parking area by breaking up the built form. For these reasons notification of the application is not required.
[12] The decision on the application itself was made on 11 June 2019 (the substantive decision). Again, it followed the recommendation by Ms Ladyman. Mr Miles made the substantive decision acting under delegated authority. The reasons for the decision recorded:
The activity is described in the application … entitled ‘Convenience Retail Development at Sandhurst Drive and Gloucester Road Papamoa’ dated December 2018 and further information received 15 & 19 February 2019 and
4 March 2019.
It has been determined that allowing this activity, subject to the conditions set out … will result in adverse effects that are no more than minor and avoid any unacceptable actual and potential effects on the environment. It has been assessed that the effects of the convenience centre are compatible with the suburban residential character and amenity and the consented Healthcare provides a baseline level of non-residential effects that have been disregarded. Although the built form is commercial in appearance, the combination of; landscaping, cladding materials, modulation of built form, restrictions of illumination on site and building setbacks mitigates the non-residential appearance of the development.
It has been assessed that the development provides convenience retail services which are not provided for within this catchment. The development being convenience in nature providing pop-in retail tenancies and healthcare activities are services that are used by the wider public and not exclusive private offices or large scale businesses. The convenience retail and health services provide a community support for day to day requirements. The restrictions on what tenancies can be established and the tenancy sizes assists in managing the effects of a non-residential development to an acceptable level.
The activity is considered to be consistent with the relevant provisions of the Tauranga City Plan and the Bay of Plenty Regional Policy Statement. Particular regard has been given to the outcomes sought under Tauranga City Plan objectives 14A.1.3, 14B.1.1, 14B.1.2 and 17A.5.2 the actions described under the associated policies 14A.1.3.1, 14B.1.1.1, 14B.1.2.1 and 17A.5.2.1. For these reasons it has been determined that granting this application will be consistent with purpose and principles of the Act as set out under Part 2. Conditions as appropriate under section 108AA of the Act shall ensure the activity proceeds as per the application documentation.
[13]There then followed a series of conditions.
[14] Classic became aware of the decisions on 9 August 2019. It issued these proceedings on 18 October 2019.
The challenge to the decision
[15]Classic challenges the decisions on a number of grounds:
(a)First cause of action: errors of law – failure to provide adequate reasons;
(b)Second cause of action: illegality – failure to make a decision;
(c)Third cause of action: failure to consider relevant considerations and taking into account irrelevant considerations;
(d)Fourth cause of action: unreasonableness – the decision that adverse effects on the plaintiff were not minor or more than minor was unreasonable; and
(e)Fifth cause of action: illegality - the resource consent decision was illegal.
Approach to judicial review
[16] The approach the Court should take to an application for judicial review of a decision to grant a resource consent was confirmed by the Court of Appeal in Pring v Wanganui District Council:2
… It is well established that in judicial review the Court does not substitute its own factual conclusions for that of the consent authority. It merely determines, as a matter of law, whether the proper procedures were followed, whether all relevant, and no irrelevant, considerations were taken into account, and whether the decision was one which, upon the basis of the material available to it, a reasonable decision-maker could have made.
[17] In relation to the challenge to notification, the position was summarised by this Court in Coro Main Street (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 conferred 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.
The notification decision – discussion
[18] Section 95A of the RMA applies. Mandatory public notification was not required, nor was public notification precluded.4 Public notification was required in this case if one of the following three situations applied:
(a)the activity would have or was likely to have adverse effects on the environment that were more than minor;5
2 Pring v Wanganui District Council [1999] NZRMA 519 (CA) at [7].
3 Coro Mainstreet (Inc) v Thames-Coromandel District Council [2013] NZHC 1163, [2013] NZRMA at [40]; confirmed on appeal Coro Mainstreet (Inc) v Thames-Coromandel District Council [2013] NZCA 665, [2014] NZRMA 73.
4 Resource Management Act 1991, ss 95A(2) and 95A(4).
5 Resource Management Act, s 95A(8)(b).
(b)special circumstances applied which warranted the application being publicly notified;6 or
(c)limited notification of the application should have been given under s 95B.
Adverse effects on the environment – s 95A(8)(b)
[19] The RMA expressly required the TCC to take into account the likely adverse effects on the environment that are more than minor.7 It was for the TCC to identify and weigh the potential adverse effects. In doing so it was required to consider s 95D of the RMA.
[20] The theme underlying Classic’s case is that the current application is effectively a modification or variation of Felton’s second application. Classic considers that, having notified the second application and then withdrawn it in the face of opposition from a number of submitters (including Classic), Felton should have been required to notify the current application. Classic noted in particular that the current application was silent about Felton’s proposal for the development of the balance of the site.
[21] Ms Barry-Piceno submitted that the TCC could not have properly considered the adverse effects of Felton’s application as it could not have had any firm understanding of what Felton had applied for. She submitted that the TCC could not purport to approve the consent on part of a site described in the application as part of a “master planned residential development area” without seeking information on how the site had been master planned in an integrated way. Without that information, the TCC could not analyse the effects of the application on the balance of the site. Nor could it consider surrounding potentially affected persons by avoidance of any consideration of permitted or anticipated activities contemplated as part of the master planned development. Ms Barry-Piceno argued the current application left open the
6 Resource Management Act, s 95A(9).
7 Effect is defined in Resource Management Act, s 3.
possibility that the site would be further developed in accordance with the second application.
[22] Classic’s submissions raise the issue of whether the TCC was required to consider the future development of the balance of the site. A similar issue was considered by the Court in Housiaux v Kapiti Coast District Council.8 In that case, the issue was whether a possible future subdivision was a relevant consideration to be taken into account in relation to notification. The application to some extent anticipated that possible future subdivision. However, as the application in issue was limited and any further subdivision would require a separate consent, the Court in Housiaux concluded the Council was not in error by putting the effects of any future subdivision to one side when considering the question of notification.9 In Queenstown-Lakes District Council v Hawthorn Estate Ltd, the Court of Appeal accepted that possible future activities on the site which might require resource consent do not form part of the “environment” upon which effects are to be assessed.10
[23] In the present case, the balance of the site is identified as vacant. Whatever future activities might subsequently be considered or proposed for the site is for the future. The TCC was not required to consider an overall masterplan or require Felton to provide details of its future plans for the balance of the property in order to consider the effects of the current application or whether notification of the current application was required.
[24] As a related point, Ms Barry-Piceno next submitted that the TCC had inadequate information to make the decisions. Inadequate information is not itself a ground for review.11 The TCC was required to have sufficient information to understand the nature and scope of the proposed activity as it related to the TCC Plan and to assess the magnitude of the effect on the environment and identify persons who may be more directly affected.12
8 Housiaux v Kapiti Coast District Council HC Wellington CIV-2003-485-2678, 19 March 2004.
9 At [34].
10 Queenstown-Lakes District Council v Hawthorn Estate Ltd [2006] NZRMA 424 (CA) at [84].
11 Coro Mainstreet (Inc) v Thames-Coromandel District Council [2013] NZCA 665, [2013] NZRMA 73 at [37]–[41].
12 Discount Brands Ltd v Westfield (New Zealand) Ltd [2005] NZSC 17, [2005] 2 NZLR 597 at [114].
[25] The TCC was not required to seek out information about what might be proposed for the balance of the site in the future. The consent authority had no jurisdiction over future activities and the application was not sought for the wider site. The application was accompanied by a substantial Assessment of Environmental Effects (AEE) report by Felton’s consultants, Tonkin + Taylor. Ms Ladyman also sought further relevant information from Felton. The further information was recorded in an exchange of correspondence on 15 and 19 February 2019 and 4 March 2019.
[26] The current application proposed a convenience retail development to provide retail activities in close proximity to intended customers. The general nature of the retail activities proposed was set out. The application specifically listed:
The types of convenience stores to take up the lease of the other spaces on site are likely to include, but not be limited to the following:
·Fish shop;
·Butcher;
·Bakery;
·Post Shop/Stationery;
·Fruit and Vege shop;
·Delicatessen;
·Cake Shop;
·Medical/health centre;
·Real estate;
·Takeaways; …
·Video store;
·Newsagent;
·Florist;
·Gift Shops; and
·Pharmacy.
[27] Despite the AEE and Ms Ladyman’s report, Ms Barry-Piceno submitted the notification report (and substantive decision) gave no regard to the extent to which the proposal was contrary to the TCC Plan objectives and policies as was required by Tasti Products Ltd v Auckland Council:13
[82] If the policies and objectives contained in a proposed plan are required to be taken into account in making the substantive decision on the resource consent application, then, in my judgment, it is axiomatic that they must be relevant in determining whether a person is affected by the application, so as to require that the consent authority find the person to be effected under s 95E(1), and then give limited notification of the application to that person pursuant to s 95B(2).
[28] I acknowledge that the relevant objectives and policies must inform the notification decision as well as the substantive decision, and to that extent the objectives and policies were a mandatory relevant consideration. However, the question for the TCC and the Court on the notification issue remains to what extent the objectives and policies are relevant in determining whether a person is affected by an application. Ms Ladyman was aware of the need to consider those objectives and policies in that context. She took them into account. She expressly noted in her notification report:
Council shall consider any relevant matter with particular regard to the relevant objectives and policies of the City Plan …
[29] Importantly, at the time Ms Ladyman was considering whether the application should be notified she had before her the AEE prepared by Tonkin + Taylor which expressly referred to the relevant objectives and policies in chapters 14 and 4 of the TCC Plan. In her evidence for this hearing, Ms Ladyman confirmed that she had that material. She commenced her review of the application the day after receipt of the application and the Tonkin + Taylor AEE report. Ms Ladyman confirmed that she reviewed the application documents, researched the site’s consent history, researched the site’s zoning and status under the TCC plan, and identified the relevant rules under which the consent was required. As noted, further information was also sought and provided during that process.
13 Tasti Products Ltd v Auckland Council [2016] NZHC 1673, (2016) 19 ELRNZ 555.
[30] In considering whether the activity would have or was likely to have adverse effects that were more than minor, Ms Ladyman expressly referred to the permitted baseline and existing environment, the residential character and amenity, including built form, transport, the proposed intensive use of the site, and signage. In relation to transportation, she took into account vehicle movements, car parking and loading, and access. She also considered effects on other economic centres and the effects on earthworks.
[31] Ms Barry-Piceno also criticised the brevity of the notification decision and its apparent lack of reasons.
[32] Mr Miles confirmed he took into account the recommendation report prepared by Ms Ladyman, which was significantly more detailed and which concluded that the adverse effects were less than minor.
[33] Ms Ladyman confirmed that she prepared a draft notification recommendation which she provided to Mr Miles and then, after receiving further comments from him, she revised and provided a draft decision. Mr Miles then signed the notification decision document and authorised its release.
[34] I am satisfied that although the notification decision itself was brief, the decision-maker took into account all relevant considerations, including the TCC Plan objectives and policies. As this Court noted in Duggan v Auckland Council, a consent authority is not required to expressly refer to every relevant consideration.14
[35] Ms Barry-Piceno next noted that Felton’s second application had attracted 23 submitters, including Classic. Despite that, Felton had not engaged or involved the 23 persons who considered themselves affected by that application and the TCC had not given them notice of the current application. She submitted that Classic and other submitters to the second application had a “legitimate expectation” they would be notified of any modified or “scaled down” application .
14 Duggan v Auckland Council [2017] NZHC 1540, (2017) 20 ELRNZ 31 at [79].
[36] There was no basis for Classic or the other submitters to the second application to have a legitimate expectation they would be notified in relation to the current application. In Urban Auckland v Auckland Council, the Court noted that for a legitimate expectation to arise in relation to notification the following criteria would be required:15
(a)a promise or commitment by the adoption of a settled practice or policy that Council officers would act in a certain way;
(b)the legitimate or reasonable reliance on that promise or commitment; and
(c)an appropriate remedy, if any, that should be granted;
[37] There was no particular promise or commitment in the present case that TCC would notify the submitters to the second application of an application for consent of a different nature. It is inherent within the TCC Plan and the RMA that consent may be granted or refused for a non-complying activity, and that notification decisions are to be made on their merits.
[38] The short point is that the second application was for a quite different application both as to type and scale. The 23 persons had filed submissions in relation to a quite separate and more extensive development proposal. The development proposed by the second application included a 1,300 m² supermarket, 16 residential apartments, a 350 m² tavern, a café and restaurant, and 1,020 m² of convenience retail gross floor area. By contrast, the current application was limited to include the area relating to the already approved health centre and 1792 m² additional land. It proposed a 1,100 m² convenience retail development, with the associated signage, transport, access, landscaping, and earthworks. Consequently, there was no requirement for notification of the current application.
[39] Ms Barry-Piceno next submitted that the notification decision focused on the effects on sites rather than persons. I agree with Mr Conway’s submission that that
15 Urban Auckland v Auckland Council [2015] NZHC 1382, (2015) 18 ELRNZ 792 at [121].
mischaracterises the position. While Ms Ladyman's report refers to sites or properties it also refers to persons, for example, in her conclusion she confirms:
Given the assessment under section 6.6 of this report it has been determined that public notification of this resource consent application is not required and that there are no [persons] affected by the proposed convenience centre.
[40] Ms Barry-Piceno also criticised Ms Ladyman’s reliance on the existing environment and permitted baseline. In her submission, the reliance on the other activities, particularly the health centre, by way of consents granted for the site as part of the existing environment meant Ms Ladyman was relying on a hypothetical environment that in reality could not exist if the current application was granted and given effect to. Ms Barry-Piceno submitted the effects had been assessed in an incremental and isolated fashion which meant the future and cumulative effects had been obfuscated, diluted and confused to the point where the application as applied for was not what had been granted. The previous consented environment had been wrongly characterised.
[41] Ms Barry-Piceno submitted that reliance on the implementation of the health centre was an improper consideration based on the facts applying to this proposal. She argued Queenstown Lakes District Council v Hawthorn Estate Ltd could be distinguished.16
[42]In her report, Ms Ladyman dealt with the matter by noting:
The childcare centre operating from the subject site and healthcare centre consented for the site creates an existing environment in regards to effects generated. Case law stipulates that the effects of the existing environment should be taken into account when assessing an application. Although they cannot be included under the permitted baseline. Only those effects which are permitted by the plan may be disregarded under the statutory permitted baseline.
[43] Ms Ladyman was well aware the health centre had not been established but noted that, insofar as the health centre component was concerned, it was similar to the effects associated with a proportion of the convenience retailing. She then assessed it on the basis the consent had been given effect to. She considered the health centre to
16 Queenstown-Lakes District Council v Hawthorn Estate Ltd, above n 10.
be part of the existing environment in relation to the effects generated in relation to built form, transportation and residential character and amenity.
[44] The principal issue on this point is the effect of the unimplemented consent for the health centre and whether Ms Ladyman and, consequently, the TCC was wrong to take it into account as part of the existing environment.
[45] In Queenstown-Lakes District Council v Hawthorn Estate Ltd, the key issue was whether the Council was obliged to restrict its consideration of effects to effects on the environment in existence at the time. Of more direct relevance to this point, the Court of Appeal confirmed in Far North District Council v Te Runanga-A-Iwi O Ngati Kahu that an unimplemented resource consent for the subject site should be taken into account as part of the likely future state of the environment provided the consent authority was satisfied the resource consent was likely to be implemented.17
[46] Ms Barry-Piceno pointed out that Felton conceded that the health centre could not proceed if the current application was approved. That is correct (although the current application anticipated a smaller medical/health centre might be one of the businesses in the development), but as in Duggan v Auckland Council, if the current application was unsuccessful it would have been open for Felton to complete the consented health care centre development.18 There has been no waiver by Felton of its rights under the first consent. It had implemented part of it. Felton’s agents confirmed, in response to a clarification request by Ms Ladyman, that either the first consent (including the health centre) or the current application could be put into effect. The consent authority made a realistic factual appraisal that stage 2 of the first consent may be implemented.19 In the circumstances, it was open to Ms Ladyman to consider the effects of the first consent and particularly the health care centre in the way she did as part of the environment against which the effects of the consent, if granted, was to be considered..
17 Far North District Council v Te Runanga-A-Iwi O Ngati Kahu [2013] NZCA 221 at [95]. See also
Arrigato Investments Ltd v Auckland Regional Council [2002] 1 NZLR 323 (CA) at [38].
18 Duggan v Auckland Council, above n 14.
19 Arrigato Investments Ltd v Auckland Regional Council, above n 17, at [38]; and Queenstown- Lakes District Council v Hawthorn Estate Ltd, above n 10, at [79].
[47] Next, Ms Barry-Piceno criticised the notification decision to the extent it relied on Ms Ladyman’s assessment of the permitted baseline.
[48] TCC had a discretion to disregard an adverse effect if a rule permitted it.20 As the development applied for was well under the maximum height and maximum site coverage permitted by the TCC plan, the visual amenity effects could be discounted. A comprehensive table outlining the existing environment (with and without the health centre) and which dealt with height, building flooring area, vehicle movements, park vehicle, signage, operating hours, dimensions proposed, convenience centre and the effects on the proposed development was prepared and considered by Ms Ladyman. Ms Ladyman and Mr Miles were not in error in the way they considered the permitted baseline.
[49] The pleadings also allege the TCC erred by failing to take into account adverse effects relating to the loss of residential capacity. The policy direction for residential zones does not require retention of land for residential activities. By contrast, policy 18A.5.3.1 of the TCC Plan, in relation to industrial land specifically refers to ensuring that industrial land is retained for industrial and complementary activities. Further, as Mr Conway submitted, it is difficult to argue that adverse effects relating to the loss of residential capacity is a matter that should have been taken into account in making a notification decision in any event. On any view of it, it would not have been a mandatory relevant consideration.
[50] In concluding that the proposed activity was not likely to have adverse effects on the environment that are more than minor the TCC followed proper processes. The decision it made was reasonably open to it. Public notification was not required under s 95A(8)(b).
Special circumstances – s 95A(9)
[51] Ms Barry-Piceno next suggested the TCC did not consider whether special circumstances existed under s 95A(9).
20 Resource Management Act, s 95D(b).
[52] The special circumstances are said to be the history of the site, in particular the second application, and the extent of policy and community engagement in non- residential business uses located within residential zones.
[53] The second application is not a special circumstance. In Far North District Council v Te Runanga-A-Iwi O Ngati Kahu, the Court of Appeal made it clear that the special circumstances must relate to the subject application.21 Further, even major levels of public interest cannot of itself give rise to special circumstances. If that was so, every application where there was any concern expressed by people claiming to be affected would have to be notified.22
[54] The issue of special circumstances was addressed in the notification recommendation report which Mr Miles considered. Ms Ladyman’s report concluded there was nothing exceptional or unusual about the application. The proposal had nothing out of the ordinary to suggest that notification should occur. She concluded there were no special circumstances that existed that required notification of the application. That conclusion was open to her and the TCC as decision-maker.
Section 95A(9)(b) – limited notification
[55] The last issue concerning the notification decision is whether limited notification was required under s 95B. A person would be an affected person under s 95E and entitled to be notified (limited notification) if the TCC decided the activity’s adverse effects on that person were minor or more than minor (but not less than minor). In assessing adverse effects on a person under this section, the TCC was entitled to disregard an adverse effect if permitted by a rule.23
[56] The evidence does not support a conclusion that the activities for which the consent for the current application was sought would have adverse effects on Classic that were materially different from those on the environment generally or beyond those of the permitted baseline.
21 Far North District Council v Te Runanga-A-Iwi O Ngati Kahu, above n 17, at [37].
22 Urban Auckland v Auckland Council, above n 15; and Bayley v Manukau City Council [1998] NZRMA 396 (HC).
23 Resource Management Act, s 95E(2)(a).
[57] Ms Barry-Piceno noted that Felton had originally requested in its application that notification be given to certain listed land owners. Classic was not one of them and, as Ms Ladyman explained in her affidavit, following discussion between the applicant’s advisers and the Council, the request for the limited notification was withdrawn.
[58]Limited notification was not required.
[59] For the above reasons, the challenge to the notification decision cannot succeed.
The substantive decision – discussion
[60] Classic’s challenge to the substantive decision in large part repeats its criticisms of the notification decision. Again, the underlying theme is that the current application was a modification or amendment of the second application and that, without understanding Felton’s plans for the balance of the site, the TCC could not properly assess the adverse effects upon the environment of the proposal.
[61] Section 104 required the TCC, subject to pt 2 of the RMA, to inter alia, have regard to any actual and potential effects on the environment of allowing the activity and any relevant provision of the TCC Plan.24 In particular, as a non-complying activity, in this case, the TCC was only able to grant consent if satisfied the adverse effects would be minor.25
[62] Ms Barry-Piceno submitted the decision was effectively in respect of only parts of the site, although the whole site was included in the application. There was no analysis of why the removal of the supermarket proposal on part of the site was sufficient to determine the application was not contrary to the TCC policy provisions, or had less than minor effects on the environment or others in the PMRP area. As noted, she submitted it was inadequate for the application to say that part of the site will “remain vacant under this application”.
24 Resource Management Act, s 104(1).
25 Resource Management Act, s 104D(1)(a).
[63] The application for consent was clear and unambiguous. Felton was seeking approval for the convenience retail development on part of the “wider site” as defined in the AEE. Part of the wider site was to remain vacant. The TCC was aware of the extent of the activity proposed by the application and that the balance of the wider site would remain vacant at the present time. It would have been wrong for the TCC to consider or attempt to take into account the effects of any future activities which were not the subject of the application. The “effects” in issue were the effects arising as a consequence of the activity for which the consent was sought. The application had to be considered on its own merits.
[64] Under the first cause of action, error of law – failure to provide adequate reasons, Classic pleads that without referencing the recommendation report, TCC erred by failing to provide adequate reasons in terms of s 113 of the RMA. Classic says the reasons in the decision failed to adequately address:
(a)the provisions of the relevant TCC Plan; or
(b)the environment effects to which the proposed application related to.
[65] Section 113(3) permits a consent authority, instead of repeating certain material, to cross-refer to all or part of it. In his decision, Mr Miles referred to the application which was incorporated with the accompanying detailed AEE, the further correspondence from Felton’s advisers and that the application had been assessed by Ms Ladyman. It was apparent from the decision that a full recommendation report had been prepared. The ultimate decision was based on, and in reliance upon, the applicant’s AEE and Ms Ladyman’s recommendations.
[66] Classic pleaded, and Ms Barry-Piceno somewhat faintly suggested, the TCC had failed to make a decision as it was required to do under s 104 as the resource consent decision does not make any decisions or reference to ss 104D and 104(1) or pt 2 of the Act. Mr Miles confirmed that he had made a typographical error by repeating a reference to ss 95A and 95B instead of ss 104 and 104D. Ms Barry-Piceno effectively conceded that point was not a substantive one.
[67] Nevertheless, Ms Barry-Piceno argued that the application made no assessment of the TCC Plan’s relevant objectives and policies. The application did not limit or define the types of business activities it sought consent for. She further argued Ms Ladyman’s report did not properly identify effects.
[68] Ms Barry-Piceno submitted that if the TCC had properly taken into account the adverse effects on the environment, or properly considered the extent to which the application was contrary to the relevant objectives and policies of the TCC Plan it would not have been open for the TCC to have reasonably concluded the application met the threshold tests under ss 104 and 104D.
[69] For the same reasons, Ms Barry-Piceno submitted that the grant of consent was illegal and made unlawfully. In large part, Ms Barry-Piceno relied on the evidence of Mr Batchelar, Classic’s expert planner, to support these submissions.
[70] Ms Ladyman took a different view to Mr Batchelar in her assessment of the application against the objectives and policies of the TCC Plan. Ms Ladyman’s view was supported by Mr Miles, and implicitly, in the AEE prepared by Mr Hansen.
[71] On judicial review, the issue for this Court is not to determine whether Mr Batchelar or Ms Ladyman was correct, the issue is whether Ms Ladyman’s approach or assessment was wrong in law.26 I am not persuaded it was.
[72] Ms Ladyman considered the application fell to be considered in the context of the suburban residential zone rule framework and was not, as Mr Batchelar considered, inconsistent with the TCC Plan as it did not involve medium density residential development with local services provided in the Coast commercial area. She also took a different view to Mr Batchelar on his contention that the new centres are to be considered through a plan change process. Again, that was a view that was readily open to her.
26 Just One Life Ltd v Queenstown Lakes District Council [2003] 2 NZLR 411 (HC) at [79].
[73] Classic further submitted that the effect on residential amenity and the economic effects of the application were overlooked. As the proposal was a non- complying activity, the TCC should also have considered:
(a)the PMRP which was intended by the TCC Plan to be treated as one integrated plan area;
(b)the effect on the integrity and confidence of how the TCC Plan would be administered in relation to other residential and commercially zoned land, having regard to the objectives and policies in chapters 14 and 17 of the TCC Plan;
(c)causing adverse effects on the PMRP residential neighbouring environment and the Papamoa commercial plan area, which had been developed with Felton’s support; and
(d)the potential cumulative effects on the environment.
[74] Classic’s submission is really that the TCC should not have allowed a commercial activity in a residential zone. That is the thrust of Mr Batchelar’s evidence. However, as noted, the Court has confirmed in Just One Life Ltd v Queenstown Lakes District Council it is not the Court’s function to re-examine the merits of the various decisions.27 The issue is whether the decision involves reviewable error.28 As Ms Ladyman has confirmed, the substantive recommendation report addressed the potential effects of the out of zone convenience centre. Importantly in Ms Ladyman’s opinion:
[t]he scale of the tenancies and restrictions on what can operate from site will ensure the products and services provided on site are those used by a wider proportion of the community on a regular basis. It is appropriate for a level of commercial retail and services to be located on this site given the convenience centre provides tenancies that will provide “pop-in” services which are not provided for within this catchment.
27 Just One Life Ltd v Queenstown Lakes District Council, above n 266, at [79].
28 At [79].
[75] Under objective 17A.5.2 of the TCC Plan, the relevant objective is stated to be the efficient distribution of commercial development, convenient access to business activities and employment opportunities through efficiently located commercial zones. Objective 17A5.2 is achieved by policy 17A5.2.1:
– New Commercial Zones or Commercial Development Outside of Commercial Zones
By ensuring that new Commercial Zones or business activities outside the Commercial Zones are appropriately located to consolidate business activities within a network of commercial centres by:
a)Ensuring that development is of a form and scale consistent with the surrounding environment;
b)Providing a distribution of commercial centres efficiently located within the transport network, …
c)Ensuring a positive nett benefit to the community with respect to the range of services provided and the location of those services;
d)Ensuring the amenity of the surrounding environment is not compromised by out-of-zone or new commercial business activities;
e)Avoiding business activities in Residential Zones and Industrial Zones in accordance with objectives and policies for non-residential uses in these zones.
It is relied on in granting the decision.
[76] Ms Barry-Piceno focused on the need to avoid business activities in residential zones but it is clear from the wording at policy 17A.5.2.1 that it is contemplated new commercial zones may be established outside the commercial zones provided they are appropriately located and properly take account of other relevant considerations.
[77] Although accepting the context was different, Ms Barry-Piceno submitted the TCC also fell into error by effectively making its decision in a manner contrary to the decision of Environmental Defence Society Inc v The New Zealand King Salmon Co Ltd.29
29 Environmental Defence Society Inc v The New Zealand King Salmon Co Ltd [2014] NZSC 38, [2014] NZLR 593.
[78] In King Salmon, the Supreme Court considered the place of pt 2 of the RMA when determining plan changes, and in particular whether an overall broad judgment should prevail over a national planning instrument, in that case the New Zealand Coastal Policy Statement (NZCPS). The Court concluded that while subordinate decision-makers have considerable flexibility, the scope was not infinite.30 They were still bound to give effect to the NZCPS.
[79] In R J Davidson Family Trust v Marlborough District Council, the Court of Appeal considered whether the King Salmon principles applied equally to resource consent applications.31 The Court concluded that:
[47] … we are satisfied that the position of the words “subject to Part 2” near the outset and preceding the list of matters to which the consent authority is required to have regard, clearly show that a consent authority must have regard to the provisions of pt 2 when it is appropriate to do so. …
And later:
[73] … In all such cases the relevant plan provisions should be considered and brought to bear on the application in accordance with s 104(1)(b). A relevant plan provision is not properly had regard to (the statutory obligation) if it is simply considered for the purpose of putting it on one side. Consent authorities are used to the approach that is required in assessing the merits of an application against the relevant objectives and policies in a plan. What is required is what Tipping J referred to as “a fair appraisal of the objectives and policies read as a whole”.
[74] It may be, of course, that a fair appraisal of the policies means the appropriate response to an application is obvious, it effectively presents itself. Other cases will be more difficult. If it is clear that a plan has been prepared having regard to pt 2 and with a coherent set of policies designed to achieve clear environmental outcomes, the result of a genuine process that has regard to those policies in accordance with s 104(1) should be to implement those policies in evaluating a resource consent application. Reference to pt 2 in such a case would likely not add anything. It could not justify an outcome contrary to the thrust of the policies. Equally, if it appears the plan has not been prepared in a manner that appropriately reflects the provisions of pt 2, that will be a case where the consent authority will be required to give emphasis to pt 2.
[75] If a plan that has been competently prepared under the Act it may be that in many cases the consent authority will feel assured in taking the view that there is no need to refer to pt 2 because doing so would not add anything to the evaluative exercise. …
30 At [91].
31 R J Davidson Family Trust v Marlborough District Council [2018] NZCA 316, [2018] 3 NZLR 283.
[80] In the present case, there is no suggestion the TCC Plan has not been competently prepared. Further, the relevant provision of the substantive decision refers to the objectives and policies of the TCC Plan before concluding that granting consent to the application will be consistent with the purposes and principles of the RMA as set out in pt 2.
[81] In light of Mr Miles’ express reference to the relevant provisions of the TCC Plan, it is difficult to see how it can be argued that the TCC’s decision was other than based on the relevant objectives and policies in its Plan. Having regard to those objectives and policies the TCC, acting through Mr Miles, was able to conclude that granting consent was consistent with the purpose and principles of the RMA as set out in pt 2.
[82] Ms Ladyman’s assessment cross-checked the application against pt 2 to confirm that the activity would not impact on relevant pt 2 principles in any unacceptable way. That was not to overemphasise the application of pt 2 as part of any broad evaluative judgment such as was criticised by the Supreme Court in the King Salmon case. The TCC’s approach was consistent with the Court of Appeal’s decision in RJ Davidson.
[83] Next, in issuing the substantive decision on the basis the existing environment included the health centre that had not been implemented, Ms Barry-Piceno again submitted the TCC misinterpreted the evidence. She submitted the environment as referenced in s 104 required the TCC to meaningfully assess whether the first consent had been given effect to. Ms Barry-Piceno noted that the application itself specifically stated the proposal for the convenience retail, if granted, was an alternative proposal to the medical centre, such that it would not be built or form part of the future environment.
[84] For the reasons given above, the fact the current application stated the proposal, if implemented was an alternative proposal, does not preclude the first consent from being relied on as part of the existing environment.
[85] Ms Barry-Piceno next submitted the reports relied on and referred to conditions applicable to a proposal that was quite different in character and in relation to its effects. She submitted the conditions were incoherent due to attempts to merge the current application with the first consent. The substantive decision includes and imposes through condition one a requirement for the consent holder to comply with plans, environmental reports and assessments from a quite different consent application. Ms Barry-Piceno criticised the inclusion of that condition as a verbal modification to the application which was only recorded in an email of 2 May 2019.
[86] There is a practical answer to the point Ms Barry-Piceno made. If the current application was granted as it was then it would have had to practically work with the first consent. The first consent was itself subject to a number of conditions. The incorporation of conditions relating to the first consent into this consent provided an integrated approach to the conditions applying to both consents. Rather than being impermissible, it provided for cohesive management of the conditions.
[87] Ms Barry-Piceno also submitted the TCC failed to take into account economic evidence to support its decision. Ms Barry-Piceno submitted Ms Ladyman made the determination of effects based on her own personal views of economic issues. But, as Ms Ladyman confirmed in her affidavit, she relied on an assessment prepared by Property Economics titled ‘Felton Development Papamoa – Retail Centre Assessment’ which had been independently peer reviewed by an economics specialist employed by Marketplace New Zealand Ltd.
[88] Further, Ms Ladyman’s conclusion that the economic effects on the environment were minor is supported by the evidence of one of Classic’s own witnesses, Mr Polkinghorne. He noted that in relation to economic issues the adverse effects on other centres will be minor provided there is no supermarket.
[89] As to the general submission by Ms Barry-Piceno that the TCC failed to take into account the effects of the loss of residential capacity by the grant of this application, Ms Ladyman was aware of objective 14A.1.3 concerning activities in residential zones. She expressly noted:
In my opinion, the proposed convenience centre meets the objectives of the [National Policy Statement on Urban Development Capacity 2016] NPSUDC by servicing a community with business development that is not serviced elsewhere. However, I also consider that it is inconsistent with the objectives and policies that seek to balance commercial development with providing residential land for residential activities.
[90] Ms Ladyman was alert to the need to provide residential land for residential activities but on balance concluded the scale of the development was appropriate and could be acceptable. It cannot be sustained that the TCC failed to take into account the loss of residential capacity.
[91] In making its substantive decision the TCC, through Mr Miles (relying on Ms Ladyman’s assessment report), followed proper procedures, took into account relevant considerations and made a decision that was available to it.
Result
[92]The application for judicial review fails.
[93] It is unnecessary in the circumstances to consider Felton’s alternative submissions as to the standing of Classic or the exercise of discretion as to relief.
Costs
[94] Costs should follow the event. The defendants are to have costs on a 2B basis. I allow for second counsel.
Venning J
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