Colley v Auckland Council
[2021] NZHC 2366
•10 September 2021
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2020-404-002525
[2021] NZHC 2366
UNDER the Judicial Review Procedure Act 2016 IN THE MATTER OF
an application for judicial review of
decisions of Auckland Council pursuant to the Resource Management Act 1991
BETWEEN
GABRIELLE LOUISE COLLEY and PHILIP MARK BENDALL
Applicants
AND
AUCKLAND COUNCIL
First Respondent
WST COMPANY (2016) LIMITED
Second Respondent
Hearing: 15 July 2021 Appearances:
M E Casey QC and B J Tree for Applicants M Allan and M S Jones for First Respondent
B S Carruthers and K R M Littlejohn for Second Respondent
Judgment:
10 September 2021
JUDGMENT OF WYLIE J
This judgment was delivered by Justice Wylie On 10 September 2021 at 1.00 pm
Pursuant to r 11.5 of the High Court Rules Registrar/Deputy Registrar
Date:…………………………
Solicitors/council:
MinterEllisonRuddWatts/M E Casey QC, Auckland Brookfields, Auckland
B S Carruthers, Auckland
K R M Littlejohn, Auckland
COLLEY v AUCKLAND COUNCIL [2021] NZHC 2366 [10 September 2021]
Introduction
[1] The applicants, Gabrielle Colley and Philip Bendall, seek judicial review in respect of six decisions made by the first respondent, Auckland Council (“the Council”) relating to the Woodhill Sands Equestrian Centre situated in James Mackie Road, Wharepapa (the “equestrian centre”).
[2] The equestrian centre was established in 2005 after a resource consent was granted by the Rodney District Council. The activities undertaken at the equestrian centre have expanded considerably over the years. This expansion is the underlying reason why the present proceedings have been filed.
[3] Each of the impugned decisions was made by the Council (or its predecessor, the Rodney District Council1) under the Resource Management Act 1991 (“the Act”). The details are as follows:
(a)a notification decision (the “2008 notification decision”) and a substantive resource consent decision (the “2008 consent”) issued in 2008 pursuant to an application made by the then-owner of the equestrian centre, the JEM Family Trust. The 2008 consent permitted the further development of the equestrian centre;
(b)a notification decision (the “2016 notification decision”) and a substantive resource consent decision (the “2016 consent”) issued in 2016, again following application by the JEM Family Trust, and again permitting an increase in the activities carried out at the equestrian centre;
(c)a notification decision (the “2020 notification decision”) issued in 2020 in respect of an application to consolidate and further increase the activities at the equestrian centre by the second respondent, WST
1 The Rodney District Council was dissolved as from 1 November 2010 pursuant to the Local Government (Tamaki Makaurau Reorganisation) Amendment Act 2010, s 35. It became part of Auckland Council and anything that it had done or omitted to do falls to be treated as if it had been done or omitted to be done by Auckland Council.
Company (2016) Ltd and the Woodhill Sands Trust Inc (jointly “WST”); and
(d)a decision (the “referral decision”) issued in 2020 at WST’s request referring WST’s application to the Environment Court for determination.
Factual background
[4] James Mackie Road is a short no-exit road running off State Highway 16. There are 14 properties along the road and the majority of the owners have lived there for a number of years.
[5] In 2005, local residents, Christopher and Michelle Ross, proposed establishing the equestrian centre on land they had first leased and then purchased from the Department of Conservation. Ms Colley and her then husband lived on an adjoining property which they had purchased in 2003. Mr Ross approached the Colleys. He told them that he proposed creating a low-key equestrian training facility and that to do so he needed to gain access to the subject property from James Mackie Road. The Colleys agreed to a boundary change to facilitate this. The boundary change was undertaken and Mr and Mrs Colley then sold part of their land to Mr and Mrs Ross to provide them with access to the proposed equestrian centre.
[6] On 23 March 2005, the Rodney District Council granted a resource consent permitting earthworks and the importation of fill. This led to the establishment of horse arenas, access and parking areas for the equestrian centre. The equestrian centre was established and it has been running since July 2005.
[7] In around 2007, a further boundary adjustment was undertaken by the Colleys and they sold further land to Mr and Mrs Ross. This land became 24 James Mackie Road and, as I understand it, Mr and Mrs Ross now live on this property. The Colleys retained the balance of the land. This land is now 36 James Mackie Road. They built a new home and developed their property as a private equestrian facility. Ms Colley also runs a health and beauty business from the property. Mr and Ms Colley separated in 2011 and he has since passed away. The property is now owned by a company –
Catriona Bay Trustee Ltd. Ms Colley is the sole director and shareholder of this company. Mr Bendall came to live at the property in 2013.
[8] In 2007, Mr and Mrs Ross sought to further develop the equestrian centre. Between June and November 2007, Mr Ross provided several of his neighbours with a four-page fact sheet, a one-page assessment of effects on the environment and plans outlining his proposals to further develop the equestrian centre. The fact sheet and the plans recorded that the proposals involved:
(a)a clubhouse, saddlery and stables complex;
(b)accommodation units for up to 48 people;
(c)managers’ accommodation;
(d)coaching clinics and general use during weekdays;
(e)small events comprising approximately 50 to 100 horses and approximately 100 to 150 people most weekends; and
(f)large events approximately five to six times a year, likely to cater to up to 300 horses and 600 persons.
[9] Six of the neighbours signed approval forms and all but one attached copies of the fact sheet and plans which they had initialled. The neighbour approval forms did not however attach a copy of the full application for resource consent. Ms Colley has deposed that she and her husband were not offered or provided with a copy of the resource consent application.
[10] At the time, the registered proprietor of the Colleys’ land was a company – Cadmont Holdings Ltd. Mr Colley signed a neighbour approval form on behalf of Cadmont Holdings Ltd on 21 August 2007. Ms Colley accepts that this approval was given on both her and her husband’s behalf as well.
[11] On 24 September 2007, the JEM Family Trust (Mr and Mrs Ross were trustees of this Trust) lodged an application for a resource consent to establish and operate an events facility with the associated facilities as outlined in [8](a)-(c) above with the Rodney District Council. The application proposed that the equestrian centre would be utilised as follows:
(a)small events comprising up to 50 horses and 100 people (for “20 per cent of the usage of the site”);
(b)medium events comprising a maximum of 150 horses and 200 to 300 people (for “50 per cent of the usage of the site”);
(c)large events catering for up to 300 horses and 600 people (for “30 per cent of the usage of the site”). This was clarified by subsequent emails to mean 17 to 18 weekends in any one calendar year; and
(d)camping on site for up to 100 horse trucks staying for a maximum of two nights.
[12] When it reviewed the application, the Rodney District Council considered that there was an additional nearby resident potentially affected. It asked Mr and Mrs Ross to obtain written approval from this resident. A neighbour approval form (without the fact sheet attached) was obtained and provided to the Council.
[13]On 7 August 2008, the Rodney District Council:
(a)issued the 2008 notification decision. It determined that the application could be processed without notice. The decision recorded that written approvals had been obtained from all persons considered to be adversely affected;
(b)granted the application. The decision recorded the Council’s view that the proposed activity would generate adverse effects beyond those anticipated by the “permitted baseline” but that they were no more than minor in intensity and scale. It noted that all persons considered to be
adversely affected had consented, that the proposal was not contrary to a plan change then being considered nor to the objectives and policies contained in both the operative and proposed district plans and that it was consistent with Part 2 of the Act. The consent was granted subject to a number of conditions. Inter alia, they controlled the frequency of larger events and put limits on amplified noise.
[14] Between 2008 and 2016, Mr and Mrs Ross operated the equestrian centre and hosted both equestrian and non-equestrian events. Some events exceeded the consented levels of activity. Insofar as I am aware, the Council did not take any enforcement action in relation to those events which breached the consent.
[15] The equestrian centre became an important and arguably the principal venue for equestrian sports competitions in Auckland and more widely. It is the only regional facility catering for equestrian competitions and up to 70 per cent of Equestrian Sport NZ’s competitions starting in Auckland across all equestrian disciplines are held at the equestrian centre.
[16]In late 2015, Mr and Mrs Ross decided to sell the equestrian centre.
[17] On 12 April 2016, the Woodhill Sands Trust Inc was established for the purpose of acquiring the equestrian centre. It is a charitable trust established by the wider equestrian sports community. To purchase the equestrian centre, the Trust raised funds from interested supporters and the public. It also applied to the Council for funding and, on 19 May 2016, the Council approved a loan guarantee facility of up to $2.5 million to help the Trust complete the purchase.
[18] On 18 June 2016, the trustees of the Woodhill Sands Trust entered into a conditional agreement to purchase the equestrian centre from the trustees of the JEM Family Trust. The purchase price agreed was $3,050,000, comprising $2,400,000 for the land and buildings and $650,000 for the business. Inter alia, one of the conditions in the agreement read as follows:
18.3 The Vendor providing and the Vendor and Purchaser being satisfied with a Resource Consent for the property which enables the current level of
equine events to be held on the property, such consent to be approved by the Purchaser within ten (10) working days of receiving a copy of the consent from the Vendor. The costs of obtaining the consent and/or costs associated with upgrading the property to the standards required by virtue of the consent are to be paid for at the Vendor’s costs in all things.
[19] On 20 July 2016, the JEM Family Trust applied to the Council to vary the 2008 consent under s 127 of the Act. Ms Colley speculates that this step was taken to try and satisfy the condition in the sale and purchase agreement. I suspect that she is correct. In any event, the JEM Trust sought to delete one of the conditions – condition 3 – contained in the 2008 consent. That condition read as follows:
(frequency of larger events) The site shall be used for “large equestrian events” (i.e. those events catering for between 150 and 300 horses and up to 600 people) for no more than 17 weekends in any one calendar year …
The application acknowledged that the 300 horse limit had been exceeded on occasion. It sought to delete the words “between 150 and 300 horses and” from the condition and replace them with the following:
… and up to 500 horses on up to 13 weekends and up to 650 horses on up to 4 weekends …
[20] On 11 August 2016, the Council advised the JEM Family Trust that the application would have to be processed as an application for a new resource consent for a non-complying activity because it considered that it fell outside the scope of s 127 of the Act. The application proceeded on this basis.
[21]On 15 September 2016, the Council:
(a)issued the 2016 notification decision. It held that the application could be processed without public notification. The background report noted that the additional horses proposed would not result in any additional people on site beyond those permitted by the 2008 consent and expressed the view that the level of equestrian activity on the site would not increase in intensity. The adverse effects were considered to be less than minor;
(b)issued the 2016 consent permitting the increase in the number of horses permitted at the equestrian centre. The report on the application noted that the equestrian centre had been authorised by the 2008 consent and that the receiving environment included activities lawfully established by that consent. The Council recorded as one of the reasons for the decision that the same number of people as had earlier been consented would be maintained.
[22] In December 2016, Ms Colley and Mr Bendall discovered that the 2008 consent exceeded the level of activity approved by the neighbours in 2007. Ms Colley invited Kathryn Roberts, one of the trustees of the Woodhill Sands Trust, to a meeting. Ms Colley stated that her lawyers would be present. Ms Roberts advised Ms Colley that the Trust only had a contingent interest in the equestrian centre at that stage and she suggested that Ms Colley should approach Mr and Mrs Ross.
[23] In mid-December 2016, Ms Colley invited Mr and Mrs Ross to a meeting and, on 22 December 2016, Ms Colley’s and Mr Bendall’s solicitors wrote to Mr and Mrs Ross saying that they had reviewed matters and that they “had identified material errors in the way the original and recent resource consent[s] were processed”, asserting that “the original consent was granted on the basis of incorrect information”.
[24] Insofar as I am aware, a copy of this letter was not sent to Ms Roberts or to any other representatives of the Woodhill Sands Trust.
[25] Ms Colley asserts in her affidavit in reply that, on 14 December 2016, she told Ms Roberts that there were issues with the original application which affected its validity. Ms Roberts has not had the opportunity to comment on this assertion. Ms Colley did send an email to Ms Roberts on 24 December 2016 saying that her lawyer had written to Mr and Mrs Ross “with details about the matters that had been identified”.
[26] On 8 February 2017, Ms Colley’s solicitors sent an email to the Council. Inter alia, that email stated as follows:
Our review shows that the written approvals given by the neighbouring properties for the [2008 consent] was on the basis of a description of the activities that is significantly less than those approved by the [2008 consent]. The [2016 consent] to increase the number of horses on the site, was a non- complying activity and processed on a non-notified basis on the assessment that increasing the number of horses would not increase the number of people or level of activity on the site. This is not what is occurring under the [2016 consent] based on recent events.
A meeting with the Council was requested.
[27] Again, insofar as I am aware, this email was not copied to Ms Roberts nor to any other representative of the Woodhill Sands Trust.
[28] The Council responded on 15 February 2017. It advised that its officers were reviewing the consents and that it would respond in regard to the proposed meeting after it had done so.
[29] On 9 March 2017, the Council wrote to Mr Ross advising that any equestrian event that attracted more than 600 people would breach the conditions of the resource consents. The Council also indicated that a non-equestrian event known as the Tough Guy/Gal Event which had been hosted at the equestrian centre was not a “temporary event” as defined in the Council’s Unitary Plan and that it was not covered by the existing resource consents. The Council said that it required resource consent in its own right as a discretionary activity. The Council noted that it had received a number of complaints about this event.
[30] On 15 March 2017, Ms Colley and Mr Bendall held a meeting at their property. Ms Roberts and another trustee from the Woodhill Sands Trust attended.
(a)According to Ms Colley, she and Mr Bendall explained that they and other neighbours were unhappy to have found out that the level of activity granted by the 2008 consent and increased by the 2016 consent went beyond that which neighbours had approved. Ms Colley gave Ms Roberts a copy of the neighbour approval form, the fact sheet and the plans. She and Mr Bendall indicated that they might support a new
resource consent application which proposed only a low to medium level of equestrian activity on the site.
(b)According to Ms Roberts, Ms Colley and Mr Bendall did most of the talking at the meeting. She acknowledged that there was a discussion regarding the affected persons consents provided by neighbours in 2007 and the non-notified 2016 consent amending the 2008 consent and allowing an increase in activity.
[31] On 12 April 2017, Ms Colley’s and Mr Bendall’s solicitors wrote to the Council again. The letter advised that Ms Colley and Mr Bendall would not consent to any resource consent application in respect of the Tough Guy/Gal Event and set out various concerns they had about that event.
[32] From the perspective of the trustees of the Woodhill Sands Trust, the resource consent issue that had been raised was problematic. They had raised the requisite funds to complete the purchase of the equestrian centre. They had negotiated and entered into a conditional agreement for sale and purchase. There was a discussion between the trustees as to whether or not they should continue with the acquisition. In an email sent on 1 May 2017 to her co-trustees, Ms Roberts stated as follows:
Standing back, it does seem that the sticking point for us is concerns held by Council officers about Council processes in the issue of the original RC, which concerns were drawn to Council’s attention by the neighbour, and how risks for Council arising as a result should be mitigated.
Ms Roberts went on to observe that the concerns were independent of any Trust ownership but that the Trust could assist the Council to mitigate the risk. Ms Roberts also told her fellow trustees that they could not advise their supporters when the purchase might proceed, nor the reasons for the delay, “because we are unclear ourselves”. She went on to say that she was still trying to make sense of the position the trustees found themselves in.
[33] The Trust’s problems were exacerbated because there had been a local body election since the funding support had been obtained from the Council in May 2016. The trustees considered that it was unwise to withdraw from the sale and purchase
agreement because there was a risk that ongoing support from the Council might no longer be available.
[34] The trustees had discussions with Mr Ross and both parties engaged planners to consider “… the ramifications of the consenting issues raised and how best to resolve [these] issues”.
[35] On 4 May 2017, Ms Colley sent an email to the Council recording again that she was not satisfied with the way in which the consents had been granted and lodging complaints in relation to various events which had been held at the equestrian centre. The Council responded on 8 May 2017 saying that it would follow up on the matters raised by Ms Colley. The Council formally responded on 26 May 2017. It summarised its view that general equestrian activities had been permitted on the site by the 2008 consent and that other types of activity might be possible as “temporary activities” from time to time (as they would be on any property). The Council expressed the view that large events of long duration would most likely require further resource consent.
[36] Various opinions were then exchanged between the parties and Ms Roberts and Ms Colley spoke about the issues from time to time. It seems that Ms Colley considered the Council was likely to review the existing consents but that a new resource consent was the best way forward. According to an email sent by Ms Roberts to her co-trustees, Ms Colley suggested that she and Ms Roberts should meet and “agree a level of activity”. Ms Roberts expressed the view that this would make obtaining a new resource consent a relatively straightforward process. Nevertheless, Ms Roberts told her co-trustees that she wanted to gain a clear understanding of the Trust’s position before committing it to anything.
[37] The trustees of the Woodhill Sands Trust obtained a review of the existing consents from planning consultants. On 23 May 2017, the consultants reported. Inter alia, they observed as follows:
The fact that the original and current consented intensity of use is significantly greater than that which was covered under the affected persons’ written approvals could prove problematic from a legal perspective. Specialist legal advice should be sought on this matter.
Insofar as I am aware, no specialist legal advice was sought at this point.
[38] On 2 June 2017, Ms Colley’s and Mr Bendall’s solicitors wrote to the Council. It was again asserted that, in the solicitors’ view, the scale of activities for which written approval was given was significantly less intensive than that granted by the 2008 consent. Inter alia it was suggested that the Council should initiate a review into the conditions of the 2008 consent under s 128 of the Act. Confirmation was also sought that the 2008 consent did not authorise event activities on weekdays.
[39] On 23 June 2017, the Council responded to Ms Colley’s solicitors. The Council confirmed that, in its view, the 2008 and 2016 consents authorised events on weekends only, including long (public holiday) weekends. The letter further advised that the Council would not be initiating a review of the conditions attaching to the consents. The letter went on as follows:
I note in relation to this issue [a review under s 128] that the [2008 consent]
… states that it was agreed that the adverse effects created by the proposal were no more than minor. Council’s consents team do not consider that the difference between the numbers recorded in the application and the written approvals was determinative.
[40] A copy of this letter was sent to Ms Roberts along with the letter of 2 June 2017 sent by Ms Colley’s and Mr Bendall’s solicitors to the Council. She wrote to her co- trustees saying that, in her view, it was not in the Trust’s interest, nor in the Council’s interest, to leave the situation unresolved. She suggested a meeting with Mr Ross and the Council.
[41] On 5 July 2017, Ms Roberts met with Mr Ross and Council representatives. Ms Roberts has deposed that there was an acceptance at the meeting that the existing consents were valid but that Council officers thought that the documentation needed to be brought up to “2017 standards”. It was agreed that a new resource consent should be sought to regularise the existing consents, primarily because the existing consents were thought to be ambiguous and difficult to work under. Ms Roberts reported to her co-trustees that the Council saw the prospective change of ownership as an opportunity to tidy up the existing consents.
[42] On 10 July 2017, Ms Colley’s and Mr Bendall’s solicitors again raised with the Council the differences between the level of activity the neighbours had consented to and the level of activity permitted by the 2008 consent. It was also asserted that the conditions in both the 2008 and 2016 consents were incomplete and unclear and that they gave rise to uncertainty. Again, Ms Colley and Mr Bendall, through their solicitors, requested the Council to review the conditions of the consents under s 128 of the Act.
[43] On 11 July 2017, Council representatives met with Ms Colley and Mr Bendall. The Council advised that the trustees of the Woodhill Sands Trust were “doing some homework with their planning consultants” with a view to regularising the level of activity allowed on the site.
[44] On 8 August 2017, Mr and Mrs Ross and the trustees of the JEM Trust entered into a new conditional agreement for sale and purchase with the second respondent, WST Company (2016) Ltd. This company had been incorporated to complete the purchase at the Council’s suggestion. The purchase price remained the same but the conditions changed. Inter alia, the agreement incorporated the following:
19.New Resource Consent
19.1 The Purchaser will make application to Auckland Council, and achieve a new resource consent that more properly regulates the days of operation and horse numbers that can utilise the facilities of Woodhill Sands. The resource consent will also include modification to proposed buildings covered by the existing consent. The Application will be made on terms mutually acceptable to the Vendor and the Purchaser and mutually acceptable to the respective planners employed by the Vendor and the Purchaser …
19.2 It is acknowledged that a separate Resource Consent Application will be made by the Purchaser and Waitemata Show Jumping Inc to hold a showcase event at the Woodhill Sands property on an annual basis. …
[45] On 18 August 2017, the trustees of the Woodhill Sands Trust sent out a reporting letter to their supporters. Inter alia, that letter recorded as follows:
Council has reconfirmed that the resource consent held for the equestrian activities at Woodhill Sands is a valid consent. This consent will pass to the Trust as land owner.
[46] On 28 August 2017, Ms Colley’s solicitors sent an email to the Council requesting inter alia that the Council confirm its position in regard to the validity of the 2008 consent.
[47] The Council sent a pro-forma response and then responded in detail by letter dated 19 September 2017. The letter recorded that no challenge had been made to the validity of the consents and that while concerns relating to compliance with the consents had been raised, the consent holder had been operating the equestrian centre in reliance on the consents for a number of years without any enforcement action being taken. It acknowledged that there was a difference between the written approval forms and the application document provided in support of the 2008 consent in relation to the frequency of large events, but it recorded the Council’s view that it had been entitled to process the application on the basis of the information before it. The Council reiterated its stance that the 2008 consent was validly issued and that there was no basis on which to maintain that the application contained inaccuracies that “materially influenced” the decision to grant the consent. The letter also advised that the Council had discussed the matter with Ms Roberts and that the Woodhill Sands Trust, with assistance from the vendors, was preparing a new resource consent application.
[48] A meeting was held on 2 October 2017. It was attended by a number of persons, including representatives of the Woodhill Sands Trust, Ms Colley, Mr Bendall and other neighbours. According to draft minutes which were circulated:
(a)the Trust’s representatives advised those present that the purchase of the equestrian centre would be proceeding on 6 October 2017; and
(b)various threats were made by the neighbours – for example, “… if the conditions of an updated consent are not to our satisfaction then we will challenge every point …”.
[49] On 6 October 2017, WST settled the purchase from the JEM Family Trust and the second respondent became the owner of the equestrian centre.
[50] Ms Colley and Mr Bendall met with Council representatives on 14 November 2017. They were told that WST would be lodging a new resource consent application for the equestrian centre by the end of 2017.
[51] In early 2018, Ms Colley and Mr Bendall lodged further complaints with the Council regarding activities at the equestrian centre that they considered were in breach of the existing consents. They also sought on numerous occasions to engage with WST and the Council on the intended resource consent application. On 8 February 2018, Ms Colley’s and Mr Bendall’s solicitors wrote again to the Council reiterating their concerns and requesting that the Council issue an abatement notice on WST in relation to what they considered were ongoing breaches of the resource consents. On 23 February 2018, Ms Colley sent an email to the Council. She recorded that “… the issues with the operation/breaches … have been going on for years”, that the Council had been aware of them for over 15 months but that there was no sign of the conditions being enforced; rather WST was continuing on its “reckless and illegal path of operations”. She stated that she wanted “… to see some action taken”.
[52] On 2 March 2018, the Council advised that it would not be issuing an abatement notice but that a decision would be taken after discussion with the trustees.
[53] Ms Colley also corresponded further with Ms Roberts. She said in an email of 9 March 2018 that she wanted to work with the trustees to agree a level of acceptable activity at the equestrian centre. Ms Colley tried to arrange a meeting. Ms Roberts declined to attend. She explained that the Woodhill Sands Trust was developing its own consultation plan and that it was engaging with the neighbours as part of that process. She also made it clear that it was the trustees’ intention to submit a “detailed and robust regularisation application” but that this was taking longer than anticipated.
[54] On 31 August 2018, the Council advised Ms Colley and Mr Bendall that WST’s application had still not been lodged but that it would be shortly.
[55] In September 2018, a separate resource consent application was made to the Council by Show Jumping Waitemata for an annual four-day equestrian event to be at
the equestrian centre held in January of each year. The level of activity sought included:
(a)750 people and 600 horses on the Thursday to Saturday;
(b)2,250 people and 600 horses on the Sunday; and
(c)overnight camping.
[56] Ms Colley and her solicitors sent written submissions to the Council advising that, in their view, this application should be notified.
[57] The Council referred the decision on whether the application should be notified to an independent commissioner. On 7 December 2018, the commissioner acting on behalf of the Council Richard Blakely, decided that the application should be publicly notified because there were special circumstances.
[58]Show Jumping Waitemata then withdrew its application.
[59] In early August 2019, WST contacted neighbours and advised them that it had completed its application and that it would be consulting with them. Consultation occurred and some neighbours signed consents. The trustees consulted with Ms Colley and Mr Bendall. A meeting was held but no progress was made.
[60]On 22 August 2019, WST applied to the Council for a resource consent to:
(a)consolidate and modify existing lawfully established equestrian centre activities at the site;
(b)remove and add new buildings;
(c)undertake vegetation removal and add new vegetation;
(d)establish permanent parking areas and make allowance for temporary parking;
(e)install a new wastewater treatment system;
(f)undertake improvements to stormwater discharge and diversion;
(g)obtain consent for an annual event known as the Showcase Equestrian Event.
It was stated that any new consent would replace the previous consents and remove any ambiguity over what had previously been consented. Consent was sought only for equestrian centre activities and equestrian events. No other activities were proposed.
[61]The level of equestrian activity proposed was as follows:
(i)general equestrian activities
·riding lessons, coaching clinics, rallies, horse riding holiday programmes, horse training, and associated support facilities on weekdays during daylight hours;
·up to 50 horses on site and up to 100 people;
·overnight stays involving up to 20 vehicles;
·limitations on the frequency of such activity to be set by the proposed level of competition/event activity;
(ii)general competitions/events:
·to be held on up to 132 days within a 365 day period;
·up to 50 horses and 100 people on site per day at any one time on up to 52 weekdays;
·up to 100 horses and 150 people on site per day at any one time on up to 52 weekdays and 28 weekend days; and
·overnight stays for up to 20 vehicles; and
(iii)regular competitions/events:
·to be held on up to 52 days a year within a 365 day period;
·limited to two consecutive days except on four occasions when three consecutive days would be permitted;
·up to 200 horses and up to 300 people on site per day at any one time; and
·overnight stays involving up to 50 vehicles for up to two consecutive nights; and
(iv)large competitions/events:
·to be held up to 26 days a year on a maximum of 13 weekends;
·up to 500 horses and 600 people on site per day at any one time;
·overnight stays for 100 people for up to two consecutive nights;
and
·three events per year on up to four consecutive days including two weekend days;
·up to 600 horses and 600 people on site per day at any one time;
·overnight stays involving up to 100 vehicles for up to four consecutive nights; and
show case equestrian events:
·to be held over four consecutive days including two weekend days;
·up to 600 horses and up to 750 people per weekday, up to 1200 people on one weekend day and up to 2100 people on the other weekend day;
·overnight stays involving up to 151 vehicles for up to four consecutive nights.
[62] The Council decided to seek specialist input given the background to the application. Various reports were obtained and further information was also sought from and provided by WST.
[63] The assessment of effects on the environment report accompanying WST’s application sought that the application should be processed on a non-notified basis. The Council decided to refer the decision on this to an independent commissioner – Robert Scott. On 13 July 2020, Mr Scott decided (the 2020 notification decision) that WST’s application need only be notified on a limited basis to the owners and occupiers of two properties – once at 24 James Mackie Road and the other at 36 James Mackie Road. The decision recorded Mr Scott’s view that the receiving environment was defined by the existing 2008 and 2016 consents. He found that the proposal would have adverse effects but that they were no more than minor and that there were no special circumstances that warranted public notification.
[64] On 22 July 2020, Ms Colley and Mr Bendall (as occupiers of the property at 36 James Mackie Road) and Mr and Mrs Ross (as occupiers of the property at 24 James Mackie Road) were formally notified of WST’s application and Mr Scott’s decision. Both made submissions opposing the application.
[65] On 26 August 2020, WST requested the Council to refer its application directly to the Environment Court for determination under s 87D of the Act.
[66] On 15 September 2020, the Council granted this request (the referral decision). The report on the request noted the two submissions had been received and that both submitters wished to be heard. It referred to the submissions and to the past operation of the site and expressed the view that an appeal in relation to any Council decision was likely. The direct referral process was seen as being likely to avoid duplication of process. It was noted that direct referral would still allow participation by the submitters and that it likely had time and cost savings for the Council, WST and the submitters.
[67] On 11 November 2020, WST lodged its application with the Environment Court. Ms Colley and Mr Bendall were advised and, on 4 December 2020, they filed a notice under s 274 of the Act seeking to be joined as parties to the Environment Court proceedings. They also advised the Council and WST that they would be applying for judicial review of the Council’s various decisions. The current proceedings were filed on 22 December 2020.
[68] Mr Ross and various other neighbours have also lodged s 274 notices with the Environment Court.
[69] On 26 January 2021, the Environment Court placed WST’s application on hold pending the outcome of these proceedings.
The pleadings
The statement of claim
[70]Ms Colley and Mr Bendall assert that:
(a)the 2008 notification decision is unlawful because the Council failed to apply the correct legal test under the then relevant statutory provisions. Amongst other things, it is asserted that the Rodney District Council was required to be satisfied that the information it relied on in making the 2008 notification decision was adequate and reliable and that it failed to do so. It is asserted that it was apparent on the face of the neighbour approval forms that the affected persons had not given
written approval to equestrian activities of the scale and frequency sought in the application. It is alleged that the Rodney District Council relied on inadequate and inaccurate information and that as a result the 2008 notification decision is invalid.
(b)the 2008 consent is invalid because the 2008 notification decision was invalid. Reference is made to s 104(3)(b) of the Act as it then read. It is asserted that none of the neighbours had given written approval to the activities proposed. It is alleged that the 2008 consent was ultra vires the Rodney District Council and that it could not grant the consent if the application should have been publicly notified but was not.
[71] Much the same allegations are made in respect of the 2016 notification decision. It is asserted that the Council relied on the 2008 consent, that that consent was invalid and that as a result the 2016 notification decision is tainted. The same is said in respect of the 2016 consent.
[72] The 2020 notification decision is said to be ultra vires because the Council relied on the 2008 and the 2016 consents. It is alleged that the 2020 notification decision is accordingly tainted.
[73] The applicants assert that the referral decision is unreasonable and substantively unfair. It is alleged that the Council knew that the 2008 and the 2016 consents formed part of the existing environment against which the application fell to be assessed and knew that the 2008 consent provided for a greater level of activity than was authorised by the neighbour approval forms. It is further asserted that the Council knew that a group of property owners was concerned about the existing and proposed activities at the equestrian centre but that any Environment Court proceedings will likely be confined to WST, the Council and the s 274 submitters.
[74] Certiorari is sought to quash each of the challenged decisions. Alternatively, the applicants seek an order setting the decisions aside.
Statements of defence
[75] The Council, in its statement of defence, admits that there was an inconsistency as to the scale and frequency of events between the neighbour approval forms and the application made in 2007 but it says that that inconsistency did not make the 2008 notification decision invalid per se. It says much the same thing in relation to the 2008 consent, the 2016 notification decision, the 2016 consent and the 2020 notification decision. It denies that the referral decision was unreasonable and substantively unfair.
[76] WST does not plead to the various assertions of invalidity on the basis that they assert matters of law. In relation to the relief sought by Ms Colley and Mr Bendall, it asserts that quashing the impugned decisions would be disproportionate, unreasonable and not reflective of the nature and seriousness of the error alleged, given that:
(a)written approval was provided for the level of equestrian activity (including events) specified in the neighbour approval forms;
(b)the equestrian centre has been operating since 2005 and is a community sports facility which provides a significant public benefit;
(c)WST relied on the 2008 and 2016 consents when it purchased the equestrian centre for the benefit of the equestrian sports community;
(d)WST has invested significant time and resources in preparing its application in order to consolidate and clarify the consents that apply; and
(e)Ms Colley and Mr Bendall have unreasonably delayed making their application.
Submissions
Ms Colley and Mr Bendall
[77] Mr Casey QC, for Ms Colley and Mr Bendall, argued that the Council made a fundamental error in processing the 2007/2008 application. He said that the 2008
consent authorised a level of activity beyond that which neighbours had consented to. He argued that the 2008 consent has tainted all subsequent decisions because it formed part of the “existing environment” and has been the fundamental premise on which all later decisions have relied.
[78] Mr Casey observed that Ms Colley and Mr Bendall only became aware of the error in the processing of the 2008 consent in December 2016. He submitted that they then promptly sought a review of the consents because activities at the equestrian centre had started to noticeably increase. However, the Council denied any error and refused to review the conditions. Mr Casey asserted that WST knew and appreciated the significance of the issue before it decided to purchase the equestrian centre and that it was aware that the 2008 consent did not authorise the level of activity occurring in 2016. He noted that WST was advised by its own planning consultant in May 2017 that this could prove problematic from a legal perspective. Nevertheless, specialist legal advice was not sought. He submitted that WST instead relied on the Council’s advice of 23 June 2017 which, he said, focused on the Council’s position and not on the written approvals.
[79] Considering matters from the applicants’ perspective, Mr Casey noted that, in November 2017, Ms Colley and Mr Bendall were told that WST intended to lodge a “regularising” application by Christmas 2017 and that they understood that they and other neighbours would then be given the opportunity to substantively engage in relation to that application. He submitted that instead WST proceeded with no regard to the adverse effects activities at the equestrian centre have on the neighbours and asked the Council not to notify its application so as to shut out the neighbours.
[80] Mr Casey also submitted that the Council acted irrationally when it decided in 2020 that WST’s application did not need to be notified. He said that had WST’s application not relied on the earlier consents as part of the receiving environment, it is probable that it would have been publicly notified or, at the least, that there would have been limited notification to a wider group of affected persons. He submitted that Ms Colley and Mr Bendall have been forced into the Environment Court process where the Court will have to limit its consideration of effects to those that exceed the
effects of activities authorised by the existing consents. He said that the only recourse for Ms Colley and Mr Bendall has been to seek redress in this Court.
The Council
[81] Contrary to the position taken in its statement of defence, Mr Allan, for the Council, accepted that the Rodney District Council had made a material error when it failed to identify the difference between the level of equestrian activity consented to by neighbouring land owners in their written approvals and the level of equestrian activity sought in the 2007/2008 resource consent application. He argued however that this error, while material, was confined. He also accepted that the Rodney District Council had made an error in its treatment in 2016 of the written approvals earlier received and that this error arguably had implications for the 2016 consent granted by the Council modifying a condition in the 2008 consent.
[82] Mr Allan put it to me that what is really in issue is the appropriate response to the acknowledged errors, some 13 years after the event, in respect of a facility that has been operating for 16 years and in circumstances where efforts are underway by WST to consolidate and replace its existing array of consents with a new consent. He submitted that relief must be proportionate to the nature and gravity of the error and reflect present circumstances.
[83] Mr Allan also submitted that should the Court, having considered all relevant factors, decide that it is appropriate to grant some form of relief, the quashing of all six decisions would be disproportionate. He argued that the Court can fairly and reasonably separate “the good from the bad” and recognise that the written approvals were and remain good in relation to the level of activity approved by neighbours. He argued that the grant of consent for activity above the level approved by neighbours in reliance on the written approvals can be severed and quashed by the Court.
WST
[84] Ms Carruthers, for WST, noted that the effects on the environment of allowing an activity are a key consideration when deciding whether to notify and then whether to grant a resource consent application. She argued that a proper understanding of
each concept – activity, environment and effects – is crucial. She noted that the Council has belatedly acknowledged that it erred when it treated the neighbour approval forms as written approvals to what was sought in 2007. She accepted that, as a consequence, the Council did not properly take into account the effects of the 2007 application on persons who had given written approval when it granted the 2008 consent. She speculated that the 2007 application might still have been processed non- notified and granted, even with the additional effects taken into account.
[85] Ms Carruthers also accepted that the 2008 consent was treated as the baseline in the 2016 notification decision and in the 2016 consent. She pointed out that the 2008 consent was, and remains, a valid consent until it is set aside and she argued that the Council was entitled to assess only those additional effects which were over and above those generated by the 2008 consent.
[86] Ms Carruthers submitted that WST has taken a different approach in its 2019 application. She pointed out that WST, rather than treating the existing consents as the baseline, has assessed the effects of its activities in totality. She argued that as a result there can be no “environmental creep”. She told me that WST will be asking the consent authority to start from scratch. She argued that WST is doing exactly what Ms Colley and Mr Bendall submit would be just and fair and that the effects will fall to be fully assessed when WST’s application is considered. She further submitted that the referral decision allowing the Environment Court to be the first instance decision- maker has two primary benefits. First, any person with an interest in WST’s application that is greater than the interest of the general public can become a party. Secondly, rather than the Council with its vested interest in the outcome being the decision-maker, the Environment Court will determine the application. Ms Colley, Mr Bendall and other s 274 parties will have the right to call evidence and appear at the hearing and she argued that Ms Colley and Mr Bendall have nothing to gain from pursuing their judicial review proceedings.
[87] Ms Carruthers noted that the Court has a discretion whether or not to grant relief if it accepts that an error is established. She argued that there are two factors relevant to the exercise of that discretion – first, WST’s application is proceeding on the basis that all effects are relevant and will fall to be assessed. Secondly, she pointed
to the position of WST. She denied that it took a calculated risk when it purchased the site. She argued that the resource consents permitting equestrian activity were a key asset of the business valued at $650,000. She submitted that the Council gave no indication to WST that the trustees should have any concerns about Ms Colley’s and Mr Bendall’s allegations and that at no time did the Council put WST on notice that errors had been made. On the contrary, she submitted that WST understood from the Council’s various letters that the existing consents were valid. She accepted that WST’s planner identified a discrepancy between the neighbour approval forms and the intensity of use permitted by the 2008 consent, but submitted that the Council, in its letter dated 23 June 2017, confirmed its view that this difference was not determinative. She submitted that WST was entitled to and did rely on this advice and that it was reiterated in September 2017, just three weeks before WST purchased the equestrian centre. She argued that WST is an innocent party and that the impacts on it cannot be ignored.
Analysis
What is at stake
[88] Under s 104(1)(a) of the Act, when determining WST’s resource consent application, the consent authority must have regard to the actual and potential effects on the environment of allowing the activity for which consent is sought. It will be necessary to consider what is known as the “permitted baseline” when determining the environment against which the application falls to be assessed (the receiving environment).
[89] The permitted baseline is a judicial construct developed by the higher courts.2 It has now been recognised in the Act.3 It is an analytical tool that excludes from consideration certain effects.4 What is permitted as of right by a person was initially deemed to be part of the receiving environment. It still can be although this is now at
2 Aley v North Shore City Council [1999] 1 NZLR 365 (HC); Bayley v Manukau City Council [1999] 1 NZLR 568 (CA); Smith Chilcott Ltd v Auckland City Council [2001] 3 NZLR 473 (CA); Arrigato Investments Ltd v Auckland Regional Council [2002] 1 NZLR 323 (CA).
3 Resource Management Act 1991, s 104(2).
4 Queenstown Lakes District Council v Hawthorn Estate Ltd [2006] NZRMA 424 (CA) at 436.
the consent authority’s discretion.5 The effects of an implemented resource consent also fall to be included as part of the receiving environment once the consent is given effect to and cannot lapse under s 125 of the Act.6 This recognises that once a consent is put into effect, it becomes a physical reality as well as a legal right.7 The situation is however different where an applicant seeks to replace a consent which has a finite term.8 The receiving environment also extends to the environment as it might be if resource consents that have already been granted are likely to be implemented.9
[90] Here, the 2008 consent and the 2016 consent have both been implemented and it was common ground that they form part of the receiving environment in this case. If the 2008 consent and 2016 consent are set aside as sought by Ms Colley and Mr Bendall, then the activities they permit and the adverse effects (if any) arising from those activities will not be part of the environment against which WST’s application will fall to be assessed. The only effects which will form part of the receiving environment will be those permitted by the original resource consent granted in 2005. If the 2008 consent and the 2016 consent are not set aside then (subject to an argument raised by WST which is referred to below) the activities they permit and the adverse effects (if any) arising from those activities will be part of the environment against which WST’s application will fall to be assessed. It will only be the additional actual and potential effects which will fall for consideration. Further, what is permitted by the 2008 consent and the 2016 consent will presumably be WST’s fall-back position if its application does not succeed.
The scope of judicial review
[91] It was common ground that the scope of review is accurately recorded in this Court’s decision in Coro Mainstreet (Inc) v Thames-Coromandel District Council.10
5 Resource Management Act 1991, s 104(2).
6 Aotearoa Water Action Inc v Canterbury Regional Council [2020] NZHC 1625; Heaney v Rodney District Council HC Auckland CIV-2003-404-003480, 16 March 2004 at [56]-[71].
7 Resource Management Act 1991, s 122; Katz v Auckland City Council (1987) 12 NZPTA 211 (PT), adopted by this Court in Auckland Council v 184 Maraetai Road Ltd [2015] NZRMZ 490 at [17].
8 Ngāti Rangi Trust v Manawatu Whanganui Regional Council [2016] NZHC 2948.
9 Queenstown Lakes District Council v Hawthorn Estate Ltd, above n 4, at [65] and [84].
10 Coro Mainstreet (Inc) v Thames-Coromandel District Council [2013] NZHC 1163, [2013] NZRMA 442 at [40], upheld on appeal in Coro Mainstreet (Inc) v Thames-Coromandel District Council [2013] NZCA 665, [2014] NZRMZ 73. See also Sutton v Canterbury Regional Council [2015] NZHC 313, [2015] NZRMA 93 at [34] and cases there cited.
[40] 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.11
The 2008 notification decision and the 2008 consent
[92] I agree with Mr Casey that the Council erred in law and exceeded its jurisdiction when it made the 2008 notification decision and when it granted the 2008 consent.
[93]When the resource consent application was made in 2007 by the JEM Trust:
(a)section 93 of the Act as it then stood required the consent authority to notify the application unless the application was for a controlled activity or the consent authority was satisfied that the adverse effects of the activity on the environment would be minor;
(b)section 94A provided that, when it was forming an opinion as to whether the adverse effects of an activity on the environment would be minor or more than minor, the consent authority had to disregard any effect on a person who had given written approval to the application;
(c)under s 94, if notification was not required under s 93, the consent authority nevertheless had to serve notice of the application on all persons who, in its opinion, might be adversely affected by the activity, even if some of those persons had given their written approval to the activity. However, the consent authority was not required to serve notice of the application if all persons who, in the opinion of the consent
11 Quarantine Waste NZ Ltd v Waste Resources [1994] NZRMA 524 (HC) at 548; Elderslie Park Ltd v Timaru District Council [1995] NZRMA 433 (HC) at 451.
authority, might be adversely affected by the activity had given their written approval to the proposed activity.
[94] As can be seen, there was a presumption in favour of publicly notifying an application12 and it was held that the process for the grant of resource consents was intended to be public and participatory.13 Notification was an important part of the statutory scheme14 and consent authorities were required to take care before they removed the participatory right of persons who might assert an interest in the effects of a proposed activity.15
[95] Earlier, but similar, notification provisions were discussed by the Supreme Court in Discount Brands Ltd v Westfield (New Zealand) Ltd.16 Blanchard J summarised the information required before a decision could be made as to whether an application for resource consent should be publicly notified as follows:
[114] So, in summary to this point, the information in the possession of the consent authority must be adequate for it: (a) to understand the nature and scope of the proposed activity as it relates to the district plan; (b) to assess the magnitude of any adverse effect on the environment; and (c) to identify the persons who may be more directly affected. The statutory requirement is that the information before the consent authority be adequate. It is not required to be all-embracing but it must be sufficiently comprehensive to enable the consent authority to consider these matters on an informed basis.
[115] The statutory requirement addresses more than the scope of the information. The consent authority must necessarily be satisfied as well that the information is reliable, …
[116] Because the consequence of a decision not to notify an application is to shut out from participation in the process those who might have sought to oppose it, the Court will upon a judicial review application carefully scrutinise the material on which the consent authority’s non-notification decision was based in order to determine whether the authority could reasonably have been satisfied that in the circumstances the information was adequate in the various respects discussed above.
These observations are, in my view, equally appropriate to the notification provisions as they stood in 2007/2008.
12 Northcote Mainstreet Inc v North Shore City Council [2006] NZRMA 137 at [74].
13 Bayley v Manukau City Council, above n 2, at [575] and see Discount Brands Ltd v Westfield (New Zealand) Ltd [2005] NZSC 17, [2005] 2 NZLR 597 at [51].
14 Murray v Whakatane District Council [1997] 3 ELRNZ 308 (HC) at 309-310.
15 Bayley v Manukau City Council, above n 2, at [575].
16 Discount Brands Ltd v Westfield (New Zealand) Ltd, above n 13.
[96] The various statutory provisions focused on the written approvals from affected parties. It was fundamental that any written approval had to be genuine.17 Further, if a written approval did not explicitly identify and agree to the activity applied for, the consent authority was required to ask what the approval related to.
Keane J in Troughton v Western Bay of Plenty District Council noted as follows:18
[52] A consent authority, I accept, ought not usually to be expected to look behind the consents it receives. That would be patently unreasonable. Where a consent, plainly on its face, agrees that resource consent can be granted for the activity to which the application relates that will be enough. But if the consent is not plain, and what is applied for is not explicitly identified and agreed to in the consent, a consent authority has, I consider, a duty to satisfy itself just what is consented to and what is not.
[53] This ought not to be too onerous. A consent authority can obtain unambiguous consents easily enough. All it has to do, as the Council here usually does, is to encourage, even stipulate, that any consent to what is applied for in an application for resource consent be yoked to the application. Problems begin when a consent authority, as the Council allowed to happen in this case, accepts a consent which is very general, and does not have at least the defining aspect of the application to which it relates attached. Indeed, accepts as sufficient the converse: an application with the consents attached, finalised after the last of the consents was obtained.
[97] The application for a resource consent lodged by the JEM Family Trust in September 2007 was not for a controlled activity. Accordingly, pursuant to s 93 of the Act, the Rodney District Council was required to be satisfied that the adverse effects of the application on the environment would be minor when it was determining whether or not application needed to be publicly notified. It was required to disregard any effect on persons who had provided written approval.
[98] It is clear that the neighbours had not consented to the level of activity that was applied for. The neighbours consented to small events comprising approximately 50 to 100 horses and approximately 100 to 150 people most weekends, and large events, approximately five to six times a year, likely to cater to up to 300 horses and 600 persons. The application lodged by the JEM Family Trust sought consent not only for small events as agreed by the neighbours, but also for medium events comprising a maximum of 150 horses and 200 to 300 people and large events catering for up to 300
17 Tasman District Council v Askew [1997] Env C WO68/97.
18 Troughton v Western Bay of Plenty District Council HC Tauranga CIV-2003-470-000238, 18 February 2004.
horses and 600 people on 17 to 18 weekends in any one calendar year. The application also sought that there should be camping at the equestrian centre for up to 100 horse trucks, staying for a minimum of two nights.
[99] These differences were not picked up by the Council. It failed in its duty to satisfy itself that what had been consented to matched what was being applied for.
[100] The Council’s planning witness, Daniel Rodie, acknowledged that the differences “may have been material”. Mr Campbell, the planning witness for Ms Colley and Mr Bendall, considered that the differences were material and that the differences in the levels of activity have resulted in materially different adverse effects on the environment, including on Ms Colley and Mr Bendall.
[101] The Council invited me to conclude that the consultant planner who prepared the report on whether or not the application should be notified, Matthew Paetz, adequately considered all relevant matters and that his analysis was “essentially sound”. It was argued that, while Mr Paetz referred to the written approvals in his report, it was nevertheless well reasoned and it appropriately scrutinised the application and the potential effects of what was proposed.
[102] I decline to enter into speculation of this kind. The 2008 notification decision has to stand or fall in its terms. It is clear that the Council decided to process the application made by the JEM Family Trust on a non-notified basis because, inter alia, it considered that all persons adversely affected by the proposed activity had provided their written approvals. They had not consented to what was ultimately proposed. It follows that the Council erred in its approach to s 94A of the Act as it then stood. In my view, there was a clear error of law. The Council failed to properly consider whether or not the neighbours had consented to the application as lodged.
[103] The 2008 consent is also flawed. Under s 104(1) of the Act, when it was considering the JEM Family Trust’s 2007 application for resource consent, the Council was required to consider the actual and potential effects on the environment of allowing the proposed activity, as well as any relevant planning provisions and any other matters it considered relevant and reasonably necessary to determine the
application. Section 104(3)(b) provided that the Council was not to have regard to any effect on a person who had given written approval to the application. Section 104(3)(d) however precluded the Council from granting consent if the application should have been publicly notified and it was not.
[104] It is clear from the 2008 consent that the Council considered that the proposed activity would generate adverse effects beyond those anticipated by the permitted baseline but that they were no more than minor in intensity and scale. It was expressly noted that all persons adversely effected had consented. This was clearly relevant to the Council’s decision to grant the 2008 consent. For the reasons I have identified, the information the Council relied on in issuing the 2008 consent was inaccurate. It thought that neighbours had consented to what was sought. They had not done so. The Council was not aware of this and it failed to take it into account.
The 2016 notification decision and the 2016 consent
[105] By July 2016, the notification provisions contained in the Act had been amended yet again.
(a)Under s 95A, a consent authority could in its discretion decide whether to publicly notify an application for an activity. It had to publicly notify an application if it decided, under s 95D, that the activity would have or would be likely to have adverse effects on the environment that were more than minor. It could also publicly notify an application if it decided that special circumstances existed in relation to the application.
(b)Under s 95D, a consent authority deciding whether an activity would have, or be likely to have, adverse effects on the environment that were more than minor, was required to disregard any effect on persons who owned or occupied the land on which the activity would occur or any land adjacent to that land.
(c)Under s 95E, a consent authority had to decide that a person was an affected person in relation to an activity if the activity’s adverse effects
on the person were minor or more than minor (but were not less than minor).
(d)Under s 95B, if a consent authority did not publicly notify an application for an activity, it had to decide whether there was any affected person and it had to give limited notification of the application to any such person except in various defined circumstances.
[106] The Council acknowledged that its decision making in relation to the 2016 notification decision and the 2016 consent took into account the level of activity established by the 2008 consent.
[107] This is clear from the relevant documents. The officer’s report into the 2016 application premised the assessment of effects on the environment by setting out those effects that had to be disregarded. The report recorded that:
The receiving environment beyond the subject site includes … lawfully established activities (via existing use rights or resource consent) … this is the environment within which the adverse effects of this application must be assessed.
The reporting officer went on to observe that the increase in the number of horses sought was large and outside the scope of the consents previously granted, but that the facilities and arenas were existing. He considered that the increase in the number of horses would not increase vehicle movements, numbers of people, noise, impermeable areas or levels of activity and that any adverse effects on the wider environment as a result of the proposal were therefore less than minor. He recommended that public notification was not required. The reporting officer also considered that there were no affected persons because the additional horses proposed would not result in any additional people on the site, given the terms of the 2008 consent. He commented that the number of horses competing at any one time and the number of arenas in operation would not increase. Rather, the intensity of equestrian activity on the site would be maintained. He recommended that limited notification was not required either.
[108] The 2016 notification decision referred to and relied on the reasoning set out by the reporting officer. It determined that the 2016 application should be processed on a non-notified basis and that limited notification was not required.
[109] I am not however persuaded that the Council erred in the way in which it approached the matter. As a matter of law, the Council was required to treat the 2008 consent as valid and as part of the receiving environment. It had not been set aside by a court of competent jurisdiction.19 It follows that the Council did not err when it took into account the effects permitted by the 2008 decision because that decision was still on foot. I accept however that the 2016 notification decision was prefaced on the basis of the 2008 decision and what it permitted. I also record Mr Allan acknowledged that, should the Court decide to grant relief in relation to the 2008 consent, this should extend to the 2016 notification decision.
[110] The 2016 consent also proceeded on the 2008 consent. As noted above at [21(b)], the report on the application noted that the equestrian centre had been authorised by the 2008 consent and that the receiving environment included activities lawfully established by that consent. The Council recorded as one of the reasons for its decision that the same number of people as had earlier been consented would be maintained.
[111] For the same reasons as I have set out in relation to the 2016 notification decision, I am not persuaded that, in law, the Council erred in its approach. Again, I record that the Counsel accepted that, if relief is granted in respect of the 2008 consent, “this should encompass the 2016 consent”.
The 2020 notification decision
[112]By 2019, the notification provisions had changed yet again.
19 Ortmann v United States of America [2020] NZSC 120, [2010] 1 NZLR 475 at [535]; A J Burr Ltd v Blenheim Borough Council [1980] 2 NZLR 1 (CA) at 4; Love v Porirua City Council [1984] 2 NZLR 308 (CA) at [11]; Hill v Wellington Transport District Licensing Authority [1984] 2 NZLR 314 (CA) at [23]-[24]; Campbell v The Superintendent, Wellington Prison [2007] NZAR 52 (CA) at [29].
(a)Section 95A set out steps that had to be followed to determine whether an application had to be publicly notified and s 95B set out steps that had to be taken to determine whether limited notification of an application was required.
(b)Under s 95A(7) and (8)(b), if the consent authority decided that the proposed activity would have, or was likely to have, adverse effects on the environment that were more than minor, the application had to be publicly notified.
(c)Section 95E provided that a person was an affected person if the consent authority decided that the activity’s adverse effects on that person were minor or more than minor (but not less than minor).
(d)If the application was not publicly notified, the Council was required to give limited notification to those persons that were subject to adverse effects that were minor or more than minor (but not less than minor) in accordance with s 95E.
(e)Under ss 95A(9) and 95B(10), the Council was also required to consider whether special circumstances existed that warranted either public or limited notification.
[113] The Council officer’s report in relation to the 2019 application under the heading “Assessment” stated as follows:
In this case the receiving environment is defined by the existing consents relating to the equestrian centre established on the subject site, in particular those of [the 2008 consent and the 2016 consent] outlined in the background section of this report. …
The reporting officer considered that WST’s application would have adverse effects on the environment but that they were no more than minor, that special circumstances did not apply, but that limited notification was required to the owners and occupiers of 24 and 36 James Mackie Road as they were considered to be adversely affected persons.
[114] The Commissioner appointed to deal with the notification issue recorded in his decision that he had read this report. He held in the 2020 notification decision that:
(a)the adverse effects on the receiving environment would be no more than minor;
(b)the owners and occupiers of the properties at 24 and 36 James Mackie Road were adversely affected, but no other persons were adversely affected because the adverse effects were avoided, remedied or mitigated as a result of the level of effects occurring within the existing environment as defined “by the current consented environment”; and
(c)there were no special circumstances that warranted public notification or notification to any other persons.
[115] It was argued for Ms Colley and Mr Bendall that the 2020 notification decision was unlawful because the Commissioner, in deciding that the adverse effects on the environment were no more than minor, relied on the existing consents and discounted the adverse effects arising from those consents. It was submitted that the existing consents were unlawful and that as a result the decision not to publicly notify WST’s application was tainted. Similarly, and for the same reasons, it was argued that the Council’s decision to notify only the owners and occupiers of 24 and 36 James Mackie Road was tainted, as was the Council’s finding that special circumstances did not exist. In regard to this latter issue, it was also said that it was impossible to reconcile the 2020 notification decision with the earlier decision made by the Commissioner appointed to consider Show Jumping Waitemata’s application. It was said that the finding that there no special circumstances in relation to WST’s application was so unreasonable that no reasonable person could have made it.
[116] The Council argued that both the reporting and the decision making in regard to the 2020 notification decision was sound. It was acknowledged that both the report and the Commissioner’s decision referred to the consented environment, but it was said that they were required to do so as a matter of law.
[117] WST argued that Ms Colley and Mr Bendall have conflated the concepts of the environment and effects and that they have confused the existing environment with the receiving environment. It was argued that the environment and the permitted baseline are different and that both are discrete statutory considerations.20 It was asserted that WST in its application does not seek to invoke the permitted baseline or to include the existing consents within the receiving environment. It was submitted that it would defeat the purpose of WST’s application if the effects able to be generated by the existing consents are taken into account either by including the existing consents in the receiving environment or by applying the permitted baseline when assessing the effects of what is now proposed. It was noted that it is WST’s intention that there should be a fresh assessment of the full effects of the equestrian centre on the environment.
[118] As I have already noted, the 2008 consent is valid until it is set aside by a Court of competent jurisdiction. So is the 2016 consent. Both consents have been implemented. In my judgement and for the reasons I have set out, they form part of the receiving environment and they were relevant to the Council’s consideration of the notification provisions.
[119] WST has not applied to cancel the 2008 and 2016 consents and I decline to express an opinion as to whether or not WST can ask the Environment Court to ignore the adverse effects generated by those consents because its application seeks to replace them. There are arguments available both ways. Any opinion I would express would be obiter. It seems to me to be a matter best left for the Environment Court. Rights of appeal will then be maintained.
[120] I am not persuaded by the argument that the 2020 notification decision is manifestly unreasonable because the Commissioner found that there were no special circumstances. That a different decision was reached in relation to a different (albeit similar) application by a different Commissioner is not decisive. The Commissioner dealing with the Show Jumping Waitemata application considered that there were special circumstances applying to that application but this does not compel the
20 Relying on Far North District Council v Te Rūnanga-Ā-Iwi O Ngāti Kahu [2013] NZCA 221 at [91].
conclusion that a different Commissioner dealing with a different application should have reached the same conclusion. A consent authority is not formally bound by its previous decision.21 The presence or absence of special circumstances is a discretionary matter, in respect of which reasonable people might reasonably disagree. The scope for judicial review of such decisions is limited. Judicial review does not involve an inquiry into the merits of the decision that has been made and the burden of establishing manifest unreasonableness is a heavy one. Ms Colley and Mr Bendall have not met it in this case.
The referral decision
[121] The Act provides that an applicant can request that the consent authority allow the application to be directly referred to and determined by the Environment Court.22 If the application has already been notified, the consent authority has 15 days to make a decision whether to grant or decline the direct referral request.23 There are no statutory criteria spelling out when a request should be granted or declined. Rather, the consent authority has a broad discretion. If the consent authority grants a request for direct referral, the Environment Court must determine the application as if it were the consent authority.24 The proceedings will be subject to the regulation of that Court.25
[122] Ms Colley and Mr Bendall submitted that the referral decision was unreasonable and substantively unfair. They argued that the Council has long been aware of the errors in the processing of the 2008 notification decision and subsequently the 2008 consent, and that they, and other neighbours, are concerned at the level of activity that has occurred at the equestrian centre. They argued that the Environment Court process is distinctly more formal than the process before a local authority (or a commissioner appointed by a local authority). They assert that their rights have been undermined.
21 Dye v Auckland Regional Council [2002] 1 NZLR 337 (CA) at [32].
22 Resource Management Act 1991, s 87D(1).
23 Section 87E(5).
24 Section 87G(6).
25 Section 87G(5).
[123] The Council rejected these assertions. It asserted that the reasons for granting the request – as set out in the decision – were focused on the contentious nature of the proposal, the inevitability of the matter ending up in the Environment Court in any event and the benefits of direct referral for all involved.
[124] I am not persuaded that the Council erred in its referral decision. There is nothing in the referral decision to suggest that the Council relied on the 2008 consent or the 2016 consent.
[125] The reasons the Council gave in the referral decision are sound. The submissions lodged by Ms Colley and Mr Bendall and by Mr and Mrs Ross, and the history of contention relating to the past operation of the equestrian centre, strongly suggest that any decision made by the Council (or a Commissioner appointed by it) would be likely to be appealed. The direct referral process avoids duplication of process. As the Council noted, there are potential benefits for the parties. The Environment Court’s processes include caucusing and mediation processes that can assist in dealing with specialist evidence and in trying to reach an agreed position on contentious issues. A direct referral still allows submitters to participate. Any person with an interest in the proceedings that is greater than the general public can join the proceedings by filing notice under s 274 of the Act. The direct referral has likely time and costs savings for the Council, WST and the submitters.
[126] Moreover, the referral decision seems to me to be entirely reasonable. For better or worse, the Council is hopelessly conflicted. It has guaranteed WST’s borrowings. It is responsible for the original error made in 2007/2008. It has failed to enforce compliance with the 2008 and 2016 consents. It is appropriate for the Council to remove itself from the decision making process.
[127] There is no substantive unfairness or manifest unreasonableness in the referral decision and Ms Colley’s and Mr Bendall’s challenge to it must fail.
Certiorari – the discretion
[128] It is trite law that an order quashing a decision – certiorari – is discretionary and that the Court can withhold relief if it thinks it appropriate to do so. This was the
case at common law and the discretion is expressly recognised in s 18 of the Judicial Review Procedure Act 2016. The discretion can however make inroads upon the rule of law and it falls to be exercised with the greatest of care.26 In most cases, the remedy will accompany the right and the discretionary withholding of relief will not the normal outcome where there is a successful attack on a reviewable decision.27 In some circumstances however, the denial of relief can serve the public interest, for example, where harm to an innocent third party might otherwise result. An applicant can also lose his or her claim to relief because of unreasonable conduct or because the objection is raised too late28 (although delay is unlikely to be the only basis for refusing relief if no prejudice has been caused).29
[129] In the present case, there are four matters which in my view need to be taken into account in considering the exercise of the discretion.
[130] First, there is the gravity of the error and its effect upon Ms Colley and Mr Bendall.
(a)the error was straightforward. A simple comparison of what was applied for and what the neighbours had approved would have avoided the problems which have arisen;
(b)as a result of the error, Ms Colley and Mr Bendall were denied the right to participate in the planning process;
(c)the error has resulted in adverse effects for Ms Colley and Mr Bendall. The 2008 consent has become the foundation for later decisions. It is not however the resource consents alone which have created the adverse effects which Ms Colley and Mr Bendall complain of. In part, it is the Council’s failure to ensure that the consents have been adhered
26 William Wade and Christopher Forsyth Administrative Law (11th ed, Oxford University Press, London, 2014) at 596.
27 Wendco (NZ) Ltd v Auckland Council [2015] NZCA 617 at [64]-[67]; Just One Life Ltd v Queenstown Lakes District Council [2004] 3 NZLR 226 (CA).
28 Turner v Allison [1971] NZLR 833 (CA).
29 Middeldorp v Avondale Jockey Club Inc [2020] NZCA 13 at [43]-[45].
to and that activities occurring beyond those consents did not take place.
[131] Secondly, there is delay. It has been considerable. Ms Colley and Mr Bendall became aware of the discrepancy between the neighbour approval forms and the 2008 consent in late 2016. They did not threaten judicial review until November 2020 and did not file their proceedings until December 2020. This is notwithstanding that they were aware of WST’s proposal to purchase the equestrian centre from late 2016 or early 2017. While they relayed their concerns to WST’s representatives (by March 2017 and perhaps earlier), they did not take prompt action to try and set aside the 2008 consent. Ms Colley and Mr Bendall did try and resolve issues through the Council. They sought to persuade the Council to review the conditions attaching to the consents under s 128 of the Act. They suggested that the Council should issue an abatement notice. The Council however refused to take either of these steps and Ms Colley and Mr Bendall still did nothing. They knew from 23 June 2017 at the latest that the Council was asserting that the 2008 consent was valid and that the discrepancy between the neighbour approval forms and the decision was not determinative.
[132] Thirdly, there is the alteration of position by WST. It has relied on the validity of the consents. The initial correspondence written by Ms Colley and Mr Bendall’s solicitors to the Council was not copied to Ms Roberts or to any other representatives of the Woodhill Sands Trust. Although there were initial discussions, it seems unlikely that Ms Roberts fully appreciated the implications of what was being asserted in late 2016 and early 2017. Ms Roberts did not become aware that there was any serious problem until 15 March 2017, and even then, all that she and the other trustees knew was that two of the neighbours were asserting that there were difficulties with the 2008 consent. By this stage, the trustees had already entered into a conditional sale and purchase agreement to acquire the equestrian centre. They had raised money and obtained a guarantee from the Council. While the trustees did obtain an opinion from their planning consultants in May 2017 which indicated that the discrepancy between what neighbours had approved and what was granted could prove problematic, in my view, the trustees were entitled to rely on the Council’s stance. It had issued the 2008 consent and it was clearly of the view, as recorded in its letter of 23 June 2017, that the discrepancy was not determinative and that the 2008 consent was valid.
Ms Roberts expressly deposed that the trustees relied on that letter. The Council reiterated its view that the consents were valid in its letter sent to Ms Colley and Mr Bendall’s solicitors dated 19 September 2017. WST was also entitled to rely on the various representations made by Ms Colley that she and Mr Bendall would agree to low to medium levels of activity at the equestrian centre. There was no assertion that Ms Colley and Mr Bendall would seek to set aside the 2008 and 2016 consents. WST is in my view an innocent third party and it will suffer substantial losses if the 2008 and 2016 consents are set aside. Impacts of this kind are normally likely to be decisive.30
[133] The position would be the same if the Council’s proposal – that the good be separated from the bad – were adopted. The evidence is that, if WST’s activities were limited to what the neighbours approved in 2007, its position would be equally dire.
[134] Fourthly, WST is now trying to regularise the position. It has made its own application to this end. It has further altered its position in preparing this application. It has spent a large sum of money in doing so and Ms Colley and Mr Bendall acquiesced to this. This application arguably permits the extent of activity at the equestrian centre to be reassessed, although how to approach this application is, in the first instance, for the Environment Court.
[135]For all of these reasons, I decline relief to Ms Colley and Mr Bendall.
Costs
[136] The Council and WST have succeeded in these proceedings and are entitled to their reasonable costs and disbursements. I direct as follows:
(a)within 10 working days of the date of this judgment, the Council and WST are to file memoranda detailing any claims they wish to make for costs and disbursements;
30 Ririnui v Landcorp Farming Ltd [2016] NZSC 62 at [132] and see, Speargrass Holdings Ltd v van Brandenburg [2019] NZCA 564; Wellington City Council v Minotaur Custodians [2017] NZCA 302 at [74]-[82]; Vining v Nelson District Council HC Nelson CP23/99, 16 November 2000; King v Auckland City Council [2000] NZRMA 145 (HC).
(b)within a further 10 working days, Ms Colley and Mr Bendall are to file a memorandum in reply;
(c)memoranda are not to exceed five pages.
I will then deal with the issue of costs and disbursements on the papers, unless I require the assistance of counsel.
Wylie J
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