ENDURANCE HOLDINGS LIMITED AND NEW PLYMOUTH DISTRICT COUNCIL J T INVESTMENTS 2020 LIMITED
[2024] NZHC 2672
•16 September 2024
IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY
I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE
CIV-2023-443-056
[2024] NZHC 2672
UNDER the Judicial Review Procedure Act 2016 BETWEEN
ENDURANCE HOLDINGS LIMITED
Applicant
AND
NEW PLYMOUTH DISTRICT COUNCIL
First Respondent
J T INVESTMENTS 2020 LIMITED
Second Respondent
Hearing: 22 July 2024 Counsel:
A S Butler KC and D Qiu for Applicant
J W A Johnson and E Maassen for Second Respondent
Judgment:
16 September 2024
JUDGMENT OF GRAU J
TABLE OF CONTENTS
A challenge to a certificate of compliance [1]
Background [4]
Preliminary issue: admissibility [19]
The legal landscape [29]
Issue one: sound [41]
Issue two: earthworks [65]
Issue three: carparking and onsite manoeuvring space [91]
Summary of conclusions [107]
ENDURANCE HOLDINGS LIMITED v NEW PLYMOUTH DISTRICT COUNCIL [2024] NZHC 2672
[16 September 2024]
Relief [110]
A challenge to a certificate of compliance
[1] The applicant, Endurance Holdings Limited (Endurance), challenges a decision of the New Plymouth District Council (NPDC) to grant a certificate of compliance (CoC) under s 139 of the Resource Management Act 1991 (the RMA) to J T Investments 2020 Limited (JTI) for its proposal to build a 38-unit residential complex in an industrial area of New Plymouth. The CoC confirms the proposal is a permitted activity and can be undertaken without the need for any resource consent.
[2] Endurance has concerns about the risks of introducing a residential development into a heavy industrial area. It contends that the decision to grant the CoC was made without sufficient information for the NPDC to be satisfied that JTI’s proposal complied with the relevant construction rules contained in the Operative District Plan 2005 (ODP). Endurance seeks an order quashing the CoC, with the result that JTI would now need to apply for a resource consent to advance its proposal.
[3] In response, JTI says the NPDC had sufficient information to grant the CoC and asks the Court to uphold the NPDC’s decision to grant it. However, if there is any error of law, JTI says this would be an appropriate case for the Court either to exercise its discretion not to grant relief, or to resolve the application by remitting the decision back to the NPDC to reconsider under the planning framework as it was at the time the application was lodged, so that an application for resource consent would not be required.
Background
[4] JTI is a developer of commercial and residential property based in New Plymouth. Endurance, also based in New Plymouth, is a landholding and development company. Endurance’s offices are at 65 Connett Road in Bell Block, an area to the north-east of the New Plymouth town centre. Connett Road is in the industrial zone of Bell Block. Among the businesses on Connett Road are a petrol
company, an industrial gas supplier, a timber manufacturer, an automotive service retailer, and a truck dealership.
[5] In August 2022, JTI purchased a site from Endurance at 64B Connett Road. Although JTI did not have a specific proposal in mind at that time, it decided the site would be a good location for short-term residential and worker accommodation. JTI had recently completed the development of a commercial business park in the general area and was aware of the high demand for worker accommodation in Taranaki. JTI proposed to construct two two-storey buildings with 38 residential studio units at 64B Connett Road (the Proposal). The Proposal was intended to meet some of that accommodation demand.
[6] On 16 February 2023, JTI submitted an application for a CoC to the NPDC (the Application).
[7] On 19 April 2023, the NPDC granted the CoC. The CoC was accompanied by a planning report prepared by a NPDC senior environmental planner that concluded the Proposal complied with the relevant provisions of the ODP and recommended a CoC could be issued in accordance with s 139 of the RMA (the Planner’s Report).
[8] Proposed activities that are granted a CoC purportedly meet all of the relevant rules of a district plan. They are therefore a “permitted activity” such that resource consent is not required.1 That means the process does not involve notification to any other parties. In this case, therefore, the NPDC’s consideration of the Application and the subsequent decision to grant a CoC were not publicly notified.
[9] There is also a significant benefit to an applicant who is granted a CoC. Although a CoC is not required before commencing a permitted activity under the district plan, its benefit lies in preserving the status of the activity for five years,2 protecting the applicant from any subsequent plan change.
1 Resource Management Act 1991 (RMA), s 139(3).
2 RMA, ss 139(12) and 125(1)(a).
[10] In August 2023, Endurance became aware that the NPDC had granted a CoC for the Proposal. As above, it had concerns about the introduction of a residential development into an industrial area. Those concerns included the safety of residents on a busy road used by large trucks, in particular pensioners and young families that Endurance understood the Proposal appeared to be aimed at,3 and the potential for residents to complain about matters such as dust and noise generated from neighbouring businesses.
[11] Endurance was also concerned about a residential project being given the green light without public consultation. Endurance asked the NPDC how the project obtained approval. The NPDC provided Endurance with copies of the Application, the CoC, and the Planner’s Report. Endurance then instructed LandPro Ltd (LandPro), a land development consultancy, to review those documents. LandPro produced a report on 4 September 2023 which expressed concerns about the assessment of the Application and concluded the CoC had been issued without sufficient information to confirm compliance with all aspects of the ODP (the LandPro Report).
[12]The following day, Endurance provided the LandPro Report to the NPDC.
[13] In mid-September 2023, the NPDC engaged an external planning expert to undertake an independent review of the Application, the Planner’s Report, and the LandPro Report.
[14] Also in mid-September 2023, the NPDC released the “Appeals Version” of the new Proposed New Plymouth District Plan (PDP), which it had notified four years earlier in September 2019. The Appeals Version of the PDP recorded the parts of the PDP that were operative (and thus replaced the ODP) and the parts that were subject to further appeal. It is not disputed in this case that, if JTI’s Proposal was reassessed under the now operative parts of the Appeals Version of the PDP, the Proposal would require resource consent.
3 Endurance became aware of the issue of the CoC from a social media post on 8 August 2023 that referred to the scarcity of rental accommodation affecting many in the community from pensioners to young families, noting the location was a short walk to a local shopping centre, and stating that “we truly believe this is going to be a great place to call home!”.
[15] The NPDC’s commissioned report was produced in October 2023 (the Mitchell Daysh Report). Although disagreeing with some of the points made in the LandPro Report, the report writer agreed with the LandPro Report’s conclusion that the Application had insufficient information to enable a CoC to be issued. The NPDC provided the Mitchell Daysh Report to Endurance and to JTI.
[16] In December 2023, Endurance filed its application for judicial review. Endurance then commissioned another report (the Murray Report) which also concluded the NPDC had insufficient information to satisfy itself that it could grant the CoC.
[17] The NPDC has not opposed Endurance’s application and has taken no part in these proceedings.
[18] JTI has undertaken not to take any steps to advance the Proposal pending determination of the proceedings.
Preliminary issue: admissibility
[19] Self-evidently, the LandPro Report commissioned by Endurance and the Mitchell Daysh Report commissioned by the NPDC were not before the decision- maker (the NPDC) at the time it considered the Application and issued the CoC. These two reports were annexed to the affidavit of Racheal Cottam (the sole director of Endurance) in support of the judicial review application. JTI objects to their admission on the basis that, if Ms Cottam is providing the reports to assert their truth, then they are hearsay. JTI also says that, to the extent that the reports are tendered as expert opinions, the writers have not proffered expert opinions in accordance with r 9.43 of the High Court Rules 2016.
[20] Endurance submits that these reports are admissible; their admissibility does not depend on them being part of the decision-making record. The Court is required to assess the legality of the CoC and the Planner’s Report, and this evidence will materially assist the Court in reaching a view. Mr Butler KC referred to the case of
Vipassana Foundation Charitable Trust Board v Auckland Council (Vipassana),4 where evidence that was not before the decision maker (reports about the noise effects of a proposed shooting range) was adduced for the purposes of a judicial review application, was ruled admissible, and was of assistance to the Judge at first instance. Moreover, on appeal, the Court of Appeal also referred to that evidence and expressed its view that the Judge was right to accept it.5
[21] Mr Butler also pointed out that the CoC process is essentially one-sided and a judicial review is the first opportunity for Endurance to comment on it. Inevitably, there is a need for an applicant such as Endurance to demonstrate where things might have gone wrong. In a specialist area such as this is, there is substantial assistance to be gained from evidence of experts to provide an understanding of what the relevant rules concern, and what sort of information needs to be looked at to assess whether an activity is permitted. In this case, the NPDC has not participated, but the Court has an independent review the NPDC itself commissioned to determine whether its decision complied with s 139.
[22] I uphold JTI’s objection to the admission of the LandPro Report and the Mitchell Daysh Report. In my view, this is not a similar situation to the case of Vipassana, where the issue concerned the effects of an activity, and the further evidence was confined to those effects and provided context to the assessments that were actually made. Instead, I consider the circumstances are more akin to the case of New Zealand Independent Community Pharmacy Group v Te Whatu Ora – Health New Zealand,6 where Gwyn J declined to admit expert evidence on the basis that expert evidence going to the merits of a decision—which was not before the decision- maker—was not relevant or substantially helpful and was therefore inadmissible.7 Also inadmissible in that case was expert evidence going to questions of law such as
4 Vipassana Foundation Charitable Trust Board v Auckland Council [2017] NZHC 1457, [2017] NZRMA 339 [Vipassana (HC)].
5 Vipassana Foundation Charitable Trust Board v Auckland Council [2019] NZCA 100, [2019] NZRMA 380 [Vipassana (CA)] at [50].
6 New Zealand Independent Community Pharmacy Group v Te Whatu Ora – Health New Zealand
[2023] NZHC 1486.
7 At [129].
an alleged failure of a decision-maker to take relevant matters into account, or to apply the correct legal test.8 The reports in this case engage those issues.
[23] Having said that I agree entirely with Mr Butler that, in a one-sided process as the CoC process is, Endurance needed assistance to see where things might have gone wrong. I also note that finding the LandPro and Mitchell Daysh reports are inadmissible is somewhat academic because of course I have read the reports and counsel made extensive reference to them at the hearing. Both counsel have naturally pointed out the areas of concern the reports expressed and made competing submissions as to the correctness of the matters raised, as well as referring to the third report (the Murray Report), which I will come to next. However, it is for the Court to determine what the ODP rules mean and whether the author of the Planner’s Report, and thus the NPDC, had sufficient information to reach the decision that the Proposal complied with all of the applicable rules. Thus, I prefer to adopt the approach that Gwyn J took. On that basis, I find the LandPro Report and the Mitchell Daysh Report are inadmissible. But the fact of the reports is not inadmissible. Nor is it inappropriate that aspects of those reports (and the Murray Report) are used by the applicant, Endurance, as the basis of its challenge to the CoC.
[24] Turning to the Murray Report, as above, Endurance engaged Mr Murray, a planner at an independent property and planning consultancy, after it filed these proceedings. Mr Murray undertook an independent review of the Application, the Planner’s Report for the CoC, the LandPro Report, the Mitchell Daysh Report, and the ODP, and provided his opinion on whether the NPDC had sufficient information to grant the CoC. Unlike the LandPro and Mitchell Daysh Reports, Mr Murray’s affidavit and annexed Report are sworn as expert evidence in accordance with the relevant requirements under the High Court Rules. In common with the LandPro and Mitchell Daysh Reports (although with some differing reasons), Mr Murray concluded the NPDC had insufficient information to grant a CoC.
[25] With one exception, I rule Mr Murray’s affidavit is also inadmissible for the same reasons expressed above. The exception is in relation to the issue of earthworks.
8 At [130].
That is because, in contrast to the other areas of concern that are raised, I would find substantial help from his expert opinion on that issue.9 That is so because it is not apparent on its face, on either the Application or the Planner’s Report, what is the likely scope of excavation or fill that the Proposal would require. Thus Mr Murray’s calculations, which are not within the expertise of the Court to make, are useful.
[26] JTI also objects to affidavits Endurance filed from three business operators in the vicinity of Endurance’s business (the Neighbours’ Affidavits). JTI says they do not prove or disprove whether the NPDC had sufficient information to grant the CoC. Moreover, any wish to be notified about the concerns they raise are not matters the NPDC could have turned its mind to when deciding to approve the certificate.
[27] In my view, the Neighbours’ Affidavits are admissible. They are not being adduced to suggest the NPDC should have consulted on the Proposal (which is not an arguable issue, given that no consultation is required). I agree with the submission for Endurance that those affidavits are responding to JTI’s pleaded point that none of the alleged errors in the Planner’s Report or the granting of the CoC adversely affect the applicant or any member of the public, and they are also relevant to the Court’s discretion to grant relief.
[28] Endurance takes issue with the affidavit evidence of Damian Ellerton, the author of the acoustics report attached to the Application, in which he explains the errors he made in his report. I agree with Endurance that this ex post-facto explanation is not relevant to the issues I have to determine, but I also agree with JTI that it is relevant to my assessment of the issue of relief, given his evidence that, despite his errors, his assessment was nevertheless correct. Therefore, this evidence is admissible.
The legal landscape
[29] As noted above, CoCs are issued by consent authorities (including local councils) pursuant to s 139 of the RMA. Section 139 relevantly states:
9 Evidence Act 2006, s 25(1).
139Consent authorities and Environmental Protection Authority to issue certificates of compliance
(1)This section applies if an activity could be done lawfully in a particular location without a resource consent.
(2)A person may request the consent authority to issue a certificate of compliance.
(3)A certificate states that the activity can be done lawfully in a particular location without a resource consent.
(4)The authority may require the person to provide further information if the authority considers that the information is necessary for the purpose of applying subsection (5).
(5)The authority must issue the certificate if—
(a)the activity can be done lawfully in the particular location without a resource consent; and
(b)the person pays the appropriate administrative charge.
…
(7)The certificate issued to the person must—
(a)describe the activity and the location; and
(b)state that the activity can be done lawfully in the particular location without a resource consent as at the date on which the authority received the request.
(8)The authority must not issue a certificate if—
(a)the request for a certificate is made after a proposed plan is notified; and
(b)the activity could not be done lawfully in the particular location without a resource consent under the proposed plan.
…
(10)A certificate is treated as if it were an appropriate resource consent that—
(a)contains the conditions specified in an applicable national environmental standard; and
(b)contains the conditions specified in an applicable plan.
…
[30] There is no question that the NPDC’s decision to grant a CoC is the exercise of a statutory power which is judicially reviewable under the Judicial Review Procedure Act 2016 (JRPA). Indeed, judicial review is the only avenue for redress for third parties who may be affected by the issuance of a certificate under s 139.10 However, it is not the Court’s function in a judicial review to consider the potential adverse effects of the Proposal or to attempt any assessment of the merits of the Application. The Court will not substitute its own factual conclusions for those of a consent authority.11
[31] The decision to grant a CoC under s 139 is an issue the courts are familiar with. A number of principles can be drawn from the authorities. Those principles were summarised by French J in Royal Forest and Bird Protection Society of New Zealand Inc v Waitaki District Council (Royal Forest and Bird) as follows:12
(i)Before issuing a certificate of compliance, a consent authority must first be satisfied that there is compliance.
(ii)Before it can be properly satisfied, it must have had sufficient information in order to be able to make a thorough comparison of the proposal with the applicable rules.
(iii)What amounts to sufficient information will depend on the nature of the proposal and the particular rules in question.
(iv)A thorough comparison of the proposal with the applicable rules requires the authority to undertake a point by point scrutiny of the proposal against the rules pertaining to it. Every aspect of the activity must be in conformity with the relevant rules.
(v)If it is certified that an activity complies with the District Plan, that is a holding out by the consent authority that the activity complies fully and in every respect.
(vi)If the activity can be carried out lawfully in the location without a resource consent, the authority must issue the certificate.
(vii)On the other hand, if the activity does not comply with the requirements of the District Plan in all respects, a certificate under s 139 may not be issued. The authority does not have a discretion as
10 Turners & Growers Horticulture Ltd v Far North District Council [2012] NZHC 1142, [2012] NZRMA 435 [Turners & Growers] at [9].
11 Turners & Growers, above n 10, at [31]; Gilbert J expressed the “critical question” as being “whether there was any material error on the part of the Council in reaching its decision to issue the certificate” (at [30]).
12 Royal Forest and Bird Protection Society of New Zealand Inc v Waitaki District Council [2012] NZHC 2096, [2012] NZRMA 507 [Royal Forest and Bird] at [49] (footnotes omitted).
to whether or not to issue a certificate. The activity either conforms with all applicable rules or it does not.
[32] The onus is on the applicant for a certificate to show that every aspect of the proposed activity conforms with the relevant rules that apply to it.13 The consent authority must be provided with particulars that are “sufficiently comprehensive” and “reliable”,14 and although the weight to be given to relevant matters is a matter for the consent authority, there must be at least “some material capable of supporting the decision”.15 The source of the information is immaterial provided that “in practice it is reliable and sufficient to enable the authority to know with reasonable precision the nature of the activity proposed for the site”.16 Reliance on the authority’s general knowledge is permitted.17 In some situations, where a relevant rule is not addressed at all by the consent authority, the Court may infer that the consent authority either accepted a statement at face value or did not consider the issue at all.18 Neither are permissible. The reasons expressed in the grant of a CoC and the report supporting it provide the most cogent evidence of what was taken into account; while a council officer may dispense with a matter in their own mind, if it is not recorded in a transparent manner, it would not provide a basis to establish legality.19
[33] As is apparent from the wording of s 139 and the principles set out above, a failure to demonstrate compliance with any one of the relevant district plan rules would mean a CoC could not issue.
[34] A CoC cannot be granted on a conditional basis either; total compliance must be established at the time of the grant.20 This was the main issue in Royal Forest and Bird, where the applicant for the certificate sought approval for a number of existing and proposed farming activities.21 The certificate was granted, but expressed to be subject to a condition: the Waitaki District Council accepted the relevant activities
13 Briar Gordon and others Resource Management (online looseleaf ed, Westlaw) at [A139.10].
14 Turners & Growers, above n 10, at [52]; see also Queenstown Casinos Ltd v Dunedin City Council
[1998] NZRMA 209 (HC) at 220.
15 Pring v Wanganui District Council [1999] NZRMA 519 (CA) [Pring] at 523 (emphasis in original).
16 At 524.
17 At 525.
18 See Turners & Growers, above n 10, at [50]–[52].
19 Vipassana (HC), above n 4, at [48].
20 Royal Forest and Bird, above n 12, at [53].
21 At [9].
were permitted activities “provided the conditions in rules 4.4 and 4.5 of the Plan are complied with”.22 But the Council had not been given sufficient information that the proposed activity was a permitted one under the rules and could not overcome that deficiency via a condition. It should have sought clarification.23
[35] The Court of Appeal has stated that, when considering whether a decision was one open to a consenting authority on the material before it, the courts will “scrutinise what has occurred more carefully and with a less tolerant eye” than it would do in a case where the decision being questioned required the balancing of broad policy considerations.24 This is because the s 139 process does not involve public participation but “neighbours may well be adversely and directly affected by a development”,25 and a wrongly granted certificate may affect persons not before the Court or people subsequently coming to the area.26 Accordingly, the consent authority’s obligation to reach the correct decision about proposal compliance “must have a special emphasis”,27 and before any decision is made it is important that the consent authority has sufficient information to make a thorough comparison.28
[36]As French J pointed out in Royal Forest and Bird:29
Were a Council not required positively to assess whether any relevant rules will be breached by the activities, compliance certificates would become meaningless … It defeats the purpose of a compliance certificate for the point- by-point analysis to be deferred.
[37] Where a public authority is held to have exceeded its statutory powers—for example, by exercising a power in circumstances where the legislative requirements for that exercise have not been met—the public authority is said to have acted “ultra vires”.30 For present purposes, if it is found that the NPDC did not have sufficient information to be satisfied the Proposal and Application fully complied with the ODP, the NPDC would have acted ultra vires its statutory powers by issuing the CoC
22 At [12].
23 Royal Forest and Bird, above n 12, at [51]–[58].
24 Pring, above n 15, at 523.
25 At 523.
26 Vipassana (CA), above n 5, at [93].
27 At [93].
28 Turners & Growers, above n 10, at [9].
29 Royal Forest and Bird, above n 12, at [59].
30 See, for example, Queenstown Casinos Ltd v Dunedin City Council, above n 14, at 219.
because it could not have been satisfied in terms of s 139(5) that the proposed residential development could be done lawfully without a resource consent.
[38] The parties accept the broad principles set out above, but they disagree about the emphasis to be placed on them:
(a)For JTI, it is said that Endurance is emphasising parts of the Court of Appeal’s Vipassana decision to suggest a standard applies requiring the Council itself to produce a list of the rules and to comment on every one.31 Although JTI does accept the NPDC could be criticised in this regard, it says that is not a legal requirement. Instead, the critical question is whether the NPDC had sufficient information to grant the CoC.
(b)In contrast, Endurance stresses the need for careful scrutiny. Endurance says the whole reason for a point-by-point assessment is to ensure that assumptions are not made, missing information is identified, and therefore the applicant and any potentially affected parties can be sure the activity is indeed permitted by the relevant plan/rules. That is particularly important when an activity established on a site has a flow on impact on any future assessment of the permitted baseline on the site.
[39] I comment here that this last matter of a baseline is of particular relevance in this case, where JTI proposes to introduce a residential development into an industrial area. The issuance of a CoC has the effect of establishing a “permitted baseline” on the site, which makes the effects of activities that are permitted, or already consented to, irrelevant, and unaffected by subsequent plan changes. Because a CoC confirms the compliance of the proposed activity with the relevant plan, any later proposal to intensify use of the same site then only needs to be assessed in terms of its incremental impact. In other words, only further adverse effects stemming from a later proposal under consideration are taken into account.32
31 Vipassana (CA), above n 5.
32 At [88]–[89].
[40] JTI is correct as to what the critical question is. But Endurance is also correct that the NPDC needed to undertake a careful scrutiny, given the implications of a grant of a CoC. With that level of scrutiny in mind, I turn to consider the NPDC’s decision.
Issue one: sound
[41] The first matter on which Endurance says the NPDC did not have sufficient information to assess whether the Proposal would comply with the ODP relates to noise attenuation of a building (rule IND22). Endurance also says the NPDC’s determination that the Proposal could comply with IND22 was impermissibly conditional on windows and doors being closed.
[42]The relevant parts of IND22 provide as follows:33
ERECTION or use of BUILDINGS for NOISE SENSITIVE ACTIVITIES
Rule No.
Parameter
Conditions Permitted
Ind22
requirement for sound attenuation if about BUILDING (excluding TEMPORARY
BUILDINGS)
shall be designed and constructed in accordance with an acoustic design
certificate from an acoustic engineer so that the level of noise received within a NOISE SENSITIVE ROOM, excluding noise from construction work, does not exceed 40 dBA L10 between 10pm and 7am on any day
Note: To achieve compliance with rule Ind22 while at the same time ensuring adequate ventilation, NOISE SENSITIVE ROOMS with doors and windows or other openings opening to the outdoors may need to utilise other methods to meet the ventilation
requirements of the Building Act 2004 and relevant codes thereunder.
[43] As can be seen, this rule relates to the erection or use of buildings for noise sensitive activities.
[44]The Application commented on compliance with this rule as follows:
Permitted – the proposal includes 38 noise sensitive rooms. Marshall Day Acoustics have been engaged to provide advice on whether the proposed design is able to comply with the ODP standard. Marshall Day have confirmed
33 Operative New Plymouth District Plan 2005 (Industrial Environment Area) (updated July 2014) (ODP) at 324.
the proposal will comply subject to the building being constructed using specific materials.
[45] The Application also referred to IND81–IND83 as “Noise from Wind turbines, Emergency Services and Temporary Events” and commented on compliance as “N/A”. That was incorrect; IND83 relates to noise generated by any other activity excluding temporary events. IND83 permits (by reference to standards for the emission of noise) a specified noise level of 70dBA on any day at any time (the maximum is 80dBA).
[46] Appended to the Application was a report by Marshall Day Acoustics, a consultancy firm engaged to assess the sound insulation design of the Proposal (the Acoustics Report). The Acoustics report stated that sites in the relevant area were permitted to generate “65 dB LA10”. That was incorrect. That level is applicable to a different industrial zone (Industrial D Environment Area), which is neither the zone described in the Application (Industrial C Environment Area, also incorrect) or the correct zone, being Industrial E Environment Area. The Acoustics Report nevertheless assumed a level of 68dBA on the basis of the proposed site adjourning multiple industrial lots. The assumed noise level was also incorrect. The permitted noise generation was 70dBA, as the property is located in the Industrial E Environment Area.
[47] I note here the distinction between Industrial C and E Environment Areas. They are significant. The ODP states that Industrial C Environment Areas are:34
… located in the relative vicinity of RESIDENTIAL ENVIRONMENT AREAS and/or sensitive water bodies, or serve as a buffer to separate other ENVIRONMENT AREAS from INDUSTRIAL ENVIRONMENT AREAS.
[48]In contrast Industrial E Environment area is:35
Similar to the INDUSTRIAL C ENVIRONMENT AREA except that it is predominantly located in the Bell Block industrial area. This area is the principal location for general heavy industry in the district, and as such is well separated from sensitive RESIDENTIAL ENVIRONMENT AREAS but remains close to principle [sic] arterial routes and transport centres.
34 ODP, above n 33, at 315.
35 At 315.
[49] And the Industrial D Environment area is different again. It includes much of Port Taranaki, the New Plymouth power station and “associated industrial activities in the Breakwater Road/Centennial Drive locality”.
[50] The Planner’s Report referred to the Acoustics Report prepared to address the permitted standards under IND22 and IND83. The Planner’s Report recorded that IND22 requires noise received in a noise sensitive room (a bedroom, kitchen or living room) is not more than 40dBA between 10 pm and 7 am and IND83 requires “65 decibels maximum at the site’s boundaries at all times”.
[51] The Planner’s Report writer then noted the Acoustics Report, which considered that these noise limits will not be exceeded with the specific sound attenuation listed in the Acoustics Report. The Planner’s Report writer went on to say:
I accept Mr Ellerton’s expert advice in this regard and the applicant has adopted the recommended sound attenuation measures as part of the proposal. I therefore believe the permitted standards of Rules Ind22 and Ind83 can be met.
[52]It is not in dispute that the assumed noise level of 68dBA was an error.
[53] I agree with the submission for Endurance that the Planner’s Report recorded the basis on which the CoC was granted—being the Acoustic’s Report—and so the CoC was, in turn, granted on the basis of an acoustic assessment that used an incorrect assumption.
[54] The NPDC did not notice the Acoustics Report’s assumption of an incorrect noise limit, nor that it referred to a different address. The latter is of no moment given that directly under the incorrect address, the location of the proposed building at Lot 4, 64B Connett Road, is correct. However, the former is of more concern when the Acoustics Report has then applied a noise level for a different industrial zone that is lower than the permitted level in the correct zone.
[55] I am unable to accept the submission that this error is cured by the ex-post- facto justification in Mr Ellerton’s affidavit, in which he deposes that he did in fact conduct the correct acoustic assessment—that is, in assuming a noise level of
70dBA—and that this is not reflected in his report because of a failure to update some text details from a previous assessment for a different project. I agree with Endurance that the error should have been noticed and a correction sought to enable assessment against the relevant rule. Nor can I accept the submission that the fact the Planner’s Report was written by a senior environmental planner means it can be assumed she would be familiar with the extent to which building materials attenuate noise, and so the Court can be satisfied the NPDC has in fact made the correct decision, notwithstanding the wrong noise standard.
[56] It is not for the Court now to make an assessment and substitute its own conclusion as to whether the Proposal complied with IND22. Compliance with the applicable rule should not be a matter of guesswork or implication, nor a matter of assuming that Council staff, being appropriately qualified (or senior), must have got it right. Compliance should be apparent on the face of the CoC and the associated report on which it is based.
[57] Accordingly, an analysis of compliance with noise attenuation rules on the basis of a reliable acoustic engineer’s report was not possible in the circumstances. The Acoustics Report was not reliable. It is also concerning that this mistake in the Acoustics Report has followed the Application’s erroneous citation of an incorrect zone for the proposed site; the Application says eight times that the site is in an Industrial C Environment Area. That the Planner’s Report did not pick up the errors suggests a level of scrutiny that was not thorough enough, as is anticipated by s 139 and the authorities.
[58] Accordingly, I do not consider the NPDC could be satisfied of compliance with the ODP in regard to IND22 and noise attenuation. The Planner’s Report was written on the basis of the correct zone, therefore the report writer should have determined the correct noise standards that applied and sought an updated Acoustics Report assuming the correct noise level.
[59] The other issue as regards noise is in relation to rule IND83. The Application stated that the parameters set out in IND81–IND83, described as noise from wind turbines, emergency services, and temporary events, as not applicable. That is correct
insofar as it relates to IND81 and IND82. But, as noted above, IND83 relates to noise generated by any other activity excluding temporary events. Because the Application got this wrong, it did not accurately address compliance with IND83, and the Planner’s Report does not address the applicable rule either, except to say that the report writer believed the permitted standards of rules IND22 and IND83 can be met. It may well be the case that a residential development would be unlikely to exceed the noise level permissible for an Industrial E Environment Area, but again, the Court is left in a position of having to imply that the Planner’s Report has disregarded an error in the Application and nevertheless correctly assessed compliance with the relevant rule.
[60] As a final point regarding noise, the Acoustics Report observed that, to achieve the specified internal levels, windows and doors would need to be closed, which might require an alternative form of ventilation to achieve compliance with the building code. The Application did not deal with this issue at all beyond noting that the Acoustics Report had confirmed the Proposal will comply with the ODP, subject to the building being constructed using specific materials. The Planner’s Report did not specifically refer to this issue either, beyond accepting the advice of Mr Ellerton and noting that the recommended sound attenuation measures had been adopted.
[61] Endurance submits that finding the Proposal could comply with IND22 was wrongly conditioned on windows and doors being closed when the Application itself had no information about measures to ensure closure of doors and windows. Endurance notes the authority that a council cannot impose a condition to achieve compliance.36
[62] I do not agree with Endurance that a condition has been imposed on the Proposal, given that the Planner’s Report does not say the CoC is granted on the basis that any particular course of action will be taken. Rather it appears to assume full compliance with IND22, which itself sets out (in the note to the rule) that compliance may involve noise sensitive rooms with doors and windows or other openings to the outdoors using other methods to meet the ventilation requirements of the Building Act 2004 and the relevant codes. But I do consider it another matter of concern that the
36 Royal Forest and Bird, above n 12, at [53].
Planner’s Report did not address the note to IND22, given the Application itself did not itself provide any information about how it would meet any alternative ventilation requirements.
[63] As the Court of Appeal stated in Vipassana, it is not sufficient for a council to take the view that compliance can be assumed in respect of the relevant plan rules.37 Accordingly, there was insufficient information for the NPDC to be satisfied the note to IND22 and ventilation requirements will be complied with, given that the Application proposed construction of a residential building where noise attenuation was assumed on the condition of windows and doors being closed. In my view, further information would have been desirable.
[64] Finally, I observe that noise (and its attenuation) is an important issue, particularly when a more noise sensitive residential activity is proposed to be located in an industrial area. As the ODP itself observes, the establishment of sensitive activities—such as new residential uses adjacent to existing rural activities or close to an airport—can give rise to adverse effects on the existing activity, a phenomenon referred to as “reverse sensitivity”. That underscores the need for the NPDC’s careful scrutiny before issuing a CoC to ensure proposed activities clearly comply with the applicable rules which are designed to avoid such conflict. Even more so when it is establishing a permitted baseline on the site.
Issue two: earthworks
[65] The second area of concern for Endurance relates to earthworks. Endurance says that the NPDC’s decision to grant the CoC on the basis of compliance with IND48–IND50 was unlawful. The Application did not present an approved building certificate or earthworks plan, thus the NPDC lacked sufficient information to make a proper assessment of the Application against these rules.
[66] JTI’s position is that Endurance is raising an issue it did not plead. Instead, it has been raised for the first time in the Murray Report, whereas in the earlier two reports, the LandPro Report made no findings as to the earthworks, and the Mitchell
37 Vipassana (CA), above n 5, at [39].
Daysh Report found no error. JTI’s evidence has explained why the concerns in the Murray Report are unfounded.
[67] The earthworks rules are contained in IND48–IND50. The relevant parts of those rules are set out below:38
EARTHWORKS
EXCAVATION and FILLING
Rule No.
Parameter
Conditions Permitted
Ind48
restrictions based on slope of land
as part of an approved BUILDING consent under the Building Act 2004 or an
approved subdivision consent
under all circumstances
Ind49
all other
EXCAVATION and
FILLING on a slopeon an AVERAGE SLOPE of up to 22 degrees or on an
AVERAGE SLOPE greater than 22 degrees where:
1) the HEIGHT of FILL or depth of EXCAVATION is no greater than 1.5m in the vertical; or 2) the HEIGHT of the slope on which EXCAVATION or FILLING is being undertaken is no greater than 3m in the vertical; or 3) the slope created by the EXCAVATION or FILLING is no greater than: (a) 3m in HEIGHT in the vertical; or (b) 22 degrees. Where a slope is benched, no bench shall be greater than 3m in HEIGHT and the benching
shall not result in an AVERAGE
38 ODP, above n 33, at 330–332.
SLOPE that is steeper than existed prior to the
EXCAVATION or FILLING.
Ind50
all other
EXCAVATION and
FILLING relative to a slope greater than 40 degrees
1) not closer than H to the:
(i) base of the slope (EXCAVATION only)
(ii) top of the slope (FILLING only);
or
2) where the depth of the EXCAVATION or FILLING plus H is not
greater than 3m (where H is the HEIGHT of the slope – refer to Diagram
10.3 in Appendix 10).
[68] The Application referred to IND48 and commented “Permitted – Earthworks and retaining will be carried out under the building consent process”. The Planner’s Report stated that:
… I have confirmed with … [a] Building Consents Officer, that a Building Consent under the Building Act will be required for the batters and retaining wall of the slope along the northern boundary of the side up to the northern elevation of the proposed Block B building. Therefore any earthworks on slopes will be permitted under Ind48 …
[69] Endurance says that the Application did not provide a building consent, which is required to demonstrate compliance with IND48, and the NPDC erred in stating that a future building consent under which earthworks will be permitted by IND48 would suffice.
[70] JTI says that Endurance is conflating the sufficiency of information required to determine compliance with the ODP with information that would be provided at the building consent stage.
[71]In my view, the words of the rule provide the answer.
[72] IND48 concerns restrictions based on the slope of land. The rule makes it clear that, as part of an approved building consent under the Building Act (or an approved
subdivision consent), there will be compliance “under all circumstances”. That is a matter of common sense because, in such circumstances, the works have already been assessed as compliant given approval has been granted.
[73] In this case, however, there was no building consent at the time JDI submitted its application. I do not agree with Endurance that JTI should have provided a building consent. Rather, I agree with the submissions for JTI that the ODP does not actually require a detailed earthwork plans or building consent to be provided.
[74] However, it is also clear to me (and seems to be common ground) that IND49 is the alternative to IND48 that applies when there is no pre-existing building consent—as was the case here. It follows that the Application incorrectly stated that earthworks were permitted because they would be carried out under the building consent process. That error has flowed through to the Planner’s Report. It was incorrect for the report writer to state that, because a building consent would be required, any earthworks would therefore be permitted under IND48. It is the other way around. A pre-existing building consent would have meant that the earthworks were permitted for the purposes of IND48. But, since there was no building consent accompanying the Application, an assessment against the alternative rule IND49 was required. The Planner’s report was therefore premised on approval being granted in a different (later) process, when an assessment by the NPDC was required for compliance with a different rule.
[75] I note that the Planner’s Report, also states that the permitted standards of IND49 are satisfied because:
... in any case the application states any excavation or fill will be no greater than 1.5m in height as evidenced by the need for any a 1.2m high retaining wall at the base of the slope. This therefore meets the permitted standards of Ind49.
[76] The Application states that the designer has confirmed a 1.2m retaining wall to be established at the base of the slope.39 That is said to satisfy the criteria that the height of fill or depth of excavation is no greater than 1.5m in the vertical.
39 The sentence is actually incomplete in the Application, but I can assume that is what was meant.
[77] Endurance accepts that a proposed activity that does not comply with IND48 can nonetheless be permitted if it satisfies IND49. However, Endurance says the NPDC had insufficient information to be so satisfied. In particular, Endurance argues it cannot be assumed excavation would not go beyond 1.5m given the requirement for the retaining wall to have foundations. Based on the Murray Report, Endurance contends that earthworks plans were required to demonstrate compliance.
[78] JTI notes the evidence of Jeremy Brophy, the Director of Flint Planning Ltd, who was engaged by JTI to prepare the Application. Mr Brophy says the retaining wall’s 1.2m height will not be affected by building foundation work or topsoil scraping, which would take place separately to the slope retaining works proposed, and therefore are not relevant under rules IND48 or IND49 where these rules are intended to ensure slope stability. In other words, foundation work or topsoil scraping would be undertaken on flat ground as a permitted activity separate to the slope works.
[79]I have some difficulties with the evidence of Mr Brophy on this issue.
[80] The first concern I have is that, although Mr Brophy agrees IND48 and IND49 are alternatives, he says the Application assesses the Proposal against both because a building consent will be required to build a retaining wall greater than one metre. As above, I consider the plain reading of IND48 means that rule is simply inapplicable in this case.
[81] My second concern is that Mr Brophy’s opinion does not appear to account for the need for the retaining wall to have its own foundations, which is what I understand Mr Murray to be saying. Accordingly, I assess the concerns raised by Mr Murray as reasonable ones. Nor did the Application itself explain the scope of the proposed earthworks in the details that have now been provided.
[82] When the Planner’s Report has expressed a focus on IND48 (which is inapplicable) and IND49 has then come in as an afterthought—that afterthought being in essence a wholesale adoption of the limited details in the Application itself—I am of the view that this appears to amount to an assumption of compliance on the part of the NPDC, rather than a finding of compliance based on sufficient information.
[83] I also note the subsidiary issue of a site scrape which is contained in the Application itself. The Application refers to surface scraping of earth to reach suitable subsurface conditions to establish building foundations and access/parking pavement. The Application also comments on reinstatement of earthworks under rule IND51. That rule, which requires reinstatement of earthworks for any excavation or fill that is greater a specified volume or is exposed for a 12-month period, is said to be complied with because any earthworks will not meet that volume and will be reinstated well within any 12-month period. But IND51 is not addressed at all in the Planner’s Report.
[84] As explained above, Mr Brophy says topsoil scraping would be undertaken on flat ground as a separate permitted activity. The submissions for JTI say that the Application stating excavation or fill will be reinstated should instead have said that IND51 did not apply, and the NPDC could have been satisfied of this when looking at the Application.
[85] That the issue was raised in the Application but there is lack of any reference to it the Planner’s Report and the lack of any real clarity about whether it even applies (although I accept it may not) is another area of concern. I note here the Court of Appeal’s comments in the Vipassana case that it was not sufficient for a council to take the view in issuing a CoC that compliance could be assumed in respect of relevant plan rules.40 In this case when no reference was made to a rule an application has self- assessed as being relevant, it needs to be implied the NPDC was satisfied of compliance (or lack of application of the rule), when it should instead be clear on the face of the Planner’s Report.
[86] Finally, as noted above, JTI raised an objection to Endurance’s pleadings in relation to the earthworks issue. JTI complains that Endurance did not plead the NPDC erred in law in respect of rules IND48 and IND49. Endurance says it did; it had pleaded that the NPDC had insufficient information to conduct a proper assessment of various aspects of the Application, as detailed in the LandPro and Mitchell Daysh Reports, which were cross-referenced in the statement of claim, with
40 Vipassana (CA), above n 5, at [39].
particular reference to the LandPro Report, reproducing that report’s concerns about excavation and filling.
[87] Endurance also points out that JTI responded to Mr Murray’s Report, which followed the previous two reports and raised additional issues on the face of the Application in relation to rules IND48 and IND49.
[88] JTI says that I should follow the decision of Palmer J in Fraser v Central Hawke’s Bay District Council.41 In that case, his Honour dealt with a point that was not pleaded but both parties made submissions on it. His Honour said, strictly speaking, he did not need to deal with the issue because it was not pleaded and no application was made to amend the pleadings. However, he determined the issue in any event.42
[89] In contrast, Endurance submits that I should have regard to the approach taken by Gilbert J in the Turners & Growers case, where an argument was made that an issue had not been referred to in the statement of claim and thus the Court lacked jurisdiction to entertain any complaint about the Council’s treatment of that issue.43 There, his Honour held that, not only did the statement of claim raise the issue, but it was clear all parties understood it formed part of the claim. It had been responded to in the statement of defence, and it was addressed in evidence and submissions.44
[90] I consider this case is more akin to the situation in the Turners & Growers case. The issue with earthworks was, in a general sense, raised in the statement of claim. Endurance’s filing of the Murray Report then made clear the additional concerns raised about rules IND48 and IND49. JTI has responded by filing evidence. Both parties have made submissions on the issue. Given that the purpose of pleadings is to provide fair notice of the case to answer, I do not see any prejudice to JTI from the lack of a specific mention in the statement of claim. Accordingly, I reject JTI’s submission on the jurisdictional issue.
41 Fraser v Central Hawke’s Bay District Council [2021] NZHC 2981, [2022] NZRMA 90.
42 At [50].
43 Turners & Growers, above n 10, at [45].
44 At [47].
Issue three: carparking and onsite manoeuvring space
[91] Endurance submits that the NPDC should not have granted the CoC on the basis the Proposal complied with vehicle access rules IND85 and IND88 because no vehicle tracking information was provided with the Application and therefore the NPDC had insufficient information to make a proper assessment of the Application against these rules.
[92] JTI disagrees, noting that NPDC staff reviewed the plans and reached a view that the Application complied. Although tracking curves were not provided, Matt Sanger (an NPDC development engineer) and the Planner’s Report writer plainly reached the view that the Proposal met the ODP standards.
[93] In correspondence, Mr Sanger had said to the report writer that the Proposal “Looks like it me[e]ts the Operative district plans” but that, if the report writer had concerns, she could ask them to provide tracking curves on the plan.
[94] The report writer asked him, “But it looks like the tracking curves will fit comfortably?”. Mr Sanger responded, “It is quite hard to tell on the plans because they don’t have any dimensions on them”.
[95] The report writer then responded that it looked to her like they could easily do a three-point turn out of all the carparks and exit the site facing forward. Mr Sanger agreed. He was then asked if that met the parking rule. He stated that the “minimum is 4.9[m] for length and 2.5m for width im pretty sure so just meets it”.
[96] The Planner’s Report recorded that the writer had consulted Mr Sanger who confirmed he believed the Proposal met all the relevant engineering rules, such as manoeuvring out of carpark spaces in rule IND85, noting it was not addressed by the applicant. The report writer said she accepted Mr Sanger’s expert advice on these matters and believed the permitted standards of rules IND84–IND89 will be met.
[97] JTI says that whether tracking curves were required is a matter of opinion that different experts will differ on, and notes the test is whether there is sufficient information to be satisfied of compliance with the ODP, not whether it is the best
information. While tracking curves may have been preferred, they were not necessary to determine compliance, and this is not an area where the decision-maker overlooked a consideration. NPDC expressly considered whether tracking curves would be required and decided it would not need them.
[98]The relevant rules are set out below:45
TRAFFIC AND TRANSPORT
Requirement to provide VEHICLE ACCESS POINTS, on-SITE parking for
MEDIUM SERVICE VEHICLES or larger, loading and standing areas, and on- SITE manoeuvring and queuing (excluding TEMPORARY EVENTS)
Note: If parking is provided, then the design of it is required to meet the dimension requirements are required by Ind85 and Part B of Appendix 23.
Rule No.
Parameter
Conditions Permitted
Ind85
parking
meets the conditions for permitted activity as specified in Part B in Appendix 23
Ind88
on-SITE
MANOEUVRING SPACE
meets the conditions for a permitted activity as specified in Part E of Appendix 23
[99] In terms of IND85 parking, as well as IND88 onsite manoeuvring space, the rules state that both must meet the conditions for permitted activity as specified in Part B in Appendix 23. Those conditions are relevantly:
(a)the “conditions for a permitted activity as specified in Part B in Appendix 23” include Diagram 23.11, which requires a minimum aisle width of 7.9m for a right-angled carpark with a width of 2.6m; and
(b)the “conditions for a permitted activity as specified in Part E of Appendix 23” include Diagram 23.21, which requires that the tracking curve for a 90th percentile car has a radius of eight metres.
45 ODP, above n 33, at 340–341.
[100] Mr Butler submits the correspondence between the engineer and the report writer does not show a point-by-point review and does not conclusively demonstrate the ODP rules could be complied with.
[101] The Application itself said that IND85 did not apply because the National Policy Statement on Urban Development 2020 (applicable to all local councils) had removed the requirement for onsite parking. The Application recorded that all ODP rules, objectives, and policies for onsite parking had been removed on 20 February 2022, but the applicant acknowledged the need for onsite parking and that the Proposal included 18 onsite carparking spaces.
[102] In relation to rule IND88, the Application stated it was permitted because the proposed site plan demonstrates compliance with Appendix 23. As above, that requires the tracking curve for a 90th percentile car has a radius of eight metres.
[103] JTI says this issue needs to be put into context as a minor one that affects only very few parks that are not even strictly required. But in this case, plans were provided, and there was a discussion between staff about parking dimensions and the ability to manoeuvre. There was sufficient information for the NPDC to be sure it complied with the relevant rules. It was considered and assessed as compliant.
[104] While I agree that this issue did have some level of review, I note that Mr Sanger at first gave only a rough opinion (that the Proposal “looked like” it met the requirements) but that was qualified by the suggestion of asking for more information if the Planner’s Report writer had any concerns. When she responded in the form of a question that it looked like the tracking curves would fit comfortably, Mr Sanger said it was “quite hard to tell on the plans”. And his final comment, after being asked if that met the parking rule, was that he was “pretty sure” it was “just” met.
[105] Where there was an expert saying it is “quite hard to tell on the plans” that the Application complies with the relevant ODP rules, in my view, it would have been prudent for the Planner’s Report writer to ask for additional information about tracking curves and dimensions. On that basis, I consider the appropriate level of scrutiny was
not met and there was insufficient information for the Council to be satisfied of compliance in respect of IND88.
[106] In respect of IND85, the Application said it was inapplicable as onsite parking was not a requirement. Again, the submission for JTI is essentially that issues of compliance with IND85 are minor and affect only a few parks that are not required in any event. But that is to ignore the clear words of the notes to the relevant rule stating that, if parking is provided, its design must meet the relevant dimension requirements. It may well be the case that there is “nothing to see here”, but the Planner’s Report only referred to IND85 by stating it was not addressed by the applicant, and that reference was in the middle of a sentence referring to manoeuvring out of parking spaces. But manoeuvring relates to IND88, not IND85. Again, the Court is left to imply that the report writer assessed compliance with IND85 (and on the basis of someone else being “pretty sure” it is “just” met), rather than being satisfied that it was specifically addressed by way of a point-by-point scrutiny.
Summary of conclusions
[107] I have concluded that the NPDC did not have enough information to satisfy itself of compliance with rules IND22 and IND88 of the ODP, and that the issues of earthworks and parking also raise concerns about the sufficiency (and/or quality) of the information on the basis of which the NPDC issued the CoC.
[108] The Court has consistently made it clear that a careful examination is required of compliance with each applicable rule. But in this case, there were errors in the Application and in an expert Acoustics Report forming part of it that were not picked up by the Planner’s Report writer. It is difficult to resist the implication that there was a lack of adequate scrutiny of the Application. A good level of scrutiny is crucial when an applicant for a CoC is effectively noting its own activities as permissible and self- assessing its compliance with what it says are the relevant district plan rules.
[109] Accordingly, I conclude the NPDC’s decision to grant the CoC was ultra vires and therefore unlawful.
Relief
[110] Public law relief is discretionary, both under the JRPA and at common law.46 The “default position”, however, is that, where it is demonstrated a public decision- maker has erred in the exercise of its power, a claimant is entitled to relief.47 Ordinarily, errors of law in the present context will result in the grant of a certificate of compliance being set aside.48
[111] Endurance submits that the Court should exercise its discretion to set aside the CoC. First, the CoC is a holding out by the NPDC that the Proposal complies with all aspects of the ODP, when that is not the case. It naturally follows that the CoC cannot stand. Second, to the extent that JTI argues the errors in the NPDC’s assessment of the Proposal are “minor”, that is not a reason to refuse to set the CoC aside. Third, because the new PDP has come in, quashing of the CoC would require JTI to apply for resource consent. That process would be of benefit to all of the businesses on Connett Road who would then be able to participate in a public process. Mr Butler also emphasises that Endurance did not delay in questioning the NPDC’s actions or filing this judicial review. JTI has also willingly undertaken not to progress the Proposal pending the outcome of these proceedings. It would not therefore be unjust for the CoC to be set aside.
[112] Mr Johnson for JTI submits that the information before the Court enables it to determine that the Proposal complied with the rules of the ODP, even if there has been a technical or processing error outside of JTI’s control. He emphasises that JTI is not at fault and would have to bear the cost of reapplying for a resource consent under the PDP. Mr Johnson says it is open to the Court to reason that the Proposal was (and is) a permitted activity under the ODP, and there is no prejudice to Endurance (or other business owners on Connett Road) in allowing a permitted activity. That the Court could substitute its own factual assessments using its own general knowledge to find that there is enough information to grant the CoC is supported by the decision in
46 Judicial Review Procedure Act 2016 (JRPA), s 18; Air Nelson Ltd v Minister of Transport [2008] NZCA 26, [2008] NZAR 139 [Air Nelson] at [59].
47 Air Nelson, above n 46, at [61].
48 Vipassana (CA), above n 5, at [94].
Pring v Wanganui District Council.49 In that case, the Court of Appeal endorsed the High Court’s decision against exercising discretion to grant relief on the basis that non-compliance was de minimis.50 This approach is available in the present case.
[113] Mr Johnson also appears to rely on the High Court relief decision of Whata J in Vipassana to suggest that the CoC application could be referred back to the NPDC for reconsideration without the CoC being quashed.51 This would allow the CoC to continue to have effect unless and until revoked or amended by the NPDC.
[114]I note the following cases:
(a)In Royal Forest and Bird, French J set aside the relevant CoC, taking into account the fact that any expenditure incurred was either prior to the certificate being issued or was not incurred specifically in reliance of it. Her Honour also noted that the applicants for judicial review had not been guilty of any disqualifying conduct. Her Honour considered that simply deleting the offending condition on the certificate “would not address the underlying cause of the illegality”, being the insufficiency of information.52
(b)Justice Gilbert in Turners & Growers disagreed that the existence of arguably only “inconsequential” issues with a CoC meant that the certificate should not be set aside.53 His Honour said that an assessment of compliance with the relevant district plan, once a proposed activity is fully explained and delineated, should be made by the Council and not the Court on review.54 His Honour also explained that, in any case, it is not possible for the Court to determine factual issues of compliance when a proposal has been deemed insufficiently clear.55
49 Pring, above n 15, at 524–525.
50 At 529.
51 Vipassana Foundation Charitable Trust Board v Auckland Council [2017] NZHC 1492, [2017] NZRMA 313 at [6].
52 Royal Forest and Bird, above n 12, at [69]–[73].
53 Turners & Growers, above n 10, at [57].
54 At [58].
55 At [35].
(c)In Vipassana, the Court of Appeal disagreed with the High Court’s decision to refer the CoC back for reconsideration. Having regard to the nature of the powers and duties conferred in s 139 of the RMA, the Court said the discretion issue should be approached on the basis of the normal Air Nelson test.56
[115] I can see no good reason not to apply what is the usual approach, that is, to set aside the CoC. Although the High Court in Vipassana referred the CoC back to the local council to reconsider on the planning framework in place at the time, on appeal, the Court of Appeal set the CoC aside. I also note the Court of Appeal’s decision in Pring pre-dates the Air Nelson decision, when the latter is the “normal test” for the discretionary relief issue in relation to s 139 of the RMA.57
[116] It is a natural outcome in this case that the CoC be set aside. This Court is not equipped with the expertise required to assess planning requirements or compliance with rules in the same way that specialised staff at the NPDC would be. As expressed by Gilbert J in Turners & Growers, this Court cannot guess what new information or explanation will be provided by JTI,58 nor is it appropriate for this Court to substitute its own factual conclusions.
[117] There were a number of issues of concern here beyond “processing errors”. The NPDC failed to undertake a point-by-point assessment of the Proposal. There was therefore insufficient information for the NPDC to be satisfied of the Proposal’s compliance with all rules of the ODP. Three independent reports (one of them the Council’s own report) have found so (although differing in some respects). In particular, I do not consider the noise attenuation issue to be an insignificant one in the context of a proposal to introduce a residential complex into an industrial area. Although the errors involved in that issue may well be minor, it should be a matter for Council, not Court, assessment.
56 Vipassana (CA), above n 5, at [94].
57 At [94].
58 Turners & Growers, above n 10, at [58].
[118] I do have some sympathy for the position JTI finds itself in. It has acted in good faith in submitting the Proposal for consideration by the NPDC. It will now have to apply for a resource consent under the new PDP. Although that will inconvenience JTI and come at a cost, that JTI would now require a resource consent highlights the potentially wide-ranging impact of the proposed development, further supporting the CoC being put to one side to enable re-assessment of the Proposal’s planning compliance. The fact that there may be third parties affected by a flawed decision- making process in the grant of the CoC also lends itself to setting it aside.59
[119] Although not developed in Endurance’s written or oral submissions, I note that Endurance’s pleadings also sought a declaration that the NPDC acted unlawfully when issuing the CoC. Relief will not be granted where there is no utility in doing so.60 In my view, such a declaration has little to no practical value; setting the CoC aside means that the NPDC erred in law by granting it. To the extent that Endurance still seeks such a declaration, I decline to grant it accordingly.
[120] For these reasons, the decision of the NPDC and the CoC is set aside pursuant to s 16(2) of the JRPA.
[121] The parties should endeavour to agree as to costs. However, in the event that costs are not agreed, the parties (including NPDC) are to file submissions on the issue (no longer than 10 pages including tables) within 10 working days of receiving this decision, with any replies to be filed five working days thereafter. Should the parties wish to be heard on costs, they are to advise the Registry. Otherwise, costs will be determined on the papers.
Grau J
Solicitors:
Connect Legal Taranaki, New Plymouth for Applicant Wynn Williams Auckland for Second Respondent
cc: L E Bielby, RiceSpeir, Auckland for First Respondent
59 Turners & Growers, above n 10, at [59].
60 Te Whakakitenga o Waikato Inc v Martin [2016] NZCA 348, [2017] NZAR 173 at [39].
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