Ennor v Auckland Council
[2018] NZHC 2598
•8 October 2018
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2018-404-404 [2018] NZHC 2598
BETWEEN BRENDA MARIE ENNOR
Applicant
AND
AUCKLAND COUNCIL First Respondent
JOHN FREDERICK PARKER and ERIN PATRICIA PARKER
Second Respondents
Hearing: 10 August 2018 Counsel:
A Webb for Applicant
S Quinn and B Ford for First Respondent
R E Bartlett QC for Second RespondentsJudgment:
8 October 2018
JUDGMENT OF WHATA J
This judgment was delivered by me on 8 October 2018 at 4.30 pm, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date: ………………………….
Solicitors: Ellis Gould, Auckland DLA Piper, Auckland Knight Coldicutt, Auckland
ENNOR v AUCKLAND COUNCIL [2018] NZHC 2598 [8 October 2018]
[1] Ms Ennor applies for judicial review of a Council decision to grant her neighbours’ resource consent to extend the rear of their house and install a pool.
Ms Ennor says, in short, that the Council has failed to have regard to effects on her, in breach of their duty to do so, and as required by the relevant planning instruments applicable at the time.
Background
[2] The background is largely agreed.
[3] Ms Ennor has lived at 12 Galatea Terrace for over 30 years. Mr and Mrs Parker purchased 14 Galatea Terrace in 2016. They are neighbours. On 14 October 2016, the Parkers applied to the Council for land use consent for house alterations and to construct a new pool in the front yard of their home (the Application). The Application was supported by a report prepared by a planning and resource management firm, which included a description of the activities, an assessment of environmental effects and a review of the relevant planning provisions. The alterations included an extension to the house to provide a new dining room (of 20.7 m2), installation of a timber deck, extension of the existing garage (of 5.85 m2), hard and soft landscaping, a new timber retaining wall surrounding the western yard (of less than one metre in height) and a swimming pool.
[4] At the time of the Application, both the Auckland District Plan (Isthmus Section 1999) (Legacy Plan) and the Proposed Auckland Unitary Plan (PAUP) had legal effect. Under the Legacy Plan the activities required resource consent as a discretionary activity. Under the PAUP the activities required a restricted discretionary activity consent. The Council bundled the activities as requiring a consent for a discretionary activity.
[5] In response to the Application, the Council prepared a report for a discretionary resource consent application under the Resource Management Act 1991 (the Act). The report recommended non-notification and determined that the Application should be granted, subject to conditions. More specifically, the non-notification assessment found that:
(a)The works will have less than minor adverse effects on the environment;
(b) There were no special circumstances warranting public notification;
(c)There were no persons affected by the applications in accordance with s 95E of the Act, so no limited notification was required; and
(d)There were no grounds for the Council to exercise its general discretion under s 95A(1) of the Act to notify the Application.
[6] The Council’s substantive decision, which was issued at the same time as the notification assessment, decided that it had adequate information upon which to make the decisions and granted the Application, subject to conditions.
[7] The Parkers later applied to vary the applications on 9 November 2017 (the Variation). The Variation was supported by a fresh report assessing it against parts of the PAUP and the Act. It sought to vary the first condition of the resource consent, involving the relocation of the approved pool from the front yard to the rear yard, a new dormer over the internal staircase at the rear of the dwelling, and a change to the roof line over the family room at the south west corner of the dwelling. By the time of the Variation, only the PAUP applied.
Statutory and planning frame
Notification
[8] The present applications were processed under the Resource Management Act
1991, prior to the Resource Legislation Amendment Act 2017. Section 95E is in focus. It states:
95E Consent authority decides if person is affected person
(1)For the purpose of giving limited notification of an application for a resource consent for an activity to a person under section 95B(4) and (9) (as applicable), a person is an affected person if the consent authority decides that the activity’s adverse effects on the person are minor or more than minor (but are not less than minor).
[9] In this context, I agree with Mander J’s summary of the requisite threshold test for an “affected” person in McMillan, namely: 1
[12] For a person to be an affected person for the purposes of s 95E of the Act, the adverse effects on that person must be minor or more than minor (but not less than minor). Whether an effect is “minor” involves an assessment of
fact and degree. While such an effect sits at the lower end of the scale, which includes major and moderate effects, it used to be said that it must be something more than de minimis.
[13] More recently in Green v Auckland Council, Priestly J considered that in undertaking the required qualitative assessment of effects when applying the statutory test provided by s 95E(1) regard must be had to the context in which the assessment is being made:
“The statutory tests of ‘minor’, ‘more than minor’, and ‘less than minor’ can only be informed by context. One is dealing with degrees of smallness. Where the line might be drawn between the three categories might not be easily determined. ‘Less than minor’,
however is the only category which relieves a consent authority of its s 95E(1) obligation to notify.”
[14] Davidson J, in Gabler v Queenstown Lakes District Council, considered that the term “less than minor” means an effect that in “the overall context” is insignificant and one which is so limited that it is
objectively acceptable and reasonable in the receiving environment and to a
potentially affected person.
[15] A consent authority must not grant a resource consent if the application should have been notified and was not. As was acknowledged by the Council, it follows that any such consent will be invalid and unlawful.
Substantive decision
[10] Section 104 of the Act governs the assessment of the merits of the Application and the Variation. It requires, in the context of the present applications, satisfaction that grant of consent will achieve the sustainable management purpose and will accord with the applicable planning objectives and policies in light of relevant planning criteria and standards.
The planning instruments
[11] Mr Webb helpfully provided a summary of the applicable objectives and policies across the PAUP and the Legacy Plan. I adopt it.
1 McMillan v Queenstown Lakes District Council [2017] NZHC 3148 at [12]-[15].
The PAUP
[12] The PAUP lists the matters for the Council to consider on restricted discretionary activities in the single house zone chapter (H3) which applies to the present site. Part H3.8.1(2) includes the following matters for consideration:
(a) Any policy which is relevant to the standard;
(b) The purpose of the standard;
(c) The effects of the infringement of the standard;
(d) The effects on amenity of neighbouring sites;
(e)The effects of any special or unusual characteristics of the site which is relevant to the standard; and
(f)Where one or more standard will be infringed, the effects of all infringements.
[13] The building site coverage standard is H3.6.10. The purpose of this standard is “to manage the extent of building on sites to achieve the planned suburban built character of buildings”. The criteria for building coverage then recorded at H3.8.2(6) which are the policies in H3.3(1) - (4). These relevantly require:
(a)An intensity of development that is compatible with either the existing suburban built development where that is to be maintained, or the planned suburban built character of predominantly one to two storey dwellings (Part H3.3(1));
(b) Development to:
(i)Be of a height, bulk and form that maintained and is in keeping with the character and amenity values of the established residential neighbourhood;
(ii) Be of a height and bulk and have set backs and landscape areas to maintain and existing suburban built character or achieve the planned suburban built character or predominantly one to two storey dwellings within a generally spacious setting (Part H3.3(2));
(c)The height, bulk and location of development to maintain a reasonable level of sunlight, access and privacy and to minimise visual dominance effects to adjoining sites (Part H3.3(4)).
Legacy Plan
[14] A relevant objective of the Legacy Plan is “to provide for a broad range of residential development while offering reasonable protection to the amenities of neighbouring properties and the local environment”, which is to be achieved by “… primarily applying development controls which maintain the amenities of neighbouring sites”.
[15] Part 7.4.2, dealing with character and amenity, states:
These areas [Residential 1 – 4 zones] are a key part of Auckland’s built legacy, but their amenity value is fragile and could be damaged by the demolition/removal of buildings and by unsympathetic or discordant land development, building forms and densities.
[16] Part 7.4.6 then states expected outcomes, including:
There will be a level of control on residential activity that provides flexibility for development, while ensuring that the character and amenity of the district’s many residential environments are maintained. The controls for amenities within a residential site will safeguard amenities for future residents and will result in benefits being derived for the community as a whole.
[17] Implementing these broad themes, part 7.5.1.1 provides that features which contribute to a special character of an environment include aspect (climate/views), and set back and density of housing. Similarly, part 7.5.1.3, dealing with development controls, records:
The primary purpose of the development controls is to afford a reasonable level of amenity values, and the natural and physical resources enjoyed by the
community. The community has come to expect a certain level of amenity standards within their residential areas. To ensure these standards are achieved a range of development controls are included in the plan.
Grounds of review
[18] The statement of claim identifies three main grounds for relief, namely:
(a)The Council made legal errors in the process used to make the notification assessment on the Application and the Variation;
(b)The decisions granting consent to the Application and Variation, based on the unlawful notification assessment, were also unlawful; and
(c)The Council acted unreasonably in failing to discuss the applications with Ms Ennor, to allow Ms Ennor to participate in the notification assessment, and by failing to undertake a site visit to 12 Galatea Terrace.
[19] The adverse effects said to arise are:
(a) A serious diminution of the amenity and enjoyment of 12 Galatea
Terrace by Ms Ennor;
(b) A serious diminution of the visual amenity from 12 Galatea Terrace;
(c) A loss of sunlight into the side yard of 12 Galatea Terrace; and
(d) A loss of privacy and seclusion for Ms Ennor and 12 Galatea Terrace.
[20] The following specific errors are pleaded:
(a)The notification assessment and the substantive decision on the Application made no reference to key parts of the planning instruments and the effects, subject to control, under those instruments.
(b)The Variation decision failed to have regard to various provisions of the Single House Zone and the Special Character Overlay or the different effects created by the variation, particularly as it related to the shifting of the pool to the rear of the site.
(c)The Council failed to undertake proper assessments as it did not meet with Ms Ennor and did not visit 12 Galatea Terrace to undertake an assessment of potential effects on the property.
(d)The Council failed to assess what weight it should give to the provisions of the Legacy Plan and the PAUP respectively.
The evidence
[21] The application for review is supported by affidavits from Ms Ennor and Mr Brian Putt, a very experienced planner. Ms Ennor describes the history of the two sites, including that they were previously both owned by her family. She says, in short, the addition to the rear of the house and the installation of the pool will markedly affect her amenity values, including views and residential amenity. She says no genuine attempt was made to consult with her and no one visited her site to assess the likely effects on her.
[22] Mr Putt says the scale of the increase in building coverage has been wrongly calculated. He says it should have been based on a total building coverage of 49.7 per cent (not 45 per cent) (including the pool at 27 m2) which then drops to 47.8 per cent when the shed is removed. He says no consideration was given to:
(a)The significance of this scale of building coverage having regard to the plans’ express objectives and policies for the controlling building coverage; or
(b)the effects of the infringement of this scale on the amenity enjoyed by the neighbouring property.
[23] He also says the amenity is clearly that of outlook. He emphasises that any intrusion into the view shaft by a new building form, only available through a very substantial infringement of a basic development control rule, should be considered as part of the assessment of effects. He then says that there is nothing in the assessment which appears to have considered the amenity values enjoyed by Ms Ennor in light of the objectives, policies and criteria of the Legacy Plan and the PAUP, noting also the failure to undertake a site visit to establish what Ms Ennor’s views were.
[24] Messrs Parker, Brown, Wright and Cunningham gave evidence for the respondents. Mr Parker briefly describes the background to the applications. Mr Brown is a Director at Campbell Brown Planning Ltd. He oversaw the production of the Application and the assessment of environmental effects for both the Application and Variation. He describes the Application and the assessments. He disagrees with Mr Putt, both as to the alleged limitations of the assessments and as to the scale of potential effects. He emphasises the importance of viewing the proposed additions in context and against what might be deemed to be acceptable under the Plans. He also notes that the removal of the rear shed will in fact open up views for Ms Ennor.
[25] Mr Wright is the resource consent team leader at the Council. He oversaw the reporting process and signed off the non-notification decision and the decision to grant the Application. He summarises the steps taken and the contents of the decisions. He notes, in short, that all key effects on Ms Ennor are expressly considered in the notification assessment and that the proposal was assessed having regard to the relevant objectives and policies of the Legacy Plan and the PAUP.
[26] Mr Cunningham made the Variation decision. He details the background to this decision and notes that the effects of the Variation were considered minor. It involved a 0.1 per cent increase on the original proposal, there was no addition to the overall bulk, and the mass of the dwelling and the pool had been approved.
Submissions
[27] In submissions, Mr Webb, for Ms Ennor, focused on the following matters:
(a)The reporting officers and the Council wrongly assessed the true significance of the proposed increases to building coverage:
(i)The existing building breached the building coverage limit of the Legacy Plan by 93.45 m2;
(ii) The existing building breached the PAUP by 59.3 m2;
(iii) The applicant’s consultant and the reporting officers assumed an increase in the building coverage of 8.65 m2 when, in fact, there was more than 26 m2 change (not factoring in the pool).
(iv) In combination, the building site coverage will increase to 49.7 per cent or 47.8 per cent if the removal of the shed (13.35 m2) is taken into account.
(v)The removal of the shed could not be used to offset the additional building coverage, because it was established and has existing use rights. Those rights are not transferable to the proposed additions as they are not located in the same position.
(b)There is nothing to suggest in either the assessment report or the decision that the Council had regard to the specific adverse effects on Ms Ennor in terms of the change in bulk and location of the build form on the applicant site and the extension to the kitchen at the rear.
(c)Both the Legacy Plan and the PAUP identify the criteria that must be considered when evaluating an application, particularly in terms of the effects of bulk, location, dominance, shading, privacy and visual amenity. No reference is made to the specific criteria in the decision of the Council and no evaluation in light of them is included within the reports or the decisions.
(d) The variation is flawed on its face because it fails to have regard to the
Single House Zone criteria.
(e)On the available evidence, there was no effective assessment made of the effects of the new built form on Ms Ennor:
(i) No site visit was undertaken from her premises;
(ii) Ms Ennor was not consulted about the potential effects on her;
(iii) There was no detailed visual impact assessment provided to or undertaken by the Council – the limited number of photos from within the property provide no assistance in terms of the impacts on Ms Ennor.
(f)The rear extension will be visually dominant from Ms Ennor’s perspective and will impact on Ms Ennor’s already limited views of the
sea.
[28] Mr Quinn, for the Council, and Mr Bartlett QC respond:
(a)That the assessment of environmental effects and the officer’s report provides detailed information about the proposed built form, carefully sets out applicable objectives and policies of relevant statutory instruments and provide a detailed analysis of the significance and effects of the proposal, in light of those objectives and policies.
(b)While pithy, the Council’s notification decision squarely addresses the effects on Ms Ennor in terms of the key matters of importance to her – bulk, location, dominance, shading and privacy.
(c)It is not necessary for Council officers to list all of the relevant policies and criteria verbatim. Rather, it is sufficient that the decision clearly demonstrates consideration of relevant effects on the potentially affected persons. The Council officers clearly did this.
[29] Mr Bartlett also separately submits that even if there has been a default, it is a technical one and that, in any event, not material. He refers to the fact that the new
build form does not infringe the key controls that provide for neighbour amenity, namely, the yard, height and height in relation to boundary controls. He submits that the proposed adjustments to the build form fall well within the constraints imposed by these controls. While not arguing for a permitted baseline, he says there is little, if any, prospect of a Council reaching a different conclusion in light of the compliance with these controls. He says there is no evidence to suggest that the proposed effects are of such a scale that might warrant the declining of consent.
Assessment
[30] It is necessary to reiterate that judicial review is not an opportunity to revisit the merits of a decision made by the Council to proceed on a non-notified basis or to grant a consent. As Harrison J stated in Auckland Regional Council: 2
The High Court does not exercise an appellate function on review. It is the decision-making process followed by the consent authority and its lawfulness, not the decision itself which is under consideration.
[31] Thus, an applicant on review must identify an error of law, failure to have regard to a relevant consideration, regard to an irrelevancy or procedural unfairness. I agree, however, with Mr Webb that there must be adequate information upon which to make those decisions. That is a basic requirement of reasonable and procedurally fair decision making.3
The Application
[32] Dealing first with the Application decisions. The non-notification and substantive decisions are not models of their kind. They do not assess the merits of the Application by express reference to all relevant objectives, policies and criteria.
2 Auckland Regional Council v Rodney District Council HC Auckland CIV-2007-404-3436, 24
August 2007 at [44]
3 In this regard, I respectfully disagree with Wylie J in Tasti Products Ltd v Auckland Council [2016] NZHC 1673 at [45] insofar as he suggests that inadequate information does not trigger a proper
ground of review. I prefer instead the reasoning of Lang J in Northcote Mainstreet Inc v North
Shore City Council [2006] NZRMA 137 at [109]-[111]. See also Harrison J in Auckland Regional Council, above n 2, at [45]-[46]. What is or is not adequate will depend on the complexity of the application. As Blanchard J put it in Discount Brands Ltd v Westfield (New Zealand) Ltd [2005] 2
NZLR 597 at [114]: “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”
Nevertheless, I do not consider the Council materially erred in deciding to grant on a non-notified basis. First, there was no material error in the calculation of the percentage increase in building coverage. The difference is in the order of two to three per cent at most. Furthermore, as Mr Webb conceded in argument, the pool is now in fact a permitted activity in terms of building coverage. With the pool removed the difference is very minor.
[33] Second, the exact percentage differences are not important in this case. What is important are the actual changes to the bulk of the built form and the location of those changes. They are clearly shown on the detailed plans attached to the Application. Photographs of the areas of the home and backyard to be modified were provided. The assessing officer undertook a site visit. He took several photos of the site, including along the boundary with 12 Galatea Terrace as part of his assessment of building heritage assessment. This, together with the assessment of effects provided by the Parkers was sufficient to enable the officer to form a view as to the likely bulk and location effects of the proposed additions on Ms Ennor.
[34] Third, I do not share Mr Putt’s (and Mr Webb’s) concerns about the lack of a visit to 12 Galatea Terrace. This case is far removed from the facts in Green (cited by Mr Webb) where it appears the Court placed some significance on the failure to undertake a site visit to neighbour’s property.4 In that case, the applicant proposed to move a previously approved building platform, with the result that the plaintiff’s views would be affected. There was evidence from a very experienced landscape expert, Mr Stephen Brown, who noted:5
In my opinion, the degree of visual intrusion and building dominance anticipated might not be so important in a more urban or suburban setting, but the orientation of the Green/Biles house to make most of its outlook, and the highly appealing, panoramic nature of current views means that the changes, and related amenity effects, would be very significant.
[35] The failure in that context, and in light of that expert evidence, to undertake a site visit to a potentially affected plaintiff was a matter of substantially more moment than it is in this case.
4 Green v Auckland Council [2013] NZHC 2364 at [101].
5 At [56].
[36] Fourth, I am satisfied sufficient regard was had by the reporting officer and the decision maker to relevant objective and policies in reaching a view to grant the Application on a non-notified basis. Notably:
(a) The assessment of environmental effects referred to:
(i)the provisions relating to the Single House Zone, including H3.2 of the PAUP which states:
H3.2 Objectives
(1)Development maintains and is in keeping with the amenity values of established residential neighbourhoods including those based on special character informed by the past, spacious sites with some large trees, a coastal setting or other factors such as established neighbourhood character.
(2) Development is in keeping with the neighbourhood’s existing or planned suburban built character of predominantly one to two stores buildings.
(3)Development provides quality on-site residential amenity for residents and for adjoining sites and the street.
(4)Non-residential activities provide for the community’s social, economic and cultural well- being, while being in keeping with the scale and intensity of development anticipated by the zone so as to contribute to the amenity of the neighbourhood.
(ii) the provisions relating to the Special Character Overlay, including D18.2, which states:
1. The special character values of the area, as identified in the special character area statement are maintained and enhanced.
2. The physical attributes that define, contribute to, or support the special character of the area are retained, including:
a.Built form, design and architectural values of buildings and their contexts;
b. Streetscape qualities and cohesiveness, including historical form of subdivision and patterns of streets and roads; and
c.The relationship of built form to landscape qualities and/or natural features including topography, vegetation, trees, and open spaces.
3. The adverse effects of subdivision, use and development on the identified special character values of the area are avoided, remedied, or mitigated.
(b)The non-notification assessment refers to the relevant provisions triggering the requirement for consent under both plans and states:
The proposal sits over the bulk and scale of buildings anticipated on the site under the rules of both plans. These aspects of the proposal will be further assessed in this report, as those effects sit over those permitted, which will be further assessed in this report in terms of streetscape, special character and amenity, including nearby and adjoining residential amenities.
(c)The assessment of the receiving environment clearly acknowledges the scale of the existing built form and the importance of the effects on the neighbouring properties as follows:
The existing legally established site, dwelling and associate activities, generates adverse effects over and above that permitted, and in particular with its relationship with neighbouring residential sites in terms of overshadowing, bulk, dominance and overlooking. It is therefore considered, in terms of assessing effects, the receiving environment is of greater relevance than those effects permitted or those associated with an anticipated building envelope.
[37] Fifth, I am satisfied that the Council considered the matters of key importance to Ms Ennor having regard to the most salient objectives and policies of both Plans. This is reflected in that part of the non-notification decision dealing specifically with effects on her property. It states:
Bulk, dominance, shading and privacy: The proposed dining room addition will add bulk to the site which has the potential to have adverse effects on persons at 12 Galatea Terrace directly to the south of the subject site due to its proximity. However, the proposed dining room area is orientated westward and is located within an area that is currently utilised for outdoor living purposes. The dwelling would be extended at the ground floor level to match the existing kitchen area, while proposed fencing and landscaping would continue to provide a suitable privacy screen between the sites. The proposed landscaping scheme includes privacy hedging along the western edge of the site adjoining the residential development. Additionally, the gradient of Galatea Terrace rises to the east with the existing dwelling at 12 Galatea Terrace sitting higher than the subject site. Therefore, due to the nature of the
site and the surrounding environment, the proposal will not involve any adverse effects in terms of bulk, dominance, privacy and shadowing on persons in the surrounding environment.
[38] This passage plainly corresponds to the key relevant policy under the PAUP
stated at H3.3(4), repeated here for ease of reference:
(4)Require the height, bulk and location of development to maintain a reasonable level of sunlight access and privacy and to minimise visual dominance effects to the adjoining sites.
[39] I also agree with Mr Quinn, that in addressing these matters, the Council turned its mind to the effect on amenity values, as defined by the Act namely:6
amenity values means those natural or physical qualities and characteristics of an area that contribute to people’s appreciation of its pleasantness, aesthetic coherence, and cultural and recreational attributes
[40] Mr Putt sought to emphasise that Ms Ennor could rely on the outlook she enjoys, while Mr Wright noted that views are not “protected” under the Plan provisions or the RMA. Mr Putt says this approach from Mr Wright, in combination with the failure to visit Ms Ennor’s premises, reveals error in the assessment. I do not agree. Impairment of views are usually a relevant consideration when assessing the effects of the bulk of a proposed development on neighbours.7 “Views”, among other things, inform amenity values. Furthermore, it is reasonable for neighbours to assume that effects on their views will be considered if the proposed development infringes bulk and location standards.8 But the task of the Council was, in this case, to assess whether Ms Ennor was an affected person in context, namely a well-established suburban environment characterised by, among other things, large trees and hedges.9 There could be no expectation that existing views or outlook will be “protected” or preserved in this context. Rather, the Council must consider the effects of bulk on neighbours having regard to this suburban context and the objectives and policies of the applicable
planning instruments. The notification decision revealed and Mr Wright confirmed
6 Resource Management Act 1991, s 2(1).
7 I say usually because a plan might exclude consideration of these effects.
8 Anderson v East Coast Bays City Council (1981) 8 NZTPA 35, Smith Chilcott Ltd v Auckland City
Council [2001] 3 NZLR 473.
9 A schedule to the PAUP describes the Special Character Overlay for this area in this way: “Dwellings in the overlay area are typically set well back from the road, and there is an abundance
of trees and vegetation both on private and public land.”
that is what the Council did. I therefore apprehend no error on the part of the Council in this regard.
[41] Sixth, while the substantive decision on the Application does not reiterate the findings made in the notification decision, it can be readily interpolated, given the two decisions were delivered at the same time and were both subject to the oversight of the resource consent team leader, Mr Wright. Furthermore, the decision finds the effects of increased coverage to “be in keeping with the surrounding environment” and that the proposal is consistent with “the relevant objectives, policies and assessment
criteria of the Residential 2b zone of the [Legacy Plan] and the Single House Zone and
Special Character Areas Overlay – Residential Isthmus B overlay under the [PAUP]”.
[42] Seventh, while I accept that from Ms Ennor’s perspective, the proposed additions represent a substantial change in her immediate environs and impact on her views to the sea, the Council was dealing with a relatively minor addition (about 20 m2) to the rear of an existing, long established, dwelling for residential purposes that is otherwise compliant with all other key controls designed to protect residential amenity, including height, height in relation to boundary and the yard controls. Nor is there any independent evidence, from a qualified expert on visual effects (for example Mr Stephen Brown who gave evidence in the Green case) as to the likely scale of the effect on her in context is minor or more than minor.
[43] Accordingly, I can see no reason, sitting here in my supervisory capacity on review (not appeal), to doubt the correctness of the Council’s notification decision or that substantive decision about consistency of the proposed additions with the bulk and location policies of the PAUP or the Legacy Plan. In this regard, this case is nothing like Tasti Products cited by Mr Webb. In that case, the Council failed to consider relevant effects, applied the wrong statutory threshold by effectively relying on a permitted baseline and did not address the objectives and policies of the PAUP at all.10
[44] Finally, I do not consider that the failure to consult with Ms Ennor was wrong in law or otherwise procedurally unfair in this case. It is regrettable that the Council
10 Tasti Products Ltd v Auckland Council, above n 3, at [85].
did not do so, because consultation provides a potentially affected person more surety that their concerns have been considered. But the likely effects on Ms Ennor are reasonably clear and were in fact assessed by the Council.
Variation
[45] The strength of Ms Ennor’s complaint about the Variation was substantially diluted when it was realised at the hearing that the pool is in fact a permitted activity (as it is not more than 1m out of the ground). Ms Ennor and Mr Webb identified the relocation of the pool as the primary additional concern arising from the variation application. It is unnecessary therefore to say anything more about this, because the additional effects of the Variation are de minimis. Furthermore, even had the pool triggered the coverage rules, there is nothing to suggest that the backyard, largely in ground pool, offends the objectives and policies of the applicable planning instruments. Mr Putt did not suggest otherwise.11
Outcome
[46] The decisions were not exemplary, but I am satisfied the Council properly considered the effects of the proposed development on Ms Ennor having regard to the salient objectives and policies. The merits of the Council’s assessment are not otherwise amenable to review. I therefore decline the application.
Costs
[47] I invite submissions no longer than 3 pages on costs. I am minded to let costs lie where they fall. While I am satisfied the Council did not materially err, as noted, the decisions were not models of their kind.
11 Mr Putt maintained in evidence that as the pool is volumetrically likely to exceed 30,000 litres, it must be deemed a building. Unsurprisingly, this point was not pursued in argument before me. It is not a point of substance. The depth of the pool has no relevant effect on Ms Ennor.
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