Fair Investments Limited v Palmerston North City Council HC Palmerston North CIV 2010-454-653
[2010] NZHC 2260
•15 December 2010
IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY
CIV 2010-454-653
UNDER Part 1 of the Judicature Amendment Act
1972
IN THE MATTER OF sections 95A, 95C, 95D and 95E, Resource
Management Act 1991
BETWEEN FAIR INVESTMENTS LIMITED Plaintiff
ANDPALMERSTON NORTH CITY COUNCIL
First Defendant
ANDRYMAN HEALTHCARE LIMITED Second Defendant
Hearing: 9 December 2010 (Heard at Wellington)
Counsel: J M von Dadelszen for Plaintiff
P J Reardon for First Respondent
C Somerville for Second Respondent
Judgment: 15 December 2010
JUDGMENT OF RONALD YOUNG J
Introduction
[1] Ryman Healthcare have developed and run the Julia Wallace Retirement Village at Dogwood Way in Palmerston North. They have now purchased further land adjacent to the existing village with the intention of expanding the village by the addition of 55 further villas. The plaintiff has developed what they say is an “upmarket” subdivision in the area around the retirement village. Indeed the land for
the existing village was sold to Ryman by the plaintiff.
FAIR INVESTMENTS LIMITED V PALMERSTON NORTH CITY COUNCIL AND ANOR HC PMN CIV
2010-454-653 15 December 2010
[2] Ryman sought resource consents for the expansion of the retirement village from the Palmerston North City Council. The Council decided that the applications need not be notified either on a full public or limited basis.
[3] The plaintiff’s pleadings seeking judicial review alleged the decisions of the Council were the exercise of a statutory power of decision under the Resource Management Act 1991 (admitted); that the decisions were “unlawful” in that they “did not correctly apply” particular provisions of the Resource Management Act; in the alternative the plaintiff says the decisions of the Palmerston North City Council were unreasonable or irrational.
[4] However in submissions the plaintiff’s case was refined. The plaintiff’s complaints are that the Council failed to consider the adverse effects to the public and to the plaintiff as an affected person from: increased traffic; increased numbers of parked cars; and the adverse visual effects of the expanded village. Further, the plaintiff says the Council neglected to consider whether there were special circumstances requiring notification. The irrationality ground was maintained. These failures meant this Court should quash the relevant decisions and order reconsideration.
Factual background
[5] The sole director of the plaintiff company is Dr Eileen Fair whose father originally was the owner of the plaintiff company. The Fair family has owned land in the north west of Palmerston North for many years including the land that is now known as Clearview Park.
[6] The Fair family obtained consent from the Council to subdivide its land in the area. The intention was for the subdivision to be in the medium to top end of the price range. To reflect that desire the subdivision had extensive parking and open space areas, underground services, high quality footpaths and road construction, significant tree planting and the houses were required to be set back from the road to ensure “spaciousness”. There were restrictive covenants over building, design and appearance. Only a few sections are released on to the market at any one time in
response to demand. Sections which are unsold are maintained by the plaintiff company.
[7] About five to six years ago the plaintiff sold 3.1487 hectares of land to Ryman in the south east corner of the development for a retirement village. The village has vehicle access onto Dogwood Way which also provides access for a number of sections from the subdivision. This development replaced 35 serviced sections in the area previously approved by the Council. Ryman obtained resource consents to the development. There were conditions in the contract designed to ensure that the development of the retirement village was of a similar standard to the housing in the area.
[8] When the land was sold it had “drive on” access in two places onto Dogwood Way, however only one access point was used in the development. The intensity of the development was increased from 90 to 106 units of which 56 were independent apartments and 50 serviced apartments. In addition the hospital area had 83 care beds.
[9] Recently the second defendant purchased 1.5725 hectares from a third party. This land abuts the existing village and in turn is surrounded in part by the plaintiff’s subdivision. Ryman proposes to build a further 55 independent units on the site with sole vehicle access onto Dogwood Way. Prior to Ryman’s purchase vehicle access from the site was on to Milson Line, a wide, busy two lane road. Access to Dogwood Way is only possible because new internal roading in the village allows the 55 unit owners to drive to the Dogwood Way exit. Only pedestrian access will be provided onto Milson Line from the new units.
[10] The consent application for the extension of the village by Ryman was made on 13 July 2010. The proposal involved the construction of the new town houses, the associated earthworks, access lanes and landscaping. As a result Ryman also had to apply for a change of conditions relating to the road layout and landscaping of the original development to enable the internal road to connect to the extended area. As I have noted the proposal was that the sole vehicle access to and from the site and the extended site would be from Dogwood Way.
[11] After receiving the application the Council first considered that the interlinked applications relating to the construction, earthworks, internal roading and the like should be properly treated as a discretionary activity. The Council then considered whether the application should be notified either broadly or narrowly.
[12] The City Council report, on which the notification decision was based, considered the effects from traffic, earthworks, visual amenity, noise and construction of the proposed addition. It examined the effect on the wider environment together with adjacent properties and the effects on any person.
[13] The plaintiff’s case does not take issue with the Council’s conclusion that the earthworks design and construction effects were less than minor and no further issues arise with respect to those effects.
Plaintiff’s case
[14] I turn now to the particulars identified by the plaintiff in its pleadings as constituting “unlawful acts” resulting in an “improper decision” by the Council. The plaintiff’s pleading alleges (amended statement of claim):
13.In making the decisions set out in paragraph 11(b)–(h) hereof the First Defendant acted in the circumstances unlawfully in that the decisions did not correctly apply the following sections of the Resource Management Act 1991 to the known or properly anticipated facts and effects of the Second Defendant’s proposed activities, for one or more of the following reasons:
(i)By deciding on 27 August 2010 under section 95A(2)(a), Resource Management Act 1991 “(under section 95D) that the activity will have or is likely to have adverse effects on the environment that are more than minor”, and
(ii) By failing to consider and determine under section 95A(4), Resource Management Act 1991, whether “special circumstances” existed in relation to the Applications therefore requiring that it should “publicly notify” the Applications when it made its decision on 27 August 2010 under section 95A, Resource Management Act 1991 not to publicly notify the Applications, and
(iii) By failing to consider and determine under section 95E, Resource Management Act 1991 whether the Plaintiff was “an affected person, in relation to an activity”, in
circumstances where “the activity’s adverse effects on the [Plaintiff] are minor or more than minor (but are not less than minor)” when it made its decision of 27 August 2010, and (iv)
By failing to consider and determine that at least the Plaintiff was an affected person in relation to the activity in terms of section 95B(1), Resource Management Act 1991, to which it was therefore required to “give limited notification of the application” pursuant to section 95B(2), Resource Management Act 1991 when it made its decisions of
27 August 2010 whether or not to notify the Applications on a limited basis under section 95B, Resource Management
Act 1991, and
(v)
By continuing to process the Applications having made the unlawful, unreasonable or irrational decisions of
27 August 2010 not to notify the Applications under
sections 95A and 95B, and
(vi)
By making the decision on 7 September 2010 to grant consent to the Applications under sections 104 and 104C, Resource Management Act 1991 having made the unlawful, unreasonable or irrational decisions of 27 August 2010 not to notify the Applications under sections 95A and 95B.
[15]
Further, the
grounds or circumstances that the plaintiff say led
to
unreasonableness or irrationality in the Council’s decision making are:
14.The First Defendant’s decisions referred to in paragraph 11(b)–(h) hereof were in the circumstances unreasonable or irrational in that they were decisions that no reasonable local authority could have reached in the circumstances for one or more of the following reasons:
(i)In making the decisions of 27 August 2010 to notify or not notify the Applications under section 95A, Resource Management Act 1991, and
(ii) In making the decision of 27 August 2010 under section 95A(2)(a), Resource Management Act 1991 “(under section 95D) that the activity will have or is likely to have adverse effects on the environment that are more than minor”, and
(iii) In making the decision of 27 August 2010 under section 95A, Resource Management Act 1991 not to publicly notify the Applications when it failed to consider and determine under section 95A(4), Resource Management Act 1991, whether “special circumstances” existed in relation to the Applications therefore requiring that it should “publicly notify” the Applications, and
(iv) In making the decisions of 27 August 2010 when it failed to consider and determine under section 95E, Resource Management Act 1991 whether the Plaintiff was “an affected person, in relation to an activity”, in the circumstances where “the activity’s adverse effects on the [Plaintiff] are minor or more than minor (but are not less than minor)”, and
(v) In making the decisions of 27 August 2010 whether or not to notify the Applications on a limited basis under section 95B, Resource Management Act 1991 when it failed to consider and determine that at least the Plaintiff was an affected person in relation to the activity in terms of section 95B(1), Resource Management Act 1991, to which it was therefore required to “give limited notification of the application” pursuant to section 95B(2), Resource Management Act 1991, and
(vi) Having made the decisions of 27 August 2010 not to notify the Applications under sections 95A and 95B, in continuing to process the Applications, and
(vii) Having made the decisions of 27 August 2010 not to notify the Applications under sections 95A and 95B, then making a decision on 7 September 2010 to grant consent to the Applications under sections 104 and 104C, Resource Management Act 1991.
[16] As I have noted ([4]) the plaintiff’s case was refined during discussion at the hearing of this review. The plaintiff’s concern derives from: the traffic effect from the proposed 55 new retirement units; the visual aspect of so many new units on the land; and the Council’s failure to consider or identify any special circumstances requiring notification. The core of the plaintiff’s case is that the Council failed to consider relevant factors relating to these aspects of the consent application and thereby failed to consider relevant matters in reaching its decision not to notify the consent application.
[17] The plaintiff considers it has developed an upmarket subdivision in the area around the retirement village. It says that already with the existing village there is overflow car parking on Dogwood Way. Given the new development has vehicle access onto Dogwood Way the additional traffic will result in more cars parked on the road on Dogwood Way and a greater volume of traffic on Dogwood Way. This in turn will detract from amenity values of the subdivision. Further there are
concerns about traffic flow, traffic service, special circumstances, the pedestrian access on Milson Line and the usual affect of such a development.
[18] The grounds of the plaintiff’s claim for judicial review of the Council’s decision was therefore recast in this way:
a) when the Council concluded that the application need not be notified (either publicly or more narrowly) it failed to take into account a relevant consideration, namely the increased traffic and parking of vehicles on Dogwood Way;
b)when the Council concluded the application need not be notified it failed to take into account a relevant consideration namely the effect on pedestrian and traffic safety of the new pedestrian access from the village to Milson Line;
c) the Council failed to take into account as a relevant consideration the effect on visual amenity from the proposed 55 town houses;
d)the Council failed to consider whether there were any special circumstances under the Resource Management Act and thereby made an error of law;
e) the Council failed to identify the plaintiff as an “affected person” and thereby made an error of law;
f) the Council failed to take into account a relevant consideration as to notification when it failed to consider the traffic affect from the consent sought on the intersection of Clearview Drive and Milson Line.
Discussion
Traffic and parking on Dogwood Way ([18](a))
[19] In summary the plaintiff says that what the Council failed to appreciate in reaching its decision that no notification was required was that the relevant land before consent had vehicle access only onto Milson Line. Ryman’s plan, however, meant the 55 unit owners and their visitors would have access to the public roading system only through Dogwood Way. Thus the plaintiff says the Council failed to take into account the increased traffic on Dogwood Way as a relevant consideration as to whether any affect was less than minor.
[20] Ms Sylvia Allan, a planning consultant instructed by the plaintiff, has sworn an affidavit. Her conclusion is that the proposed extension of the retirement village will have adverse effects on the wider neighbourhood of Dogwood Way which is likely to be more than minor. Thus, she considered the application should have been publicly notified.
[21] Secondly, she said that if the effect was less than minor then she considered that limited notification or the written approval of Fair Investments Limited should have been required because of the “adverse effects of the application on the development of Clearview Park and its future residents including the residential environment”. She said these effects are likely to be at least minor if not more than minor.
[22] Her conclusion that there would be more than minor effect requiring public notification is based on her assessment of additional traffic and overflow parking which would affect present and future residents on Dogwood Way.
[23] She considered that the “additional on street parking” caused by the increase in the size of the village would exasperate the existing overflow parking problem associated with the existing retirement village. That assessment is based on the proposition that currently there is “overflow” parking associated with the village on Dogwood Way. Thus, Ms Allan considers that with an additional 55 units there will
be further pressure on parking resulting in even more people parking along
Dogwood Way.
[24] Further, she says this parking on Dogwood Way will present an unattractive feature for the subdivision with cars parked most of the day along the street. This will affect those who currently own properties in the area, those who might buy in the future and Fair Investments who wish to sell the properties in an area advertised as being at the “high end” of the market.
[25] The evidence establishes that the Council decision makers were well aware of the change of vehicle access for the land from Milson Line to Dogwood Way. They analysed the additional traffic this change would generate and reached a conclusion that the effect on traffic and parking in the area was less than minor.
[26] Firstly parking on Dogwood Way. The evidence established that there is some existing parking of vehicles on Dogwood Way probably from people who were “at” the village, whether as visitors or employees or otherwise is unknown.
[27] Ryman’s (undisputed) evidence was that:
a) no new employees would be hired after the 55 new units were built;
b) the plan provided for two parking spaces for each new unit or
110 spaces more than the 76 required by the Council plan;
c) there was ample other public parking within the village.
[28] The Council accepted there was no evidence that there would be any increase in cars parked in Dogwood Way and so no resulting affect on any value (as far as car parking was concerned) from the 55 new units. The Council, therefore, with regard to possible additional parking on Dogwood Way considered all relevant factors and reached a rational decision which was open to it. No error has been shown by the plaintiff.
[29] The plaintiff’s claim the Council did not appreciate the affect of the change from Milson Line road access to Dogwood Way road access on Dogwood Way. The Council’s decision made it clear that it understood the change of access and assessed effect of the change. As to this aspect of the claim the plaintiff made submissions on what the permitted base line was when considering traffic effect on Dogwood Way. Whatever the answer to those submissions, in this case, there can be no complaint from the plaintiff. The Council assumed that all of the additional traffic for the new units should be taken into account in assessing affect.
[30] As to this Mr O’Leary, the decision maker and head planning officer within the Council said:
[45]Paragraph 35 of the notification decision addressed the effects on the roading network outside the retirement village. In summary:
1.The additional traffic created by the extension would be well within the capacity of the roading network and that the effects on adjoining neighbours would be less than minor.
2.The increase in traffic generated from the proposed extension would not change the level of service on Dogwood Way or Clearview Drive.
[31] Further, Mr Tate who undertook a traffic analysis for the Council noted that based on appropriate international surveys the 55 new units would create an additional 110 vehicle movements per day in Dogwood Way. This meant on average a car would pass a particular property on Dogwood Way once every 47 seconds rather than once every 55 seconds without the additional 55 units. Even accepting this is an average and therefore is unlikely to reflect actual traffic movements the increase meant, as the Council noted, that it would be very unlikely anyone residing in Dogwood Way would notice any change in traffic patterns. The important point is however the Council appreciated the change of vehicle access and took it into account in searching its decision.
[32] Finally the Council assessed the overall increase in traffic in both Dogwood Way and Clearview Drive. They considered the increase in vehicle numbers (110 movements per day) was well within the capacity of both roads to accommodate. As a result there would be no change to the level of service in
Dogwood Way or Clearview Drive. (The level of service is the capacity of the road user to use the road.)
[33] Overall, therefore, the Council assessed the affect from traffic generated by the 55 new units and the change in access to be less than minor requiring no notification.
[34] As can be seen, therefore, the Council considered what affect the increase in traffic would have both internally and in the immediate area around the village. It did so taking account of all of the increase in traffic due to the additional 55 units.
[35] I am satisfied therefore the Council took into account all relevant matters and made no error of law in reaching its decision. This ground of review must also fail.
Milson Line changes
[36] Part of Ryman’s plan for the development of the 55 units was that vehicle access onto Milson Line from the new housing area was to end. However they planned for a pedestrian access way from the village onto Milson Line.
[37] The plaintiff raised two issues with respect to this aspect of the plan and Council’s decision. The plaintiff said, firstly, that the Council had failed to take into account the dangers from occupants of the village using the pedestrian pathway on Milson Line and therefore a relevant consideration in its decision making. Mr Wanty, a traffic engineer, swore an affidavit. In part he said:
44 I consider that there will be greater adverse traffic engineering effects relating to the two properties either side of the existing Airport Motel driveway (101 Milson Line). Those adverse effects, which in my opinion are minor or more than minor, arise from the likelihood of increased visitor on-street parking along Milson Line in front of these sections, and local safety concerns associated with increased vulnerable road user traffic past the property driveways.
[38] The “safety concerns associated with increased vulnerable road” users is apparently a concern about mobility scooters having access onto Milson Line and their vulnerability as they cross residential driveways. The proposed pedestrian
access from the village onto Milson Line would not allow mobility scooter access and so this cannot be an issue.
[39] Motor vehicles can currently legally park on Milson Line. Each of the new
55 units will have two parking spaces available. There is also public parking available within the village. There is simply no evidence whatsoever that there will be any additional parking on Milson Line. This claim seems to me entirely speculative. I do not consider this was a relevant matter for the Council to take into account in assessing consent.
Visual amenity affect from 55 townhouses ([18](c))
[40] The next ground of review is the claim that the Council failed to consider the visual amenity affect from 55 townhouses as a relevant consideration in deciding whether or not notification was required. The point made by the plaintiff is that what is proposed is a far denser development of the area than would have been permitted with single houses. The visual affect from so many properties in such a small area was something that was at least a minor if not a more than minor effect on the visual appearance of the area. The plaintiff’s case is that the Council failed to take into account this visual affect, a relevant consideration in its notification decision.
[41] Paragraph 48 of the notification decision of the Council illustrates that the
Council did take into account potential visual amenity affect. It said:
48.As stated in paragraph 27 of this report up to 44 dwelling houses could be constructed as of right, in the absence of subdivision, on the site. This may be regarded as being fanciful by some, and based on a likely scenario of a lot area of 600m2 per dwelling, 26 dwellings could be established on the lot. Of course such dwellings would be much larger than the units proposed, could be two storied and could have any number of accessory buildings associated with them up to a
35% site coverage limit. The site coverage proposed is 35.6% and while it exceeds the permitted baseline for residential development, it is within the permitted baseline for an Education Facility. It is my opinion that the setback distances and landscaping proposed will adequately mitigate the potential effects such as reduced daylight/sunlight access, intrusions into open space, privacy and overbearing appearance in relation to the neighbouring properties, to a level where they will be less than minor.
[42] It is therefore clear that in fact the visual amenity affect of 55 units as against the baseline effect was taken into account. The Council made no error. This ground of review must fail.
Special circumstances ([18](d))
[43] Section 95A(4) provides as follows:
95A Public notification of consent application at consent authority's discretion
...
(4)Despite subsection (3), a consent authority may publicly notify an application if it decides that special circumstances exist in relation to the application.
[44] The plaintiff’s case, as I understand it, is that it was a special circumstance that the plaintiff owns so much land surrounding the retirement village that inevitably the affect on it, of what was proposed in a cumulative sense would be minor or more than minor and therefore there should be public notification.
[45] Essentially this is a claim either that in deciding whether or not to notify the change the Council failed to take into account a relevant consideration namely that there were special circumstances in this case, or the Council acted irrationally in concluding no special circumstances existed.
[46] The Council did consider whether there were special circumstances but concluded there were not. It did not specifically mention the plaintiff’s claim that a special circumstance was its occupation of a large area of the land near the proposed new units.
[47] It would be an impossible burden to expect a Council to list all that which it considered not to be special circumstances. Indeed it would be absurd. The Council did consider whether there were special circumstances and concluded there were none. It cannot therefore be claimed the Council failed to consider a relevant circumstance, whether there were special circumstances. In any event even if the
Council concluded there were special circumstances it is not obliged to publicly notify. The subsection empowers but does not require notification.
[48] As to the irrationality ground – that is, no Council properly informed could possibly have reached the conclusion that there were no special circumstances here – I reject that ground of review. It is difficult to understand why the fact that the plaintiff owns much of the land around the new development is a special circumstance. There was in my view nothing irrational about the decision of the Council in finding there were no special circumstances here.
The plaintiff as an affected person ([18](e))
[49] The plaintiff argues that the Council failed to identify the plaintiff as an affected person and only considered those within the retirement village as potentially affected from the traffic changes.
[50] At 36 the Council in its notification decision said:
In relation to the internal roading layout of the village the new loop road in the extension is accessed by extending stub roads past townhouses within the existing village. It is my view that the residents of these town houses would be considered to be affected by the increase in traffic past their units. The application has stated that the traffic movements would be low however I still consider that the residents of units 15–28, 30 to 37 and 39 would be affected to at least a minor degree.
[51] As can be seen therefore the only context in which the effect on the residents of the retirement village were particularly considered was in relation to the internal road. The Council considered that the increased traffic from the new 55 units could have a minor effect only on those housing units the extra traffic would pass directly in front of. Obviously this effect could have nothing to do with the plaintiff given it was concerned solely with roading within the village.
[52] The Council had already considered in its decision what effect the increase in traffic would have on Dogwood Way, a public road and the surrounding properties
[53] I am satisfied the Council made no error of law in its approach here.
Traffic affect on Clearview Drive and Milson Line ([18](f))
[54] The evidence from Mr Wanty is that as a result of the increased traffic generated by the 55 new units he considered that there would be an adverse effect which would be minor or more than minor with respect to the level of service drivers could expect on the intersection between Clearview Drive and Milson Line.
[55] The plaintiff’s case is that the Council did not consider the traffic affects on the Clearview Drive/Milson Line intersection and that this failure was a failure to consider a relevant factor in deciding whether notification should be given. I reject this claim.
[56] What the Council did do is consider the traffic affect between Clearview Drive and Dogwood Way. This intersection is much closer to the new units where there would inevitably be an even greater affect that the Clearview Drive/Milson Line intersection. By the time the traffic arrived at that intersection the affect from the additional 55 units would have been partially dissipated by, for example here, cars being able to travel in other directions. The Council concluded, based on increased traffic as a result of the new units, that the effect on traffic would be less than minor at the Clearview Drive/Dogwood Way intersection.
[57] The Council therefore considered the affect of the additional traffic on the service level for drivers at Clearview Drive/Milson Line. They do not then have to go on and consider other intersections further away from the new units. Inevitably the affect on intersections further away (other than exceptional circumstances) would be less than the affect on intersections closer to the units. I therefore reject this ground of review. I am satisfied the Council did take into account the traffic affect on Clearview Drive and Milson Line intersection.
Irrationality
[58] As I indicated at [3] the plaintiff also alleged that some or all of the decisions of the Council were irrational. In submissions before me counsel for the plaintiff accepted that if I concluded the Council had taken into account all relevant factors
and had made no error of law then it was difficult to see how any irrationality ground could succeed given the Council’s decisions were based on and supported by expert opinion. The fact that the plaintiff’s experts may not always agree with the City Councils did not of course avail the plaintiff.
[59] Given my conclusions the grounds of review based on irrationality must fail.
[60] For the reasons given the application for judicial review fails. The plaintiff’s application is dismissed.
Costs
[61] If the defendants seek costs they should file memoranda within 14 days and the plaintiff in response a further 14 days.
Ronald Young J
Solicitors:
J M von Dadelszen, Bannister & von Dadelszen, PO Box 745, Hastings, email: mark[email protected]
P J Reardon, Cooper Rapley, PO Box 1945, Palmerston North, email: [email protected]
C Somerville, Chapman Tripp, PO Box 2206, Auckland, email: catherine[email protected]
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