Friends of Houghton Valley Incorporated v Wellington City Council
[2016] NZHC 234
•22 February 2016
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CIV 2015-485-270 [2015] NZHC 234
IN THE MATTER of an application for review AND
IN THE MATTER
of subdivision and land use consents by the First Defendant under the Resource Management Act 1991
UNDER
the Judicature Amendment Act 1972
BETWEEN
FRIENDS OF HOUGHTON VALLEY INCORPORATED
Plaintiff
AND
WELLINGTON CITY COUNCIL First Defendant
AND
KAIKOURA VIEW LIMITED Second Defendant
Hearing: 21 October 2015 Counsel:
G D S Taylor for Plaintiff
S F Quinn and E L Manohar for First Defendant
H B Rennie QC for Second DefendantJudgment:
22 February 2016
JUDGMENT OF BROWN J
FRIENDS OF HOUGHTON VALLEY INC v WELLINGTON CITY COUNCIL [2015] NZHC 234 [22 February 2016]
Table of contents
Paragraph No.
Introduction [1] Issue one: Is the plaintiff precluded from seeking judicial review? [7] Issue two: Does the plaintiff have standing to challenge the Decision? [16] Issue three: Did the Council fail to consider the reserve status of
the reserve land? [22]
Context [22]
Analysis [27] Issue four: Did the Council fail to consider the leachate implications? [39] Context [39]
The Decision [42]
Analysis [43] Issue five: Did the Council fail to provide adequate reasons for
the Decision? [52] Issue six: Did the Council fail to address submissions made to it? [61] Costs [68]
Introduction
[1] By a decision dated 25 November 2014 (the Decision) the first defendant (the Council) granted on a non-notified basis applications by the second defendant (KVL) for subdivision and land use consents to develop a 14 lot subdivision on KVL’s land at 215 Houghton Bay Road (the Land).1
[2] The land to the north-east and east of the Land comprises a large reserve area owned by the Council and known as Te Raekaihau Park (referred to in the plaintiff’s submissions as “the upper land”). That reserve land is zoned Open Space B in the District Plan. It is classified as a Scenic B reserve under the Reserves Act 1977.
[3] During 2014 a number of persons, who subsequently became members of the plaintiff, sent communications to the Council concerning various aspects of the applications. The plaintiff was incorporated on 23 January 2015 and, in accordance with its constitution, it resolved on 12 March 2015 to commence this judicial review proceeding which includes the following grounds of review:2
22.The First Defendant erred by failing to have regard to the fact that the land immediately above the Land was Scenic B and to weigh the effects on the environment of the proposal by reference to the higher environmental value associated with the status of Scenic B land.
23.The First Defendant erred by failing in the Decision to address the submissions made to it by Ms Hyam and others who are now members of the Plaintiff through their counsel.
24.The First Defendant breached natural justice and/or erred in law by failing to provide any or any adequate reasons for its decisions.
…
26.The First Defendant erred by failing to obtain and consider information on the hydraulic effects of increased stormwater flow from the proposed subdivision on leachate from the former landfill further up Houghton Valley from the subdivision.
1 Part Lot 1 DP 786 being all the land contained in the partly cancelled identifier WN85/286.
2 A further ground relating to the growth and density of flora was not pursued.
[4] As the plaintiff’s submissions helpfully explained:
The four grounds of review pursued are closely related. Two of them are of failure to consider relevant factors (the Scenic B reserve status of the upper land, and leachate from the disused landfill higher up the valley – statement of claim paras 22 and 26 respectively). The third is failure to provide reasons relevantly in respect of each of those factors (statement of claim para 24). The fourth is failure to address the submissions of those now members of the Plaintiff made through counsel relevantly in respect of each of those factors (statement of claim para 23).
[5] KVL challenged the standing of the plaintiff to seek judicial review of the Decision for the reason that the plaintiff was not in existence at the date of the Decision. Although the Council did not join in that challenge, it questioned the plaintiff’s entitlement to seek judicial review of a decision made on a non-notified basis.
[6] Hence the primary issues for determination in this proceeding are:
· Is the plaintiff precluded from seeking judicial review given the
Decision was non-notified?
·Does the plaintiff have standing to challenge the Decision made prior to the date of its incorporation?
· Did the Council fail to consider the reserve status of the reserve land?
· Did the Council fail to consider the leachate implications?
· Did the Council fail to provide adequate reasons for the Decision?
· Did the Council fail to address submissions made to it?
Issue one: is the plaintiff precluded from seeking judicial review?
[7] The Resource Management Act 1991 (the RMA) affords the public a wide scope for involvement in the consideration of resource consent applications. Any person may make a submission in support of or opposition to an application for a resource consent publicly notified in accordance with the RMA.
[8] However the Decision in question was not notified. The consequence of non-notification was that there was no statutory entitlement for the plaintiff to make a submission on the application.3 Nor did the plaintiff have any right of appeal to the Environment Court against the resource consent decision.4 As explained in
Environmental and Resource Management Law:5
However, in spite of the public being afforded a greater level of standing under the Act, there are some occasions where a third party is afforded no statutory involvement. Common examples include a consent authority’s decision on notification of resource consent applications and its decision to issue a certificate of compliance for an activity. … Where a third party is afforded no statutory right to participate in the decision making process, that party’s only avenue of recourse is by way of judicial review proceedings under the Judicature Amendment Act 1972.
[9] Although not foreshadowed in its statement of defence, in the course of its submissions the Council raised an objection to the plaintiff’s entitlement to apply for judicial review of the substantive (as distinct from the non-notification) decision. Indeed there appeared to be two limbs to its objection, both of which turned on the fact, which was common ground, that the Council made a decision under s 95A of the RMA not to publicly notify KVL’s applications.
[10] The statement of claim raised a number of challenges in relation to the substantive decision but there was no challenge in the pleading to the non-notification decision. The Council’s first point was that, if the non-notification decision was not flawed, then the plaintiff had no standing to challenge the
substantive decision. Consequently the Council contended that the plaintiff’s failure
3 Section 96(1).
4 Section 120(1)(b).
5 D Nolan Environmental and Resource Management Law (5th ed, LexisNexis, Wellington, 2015)
at [19.3].
to challenge the non-notification decision precluded the plaintiff bringing a challenge to the substantive decision.
[11] Although there appears to be no authority directly on point, attention was drawn to the following passage in the judgment of Blanchard J in Quarantine Waste (NZ) Ltd v Waste Resources Ltd:6
It is the first of the decisions which is challenged in this Court. If the challenge to the determination under s 94(2) is successful, then it follows that the land use consent was invalidly granted and so was a nullity. On the other hand, Mr Cavanagh, Q.C. accepts that if the Court decides that the determination that the matter could proceed on a non-notified basis was properly made or should not, in the discretion of the Court, now be disturbed, Quarantine has no standing to impeach the consent itself. …
[12] I accept that, if a non-notification decision is not impugned, then there is no right of appeal available to a person in the position of the plaintiff. However I do not accept that if an application is not notified, then an application for review of the substantive decision is also precluded unless there is first or also a challenge to the non-notification decision itself. Consequently, to the extent that the concession made in Quarantine Waste suggests otherwise, I am unable to agree with it.
[13] The Council’s second point turned on s 296(1) of the RMA:
296 No review of certain decisions
(1) If there is a right to refer any matter for inquiry to the Environment Court or to appeal to the court against a decision of a local authority, consent authority or any person under the Act or under any other Act or regulation –
· No application for review under Part 1 of the Judicature
Amendment Act 1972 may be made; and
·No proceedings seeking a writ of, or in the nature of, mandamus, prohibition, or certiorari, or a declaration or injunction in relation to that decision, may be heard by the High Court–
unless the right has been exercised by the applicant in the proceedings and the court has made a decision.
6 Quarantine Waste (NZ) Ltd v Waste Resources Ltd HC Auckland CP306/93, 2 March 1994.
[14] Mr Taylor interpreted the Council’s second point to be that the effect of s 296(1) is that an application for review can only be made if an appeal right has already been exercised and, as the plaintiff had no right of appeal, it followed that the plaintiff could not apply for review. Mr Taylor disputed that s 296(1) should be so interpreted, contending that the statutory limitation on the review right is confined to those (like KVL) who have a right of appeal available to them.
[15] I agree with his submission. In my view the objective of s 296(1) is to regulate the sequence in which court proceedings may be pursued. Any appeal right must first be exhausted. However the subsection does not purport to confine the availability of the remedy of judicial review to circumstances where an appeal right is conferred. Consequently I do not accept that s 296(1) precludes an application for review by a person, such as the plaintiff, in the situation where an application has not been notified.
Issue two: Does the plaintiff have standing to challenge the Decision?
[16] In its statement of defence, KVL raised a number of grounds in opposition to the grant of any relief including:
If any cause of action founding a judicial review of the First Defendant’s decision of 25 November 2014 arose on the making of that decision, the Plaintiff was not then in existence and could not afterwards acquire a right of action;
[17] KVL made the point that a number of individuals associated with the plaintiff (whom KVL described as the “shadow plaintiffs”) had actively engaged with the Council and KVL throughout the decision-making period but had elected not to launch a court proceeding themselves. KVL submitted:
If the Plaintiff could litigate the consent decision, made when it did not exist and held no right of any kind under the Resource Management Act 1991, and it were to succeed in obtaining a direction for rehearing on a notified basis, the effect would be to freshly empower those individuals who have elected not to participate individually in this proceeding.
[18] KVL did not cite any authority in support of its contention but rather focused its attention on criticising the conclusion in Society for the Protection of Auckland City and Waterfront Inc v Auckland City Council that the plaintiffs there had a genuine interest.7 Morris J reasoned as follows:
[28] I am satisfied the plaintiffs have a genuine interest. … I do not consider the fact the Society was incorporated in June 2000 to be fatal to its right to bring this action. It is perfectly plain from Ms Snijder’s affidavit the Society consists of persons who were in existence and holding the expressed views at the time this consent was granted. They were, of course, unaware of the application or it being granted consent until mid-2000. In my view it would be artificial and wrong to strike out this application where a core of persons in existence when these various decisions were being made have for practical purposes formed themselves into a Society which is doing no more than carry on the views and beliefs of such persons and endeavouring to take the actions which the members themselves could have taken had they remained as individuals and been aware of the steps being taken by the Council. Such a decision would carry, in my view, the real risk a wrongful act on the part of the Council will stand uncorrected. The Resource Management legislation has been enacted to ensure, as far as possible such an event cannot occur.
[19] While I recognise the line of English authority declining to recognise the standing of a corporate body on the basis that the simple act of incorporation cannot improve the status of a claimant,8 in the present case there is no suggestion that the “shadow plaintiffs” would not have had a genuine and sufficient interest in bringing the proceeding.
[20] In those circumstances I agree with and adopt the approach of Morris J. It would be artificial to decline relief, if grounds for review were established, on the basis that those eligible persons who had engaged with the Council in the decision-making period had elected not to institute proceedings as individuals but had formed a body corporate to represent their interests in a legal challenge, albeit
subsequent to the Decision.
7 Society for the Protection of Auckland City and Waterfront Inc v Auckland City Council [2001] NZRMA 209.
8 R v Inland Revenue Commissioners, ex parte National Federation of Self-Employed and Small Businesses Ltd [1982] AC 617 (HL); Ex parte Rose Theatre [1990] 1 QB 504. The more liberal view of standing in subsequent cases is discussed in Harry Woolf, Jeffrey Jowell and Andrew Le Sueur (eds) De Smith’s Judicial Review (6th ed, Sweet & Maxwell, London, 2007) at [2-039] – [2-041].
[21] Consequently in the circumstances of this case the plaintiff has standing to challenge the Decision notwithstanding that the Decision was made prior to the date of the plaintiff’s incorporation.
Issue three: Did the Council fail to consider the reserve status of the reserve land?
Context
[22] The reserve land zoned Open Space B was classified as a reserve under the Reserves Act 1977 by a Gazette Notice on 26 May 2011 which referred to “the purposes specified in s 19(1)(b) of the Reserves Act”.
[23] Section 19(1)(b) states:
19 Scenic reserves
(1) It is hereby declared that the appropriate provisions of this Act shall have effect, in relation to reserves classified as scenic reserves–
…
(b) for the purpose of providing, in appropriate circumstances, suitable areas which by development and the introduction of flora, whether indigenous or exotic, will become of such scenic interest or beauty that their development, protection, and preservation are desirable in the public interest.
[24] The significance of a classification as a scenic reserve under s 19(1)(b) is explained in s 19(3):
(3) It is hereby further declared that every scenic reserve classified for the purposes specified in subsection (1)(b) shall be so administered and maintained under the appropriate provisions of this Act that–
(a) except where the Minister otherwise determines, the flora and fauna, ecological associations, and natural environment and beauty shall as far as possible be preserved:
(b) the public shall have freedom of entry and access to the reserve, subject to the specific powers conferred on
administering bodies by sections 55 and 56, to any bylaws
under this Act applying to the reserve, and to such conditions and restrictions as the administering body considers to be necessary for the protection and well-being of the reserve and for the protection and control of the public using it:
(c) to the extent compatible with the principal or primary purposes of the retention and preservation of the natural or scenic values, open portions of the reserve may be developed for amenities and facilities where these are necessary to enable the public to obtain benefit and enjoyment from the reserve:
(d) where historic, archaeological, geological, biological, or other scientific features are present in the reserve, those
features shall be managed and protected to the extent
compatible with the principal or primary purpose of the reserve:
provided that nothing in this paragraph shall authorise the
doing of anything with respect to fauna that would contravene any provision of the Wildlife Act 1953 or any regulations or Proclamation or notification under that Act, or the doing of anything with respect to archaeological features in any reserve that would contravene any provision of the Heritage New Zealand Pouhere Taonga Act 2014:
(e) to the extent compatible with the principal or primary purpose of the reserve, its value as a soil, water, and forest
conservation area shall be maintained.
[25] The classification of the adjoining upper land under the Reserves Act is given recognition under the District Plan through the zoning as Open Space B. Open Space B (natural environment) is described as:
Open Space B land is valued for its natural character and informal open spaces. It involves areas that are used for types of recreation that, in the broadest sense, do not involve buildings or structures. The intention is to keep such areas in an unbuilt or natural state. This type of open space encompasses both formal and informal open space elements. It includes walkways, scenic areas and open grassed areas where buildings are inappropriate. Its characteristics are minimal structures, largely undeveloped areas and open expanses of land. Most Open Space B areas are vegetated and often have ecological values or may buffer Conservation Sites.
[26] The Council’s position is that the protection afforded by classification of land as a scenic reserve relates to activities on the reserve land itself but does not relate to activities on adjoining sites. In terms of the consenting process for an activity not on land within a scenic reserve but on land adjoining such a reserve, the provisions of the planning framework under the RMA determine land use. The Reserves Act does not govern development of land adjoining a reserve.
Analysis
[27] The plaintiff’s complaint concerning the reserve land known as Te Raekaihau
Park comprised two propositions:9
·error in failing to have regard to the fact that the land immediately above the Land was Scenic B;
·error in failing to weigh the effects on the environment of the proposal by reference to the higher environmental value associated with the status of Scenic B land.
[28] There is no explicit reference in the Decision to the fact that the upper land comprising Te Raekaihau Park is gazetted as a reserve under the Reserves Act. However there are several references in the Decision to the zoning status of that land as Open Space B, namely at pages 16, 20, 26 and 29.10
[29] Two of those references make mention of the fact that the area is a “reserve”:
• Immediately north, north-east and east of the subject site is the properties at 213 Houghton Bay Road and 120 and 122 View Road, with each allotment being part of a wider large reserve area incorporating several properties owned by the Wellington City Council and zoned Open Space B in the District Plan.11
• The proposed development will be sited at the lower slopes, with the reserve land (zoned Open Space B) of the slopes above the subject site remaining untouched as part of this development.12
[30] There is also a reference to the fact of the reserve land but without any related zoning reference:
The Council’s Reserve Planning Officer, Ms Terry Baxter (from the Council’s Parks, Sport and Recreation Team), has reviewed the proposal and advised that she has no objections to the removal of vegetation on legal road associated with the proposed accessways. However, Ms Baxter did advise that no vegetation with the Council’s adjoining reserve land (specifically, the
9 Paragraph 22 of the Statement of Claim at [3] above.
10 There is also reference at page 19, although in the context of reference to 213 Houghton Bay
Road.
11 At page 16.
12 At page 26.
properties at 213 Houghton Bay Road and 112 View Road) is to be removed as part of this consent.13
[31] Unsurprisingly the Council submitted that these references made it clear that the status of the reserve land was clearly known to Mr O’Leary, the Council’s Senior Consents Planner, and informed his assessment in the preparation of the Decision Report.14
[32] However Mr Taylor described these various references to the reserve land as predominantly descriptive, submitting that they did not qualify as a consideration of the reserve status of the reserve area. While acknowledging that they were references to the upper land as a “reserve”, he argued that there was no evaluation of the implications of that categorisation whereby, so it was submitted, the upper land was “afforded the greater protection of the regime under the Reserves Act, rather than only by their being zoned Open Space B”. He said that none of the Decision references considered the reasons for the upper land having been put into a reserve.
[33] His submissions explained the implications of that “greater protection” in this
way:
That greater protection, it is submitted, demanded recognition as a mandatory factor in terms of CREEDNZ. Had the Council and Minister not intended to afford greater protection by their actions, it must be supposed that they would not have done what they did. If they did intend to afford greater protection, it is submitted that the Council decision-making officers here needed to take the greater protection into account in order not to undermine the Council’s and Minister’s purpose.
[34] The assessment of any actual and potential environmental effects of a proposal is a mandatory consideration.15 In broad terms that encompasses any concerns related to the reserve status of the upper land. However that reserve status is recognised through the District Plan zoning and the zoning is determinative of land use. In that sense the reserve values of the upper land have already been
factored into the planning framework.
13 At page 27. The plaintiff suggested that there is another reference on page 24 which could include the reserve land but which does not advert to its status.
14 See below at [53].
15 Resource Management Act 1991, s 104(1)(a).
[35] In those circumstances it is difficult to envisage the reserve status of the upper land as amounting to an implied mandatory consideration in the manner contemplated in CREEDNZ. I accept the Council’s submission that there was no mandatory requirement to consider the status of the reserve land other than as would normally be the case under an effects assessment under s 104(1)(a) of the RMA.
[36] Furthermore, as the Council emphasised, KVL’s proposal did not relate to activities on the reserve land. The only works to be undertaken were those on the application site which is within the Residential zone.
[37] In my view the status of the reserve land was clearly known to Mr O’Leary and informed his assessment. He duly considered the effects on the upper land in light of its status as reserve land. The Decision concluded that the environmental effects were minor or less than minor. I find that this ground of review fails.
[38] Finally I simply note the point made by KVL that the objection of the “shadow plaintiffs” is in reality that from their home locations on the lower part of the valley, the residential land and the buildings proposed to be constructed on it will lie between them and the reserve land. Assuming that to be so, I accept KVL’s point that that is not in any sense an impact on the reserve land.
Issue four: Did the Council fail to consider the leachate implications?
Context
[39] The stormwater drainage network which was in place at the date of the application was described in a memorandum of Mr Idris of Capacity Infrastructure Services dated 21 January 2014 (“the Capacity Report”) as follows:
The existing stormwater network runs beneath the valley within the Houghton Bay stormwater catchment and discharges to Houghton Bay beach. The old landfill is located in the valley.
Stormwater flows are collected by the pipe system laid beneath the old landfill; ….
In addition to collecting stormwater runoff, the existing stormwater network collects base flow from the catchment. The base flow is generated either from infiltrated storm water or water flowing from surrounded springs. This
water flows through the old landfill and generates leachate which is considered to have a high concentration of chemicals. Therefore, the base flow collected in the stormwater system diverts to the wastewater network rather than discharging to the beach. The flow diversion structure is located at 240 Houghton Bay Road from manhole SW01671 at the end of the old landfill. The dry weather base flow transfers into the adjacent wastewater network to manhole WW17523 (see Figure 2).
[40] Mr O’Leary was contacted by a number of local residents concerned about the potential for additional stormwater collection to contribute to an apparent existing leachate problem from the former landfill. Consequently he obtained the Capacity Report, the conclusion to which included the following:
• The stormwater runoff from the development site is estimated to increase to 60 l/s for 10 year ARI rainfall, from an existing estimated flow of 34 l/s. This is 75% flow increase due to the increase in imperviousness.
• The pipe section between Cave Road and The Esplanade is under capacity to convey 10 yr ARI flow. Therefore, additional flow connection to the public network near Cave Road will result in an overloading of the under-capacity pipe network. Hence, it is advisable to consider alternative options.
• The downstream section of existing stormwater network (from The Explanade intersection to the outlet) has sufficient pipe capacity to accommodate excess stormwater. Hence, there is a possibility to connect stormwater flow from the proposed site further downstream (closer to The Esplanade intersection).
• There won’t be any impact to the leachate contaminated base flow diversion arrangement from the proposed development site during dry weather conditions. However, it has not been assessed whether the pipe network has any hydraulic effects during wet weather conditions at the flow diversion structure due to additional flows from the development site. To evaluate such impacts, a detailed hydraulic analysis (pipe hydraulic modelling) would be required.
[41] With reference to the third item in the extract above, Mr O’Leary asked Mr Idris to identify on an aerial map where he considered such a further downstream connection should be placed. In his affidavit dated 12 June 2015 Mr O’Leary explained:
80In response to the issues raised in Mr Idris’ report, Mr Guersen agreed to put in a new public stormwater connection along the eastern side of Houghton Bay Road which would connect directly to the public stormwater network near the intersection of Houghton Bay Road and The Esplanade. Mr Idris’ report confirms that there is sufficient capacity in the existing pipe network in this location.
81Stormwater collected from the proposed development would therefore flow through a new public stormwater pipe on the eastern side of Houghton Bay Road, separate from the existing stormwater pipe on the western side of Houghton Bay Road which may contain potentially contaminated matter (leachate). The new public stormwater pipe proposed will then connect to the remainder of the public stormwater network near the intersection of Houghton Bay Road and The Esplanade and then disperse to the stormwater outlet into Taputeranga Marine Reserve.
82I understand that the length of pipe between the weir diversion structure at 240 Houghton Bay Road and the point where the existing and new stormwater pipe would converge (near the intersection of Houghton Bay Road and The Esplanade) would be over 110 metres. Subsequent to Mr Idris’ report 21 January 2014, Mr Idris confirmed to me that there would be no hydraulic effects on the leachate material carried by the existing stormwater network should the stormwater network be extended via the separate pipe as proposed.
83It is in the knowledge of this further advice from Mr Idris with respect to the undertaking from the applicant to extend the public stormwater network as part of their application; and, based in part on Mr Iqbal’s report dated 21 January 2014, that I conclude at page 24 of my decision that the stormwater impacts and effects on existing public infrastructure are considered to be no more than minor on the wider environment. In making this conclusion I also note that the connection to the Public Stormwater Network will be considerably downstream from the source of leachate.
The Decision
[42] The Decision addressed the issue of stormwater effects at page 24:
Stormwater Impacts and Effects on Existing Public Infrastructure:
It is acknowledged that the An (sic) assessment of the proposed development by WWM Senior Engineer, Mr Iqbal Idris. He explains that: “In addition to collecting stormwater runoff, the existing stormwater network collects base flow from the catchment. The base flow is generated either from infiltrated storm water or water flowing from surrounded springs. This water flows through the old landfill and generates leachate which is considered to have a high concentration of chemicals. Therefore, the base flow collected in the stormwater system diverts to the wastewater network rather than discharging to the beach. The flow diversion structure is located at
240 Houghton Bay Road from manhole SW0167.1 at the end of the old landfill”.
Although Mr Idris has calculated that the proposed development will increase the estimated flow from the Public Stormwater Network, he has concluded that: “There won’t be any impact to the leachate contaminated base flow diversion arrangement from the proposed development site during dry weather conditions. It is noted that Mr Idris has not assessed whether
any hydraulic effects would occur in rainfall events at the flow diversion structure due to additional flows from the development site (such would require a detailed hydraulic analysis/pipe hydraulic modelling). In any case, the connection to the Public Stormwater Network will be considerably downstream from the source of leachate and based on Mr Idris’s advice, the associated stormwater impacts and effects on existing public infrastructure are considered to be no more than minor on the wider environment.
Analysis
[43] The ground of review concerning the stormwater flow effects is phrased as follows:
26.The First Defendant erred by failing to obtain and consider information on the hydraulic effects of increased stormwater flow from the proposed subdivision on leachate from the former landfill further up Houghton Valley from the subdivision.
[44] The Council’s rejection of that allegation relies upon the explanation in Mr O’Leary’s affidavit.16 It contends that on the basis of written and oral advice from Mr Idris a new stormwater connection point was established which was the basis upon which resource consent was granted. The consequence of the relocation of the connection point was that no further investigation of the nature suggested by Capacity was required. Consequently Mr O’Leary was able to conclude that there were no more than minor adverse effects as a result.
[45] The plaintiff first challenges the Council’s reliance upon affidavit evidence, submitting that the Decision must stand on its own feet and cannot be supplemented by affidavit evidence about what the decision-maker may or may not have reasoned. Reliance was placed on Hanna v Whanganui District Council, where Williams J commented in relation to affidavits filed by the Council:17
[13] In their affidavits, Ms Voice and Ms Pull expanded on the reasons underlying both the notification and the consent decisions in this matter. For example, Ms Voice’s affidavit provides the following:
I accept that the planning report does not present all of the information that was considered when making the decision not to notify the application.
16 At [41] above.
17 Hanna v Whanganui District Council [2013] NZHC 1340, 17 ELRNZ 314.
Accordingly, as the decision-maker for non-notification, I will detail what I was aware of, what I took into consideration and how I came to my decision.
[14] In my view, it is inappropriate to give any real weight to this evidence. The decision must stand or fall on its own terms as written at the time. That, in my view, is both sound public law and sound resource management practice. The whole point of the principle that those exercising statutory discretions must give proper written reasons is so that those reasons can be tested on appeal or judicial review if necessary. This leads to transparent and accountable exercises of public power by public officials.
[15] It is contrary to that principle to allow officials to back-fill their reasons after the event and when they know both that there is a challenge onfoot and the basis of that challenge. There will obviously be exceptions to that general principle where, for one good reason or another, resort to extraneous explanation will be necessary. This is not one of those cases. My focus will therefore be the notification and consent report and decision dated 19 February 2013.
[46] Mr Rennie QC argued that the observations in Hanna were directed at statements in an affidavit by a decision-maker which differed from the reasoned decision. He contrasted the elaboration by Mr O’Leary of the chronology of events which took place with the ex post facto rationalisation referred to by Duffy J in Jackson v Te Rangi.18 He contended that information as to the elements in the making of a decision is properly brought before the Court by affidavit where what is presented is the historical information from the decision-making process.
[47] I do not consider that the affidavit of Mr O’Leary offends in the manner that Williams J and Duffy J described. In the present case the Decision endeavours to explain the conclusion that stormwater impacts were considered to be minor but omits to provide the full chronology of what occurred. It was appropriate in my view for some elaboration to be provided of the sequence of events which resulted in the connection being considerably downstream, that being the outcome which the Decision records. I do not view such elaboration as amounting either to back-filling or ex post facto rationalisation.
[48] The plaintiff’s submissions proceeded to analyse the material in the O’Leary and Guersen’s affidavits concluding with the following evaluation:
There are two possibilities. Either Mr O’Leary did actually make an assessment that there was no adverse effect from implementation of the resource consents in respect of leachate, or he did not. He says in his affidavit that he did. The Plaintiff has no greater information than the Court on this point. In the absence of cross-examination it is acknowledged that the Court will accept that he did. But, if he did, then, none of the decision, the documents, or the affidavits (whether or not admissible) tells the Court the basis for his decision.
[49] The plaintiff then contended that, if a decision-maker receives advice and adopts it in the decision, then the decision is invalid if the advice is erroneous in law, citing R v Director of Public Prosecutions, ex parte Kebilene.19 It submitted that the basis of Mr O’Leary’s decision was so mired in obscurity and impression that it is “unknown”, arguing that:
The dog’s breakfast that is the unidentified basis for Mr O’Leary’s decision on leachate brings this situation well within the aspect of failure to consider relevant factors through inadequate information.
[50] Mr Quinn responded that the evidence demonstrates that it was on the basis of the new connection point, located further down the valley where there were no capability concerns, that the consent was granted. He submitted:
Due to this relocation of the connection point, the further investigation requested by Capacity was not required. Mr O’Leary confirmed this with Capacity prior to issuing his decision. Mr O’Leary was able to, as he did, conclude that there were no more than minor adverse effects as a result.
[51] I accept the Council’s submission on this issue. The allegation that the Council erred in the manner alleged in para 26 of the statement of claim is not established.
Issue five: Did the Council fail to provide adequate reasons for the Decision?
[52] The contention in para 24 of the statement of claim is that the Council breached natural justice and/or erred in law by failing to provide any or adequate reasons for its decisions. Under a heading “Decision”, para 20 stated:
20. The Decision, which is annexed to the statement of claim:
(a) Granted subdivision and land use consents subject to 27 and
22 conditions respectively, and
(b) Provided three paragraphs totalling five lines by way of reasons.
[53] The Decision annexed to the statement of claim was the 28 page document which comprised two parts: the Notice of Decision (pages 1 to 15) and the Decision Report signed by Mr O’Leary and Mr Stevens (pages 16 to 28). The contention in para 20(b) that the reasons comprised only “three paragraphs totalling five lines” appeared to be a reference to the conclusion at pages 14–15 of the Notice of Decision as follows:
Reasons for Decision:
1.The effects of the proposal on the environment will be acceptable and no parties will be adversely affected.
2.The proposal is in accordance with the relevant objectives and policies of the District Plan, and Part 2 of the Act.
3. There are no special circumstances.
[54] Had those paragraphs comprised the totality of the Council’s reasons for the Decision, then the plaintiff would plainly have had a strong case on the strength of the principles relating to the requirement to give reasons recorded in Lewis v Wilson and Horton Ltd20 and Singh v Chief Executive Officer, Department of Labour21
reviewed in Mr Taylor’s submissions.
20 Lewis v Wilson and Horton Ltd [2000] 3 NZLR 546 (CA).
21 Singh v Chief Executive Officer, Department of Labour [1999] NZAR 258 (CA).
[55] However in their statements of defence both the Council and KVL contested the plaintiff’s assertion at para 20(b), contending that the three paragraphs were merely a summary of the Decision and that the Decision comprised the entirety of the 28 page document annexed to the statement of claim. KVL’s submissions in particular attacked the plaintiff’s case as having been presented on the basis of an “artificial construct”.
[56] In its written submissions the plaintiff proceeded on the basis that the content of the Decision was as contended by the defendants and it directed the focus of its attention to the adequacy of the reasons relating to the subject matter of the first and second causes of action, stating:
It is submitted that the third ground also succeeds because analysis of the decision, documents, and evidence do not disclose any reasons on either of the reserve status or leachate issues.
[57] In response Mr Quinn submitted that Mr O’Leary was not required to expressly refer to and identify the detail of each plan or other relevant document which he considered, citing Urban Auckland, Society for the Protection of Auckland City and Waterfront Inc v Auckland Council22 and Rodney District Council v Gould.23 In the latter case Cooper J observed that it was enough if the main reasons
which led the Environment Court to reach a particular conclusion were set out.
[58] The focus on the main reasons which are the basis for a decision is also apparent from the observations in REEF Trade Mark.24 Delivering the judgment of the English Court of Appeal Robert Walker LJ said:
29.The appellate court should not treat a judgment or written decision as containing an error of principle simply because of its belief that the judgment or decision could have been better expressed. The duty to give reasons must not be turned into an intolerable burden: see the recent judgment of this court in English v Emery Reimbold & Strick Ltd (and two other appeals heard with it) [2002] EWCA Civ 605, April 30, 2002, para 19:
22 Urban Auckland, Society for the Protection of Auckland City and Waterfront Incorporated v
Auckland Council v Gould [2015] NZHC 1382, [2015] NZRMA 235 at [102].
23 Rodney District Council v Gould (2004) 11 ELRNZ 165, [2006] NZRMA 217 (HC) at [32].
24 REEF Trade Mark [2003] RPC 101 (CA) at [29].
… the judgment must enable the appellate court to understand why the judge reached his decision. This does not mean that every factor which weighed with the judge in his appraisal of the evidence has to be identified and explained. But the issues the resolution of which were vital to the judge’s conclusion should be identified and the manner in which he resolved them explained. It is not possible to provide a template for this process. It need not involve a lengthy judgment. It does require the judge to identify and record those matters which were critical to his decision.
[59] In my view the Council clearly incorporated reasons in its Decision in the passage quoted at [42] above with reference to the potential stormwater effects of the proposal. The consideration of the fact of the reserve land is more in the nature of a mosaic of references but in my view it is apparent from the Decision that the Council considered that there were no adverse effects of any significance on the reserve land, in particular because the reserve land would remain “untouched as part of this
development”.25
[60] For these reasons I accept the Council’s submission that Mr O’Leary provided sufficient reasons for the Decision on the two matters which were the focus of the plaintiff’s revised argument. Consequently the third ground of review also fails.
Issue six: Did the Council fail to address submissions made to it?
[61] Although the claim did not specify the content of the submissions made by members of the plaintiff which the Council allegedly failed to address in the Decision, at the hearing the complaint was confined to an alleged failure to address submissions raised in respect of the reserve land. The plaintiff’s submissions acknowledged that Mr O’Leary did respond at page 24 of the Decision to the
leachate issue raised by a member of the public.
25 At [29] above.
[62] The plaintiff’s contention was that a decision-maker has a duty to investigate information brought to him or her ex parte if it is credible and significant to a factor that is mandatory. Reliance was placed on Minister for Aboriginal Affairs v Peko-Wallsend Ltd.26 The focus of the argument was on a letter dated 17 April 2014 written to the Council by Mr Taylor on behalf of a group of residents in the general area of Houghton Bay. That letter addressed the “adjoining land status” as well as a
number of other matters. The letter concluded by stating that as the lay clients acquired further advice, the list of issues was likely to increase.
[63] The plaintiff’s submissions summarised this ground of review as follows:
In respect of the fourth ground, the submission concerned was that the design of the houses would be likely to obscure views of the upper land, contrary to the values that led the upper land to become scenic reserve and to the principles behind policy 4.2.8.2. none of this was addressed in the decision and none of the documents or evidence suggests that it was addressed.
[64] The Council responded to this complaint in two ways. First it took the point that the communication of 17 April 2014 was not a “submission” as that term is employed in the RMA. As noted above,27 because of the Council’s decision not to publicly notify KVL’s applications, there was no statutory entitlement for those, who subsequently became members of the plaintiff, to make submissions on the applications. The Council’s stance was that its receipt and consideration of those comments did not elevate them to the status of submissions under the RMA.
[65] The Council’s second point was that all the comments received, including those relating to the reserve land which are the focus of this ground of review, were considered and addressed in the Decision. It submitted that the plaintiff’s real complaint concerns the relative weight which the Council attributed to the various factors but says that the weighting given to different factors is not amenable to judicial review.
[66] I agree with both the Council’s points. So far as the substance of the letter of
17 April 2014 is concerned, the Decision clearly does recognise the implications for the views from other properties28 but considered that any effect on the residential amenity of such other properties would be less than minor.29 The proposed development was not considered to impact the outlook experienced from any residential property to any unreasonable degree.
[67] The short point is that these unsolicited communications were indeed addressed by the Council but the viewpoint advanced was not accepted by it. That state of affairs does not provide a sound platform for the allegation of the nature in para 23 of the statement of claim. Accordingly the fourth ground of review also fails.
Costs
[68] The application for review having failed, the defendants are prima facie entitled to costs. My preliminary view is that costs should be awarded on a 2B basis but I will receive costs memoranda both on that point and on the question whether the defendants are entitled to two sets of costs or only one.
[69] The defendants are to file costs memoranda by 14 March 2016 and the plaintiff is to file a memorandum in response by 4 April 2016.
Brown J
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