Gabler v Queenstown Lakes District Council
[2017] NZHC 2086
•29 August 2017
IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY
CIV-2016-425-84 [2017] NZHC 2086
UNDER The Judicature Amendment Act 1972 and
Part 30 of the High Court Rules
IN THE MATTER OF
An application for judicial review
BETWEEN
JONATHAN PAUL GABLER, JENN BESTWICK AND GLENORCHY HOMESTEAD LIMITED
Applicants
AND
QUEENSTOWN LAKES DISTRICT COUNCIL
First Respondent
THE PLAYGROUND LIMITED Second Respondent
Hearing: 13 December 2016
and resumed hearing 16 August 2017
Appearances:
M J Slyfield for Applicants
J C Campbell and A H Balme for First RespondentJudgment:
29 August 2017
JUDGMENT OF NICHOLAS DAVIDSON J
GABLER & ORS v QUEENSTOWN LAKES DISTRICT COUNCIL & ANOR [2017] NZHC 2086 [29 August 2017]
TABLE OF CONTENTS
A. INTRODUCTION ………………………………………………. [1]
The genesis of this judicial review ……………………………….. [6] Notification principles ……………………………………………. [10] Grounds of this judicial review …………………………………… [11] A late stage consideration ………………………………………… [14]
B. THE APPLICATION FOR RESOURCE CONSENT …………….. [16]
The application ………………………………………………….... [16] Council process …………………………………………………… [24] Dr Chiles …………………………………………………………. [30]
C. THE DECISIONS ………………………………………………… [32]
Summary ………………………………………………………….. [32]
Limited notification – “Effects on persons” ……………………… [41]
D. LAW ……………………………………………………………… [44]
Schedule 4 ………………………………………………………… [45] The obligation to inform the consent authority …………………… [46] “Discount Brands” ………………………………………………… [47] “Coro Mainstreet” ……………………………………………… [48] Supreme Court …………………………………………………….. [54] Discussion …………………………………………………………. [58]
E. ANALYSIS ……………………………………………………….. [67]
Approach ………………………………………………………….. [67] The s 92 request for further information, and s 95C of the Act …… [70] Relevance of noise limits ………………………………………….. [81] “Less than minor” and reliance on Dr Chiles’ report …………….. [90] Rural Amenity ……………………………………………………. [96] The “lens” used by the Council ………………………………….. [101] Conclusion as to sufficiency of relevant information ……………. [102] The strictness of s 95C ……………………………………………. [105] Exercise of discretion on judicial review ………………………… [107]
F. CONCLUSION AND DISPOSITION ………………………….. [109]
Disposition ………………………………………………………. [112]
A. INTRODUCTION
[1] This application for judicial review challenges the decision of Queenstown Lakes District Council (“QLDC” or “the Council”) made on 10 June 2016 not to serve limited notice or publicly notify an application for resource consent made by the second respondent, The Playground Ltd (“The Playground”).
[2] The outcome of this review thus bears directly on the resource consent granted the same day to establish commercial recreational activities at Alan Reids Rd in the Wakatipu Basin at the foot of Coronet Peak, on land zoned Rural General in the District Plan.
[3] The consented activities, which the Court is told have commenced, include paintball, archery combat, a high ropes course, bubble soccer, mountain boarding and sumo wrestling. The infrastructure is not significant in the context of this judicial review. The proposal includes a car park. Hours of operation are restricted to daylight, seven days a week, with customer and vehicle movement limits per day.
[4] The applicants in this judicial review own or occupy land to the south and west of The Playground’s site. Mr Gabler has consent for a residential building close to the southwest corner of the subject property. Ms Bestwick, as trustee, owns the residential property at 741 Malaghans Rd, with road frontage to Alan Reids Rd. Mr Chudleigh and his partner occupy that land. Glenorchy Homestead Ltd (“Glenorchy Homestead”) owns all the land between the southern boundary of the site and Malaghans Rd, which includes a residence close to the common boundary.
[5] Alan Reids Rd is unsealed, carries little traffic and is about 900 metres in length. It provides access to two dwellings: Ms Bestwick’s, and another, the owner of which is not involved in these proceedings.
The genesis of this judicial review
[6] The decision not to publicly notify the application was made in the exercise of
the Council’s discretion under s 95A(1) of the Resource Management Act 1991
(“the Act”). The Council also decided that no person was an “affected person” for
the purposes of limited notification pursuant to s 95B(1) and 95E(1) of the Act.
[7] The applicants say they and others are “affected persons” and should have been served with the application by way of limited notification so they might participate in the consenting process. Mr Slyfield, counsel for the applicants, submits that the notification decision was flawed and should be declared invalid, as should the resource consent, and the Council needs to return to first base and address it properly before any decision is made as to notification and whether consent should
be granted.1 At the heart of the applicants’ case is the contention that the Council did
not have sufficient relevant information before it to reach a decision about notification and the consent, in particular about the effects of noise from the activities, and as a result it made an error of law, or its decision was otherwise unreasonable.
[8] Mr Slyfield also says that the failure of The Playground to respond to a request for further information made by the Council means the application had to be publicly notified.
[9] The relief sought is comprised of declarations of invalidity and quashing of decisions as to notification and consent.
Notification principles
[10] The scheme for notification under the Act includes the following:
95A Public notification of consent application at consent authority’s
discretion
(1) A consent authority may, in its discretion, decide whether to publicly notify an application for a resource consent for an activity.
(2) Despite subsection (1), a consent authority must publicly notify the application if—
(a) it decides (under section 95D) that the activity will have or is likely to have adverse effects on the environment that are more than minor; or
1 Citing s 104(3)(d) of the Act, and Tasti Products Limited v Auckland Council [2016] NZHC
1673, (2016) 19 ELRNZ 555.
(b) the applicant requests public notification of the application;
or
(c) …
95B Limited notification of consent application
(1) If a consent authority does not publicly notify an application for a resource consent for an activity, it must decide (under sections 95E to 95G) whether there is any affected person, … in relation to the activity.
(2) The consent authority must give limited notification of the application to any affected person unless a rule or national environmental standard precludes limited notification of the application.
…
95E Consent authority decides if person is affected person
(1) A consent authority must decide that a person is an affected person, in relation to an activity, if the activity’s adverse effects on the person are minor or more than minor (but are not less than minor).
(2) The consent authority, in making its decision,—
(a) may disregard an adverse effect of the activity on the person if a rule or national environmental standard permits an activity with that effect; and
104 Consideration of applications
(3) A consent authority must not, —
(d) grant a resource consent if the application should have been notified and was not.
Grounds of this judicial review
[11] Judicial review does not address the general merits of a decision, except to the extent that it is challenged for unreasonableness.2 The established principles of judicial review of a decision of this kind are as follows:3
(a) All relevant considerations must be taken into account, and irrelevant considerations ignored.
2 Ferrymead Retail Limited v Christchurch City Council [2012] NZHC 358 at [98].
3 Sutton v Canterbury Regional Council [2015] NZHC 313, (2015) 18 ELRNZ 774 at [34].
(b)The decision must be one a reasonable decision maker could reach on the basis of the material available to it.
(c) The weight given to relevant matters is for the decision maker, but there must be something there to which the decision maker can give weight.
(d)This Court will scrutinise the decision more closely and with a less tolerant eye than it would decisions where there are broad policy considerations and there is less impact on people’s lives.
[12] The applicants submit that the Council’s assessment of potential noise and other effects was based on inadequate information, and failed to bring to account the effect of the change to the noise environment by operation of the consent. They submit the decision that the adverse noise effects on the applicants would be “less than minor” was one which no reasonable decision maker could have reached on the material available. They submit that the Council took account of irrelevant considerations, that expert advice was that noise effects would be “reasonable” or “acceptable”, rather than “less than minor”, and “may have taken account” of an irrelevant consideration, namely a flawed understanding of the “permitted baseline” in respect of noise from the proposed activity. The assessment of traffic effects on the character of the environment, and the assessment of cumulative effects including those on the rural environment and neighbours, is submitted to be illogical, contradictory and unreasonable. The challenge to the assessment of traffic effects was not advanced further at the hearing.
[13] The assessment of effects at the properties owned or occupied by the applicants in this judicial review is submitted to have been limited, confined to effects raised in correspondence from them to the Council, and failed to take account of relevant District Plan assessment criteria. The assessment of effects on Glenorchy Homestead is alleged to have failed to take account of the use of the pedestrian pathway between the car park and the activity areas.
A late stage consideration
[14] When the Council’s landscape architect asked about the expected noise levels and where they might come from, the Council’s planner responded that this information would be included in a request for further information under s 92 of the Act. The Playground suggested the landscape consultant and planner visit the site and listen to the noise made by paintball guns, but that suggestion was not taken up. The lack of further information about noise was not however thought sufficient to render the application incomplete. The Council made a s 92 request for further information, which was answered, but not to the letter.
[15] Counsel did not address s 95C of the Act in submissions at the hearing. It was not pleaded. Close to delivery of this judgment I recognised the potential implications of that section, which might, on the case made for the applicants be determinative, but was otherwise relevant. It is directed to a failure by an applicant for resource consent to provide information when requested by a consent authority. Counsel were asked to make further submissions. Section 95C is addressed later in this judgment. It involves a purposive interpretation of s 95C. It is associated with the question whether the Council was sufficiently and relevantly informed to reach the notification decision and whether it was reached on relevant and no irrelevant considerations.
B. THE APPLICATION FOR RESOURCE CONSENT
The application
[16] The application, with the Assessment of Effects on the Environment (“AEE”), had the required declaration by Ms Devlin, consultant planner for The Playground, that the information provided in support was complete and accurate.
[17] It described the site as two pronounced land forms; the southern portion characterised by relatively flat paddocks, and the northern portion terraced and undulating. The site rises in a northerly direction from Malaghans Rd to the Coronet Peak hillside, and was at the time of the application used for pastoral farming purposes.
[18] The Playground was described as a collection of affordable, low risk, fun, high quality activities in one location, attractive to groups. The activities would be undertaken on 4.2 hectares of a site area of 19.9433 hectares.
[19] The activities were described, with photographs. Paintball is a “combat style sport”, where participants wear a safety mask and use a gun designed to fire marble-sized balls of paint within a course of portable structures (drums or tyres). The high ropes course and mountain boarding speak for themselves.
[20] The Playground sought non-notification and did not request public notification. Approvals were given by the owner of the site and the owner of the Flight Park, a neighbouring property to the east.
[21] Under “effects on the environment”, the natural and pastoral character, visibility, form and density, cumulative effects on the landscape, and rural amenities were all detailed. Assessment considerations for commercial recreation activities were set out, including traffic and pedestrian activity incompatible with the character of the surrounding rural area, and adverse effects of noise vibration and lighting incompatible with the levels acceptable in a low density rural environment. The activity would not result in vibration, nor need fixed lighting. The noise from all of the activities, including the paintball guns, would meet the District Plan noise limits, due to the natural topography, vegetation and separation distance from the nearest residential neighbours. The area was described as “remote or isolated” so there would be no loss of privacy, or disturbance to the sense of remoteness or isolation. The nearest neighbours would not be able to see the activities. The high ropes course poles would be set against Douglas Fir forestry and the expansive Coronet Peak hillside. The activities would be largely screened to avoid cumulative effects of the development in the area, which was said to have the potential to absorb some change. Traffic, pedestrian safety, litter, waste and the cumulative effects of these elements were described, and the existing commercial recreational activities including the nearby Flight Park. Amenity and landscape values were addressed.
[22] Noise was addressed as follows:
5.4.6 Noise
As described above, the activities and buildings are well separated from any residential dwellings or platforms, and the outcrop along the southern edge of the activity area acts as a natural sound barrier. None of the activities will result in excessive noise emissions as no motorised equipment is required. It is possible some low level noise emissions might be heard at Flight Park, however, that property owner has given written approval. Accordingly, all activities will meet ODP noise limits for the zone and the proposal will result in adverse noise effects that would be minor or no more than minor. (emphasis added)
[23] I will refer further to the noise limits and their relevance to decisions made by the Council and for this judicial review.
Council process
[24] Mr Denney, the Council’s landscape architect, wrote to Mr Woodward, the Council Planner, on 22 April 2016, requesting information about a range of issues, including “expected noise levels associated with the activity, and where these may be generated from”.
[25] On 27 April 2016, Mr Denney again wrote saying he was surprised “how contained the site is”. He added:
I’m only interested in noise in terms of impacts on landscape values within the rural context, rather than health or nuisance effects. Just want clarification that the activity would not include PA systems, loud music, or constant screaming that may otherwise distract from the tranquil rural setting
… although given the flight park next door there is perhaps already a degree
of this.
[26] That same day, Mr Woodward wrote to Ms Devlin for The Playground, with a request for further information under s 92(1) of the Act. He asked for an overview of all relevant sources of noise to give the Council an idea of potential noise effects and whether they would affect the residential amenities of the nearby residential neighbours. He asked, and Ms Devlin replied as follows: (answers italicised)
8. Please provide an overview of all of the relevant sources for noise that is likely to be generated from the proposed activity. In particular, please provide confirmation whether any PA systems, amplified music or ongoing alarms will be in use. This information will give Council an idea on what
the potential noise effects will be and whether this will affect the residential amenities of the nearby residential neighbours.
The proposal does not include a PA system, amplified music or alarms. A stereo may be used for background music, which would meet the zone noise standards and would not be heard from any residential neighbours, including A Fairfax due to distance, topography, and vegetation.
9. Further to the above, it is understood through reviewing the AEE that all activities are able to maintain compliance with the relevant noise standards of the District Plan. Given no specific confirmation has been provided to provide Council reassurance these provisions can be complied with, please advise whether conditions of consent can be volunteered stating that all activities associated with the proposal will maintain compliance with the relevant noise standards.
The following conditions are volunteered to ensure compliance:
There shall be no amplified music, public address systems or alarms on the site at any time.
The consent holder shall ensure that sound for activities conducted on the site measured in accordance with NZS 6801:2008 and assessed in accordance with NZS 6802:2008 shall not exceed the following noise limits at any point within the notional boundary of any residential unit, other than residential units on the same site as the activity:
(i) daytime (0800 to 2000 hrs) 50 dB LAeq(15 min)
Sound from the activities which is received in another zone shall comply with the noise limits set in the zone standards for that zone.
[27] Mr Woodward visited the site to better understand the proposal. He considered the effects on residential neighbours and on 6 May 2016 he wrote to Ms Devlin. He was concerned about traffic movements and adverse effects on residential properties along Alan Reids Rd. Ms Devlin replied on 7 May 2016 to say that traffic movements would be limited to 24 maximum per day. Mr Denney provided a memorandum to Mr Woodward on 12 May 2016, commendable in its detail, which addressed rural amenity.
[28] About this time neighbours began to write with their concerns. I do not detail all these, but they were extensive. Ms Bestwick wrote on 23 May 2016 and mentioned the disturbance caused by paragliding activities at the nearby Flight Park. This was relevant. On the frequent very still days, noise travelled and conversations between instructors and their customers could be heard word for word as they circled to the landing area east of The Playground’s site. Ms Robb, solicitor, wrote to
Mr Woodward on 24 May 2016 and said that the concerns of one of her clients meant that there should be at least limited notification to landowners in the vicinity. One of Ms Robb’s clients was the property owner at 791 Malaghans Rd. She said it was not sufficient simply to say that there would be no excessive noise emissions given the nature of the activities because the Flight Park had said the same thing, but “paragliders/fliers scream very loud in the air as they come in to land”. This reference to the noise made by customers is apposite to this judgment and Mr Denney had already identified this. Ms Robb said her clients’ concerns were for peaceful enjoyment of their property. They sought a scaling back of the operating hours.
[29] Mr Gabler wrote on 25 May 2016 explaining his purchase of land for a deer farm on the northern side of Malaghans Rd, some 85 hectares, to establish an international standard polo facility. He and his partner had met with the applicants. They had no opposition to the proposal at a personal level, but there were concerns. Traffic noise was said to be “very noticeable” and they thought there would be numerous elements which would be seriously detrimental to peace and enjoyment in the immediate area and on their farm and residential lot west of Alan Reids Rd. Mr Gabler wrote:
I believe the resulting noise from the operation will be very noticeable and more than minor in several instances, namely:
1. Noise from air suspension lifting and lowering the vehicle, door opening/closing air compression/decompression) and engine noise from starting and stopping buses/coaches at bus ‘depot’.
2. Noise from customers gathering at the depot and exciting/entering buses/coaches (especially as the applicant has stated they are targeting Stag Party groups, conference groups and groups of children for their business). This means large groups of 20 or more people spending some time in the parking area, near residences on Alan Reids Road.
3. General noise from participants and spectators of the outlined activities at the site (Bubble Soccer, Paint Ball, Archery Tag, Mountain Board, plus High-Rope Course and Zip-line to be added in the future) – all of which are action/adrenalin/boisterous activities and none of which, in my opinion, are at all well suited in a Rural General Zone. I believe there are far better suited sites such as Frankton or other industrial/commercial areas.
4. Noise generated from the proposed BBQ area onsite and the potential for alcohol and parties with noise carrying to neighbours.
Dr Chiles
[30] Mr Woodward decided to seek expert advice on noise issues from Dr Chiles, who I consider to be an expert on the evidence before me. There was no written instruction. Dr Chiles responded promptly on 27 May 2016 to say that he had not been to the site, and had the same information as Mr Woodward as to noise sources and the noise emitting properties of the equipment. He did not make a specific noise assessment. However, he said he knew the area. Sound data for the activities was not available, but he thought the equipment would generate minimal sound levels at neighbouring properties. Dr Chiles anticipated noise would be made by customers of The Playground. If the sound levels complied with the District Plan noise limits, then that would result in “reasonable noise that is compatible with residential activities”. He recognised low ambient sound levels around Malaghans Rd, but not the specific level, and that even sound which complied with District Plan noise limits would often be clearly audible from neighbouring properties. Sound from other activities was already audible in the environment and occasional sound from The Playground would be “acceptable”. He addressed concerns expressed by neighbours one by one, and overall said that the traffic and noise levels would be “acceptable” or at a “reasonable level” if they complied with District Plan noise limits.
[31] Mr Slyfield’s submission is that there was no assessment by Dr Chiles, Mr Woodward or anyone else, whether the noise which would be experienced by adjacent land owners would be “less than minor”, although that language was expressly employed in the decisions under review to which I now refer. It is a quantitative and qualitative test, which is a testing proposition for a consent authority.
C. THE DECISIONS
Summary
[32] The Summary of the two decisions (non-notification and resource consent), records that the application would be processed on a non-notified basis given the findings in Section 6.0 of the report of the decisions. The non-notification decision was made by the Senior Planner under delegated authority.
[33] Resource consent was granted subject to conditions expressed and emphasised in this way: “This consent only applies if the conditions outlined are met”. The summary records:
To reach the decision to grant consent the application was considered (including the full and complete records available in the Council’s electronic file and responses to any queries) by Paula Costello, Senior Planner, as delegate for the Council.
[34] The purpose of the application was set out, then the relevant provisions in the District Plan. A mix of restricted discretionary, discretionary, and non-complying activities was identified and overall it was considered as a non-complying activity. The “permitted baseline” did not apply as the only permitted commercial activities are those involving five persons or fewer.
[35] Public notification was addressed in Section 3.1 of the Decision. The assessment of effects on the environment was undertaken in Section 4. The assessment comprehended the criteria in the District Plan. The site falls within the description of Visual Amenity Landscapes (“VAL”) and include the criteria for the effects on natural and pastoral character, visibility of development, form and density of development, cumulative effects of development on the landscape, and rural amenity.
[36] The Decision records that Mr Denney considered the activities would be “highly contained within the depression created by the natural topography of the “upper end” terrace…” That assessment was accepted in the Decision. The visibility of the development addressed the same confinement of activities to the upper terrace. The proposed car park situated off Alan Reids Rd represented the most visible feature of the proposal viewed from Malaghans Rd, with vehicles passing at intermittent times throughout the day. Mounding and a cluster of trees would mitigate the effects of the proposed car park. Form and density of development recognised the existing landform so that much of the development, with the exception of the car park, would be screened from public view. For that reason the proposal can be appropriately absorbed into the environment “without detracting from the overall arcadian pastoral landscape”. Most of the site will remain unchanged in its pastoral state. The cumulative effects of development on the
landscape include an increase in commercial activity in the area, but given the topography and the way the proposal was situated, the adverse visual landscape effects would be less than minor. For much the same reasons, the open space views would not be affected within the description of rural amenities. Overall, the proposal would have less than minor adverse visual and landscape effects on the wider environment.
[37] The commercial recreational activities were assessed against the proposed cap on vehicle movements to 24 per day, and a maximum number of 200 customers each day. Traffic would be intermittent and of low volume such that adverse effects on character and rural amenity would be no more than minor. The movements are calculated to 2.4 vehicle movements per hour, although there would likely be periods of multiple vehicle use. Most of the day would see little to no vehicle movement.
[38] Pedestrian use would be limited throughout the day given the substantially screened nature of the activities and the cap on customer numbers.
[39] Noise, vibration and lighting were addressed against compatibility with levels “acceptable” in a low density rural environment. There is no lighting. As to noise, Dr Chiles had noted that the dominant noise source would be from people participating in the activities, talking and laughing, and vehicle noise. Dr Chiles considered that given the confined nature of the activity and inherent separation from surrounding sites, and natural screening of the landforms, noise would be able to comply with the District Plan noise limits and any noise audible at times would be acceptable. Given the inherent separation distance between the activities and public spaces, the noise effects on people in the wider environment would be intermittent and less than minor. “Noise from paintball guns [are] unlikely to be heard from beyond the site given the lack of noise emissions from this type of equipment”. Dr Chiles considered that “Noise from people participating in the activities” was able to meet the District Plan requirements and a condition of consent was volunteered in that regard. There was consideration of the loss of privacy and sense of remoteness or isolation.
[40] Overall, the Council decided that the activity was not likely to have more than minor adverse effects on the environment for the purpose of s 95A(2) (public notification).
Limited notification – “Effects on persons”
[41] The effects on persons were discussed in Part 5 of the Decision. The concerns of owners or occupiers of each property were set out in considerable detail. Each property was assessed and conclusions were reached as to adverse effects. An answer to concerns about noise was that the activities would comply, and have to comply with the noise limits as a condition of consent. Concern was expressed about stag parties, but alcohol consumption is not part of the proposed activities. It was decided that the adverse effects of the proposal would be less than minor in each case. Reasons were given. These included separation distances and screening, with recognition that noise may be audible, but at a level which would not detract from the rural residential amenities of the property and at a level permitted by the District Plan. Other noise from the gathering of persons in the car park would be intermittent, and limited. There would be no activity in the more sensitive night time hours. The consideration of the effects at various neighbouring properties is extensive but some examples are pertinent to judgment.
743 Malaghans Rd
As discussed above, Dr Chiles has provided expert advice with respect to potential noise effects. Dr Chiles considers that the separation distances afforded between the dwelling and the activity area, along with the prevailing characteristics of the terrain, noise from those participating in activities will be able to comply with the relevant noise limits of the District Plan. In this regard, while at times noise may be audible, adverse effects on this property are considered to be less than minor particularly when acknowledging the day time nature of the operation, the lack of amplified noise sources and intermittent nature in terms of the use of the site/activities.
761 Malaghans Rd– sec (Sec 2 SO 468375)
In terms of traffic noise, specific concerns have been raised with respect to coaches entering and exiting the proposed carpark from Alan Reids Road, given the location of the approved platform on the neighbouring site in relation to the carpark entrances.
Dr Chiles has advised that while these sounds may be momentarily audible, they would be at a reasonable level in compliance with the District Plan
noise limits. The expert advice of Dr Chiles’ has been relied upon and on this basis and as such, adverse effects on this party will be less than minor. It is further noted that the use of coaches will be intermittent in the sense that the predominant mode of transport is anticipated to be from the company minibus or private vehicles. Furthermore, any vehicle movements are limited to daylight hours and outside of the more sensitive periods such as early mornings and evening hours.
…
Concerns were raised by this party in terms of noise generated from users of the site, including noise generated from people gathering in the carpark on arrival and prior to leaving.
As discussed the separation distances afforded between the activity area (located in the ‘upper’ terrace) and the approved platform (where the approved platform is located approximately 500 metres from the activity area) along with the natural screening provided by the terrain will mitigate noise effects from users partaking in the commercial recreation activity. Based upon the expert advice of Dr Chiles, whilst there may be times where noise is audible, this is considered to be of a level that will not detract from the rural residential amenities of this property (and of a level permitted by the District Plan).
In terms of the congregation of persons in the carpark, any such noise will be intermittent and limited to a short period of the day. Again, it is acknowledged that these activities are during daytime hours and any disruption to the neighbouring property during more sensitive night time hours will be avoided.
761 Malaghans Rd, Wakatipu Basin (Sec 1 SO 457201)
The separation distances afforded along with the natural screening provided will mitigate noise generated from people partaking in activities. Based on the expert advice of Dr Chiles, the level of noise generated from people participating in activities will be able to comply with the noise limits of the District Plan noting the inherent separation distances provided between the activity areas and surrounding sites and the screening afforded by the terrain. In this regard, while at times noise may be audible, these will be of a level that will not detract from the rural residential amenity enjoyed by this site.
791 Malaghans Rd, Wakatipu Basin (Sec 7 SO 457201)
Specific concerns raised by this neighbour includes past experience with users of the Flight Park where screams from participants are disruptive due to the level of noise generated. Dr Chiles acknowledges these concerns however points out that the provision of a natural buffer for the subject site will provide mitigation to noise that is not present for this property with the Flight Park operation. In this regard, whilst people noise may be audible at times, based on the expert advice of Dr Chiles it is considered that these levels will have less than minor adverse effects on the amenity for this property.
…
Summary
The proposal involves introducing a commercial operation to a rural environment, however after considering the mitigating factors, volunteered restrictions on the operation and expert advice provided by Dr Chiles and Mr Carr (and subsequently reviewed by Mr Wardill), it is considered that the proposal as sought will have less than minor effects on surrounding properties.
For completeness no other parties beyond those discussed above are considered to be affected by the proposed activity.
[42] The decision as to limited notification was expressed as follows:
5.3 DECISION: EFFECTS ON PERSONS (s95B(1))
In terms of Section 95E of the RMA, no person is considered to be adversely affected.
[43] The overall conclusion was that after considering mitigating factors, volunteered restrictions on the operation, and expert advice provided by Dr Chiles and others, the proposal would have less than minor adverse effects on surrounding properties. The correct statutory test for limited notification was applied, that the effects would be less than minor, on all potentially “affected persons”. A central question for this judgment is whether the Council lawfully reached that conclusion.
D. LAW
[44] Mr Slyfield for the applicants submits that s 88 of the Act is a foundation point for the applicants’ case. It provides:
88 Making an application
(1) …
(2) An application must—
(a) …
(b) include the information relating to the activity, including an assessment of the activity’s effects on the environment, as required by Schedule 4.
(2A) …
(3) A consent authority may, within 10 working days after an application was first lodged, determine that the application is incomplete if the application does not—
(a) include the information prescribed by regulations; or
(b) include the information required by Schedule 4.
(3A) The consent authority must immediately return an incomplete application to the applicant, with written reasons for the determination.
(4) If, after an application has been returned as incomplete, that application is lodged again with the consent authority, that application is to be treated as a new application.
(5) Sections 357 to 358 apply to a determination that an application is incomplete.
Schedule 4
[45] Section 125 of the Resource Management Amendment Act 2013 (“RMAA”)
replaced Schedule 4 of the Act, which now relevantly provides:
Schedule 4
Information required in application for resource consent
…
2 Information required in all applications
(1) An application for a resource consent for an activity (the activity)
must include the following:
(a) a description of the activity;
(b) a description of the site at which the activity is to occur;
(c) the full name and address of each owner or occupier of the site;
(d) a description of any other activities that are part of the proposal to which the application relates;
(e) a description of any other resource consents required for the proposal to which the application relates;
(f) an assessment of the activity against the matters set out in
Part 2;
(g) an assessment of the activity against any relevant provisions of a document referred to in section 104(1)(b).
(2) The assessment under subclause (1)(g) must include an assessment of the activity against -
(a) any relevant objectives, policies, or rules in a document; and
(b) any relevant requirements, conditions, or permissions in any rules in a document; and
(c) any other relevant requirements in a document (for example, in a national environmental standard or other regulations).
(3) An application must also include an assessment of the activity’s
effects on the environment that –
(a) includes the information required by clause 6; and
(b) addresses the matters specified in clause 7; and
(c) includes such detail as corresponds with the scale and significance of the effects that the activity may have on the environment.
…
6 Information required in assessment of environmental effects
(1) An assessment of the activity’s effects on the environment must
include the following information:
…
(b) an assessment of the actual or potential effect on the environment of the activity:
…
(f) identification of the persons affected by the activity, any consultation undertaken, and any response to the views of any person consulted:
…
7Matters that must be addressed by assessment of environmental effects
(1) An assessment of the activity's effects on the environment must address the following matters:
(a) any effect on those in the neighbourhood and, where relevant, the wider community, including any social, economic, or cultural effects:
(b) any physical effect on the locality, including any landscape and visual effects:
(c) any effect on ecosystems, including effects on plants or animals and any physical disturbance of habitats in the vicinity:
(d) any effect on natural and physical resources having aesthetic, recreational, scientific, historical, spiritual, or cultural value, or other special value, for present or future generations: (e)
any discharge of contaminants into the environment, including any unreasonable emission of noise, and options for the treatment and disposal of contaminants:
(f)
any risk to the neighbourhood, the wider community, or the environment through natural hazards or the use of hazardous substances or hazardous installations.
(2)
The
requirement to address a matter in the assessment of
environmental effects is subject to the provisions of any policy
statement or plan.
The obligation to inform the consent authority
[46] In combination these provisions without question demonstrate the significant obligation of an applicant to inform the consent authority, by description of the activity, relevant Plan/s or other instruments, and assessment of environmental effects. The adequacy of this information is a crucial aspect of this case. This is associated with the question whether amendments to the Act in 2006 and 2009 have liberalised the approach to notification, to allow the consent authority greater scope not to notify.
“Discount Brands”
[47] Whether there is such or not, a sound decision can only be reached by a consent authority sufficiently and relevantly informed of all characteristics of an application for resource consent. A decision must then be reached only on relevant considerations. Mr Slyfield submits that the law remains largely as stated in the judgment of the Supreme Court in Westfield (New Zealand) Ltd v North Shore City
Council (“Discount Brands”):4
[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. The statutory requirement is that the information before the consent
4 Westfield (New Zealand) Ltd v North Shore City Council [2005] NZSC 17 [2005] 2 NZLR 597. (Blanchard J).
authority be adequate. It is not required to be all-embracing but it must be sufficiently comprehensive to enable the consent authority to consider these matters on an informed basis.
[115] The statutory requirement addresses more than the scope of the information. The consent authority must necessarily be satisfied as well that the information is reliable, especially so where an expert opinion is tendered. The authority will need to consider whether the author of the opinion is both appropriately qualified to speak on the subject and sufficiently independent of the applicant so as to be seen as giving expert advice rather than acting as an advocate for the applicant.
[116] Because the consequence of a decision not to notify an application is to shut out from participation in the process those who might have sought to oppose it, the Court will upon a judicial review application carefully scrutinise the material on which the consent authority’s non-notification decision was based in order to determine whether the authority could reasonably have been satisfied that in the circumstances the information was adequate in the various respects discussed above.
“Coro Mainstreet”
[48] The Court of Appeal in Coro Mainstreet (Inc) v Thames-Coromandel District Council addressed the application of these principles.5 Section 76 of the Resource Management (Simplifying and Streamlining) Amendment Act 2009 repealed ss 93-95 of the RMA and replaced them with ss 95A - 95F. In Coro Mainstreet, counsel agreed in the High Court that Discount Brands applied.6 The Court of Appeal observed that the High Court thought that Discount Brands remained good law following the amendments, citing Ferrymead Retail Ltd v Christchurch City Council.7 The courts have generally held that the 2003 amendments did not alter the approach in Discount Brands, and that perspective has been applied in a number of
cases.8
5 Coro Mainstreet (Inc) v Thames-Coromandel District Council [2013] NZCA 665, (2013)
17 ELRNZ 427 at [34]-[41].
6 Coro Mainstreet (Inc) v Thames-Coromandel District Council [2013] NZHC 1163, [2013] NZRMA 442.
7 Coro Mainstreet (Inc) v Thames-Coromandel District Council, above n 5; Ferrymead Retail Ltd v Christchurch City Council, above n 2 at [80]. In Green v Auckland Council [2013] NZHC
2364, [2014] NZRMA 1 at [92], Priestley J also held that there was clear authority the principles
of Discount Brands had not been undercut, citing Ferrymead.8 See for example: Northcote Mainstreet Inc v North Shore City Council [2006] NZRMA 137 (HC) at [90]-[93]; Sawmill Workers Against Poisons Inc v Whakatane District Council (No 2) [2006] NZRMA 500 (HC) at [41]; Mount Victoria Residents Association Inc v Wellington City Council [2009] NZRMA 257 (HC) at [20]-[21].
[49] The Court of Appeal nevertheless considered the possibility that the statutory amendments altered the law as articulated in Discount Brands, as amendments to the Act were significant. Discount Brands was concerned with s 93 of the Act.
93. Notification of applications –
(1) Once a consent authority is satisfied that it has received adequate information, it shall ensure that notice of every application for a resource consent made to it in accordance with this Act is –
…
(g) Publicly notified; …
unless the application does not need to be notified in terms of section
94.
[50] The threshold need for “satisfaction” of the consent authority that it had adequate information meant that only then would the application be ready for notification, or otherwise under s 94(2) of the Act:
94(2) An application for a resource consent need not be notified in accordance with section 93, if the application relates to a discretionary activity or a non-complying activity and –
(a) the consent authority is satisfied that the adverse effect on the environment of the activity for which consent is sought will be minor; and
(b) written approval has been obtained from every person whom the consent authority is satisfied may be adversely affected by the granting of the resource consent unless the authority considers it is unreasonable in the circumstances to require the obtaining of every such approval.
[51] Sections 93 and 94 were amended in 2003, removing the statutory requirement that the consent authority be “satisfied” it had received adequate information.9 They were repealed in 2009.10
[52] However, the 2009 amendments were described by the Court of Appeal in Coro Mainstreet as more wide ranging. The Court noted the differences between s 95A and the provisions under consideration in Discount Brands:11
(a) The presumption in favour of notification has been removed, and replaced with a discretion whether to notify an application.
9 Resource Management Amendment Act 2003, s 41.
10 Resource Management (Simplying and Streamlining) Amendment Act 2009, s 76.
11 Coro Mainstreet (Inc) v Thames-Coromandel District Council, above n 5, at [39] (emphasis added).
(Note: I add that with stated exceptions there is no discretion available to a consent authority if there is an “affected person” – who must be given limited notification – s 95B(2)).
(b) The word “satisfied” has been replaced by “decides”. In Discount
Brands the Chief Justice had commented that the use of the term
“satisfy” could be contrasted with the use of the term “decides” in
other sections of the Act, and implied a higher degree of certaintythan provisions where the term “decides” was used.
(c) The consent authority must now “decide” whether the adverse effects “will have or are likely to have” effects that are “more than minor”. This contrasts with the provision in issue in Discount Brands which required the consent authority to be “satisfied” that the adverse effects on the environment “will be minor”.
(d) There is now no express requirement that the consent authority have “adequate information” before making a notification decision. However, as noted above, this requirement was removed in 2003, so was already a feature of the legislative regime before the 2009 amendment.
[53] The Court of Appeal adopted the Discount Brands approach with these observations:
[41] The argument before us addressed the stricter requirements as outlined in Discount Brands, and in the absence of argument on the effect of the 2009 amendments we will deal with the case on that basis. But we should not be taken to have accepted that the amendments made to the RMA since Discount Brands have had no effect on the non-notification process and on the analysis of the previous law in the Supreme Court’s decision in Discount Brands. If the point had affected the outcome of the present case, we would have wanted to consider whether the 2009 amendments gave effect to the apparent intention of Parliament to give consent authorities greater scope to decide not to notify resource consent applications, and to reduce the intensity of review to be applied to non-notification decisions from that mandated in Discount Brands.
Supreme Court
[54] The judgment of the Supreme Court in Auckland Council v Wendco (NZ) Ltd,12 bears on the approach to notification. The majority referred to Discount Brands and said:
[46] … the validity of the non-notification decision does not depend on this Court agreeing with the view taken by the Council that the adverse effects of the activity, … would be less than minor. On the other hand, the Court must review the adequacy of the information before the Council when
12 Auckland Council v Wendco (NZ) Ltd [2017] NZSC 113.
making the non-notification decision. This assessment must reflect the reality that in making the decision not to notify the application, the Council was precluding any opportunity for [the affected company] to have input into the decision.
[55] The Court adopted the following passage from Elias CJ’s judgment in
Discount Brands:
[25] … The requirement that the consent authority must be “satisfied” that effects are minor before deciding not to notify a resource consent application to undertake a discretionary or non-complying activity is a requirement of caution. The consent authority must be clear that notification would not elicit information or perspective which would cause it to view the effects of the activity on the environment as more than minor.
[26] It was not sufficient for the consent authority to have before it “some material of probative value”, … . Nor do I consider that the Court of Appeal was correct in the view … that the consent authority had to decide “on the information then available to them, whether any impact on existing centres would be so substantial as to threaten their viability”. The consent authority had to decide whether it could be satisfied without notification that the adverse effects on the environment were minor. It could not confine its consideration to the material before, it because that would be to avoid the question. (citations omitted)
[56] In Wendco, the majority of the Supreme Court said:
[47] It is arguable that subsequent changes to the RMA mean that an approach to non-notification decisions which is less exacting than that required by Discount Brands should now be adopted. This is discussed in some detail in Coro Mainstreet (Inc) v Thames-Coromandel District Council. Given that the Court below proceeded on the basis of Discount Brands and we are satisfied that the Discount Brands standard was in fact met, we see the associated arguments as best left for another case.
[57] The Supreme Court endorsed the judgment of Peters J at first instance:13
This application, with detailed information supplied, was considered by experienced specialists at the Council. They did not take that information at face value but made enquiries on several occasions and required revisions to the proposal that they considered were necessary. It was only when they were satisfied with the information provided that the notification decision was made. Accordingly, I am satisfied that the Council had sufficient information before it to assess the adverse effects of the proposal and to decide that they were less than minor.
13 Wendco (NZ) Ltd v Auckland Council [2014] NZHC 1481 at [51].
Discussion
[58] In Aro Valley Community Council Inc v Wellington City Council, McKenzie J said he did not think it was necessary for the consent authority to separately address the intensity or adequacy of information, but that Parliament’s intention is that the plaintiff still faces a high hurdle to challenge a non-notification decision.14 I am not satisfied that a challenge faces a higher hurdle as the result of the amendments, as I will explain. In Tasti Products Ltd v Auckland Council, Wylie J considered that Discount Brands remains good law, but observed:15
There is no longer a statutory requirement that a Council must be satisfied that it has received adequate information. To my mind, as the law now stands, what is amenable to judicial review is the decision Council makes on notification. The adequacy of the information before the Council may well reflect in the quality of its decision, but the adequacy of the information itself is not a matter which falls within the scope of s 4 of the Judicature Amendment Act 1972.
[59] Mr Slyfield accepts the observations of Wylie J but says that the Council’s decision is reviewable because it failed to take relevant matters into account, as there was no, or insufficient, relevant information about sources of noise generation with their effect on neighbours, or the decision was one that no reasonable decision maker could come to, on the available information. When the point was raised by the Court he submitted that s 95C of the Act applies, and that as the Council failed to provide a proper answer to the s 92 request for further information, there was no option but for the Council to publicly notify the application. This falls for separate determination in this judgment.
[60] There are other generic considerations. Consent authorities are expected to reach sound, but not unduly burdensome, decisions. Chisholm J said:16
[103] Any suggestion that consent authorities are under a rigid obligation to check all the raw data accompanying resource consent applications… is untenable… Any such obligation would impose unrealistic and unworkable administrative burdens upon consent authorities, not to mention the cost implications. Whether or not such raw data needs to be tested will depend on the particular application. For example, if there is some reason to doubt
14 Aro Valley Community Council Inc v Wellington City Council [2015] NZHC 532, (2015)
18 ELRNZ 555.
15 Tasti Products Ltd v Auckland Council, above n 1, at [45].
16 Ferrymead Retail Limited v Christchurch City Council, above n 2.
the integrity or reliability of the data then further enquiry might be expected, with the nature of the enquiry being a matter of judgment for the consent authority, subject to appeal rights.
[61] In Discount Brands, Tipping J said that “information should be distinguished from assertion”,17 which is closely related to the discussion by Blanchard J as to reliability of information provided to the consent authority.
[62] Another consideration is identified by Williams J, who observed that the non-complying status of an activity means that it generally does not belong in the area, and this means a “hard look” must be applied at the notification and consent stages, which takes in proper consideration of the permitted baseline. He added:18
… the planners must ask in-depth questions about amenity impacts – noise, vehicle movements, visual and industrial style impacts. If the answers are superficial, then further information must be sought.
[63] In this case, counsel disagree on the effect of the amendments to the Act. Mr Slyfield submits that Discount Brands remains good law. Ms Campbell submits that the Discount Brands requirements have been relaxed. She refers to the Court of Appeal in Coro Mainstreet supported to a degree by the observations of the Supreme Court in Wendco. She submits the consent authority must decide the level of effects, and that is to a lesser degree than it being “satisfied”, therefore there is greater scope not to notify applications, to reduce the intensity of review of non-notification, so that a material error of law in need of correction must be identified.
[64] Correctly, and I consider of importance in this case, Ms Campbell submits that the effects are for the consent authority to determine in its specialist function, and the High Court should not lightly interfere.19 Even if Blanchard J’s judgment in Discount Brands has full application, then the Council says it had adequate information before it, so the Discount Brands test is met.
[65] While Ms Campbell submits that Wylie J’s analysis in Tasti
Products Ltd v Auckland Council indicates a reduced intensity of review I do not
17 Westfield (New Zealand) Ltd v North shore City Council, above n 4, at [146].
18 Hanna v Whanganui District [2013] NZHC 1360, (2013) 17 ELRNZ 314 at [32].
19 Progressive Enterprises Ltd v North Shore City Council [2006] NZRMA 72 (HC) at [63].
read His Honour’s judgment in that way.20 In that case, there were shortcomings in the application and the applicant did not fully address the request for further information. Wylie J found that there was sufficient information to properly assess whether the applicants for judicial review were affected persons. While a consent authority does not have to be “satisfied” of the “adequacy” of information, it still must decide the level of effects based on a sufficiently and relevantly informed understanding of those effects. I recognise there is room for debate whether the word “satisfy” as opposed to “decides” indicates a higher degree of certainty was required before the amendment, but a decision whether adverse effects are, for example, “less than minor” could not be reached unless the decision maker was “satisfied” of that. I do not see how a Council could decide something unless it was satisfied that it was sufficiently and relevantly informed, and satisfied of the decision it makes. A Council could not say it was “not satisfied” about those matters but nevertheless go on to make a decision which affects the rights of others.
[66] In short, I agree with Wylie J that the obligation on the Council to be “satisfied” that it has adequate information is no longer a separate and reviewable element of its decision making process. I do not consider that this in any way altered the need for a decision maker to be sufficiently and relevantly informed. It does not alter the need for the decision maker to apply relevant and not irrelevant considerations, and make a decision which stands up to the test of “reasonableness”. Being sufficiently and relevantly informed does not ensure these elements of decision making will be lawfully undertaken. In these respects Discount Brands in my view has undiminished force. It recognised a distinct step in the (repealed) legislation, but there must always be a secure foundation for such important decisions. Parliament cannot have intended to remove that foundation. That is not to endorse a counsel of perfection, but of sufficiency and relevance, and that is how I conclude the decision in this case should be judicially reviewed. It is fundamentally
a test of the quality of the decision.
20 Tasti Products Ltd v Auckland Council, above n 1, at [51].
E. ANALYSIS
Approach
[67] A non-notification decision requires the decision maker to be sufficiently and relevantly informed and to bring that information properly to account in a reasoned way. The activity here is non-complying, so it does not generally belong, and must be scrutinised in that light.
[68] Ms Campbell submits that the applicants have misconstrued the information before the Council, and its adequacy, and have drawn an illogical conclusion from the Council’s public notification assessment, as opposed to the Council’s limited notification assessment. Ms Campbell submits that the Council clearly understood the nature and scope of the proposed activity, evaluated its effects comprehensively, and properly brought to account the noise limits in the District Plan. The Council’s decision has been summarised. It concluded that noise from paintball guns was unlikely to be heard from beyond the site, and noise effects on adjacent land owners would be less than minor. In this conclusion it relied on Dr Chiles’ advice and the fact the District Plan noise limits would be complied with. Evaluating noise from an accumulation of such activities and the effect of that noise is not straightforward. It requires information and judgment. Here, the equipment in use is not inherently noisy. The variety of noises, the ambient sound levels, and the intermittent timing of noise generating activities make evaluation difficult. The activity is limited in the number of customers, and in a discrete setting.
[69] I have disagreed with Ms Campbell’s submission that the likely effects of the amendments to the RMA were to give consent authorities greater scope to decide not to give limited notification. I agree, however, that the Court should be slow to intervene in the Council’s specialist exercise of its powers, and should only do so when there is a plain error of law needing correction. The principle is reflected in the High Court judgment in Coro Mainstreet (Inc) v Thames-Coromandel District
Council:21
21 Coro Mainstreet (Inc) v Thames-Coromandel District Council, above n 6.
[40] It is not the function of the Court on an application for review to substitute its own decision for that of the consent authority. Nor, will the court assess the merits of the resource consent application or the decision on notification. The inquiry the Court undertakes on an application for review is confined to whether or not the consent authority exceeded its limited jurisdiction conferred by the Act. In practice the Court generally restricts its review to whether the Council as decision maker followed proper procedures, whether all relevant and no irrelevant considerations were taken into account, and whether the decision was manifestly reasonable. The Court has a discretion whether or not to grant relief even if it is persuaded that there is a reviewable error.
The s 92 request for further information, and s 95C of the Act
[70] This is a discrete issue but it is closely tied to whether the Council was sufficiently and relevantly informed, and made a lawful decision. The request under s 92 of the Act for further information has been set out above. Shortly before this judgment was to issue, I adverted to the provisions of s 95C of the Act which relevantly read as follows:
95CPublic notification of consent application after request for further information or report
(1) Despite section 95A(1), a consent authority must publicly notify an application for a resource consent if –
(a) it has not already decided whether to give public or limited notification of the application; and
(b) subsection (2) or (3) applies.
(2) This subsection applies if the consent authority requests further information on the application under section 92(1), but the applicant
–
(a) does not provide the information before the deadline concerned; or
(b) refuses to provide the information.
(3) This subsection applies if the consent authority notifies the applicant under section 92(2)(b) that it wants to commission a report, but the applicant—
(a) does not respond before the deadline concerned; or
(b) refuses to agree to the commissioning of the report.
(4) This section applies despite any rule or national environmental standard that precludes public or limited notification of the application
[71] This section had not been the subject of pleading or submissions. Indeed, the Council accepted in submissions that the request for further information was “not fully responded to”. Later this concession was retracted. Ms Campbell’s answer was that Wylie J in Tasti Products decided the consent authority had adequate information before it despite an insufficient response to the s 92 request, and after The Playground first replied to the request, this was “corrected” by Dr Chiles’ expert assessment and by The Playground agreeing to a condition of consent requiring the District Plan noise limits to be met, together with other information.
[72] Section 95C has a peremptory ring to it. A consent authority “must publicly notify an application …” where a request for further information has been made under s 92(1) of the Act, but the applicant does not provide the information before the deadline concerned, which may be extended, or refuses to provide it. There was no refusal in this case. The issues are:
(a) whether the request for further information was sufficiently met; (b) whether there is a “drop dead” time for the response;
(c) whether any failure to reply in full is fatal to non-notification, or if information can be made up from other sources.
[73] A telephone conference on 16 August 2017 was convened as a resumption of the December 2016 hearing, to hear submissions on this issue. Mr Slyfield’s position is straightforward. He says that the response to the Council’s s 92 request failed to provide an overview of relevant noise sources. He says that is fatal to the decision not to notify. A draft amended statement of claim incorporating reference to s 95C was put before the Court and will be filed if the Court requires, but the point is straightforward, and formal pleading is unnecessary.
[74] Mr Slyfield’s submission is that the request for further information had two parts, “general” and “particular”. He focuses on paragraph 8 of the request set out at para [26] above. The request for an “overview” of the sources of noise included details of PA systems, amplified music or ongoing alarms. The information sought
was expressly to give the Council an idea of the potential noise effects, and whether they would affect the residential amenities of neighbours. The answer referred to these particulars, that there would be no background music, that the sound given off would meet the noise standards, and would not be heard by any residential neighbours.
[75] Mr Slyfield acknowledges that the application for resource consent was detailed and identified sources of noise, but says there was no answer which sufficiently informed the Council by way of “overview” about the relevant sources of noise. He gives the example of paintball guns and that there was no information regarding the “characteristics of such noise”, and it cannot be found anywhere in the material before the Council. He says the policy behind s 95C is that there should be a response to the request, as it is put, or else there will be repercussions.
[76] Ms Campbell does not contest the submission that there was no “overview” answer, nor specifically about the noise from paintball guns, but she refers to the application with the AEE and Dr Chiles’ advice which addressed noise from these guns. She says the reply from Ms Devlin of 29 April 2016 was detailed in the particulars which were sought. The application referred to paintball guns, that no noise would be heard from them, and the discrete location of the activity. Dr Chiles was alert to the nature of the application, and was asked to assess the potential noise effects. He recognised that sound level data for all the specific activities was not available, but he said that the “equipment itself should generate minimal sound levels at neighbours, but people participating are likely to make some sound including with raised voices”. The sound of people with raised voices was of most concern, and he made a qualitative assessment of that. He addressed ambient noise levels, the noise from vehicles and customers, that the sound levels could, and must fall within the noise limits. He recognised sound would still be heard at neighbouring properties.
[77] Mr Slyfield submits with precision that despite all this there was no answer provided by the applicant about noise emitting properties, nor the level, character, or duration, of noise emissions from the equipment, nor the existing noise environment. Rather, it simply asserted that noise emissions would comply with the Plan’s noise
threshold for permitted activities in the zone. Mr Slyfield submits that there had to be further enquiry, as otherwise the consent decision lacked the necessary foundation for a reasoned decision. He put it that this was not enough, or “not good enough” evidence to properly assess the noise effects of the proposal. Compliance with District Plan noise standards is an assertion, with no supporting information. He accepts that the planner proceeded in an orthodox way to ask questions, but submits that there was still no information about the sources of noise so The Playground’s answer to the s 92 request was superficial, and the request was overlooked, or consciously disregarded. I reject the latter submission, as there was a detailed explanation of the proposal and its effects in The Playground’s dealings with the Council.
[78] Mr Slyfield says Dr Chiles’ advice added nothing to materially improve the quality of the planner’s assessment and the “overview” of all sources of noise was not provided, thus not known to the Council. Mr Slyfield submits that there was no sufficient response to the s 92 request, and nothing makes up for it, so s 95C directs the answer. He says the consenting process should have come to a halt while the application was publicly notified. Aside from that, but for reasons which include that, he says there was insufficient information for the decisions to stand. He submits it is not enough to comply with the noise standard and further scrutiny should be given to that assertion and the effect on residential neighbours, even when activities are within the noise limits.
[79] The question remains whether there was in the accumulation of information and the application of the noise limits, sufficient relevant information, and whether s 95C should be interpreted to preclude the Council proceeding on all the information before it, even if not provided by the applicants for resource consent.
[80] Another example given of alleged insufficiency of relevant information is that Glenorchy Homestead occupies land adjacent to the pedestrian path between the car park and the activity area. The assessment of effects refers to visual effects of the proposed structures and car park but makes no mention of the pathway and its use. The noise from recreational activity was addressed by reference to separation distances and natural screening, not large groups of people walking between the car
park and the activity area, for which no screening is proposed, and where the separation distance is least. This in my view is a question of fact and the Council was well able to conclude any effects would be less than minor, with little foot traffic.
Relevance of noise limits
[81] For public and limited notification decisions, the consent authority may disregard an adverse effect of a proposed activity if the district or regional plan permits an activity having the effect of the proposed activity.22 Effects above that baseline require assessment, if the permitted baseline test has application.
[82] Rule 5.3.5.2(v) of the District Plan reads:
v Noise
(a) Sound from non-residential activities measured in accordance with NZS 6801:2008 and assessed in accordance with NZS 6802:2008 shall not exceed the following noise limits at any point within the notional boundary of any residential unit, other than residential units on the same site as the activity:
(i) daytime (0800 to 2000 hrs) 50 dB LAeq(15 min) (ii) night-time (2000 to 0800 hrs) 40 dB LAeq(15 min) (iii) night-time (2000 to 0800 hrs) 70 dB LAFmax
[83] This is related to Rule 5.4.2.3(xiv) which reads:
xiv Discretionary Activity – Commercial Recreational Activities
(other than on the Surface of Lakes and Rivers)
(a) The extent to which the recreational activity will result in levels of traffic or pedestrian activity which are incompatible with the character of the surrounding rural area.
(b) Any adverse effects of the proposed activity in terms of:
(i) noise, vibration and lighting, which is incompatible with the levels acceptable in a low-density rural environment.
(ii) loss of privacy or a sense of remoteness or isolation.
22 Resource Management Act, ss 95D(b) and 95E(2)(a).
…
(d) The extent to which the nature and character of the activity would be compatible with the character of the surrounding environment.
[84] Ms Campbell submits that in what is an untested setting, for low noise emitting equipment, the Council was entitled to bring to account and decide that noise associated with the proposed activities could and must comply with the District Plan noise limits. A condition imposed to that effect, given separation distances, and limits imposed on customer numbers and vehicle movements, would achieve such compliance.
[85] The response to the alleged shortcoming is submitted by Ms Campbell to have been made up by other material; the application and AEE, Dr Chiles’ expert assessment, and the condition which underpins the consent that the District Plan noise limits must be met. The Council does not have to assume non-compliance.23
Dr Chiles and the Council expressly brought to account the topography, separation
distances and noise effects. In assessing the reliability of the information provided, the Council was entitled to rely on Dr Chiles’ expert advice, as he was independent and he knows the area. The Council was entitled to conclude the potential noise effects will be within those limits. There was repeated reference to such compliance in the decision under review and the applicants did not seek resource consent in order to legitimise a breach of the District Plan limits, but I accept Mr Slyfield’s submission that does not of itself answer the case raised for the applicants.
[86] Mr Slyfield submits that the permitted activity is defined by the zone standard, not by the noise standard. There was no suggestion that The Playground’s application would breach the District Plan noise limits, quite the contrary. Ms Campbell submits that the Council need not assess those components of an
activity for which no resource consent is required.24
23 Barry v Auckland City Council [1975] 2 NZLR 646 (CA) at 318 cited with approval in Guardians of Paku Bay Association Inc v Waikato Regional Council [2012] 1 NZLR 271 (HC) at [134].
24 Nash v Queenstown Lakes District Council [2015] NZHC 1041.
[87] Mr Slyfield submits that it should not be assumed by this Court that Mr Woodward’s reference to compliance with District Plan noise limits represents a reference to the “permitted baseline”. The decision does not say as much, so that would have to be inferred, and Mr Slyfield submits that is not “appropriate”. If it is to be inferred, then Mr Slyfield still says that the decision discloses no effort to analyse the quality of the noise. In essence, Mr Slyfield submits an activity which in numbers falls outside the permitted range is not appropriately assessed against a numerical threshold. The “quality” of the noise effect would be influenced by the arrival of coach loads of “enthusiastic and excited patrons”, the air suspension of the coaches, congregation of those groups, the movement on foot to the upper terrace, participation in adrenalin inducing activities, and patrons retracing their steps on departure. If it was sufficient to adopt a quantitative approach to noise, then Mr Slyfield says data must be available to consider the unsupported assertions for The Playground.
[88] As the noise limits permit a level of effect, Ms Campbell says that means the Council is entitled to have regard to that and to disregard such level. That is a matter of discretion. Here, the Council did not disregard that level of effect, but used that as part of its reasoning, in assessing whether the noise effect would be less than minor. I do not consider the Council disregarded noise effect, but correctly brought the noise limit to account as relevant.
[89] The Council recognised the activity involved several sources of noise. It recognised the rural setting and the discrete placement of the activity on the site. It recognised the utility of the noise limits, as a measure of effect, then as a fundamental control on the proposed activities. The Council can intervene if the application is found to have contained inaccuracies and assertions about noise levels, including failure to comply with the noise limits. The Council can also review the conditions, and if necessary cancel the consent under ss 128 and 132 of the Act. The Playground takes that very real risk. It is incumbent on it to comply. When something which is difficult to assess for effect in the abstract is tested in its operation against a numerical limit, then there is inherent risk to the consent holder’s commercial operations.
“Less than minor” and reliance on Dr Chiles’ report
[90] Mr Slyfield recognises that compliance with District Plan noise limits was relevant. However, he says the Council addressed whether the effects would be “reasonable” or “acceptable” or cause undue disturbance, and there was a fundamental failure to address how any person would or may be adversely affected by noise, as the noise limits do not answer that question. The Council says that the District Plan noise rules must be relevant to consideration of noise effects. The noise concerns raised by neighbours put the Council on inquiry, and it engaged Dr Chiles for that reason. Dr Chiles was entitled to give his opinion in a way that would help the Council’s overall assessment, and he used language he thought appropriate. He did not make a statutory decision for the Council. He is an expert and he was offering an expert opinion which the Council, in conjunction with all the information available, had to evaluate against the “less than minor” test. The Council was informed, amongst other things, by his assessment.
[91] Dr Chiles did not expressly use the Act’s “less than minor”, “minor”, or “more than minor”, criteria. Mr Slyfield submits that the right questions were asked of Dr Chiles but little more than that. “Minor” may be “reasonable” and “less than minor” is more protective of those who may be affected. In Green v Auckland Council, the Court described “less than minor”, and “more than minor” as “degrees of smallness”.25
[92] Dr Chiles did not express a view as to notification. Mr Slyfield says that the inference is that he was not asked to do so, or if he was asked, he did not for some reason feel that he could answer. He submits that Dr Chiles made limited qualitative comments and simply relied on the assertion that the activity would comply with District Plan limits. His expressions of “reasonable” and “acceptable” effects might be “useful”, but Mr Slyfield says he did not address whether adverse effects on neighbours would be less than minor. When the planner referred to “the lack of noise emissions from this type of equipment”, and Dr Chiles was of a similar view, Mr Slyfield says there was no information available upon which that
conclusion could be reached, and the planner could not have known whether
25 Green v Auckland Council, above n 7, at [126].
“reasonable” or “acceptable” noise might be minor, more than minor, or less than
minor.
[93] The nuanced qualitative assessment of effects was discussed in the
High Court by Priestly J:26
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.
[94] The test used to be of “de minimis” effect. The use of the expression “less than minor” points in a similar direction. “Less than minor” in my judgment means that which is insignificant in its effect, in the overall context, that which is so limited that it is objectively acceptable and reasonable in the receiving environment and to potentially affected persons.
[95] Dr Chiles was, in my view, able to use language that would assist the Council’s decision and I consider that he provided advice which was relevant and helped the Council to reach the decision which it did. The Council submits that if there was an unreasonable effect that would point to notification, but the Council’s express conclusion was that the noise effects would be less than minor. The Council plainly inferred that was what Dr Chiles meant when he used the adjectives “reasonable” and “acceptable”, but his advice was just part of the information available. The Council unquestionably did address the correct statutory test, and in doing so brought to account compliance with the noise limits, and Dr Chiles’ expressed opinion. It reached a tenable and reasoned conclusion with sufficient relevant information.
Rural Amenity
[96] The Council’s decision discusses rural amenity in the context of “more tangible effects” including landscape, traffic and noise. Ms Campbell submits it is impossible to consider rural amenity for remoteness without those types of effect
being brought to account. Rural amenity is conceptually composite in nature, a
26 Green v Auckland Council, above n 7, at [126].
shorthand for individual characteristics and effects that combine to affect rural amenity, and no Plan rule addresses rural amenity by itself. Landscape, traffic, and noise effects were expressly considered in the assessment of effects on persons, and found to be less than minor in all cases. Given this, the Council could only have found, as a matter of logic, that effects on rural amenity or remoteness on these persons would be less than minor. Further, it is submitted that “proper” regard to rural amenity values does not warrant this Court “delving” into the merits of the Council’s assessment of effects; the weight given to elements for assessment should be left to the Council as a specialist consent authority.
[97] I agree with Ms Campbell that the rural amenity values were considered, first in the context of public notification assessment, and then the more tangible effects. Rural amenity is a composite notion. As landscape, traffic and noise effects were expressly considered, and found to be less than minor, the Council’s conclusion with effects on rural amenity or remoteness were reasonably taken to be less than minor.
[98] The applicants submit that the notification decision was flawed because it failed to consider the effects on persons other than adjacent landowners, or occupiers, or other than those mentioned by the landowners, or occupiers. However, the Council’s decision expressly recorded that no other parties beyond those discussed in its assessment of effects on the environment, or on persons, were considered to be affected by the proposed activity.
[99] That is not surprising, given the rural context, the separation distances, and topography. The catchment of potentially affected persons is thus more limited than in a closely held urban setting. If those persons closest to the proposed activity are not affected even in a minor way, then it is implausible that those further away would be considered to be affected. The Council does not need to record that.
[100] When the Council concluded that the proposed activity would have less than minor adverse effects on potentially affected persons, that applied to all potential adverse effects, and it does not have to list them. I can identify no failure of the Council to have regard to a relevant effect. A Council staff member asked those with concerns to outline them, and this was a thorough response. Hence, the report
prepared for the Council addressed all those concerns, and the Council sought The Playground’s waiver of time to extend the statutory processing period to ensure all those concerns were considered. Reference to specific effects was the product of the Council identifying those of most significance. There are six pages of assessment of the effects on persons.
The ‘lens’ used by the Council
[101] Mr Slyfield says the planner was concerned with landscape assessment, and he knew that noise might impact on landscape values in a rural context detracting from the “tranquil rural setting”. The decision made by the Council responded to each concern raised by Mr Gabler and others in correspondence. Mr Slyfield submits the Council must assess the effects on adjacent land owners in all their potential, not just as non-expert land owners or occupiers understand them. There is a submission that the Council did not make a thorough and independent assessment of effects on those parties. He says people such as Mr Gabler and Ms Bestwick have no expertise, and it is not for them to identify the adverse effects on them. Submissions and expressions of concern do not narrow the field of necessary consideration. This proposition must be right, as a matter of law. Mr Slyfield refers to the amenities in the rural zone, including a sense of remoteness or isolation, and that commercial recreational activities may adversely affect this. Mr Gabler and Ms Bestwick did not address their concerns in this way, and the decision of the Council did not address that impact on their properties. Mr Chudleigh and Ms Bestwick were not familiar with the District Plan assessment criteria, and they would have used that language had they known. In short, this is a submission that the Council ring-fenced its considerations against the concerns expressed by the neighbouring property owners. I do not find that is the case. There was close attention given to their concerns but taken together they represented the considerations which the Council had to bring to account. They captured the issue Mr Slyfield submits is missing, the way in which the noise of the activity will be received.
Conclusion as to sufficiency of relevant information
[102] I have reached the view that the Council is correct, and there was adequate information as to the nature and scope of the proposed activities, including the sources of noise and their effects. The activities were listed, the infrastructure described, the restricted number of participants, the restricted vehicle movements, together with restricted hours of operation. It identified where the activities would comply with the District Plan, and where they required consent. When The Playground said the activities would comply with the District Plan noise limits, that had to comprehend all these elements. The Council says it had the answer it needed, but only by an accumulation of all the information available to it. I repeat that a Council (consent authority) has long been held to be entitled to assume lawful
behaviour, thus compliance with the conditions of consent.27
[103] The question of noise effect associated with proposed commercial recreational activity is exactly of the type which this Court should be loathe to upset. The fact that something is missing in expressed reasons is not fatal to a Decision, and Ms Campbell invokes that principle. It boils down to whether the Council was sufficiently and relevantly informed. Each element of activity was considered and the Council put the proposal in its true context of a relatively quiet rural general zone, but where there are other activities which already generate noise. The noise is hard to evaluate and there were cogent expressions of concern made by neighbours, all of which were considered. In my view, it is in order for the Council to respond to a difficult noise evaluation by the “sweeper” effect of a condition requiring compliance with a noise limit. I find that the Council’s Decision properly considered noise effects on neighbours, and accept the submission that there was no further enquiry required, because there was no reason to doubt the integrity of the information. The test in Discount Brands is met, that information must be sufficiently comprehensive to enable the consent authority to consider the application on an informed basis.
[104] I conclude that the description and explanation for the proposed activity was extensive and detailed, identified compliance with the District Plan or otherwise, and
27 Barry v Auckland City Council, above n 23, at [318].
in the explanation that the noise associated with the activities would comply with District Plan limits. There is more to it than the noise limit, given the restriction on customer numbers, times of operation, vehicle movements, topography, and separation distances. Dr Chiles thought that the proposed activities would comply with the District Plan noise limits in the zone, although not for a permitted activity. The Council had sufficient relevant information to make a lawful decision and the decision was not unreasonable under the test for judicial review.
The strictness of s 95C
[105] The request for further information was not as fully responded to as it could have been. The response addressed particular questions regarding PA systems and music. The same position applied in Tasti Products, despite an insufficient response to the s 92 request.28 Ms Campbell says that the lack of a targeted response was “corrected” by Dr Chiles’ expert assessment and by The Playground agreeing to a condition of consent requiring the noise limits to be met.
[106] I do not consider that Parliament intended that s 95C of the Act should apply in a “drop dead” way in every case. If a reply is a day late, or the Council already has, or gets information it seeks from elsewhere, it cannot have been intended that there must be public notification. Section 95C is a discipline on an applicant for resource consent. Sometimes delay, or recalcitrance may activate s 95C in its full rigour. This is not one of those cases. The Playground was a well intentioned applicant providing detailed information in a straightforward way. The question put to it was evaluative, and in the end very much for a specialist body such as the Council to decide.
Exercise of discretion on judicial review
[107] If an error is identified under the established tenets of judicial review, then its materiality must be assessed in the exercise of the Court’s discretion. Error which involves prejudice to someone affected means relief should be granted.29 In such a
case this Court would have to consider the materiality of any errors established, the
28 Tasti Products Ltd v Auckland Council, above n 1, at [51].
29 Air Nelson Limited v Minister of Transport [2008] NZCA 26 at [59].
potential effects on The Playground, which was not able to contribute to this litigation, and the utility of granting the remedy sought given the noise limit in the Plan, whereby the Council may intervene and review the consent if the noise limit is breached. Mr Slyfield submits there must be strong reasons to refuse relief, if the grounds are made out, as the default position is to grant relief.30 If errors are thought by the Court to be “relatively fundamental” then that favours the discretion of the Court being exercised in the applicants’ favour. There are no alternative remedies available, and Mr Slyfield otherwise says that is a relevant consideration in the exercise of discretion.31 There is a remedy however if the noise limits are breached, or if the noise generated is unreasonable. Mr Slyfield says to deny relief would condone reviewable errors, and overall fairness favours relief. He cites the Court of Appeal:32
… a discretionary withholding of relief is not the normal outcome of a successful attack on a reviewable decision. If some form of relief could have practical value then it ought to be granted.
[108] Had it come to this point, I would regard the condition regarding compliance with the noise limits as a compelling reason not to grant relief as The Playground is on notice that the condition it volunteered means it should expect little quarter if the activities are in breach. Further, the applicants extensively expressed their concerns, and the Council gave them full attention. While information about effects may be dressed up differently, now with experience of the activity, I do not consider that there was such an insufficiency of relevant information to vitiate the decision not to notify, and to return it to the Council for fresh consideration. It would no doubt produce more information, but it is not, in my view, necessary for a sufficiently and relevantly informed decision.
F. CONCLUSION AND DISPOSITION
[109] The Council, as a matter of good practice, should have obtained a better and more focused reply to its s 92 request at the time. The reply was detailed, but not to
the letter of the request. The public record should reflect the request and the
30 Air Nelson Limited v The Ministry of Transport, above n 29, at [60] [2] [61]; Independent
Fisheries Limited v Minister for Canterbury Earthquake Recovery [2012] NZHC 1810 at [186].
31 Sutton v Canterbury Regional Council [2015] NZHC 313, (2015) 18 ELRNZ 774 at [75].
32 Just One Life Limited v Queenstown Lakes District Council [2004] 3 NZLR 226 (CA) at [39].
identifiable answer, so that the information gathering can be tracked, and not require factual exploration as here.
[110] The instruction of Dr Chiles should have been in writing. An expert report which is not directed to the statutory test, but instead refers to what might be taken as a shorthand for “less than minor” is also not good practice when that statutory test needs to be understood by the reader to have been applied, in particular a neighbour having regard to the effect of a non-notification Decision. The Council had to search for information. Otherwise, I agree with Ms Campbell that the report prepared for the decision maker’s consideration went beyond what is typically included in such a report by assessing concerns specifically and individually. The application and the Assessment of Effects were carefully drafted with a description of activities and effects which gave the Council a good understanding of the sources of noise, with reasons for saying that the effects on neighbours would be limited by the nature of the equipment, separation distances, and compliance with noise limits.
[111] In summary, I have reached the conclusions that:
(a) The Council applied the correct test of “less than minor” effects for the non-notification decision.
(b)Although the s 92 request for further information should have been the subject of a particularised and better reply as to an overview of the sources of noise, and their effect, the Council was by then aware of the sources of noise, site characteristics, and separation distances. It understood there was no obvious noise making equipment, and the sound emitting qualities of each activity. The discrete location, separation distances, screening, the ambient sound, the noise limits, time of operation and numbers of patrons and their activities, and traffic noise were all brought to account. It did overall have adequate information on which to make a relevant and informed decision. The Decision reflects consideration of all the factors which were relevant. Nothing “missing” has been identified.
(c) The applicants and others did put the Council on notice with their expressed concerns and they were addressed in a considered way. This helped the Council in its decision making.
(d)The Council was entitled to bring the noise limit to account. That was relevant, whether the permitted baseline test was adopted or not. It allowed Dr Chiles to express an opinion which involved his recognition as an expert of the noise made by paintball guns, and assisted the Council to reach a decision. Sound effects without the limits were not “disregarded” but recognised for what they were. More than five people will “play” at The Playground. They will make noise. It will at times be heard. But if it is, it will be within the noise limit or The Playground should not be allowed to operate. I conclude that the Council had sufficient relevant information to make its decision, brought to account no irrelevant considerations, applied the correct test, and the decision was reasonable.
(e) Section 95C does not operate to require public notification in this case.
Disposition
[112] The application for judicial review is dismissed. Costs are reserved, but I observe that this is a case where the Council by its process left itself open to challenge, which will influence the outcome of any costs application.
……………………………….
Nicholas Davidson J
Solicitors:
GoldmanLegal, Queenstown Meredith Connell, Auckland Macalister Todd Phillips, Queenstown
cc to counsel:
M J Slyfield, Wellington
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