Hanna v Whanganui District Council

[2013] NZHC 1360

IN THE HIGH COURT OF NEW ZEALAND WHANGANUI REGISTRY

CIV-2013-483-101 [2013] NZHC 1360

IN THE MATTER OF       the Resource Management Act 1991

ANDin the matter of an application for judicial review pursuant to the Judicature Amendment Act 1972

BETWEEN  ANTHONY HANNA AND SARAH HANNA

Plaintiffs

ANDWHANGANUI DISTRICT COUNCIL First Defendant

ANDDAREN BENDLE Second Defendant

Hearing:                   5 June 2013

Counsel:                  J W Maassen and N Jessen for Plaintiffs

P Drake for First Defendant
S Burlace for Second Defendant

Judgment:                10 June 2013

JUDGMENT OF WILLIAMS J

In accordance with r 11.5, I direct the Registrar to endorse this judgment with the delivery time of 4.30pm on the 10th June 2013.

[1]      This   application   for   judicial   review   relates   to   a   development   at

174 Tayforth Road, Whanganui.   The property is owned by the second defendant, Daren  Bendle,  who  is  a  heavy  machinery  contractor  trading  under  the  name Camtract Contractors.  He sought and obtained consent for:

(a)       overnight parking of two trucks;

(b)      overnight parking of diggers when not on job sites;

HANNA v WHANGANUI DISTRICT COUNCIL [2013] NZHC 1360 [10 June 2013]

(c)       and to establish and operate a home occupation which includes office administration within proposed homes; and

(d)      store fleet vehicles and machinery when not in use.

[2]      Further information provided indicated that the equipment to be stored onsite included the following list:

a.    24 tonne 14.5m reach excavator (in shed or on work sites)

b.    5 tonne Airman AX 50 (in shed or on work sites) and attachments c.   12 tonne 8m reach cat excavator (in shed or on work sites)

d.6 Wheeler Tipper Truck & 2 axle tipper trailer (stored on site behind shelterbelt)

e.8  wheeler  Tipper  Truck  &  3  axle  trailer  (stored  on  site  behind shelterbelt)

f.     4 tonne drum roller (in shed or on work sites)

g.    30hp tractor & loader (in shed or on work sites)

h.    7.5 tonne loader (in shed or on work sites)

i.     Compaction and power tools (in shed or on work sites)

[3]      Thus,  the  application  was  essentially for  a  small  scale  heavy machinery depot.  I understand that there would be a dwelling built on site within three years. There is agreement that the Whanganui District Plan was right to treat this proposal as  a  ‘manufacturing  activity’ because  in  accordance  with  the  definition  of  that activity, it involves the storage of vehicles and/or equipment.   Manufacturing activities are not provided for in the rural zone.  Consent is therefore required for this proposal as a non-complying activity.

[4]      Whanganui District Council considered that the likely effects of this proposal on neighbouring properties would be less than minor such that in accordance with s 95E of the RMA, the application need not be notified.  In her written report on the matter, Council resource management planner, Rachael Pull, took this view:

The applicant has provided an assessment of an Environmental Effects as well as providing information required in a further information request.  He

has put forth the argument that the activity is similar to the resident that brings his work vehicle home.  The noise and lights of the truck provide a slightly larger effect on the area than the typical vehicle, however there is no evidence that it will breach the noise or light maximum levels due to the distance from the residential dwellings.

The applicant has suggested screening the property and providing (sic) hours of operation to reduce the effects on the rural amenity.

I concur that the application has provided sufficient to mitigation measures to reduce the effects on the surrounding properties to less than minor.

It is considered there are no adversely affected persons that can be identified that differentiate them from the public in general.

[5]     This reasoning was then affirmed by Rachelle Voice, senior resource management  planner  at  the  Council  (and  Ms  Pull’s  supervisor).     Ms Voice countersigned the report and recommendations signifying, as the Council’s delegate in notification decisions, that the application would not be notified.

[6]      The notification  decision  was  followed  immediately (that  is  in  the same document) by consideration of the consent itself.  Ms Pull found that although the proposal was a non-complying activity, all of its potentially detrimental effects on neighbours were either able to be adequately mitigated by conditions relating specifically to the equipment or to landscaping, or were related to activities not unlike those to be expected in a rural area.  This view was also affirmed by Ms Voice as the statutory delegate, who signed off on the consent.

[7]      The plaintiffs own an adjoining property at 176 Tayforth Road.  They say that the decision to process the application on a non-notified basis was unlawful.  They seek orders quashing both the notification decision and the consequentially tainted resource consent.

[8]      The plaintiffs advance four arguments:

(a)       that  the  Council  did  not  have  enough  information  to  make  a notification assessment under Part 6 RMA;

(b)      the  Council’s  conclusion  that  the  effects  on  neighbours  sharing  a

common boundary were less than minor was irrational;

(c)       there was no basis upon which effects within the ‘permitted baseline’

could be excluded;

(d)      the Council wrongly conflated the notification and consent decisions.

The evidence

[9]      The plaintiffs filed affidavits by Sarah Hanna and Clare Barton.

[10]     Mrs Hanna’s affidavit appended the Council’s file.   She explained that the Hannas were approached by Rose Stokes, Mr Bendle’s partner, to sign a consent of affected persons form in respect of Mr Bendle’s proposal.  The Hannas refused to sign.   Mrs Hanna explained that she spoke also directly with Rachael Pull at the Council seeking advice over what was being proposed, and was advised that it was likely that any consent application would be notified to them unless they and surrounding neighbours gave written consent.   Mrs Hanna explained that this was not what ultimately happened and that consent was granted to Mr Bendle on a non- notified basis.

[11]     Clare Barton  is  a consultant  planner who was  asked by the plaintiffs to review the Council’s file and give an independent assessment of the sufficiency of the  Council’s  notification  decision.    She  concluded  that  both  the  information provided and the assessment was inadequate in that it failed to properly address transportation effects, visual effects, noise effects and light spill and signage effects. She added that the Council had failed properly to apply the “permitted baseline” provisions in the RMA and that there were Regional Council matters that should also have been addressed and were not.

[12]     The Council  filed  affidavits  by Ms  Pull  and  Ms Voice together  with  an affidavit from Daniel Cairncross, the Council’s roading and traffic safety engineer.

[13]     In their affidavits, Ms Voice and Ms Pull expanded on the reasons underlying both the notification and the consent decisions in this matter.   For example, Ms Voice’s affidavit provides the following:

I accept that the planning report does not present all of the information that was considered when making the decision not to notify the application.

Accordingly, as the decision-maker for non-notification, I will detail what I

was aware of, what I took into consideration and how I came to my decision.

[14]     In my view, it is inappropriate to give any real weight to this evidence.  The decision must stand or fall on its own terms as written at the time.  That, in my view, is both sound public law and sound resource management practice.  The whole point of the principle that those exercising statutory discretions must give proper written reasons  is  so  that  those  reasons  can  be  tested  on  appeal  or  judicial  review  if necessary.  This leads to transparent and accountable exercises of public power by public officials.

[15]     It is contrary to that principle to allow officials to back-fill their reasons after the event and when they know both that there is a challenge onfoot and the basis of that challenge.  There will obviously be exceptions to that general principle where, for one good reason or another, resort to extraneous explanation will be necessary. This is not one of those cases.   My focus will therefore be the notification and consent report and decision dated 19 February 2013.

[16]     Mr Cairncross’ affidavit related to traffic safety.  He indicated the material he fed into the decision-making reflected in the 19 February report and recommendations.   Mr Cairncross indicated that he had no traffic safety concerns although the vehicle crossing to be used in this proposal would need to be upgraded to cope with extra heavy traffic movements.

[17]   Mr Bendle also filed an affidavit.   He outlined the proposal and the commercial/industrial uses in the immediate vicinity before concluding that the proposal was generally in accord with the amenity of the area and would be unlikely to cause any adverse effects.

Statutory framework

[18]     The statutory framework for decision-making on notifications is provided in Part 6 of RMA.  There are two levels of notification:  public notification under s 95A and limited notification under s 95B.

[19]     Under s 95A, a consent authority must publicly notify an application that (inter alia) has more than minor adverse effects on the environment.   Even if the consent authority considers adverse effects on the environment are not more than minor, the authority must still consider under s 95B whether there are any affected persons for whom a more directed or limited notification will be appropriate.  The relevant provision in this respect insofar as the present case is concerned is s 95E. Subsection (1) provides:

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).

[20]     So if there are persons who are affected to a minor or more than minor degree, then they must  be notified in the tailored notification process  in s 95B. Candidates for this consideration are almost invariably surrounding landowners.1

[21]     Section 95E(2)(a) applies the so-called “permitted baseline”.  It provides that the Council may in its discretion “disregard an adverse effect of the activity on [an affected person] if a rule ... permits an activity with that effect.”  The principle here is that in making a notification decision, the Council may set to one side any effects from activities that are permitted on that site even if those effects are, in context, likely to be above the statutory threshold of minor or more than minor.  This creates a kind of effects perimeter around the site generally called the permitted baseline. The parties differ over how it is to apply here.

Analysis

[22]     In my view, there can be little doubt but that the notification decision was inadequate  in  itself  and  was  based  on  insufficient  information  to  address  the questions posed in s 95E.

[23]     As I have said, in reality the proposal relates to a small heavy machinery depot. While many of the items of heavy equipment are proposed to be placed inside

1      By the terms of s 95D(a)(ii), a consent authority may not consider, in deciding whether to publicly notify an application, the impacts on persons who own or occupy land adjacent to the application  land.    Thus  public  notification  under  s 95A  requires  broader  impact  on  the environment rather than impact on land surrounding the application site.   For those narrower impacts, s 95B applies.

the 12m x 12m barn to be built on site (the barn is a permitted activity), a number of the items including the largest one – the long reach caterpillar – will be outside when on site.  The report suggests that the impact of the use of this site in this manner would only be “slightly larger” than the effect of a resident bringing “his work vehicle home”.   It is difficult to see how this could be so.   In reality, the heavy equipment will be loaded onto trucks first thing in the morning and (if not left at the work site) returned to the depot at the end of the day.  No indication is given of likely turning circle and manoeuvrability characteristics for the truck and trailer units to determine how long they will take both manoeuvring onsite and loading and unloading equipment.   All of this is likely to occur within view (subject to the screening comments I will make below) and within earshot of the plaintiffs.  I do not consider that the applicant was properly questioned in relation to these issues, or indeed in respect of the likely number of vehicle movements onsite per day.

[24]     Standard  noise  conditions  were  considered  to  adequately  mitigate  noise effects though this conclusion was in the consent section of the report not the notification section.   The noise limits are 55dBA (L10) 7am to 6pm and 45dBA (L10) at any other time.   No indication is given as to whether the vehicles and equipment will comply, or indeed can comply with these standards.   The onus is thrown on surrounding neighbours to determine these questions ex-post facto.  Noise will obviously be a significant new impact in the vicinity but its likely effects are not analysed at all.

[25]     In order to mitigate visual and noise effects, a maximum 3m high shelterbelt is required to be established.   Prior to establishment, temporary shade cloth is required.    No  indication  is  given  of  how  these  measures  will  mitigate  noise generation from the site, and I understand the shade cloth is not an effective visual barrier.  Lighting limitations are also imposed – no more than 8 lux at the window of any residence.

[26]     To ensure compliance with these emissions based standards for noise and light, the Council included a condition giving it a right to review compliance with those standards.   In my view, this review condition is imposed as a substitute for analysing these effects prior to implementation of the consent. This is inappropriate.

[27]     Further mitigation of visual effects is to be provided by a requirement that the long reach caterpillar be stored on site only for one month per year with the long reach arm perched no higher than 3m above ground level.  A further requirement is that this machine be parked behind the proposed barn, out of sight of the Hannas next door.  I note in passing that the rough site layout provided with the application makes no provision for such parking as the area behind the shed is earmarked for future trees.

[28]     I agree with Mr Maassen that there are no proper site plans sufficient to assess building location and site manoeuvrability requirements, nor are there detailed specifications for the heavy equipment and the manner of their transportation.

[29]     A proper assessment of likely vehicle movements to and from the site and time involved in loading and unloading will be necessary.  On a standard day, two truck movements may be all that occurs, but how often does a standard day occur? What if Camtract Contractors come to be managing multiple contracts requiring equipment at multiple sites.  Is this likely to mean 4, 6 or 8 truck movements per day during a busy time?  Conversely, during a slow period lasting more than a month, what is to be done with the long reach caterpillar?  Is there room elsewhere?  Are the

3m requirements for the shelterbelt and the caterpillar arm enough visual protection for  neighbours?    Have  angles  from  likely  building  platforms  been  tested  for visibility?

[30]     While it would be disproportionate to require a full landscaping plan and independent  visual  impact  assessment  in  an  application  of  this  kind,  more information than a list of planting species must be required in order for the Council to be satisfied that visual impacts from particular viewpoints can be, and will be, adequately mitigated.

[31]     The essential point is that this is a non-complying activity – that is an activity that the Council, in its policy and rule making processes, has already decided does not generally belong in this area.  That means that planning officers must take a hard look at the application both at notification and consent stages, even taking proper consideration of the permitted baseline.

[32]     It seems to me very superficial to suggest that the impact of this activity on this site will be only slightly larger than that of a truck driver bringing his or her truck  home at  night.   This,  with  respect,  borders on  the naive.   Planners must consider the intensity of use on site with a wary eye, and a willingness to ask the hard questions.  That does not necessarily mean that applicants in this circumstance must spend large sums of money on fancy plans and expert reports.   Information requirements must still be proportionate.  Rather, it means that 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.  In this case, that process was just not gone through at either notification or consent stage.

[33]     There has yet to be a hard look at this application.  After all, the standard for limited notification is not that high.  A minor impact is enough.   It does not take much of a leap of imagination to conclude that siting 7-8 pieces of heavy equipment on land adjacent to a residence with a view to regularly transporting such equipment to and from the site, could at least have a minor impact on the adjacent residence.

[34]     That brings me to the treatment of the permitted baseline under s 95E(2)(a). The reports address this question in an oblique fashion, although the issue is more thoroughly traversed in the Voice and Pull affidavits.  I have already mentioned the difficulty with giving any real weight to the affidavits.  Mr Maassen complains that the Council’s planners have engaged in cherry picking a smorgasbord of high impact permitted uses and then gluing them all together to produce a series of unrelated and “maxed out” (his term) effects that must be excluded from the notification decision. Mr Maassen says this produces just the kind of fanciful activity scenario that the cases say is not permitted.

[35]     In Lyttleton Harbour Landscape Protection Association Inc v Christchurch City Council,2  the Environment Court addressed the potential complexity of identifying credible (as opposed to fanciful) permitted activity counterfactuals that

may assist in applying the permitted baseline standard.   The court cautioned that

2      Lyttleton Harbour Landscape Protection Association Inc v Christchurch City Council [2006] NZRMA 559.

counterfactual activities are not always a useful analytical tool and the Council may in its discretion refuse to apply it.   Importantly, the court considered that the counterfactuals need to be posed in sufficient detail to withstand careful scrutiny. The court posed a series of relevant questions to assist such an inquiry.3

Drawing from different fact situations and findings in cases that have arisen before this Court, questions along the following lines (while by no means exhaustive) may be useful according to the circumstances:

Does the plan provide for a permitted activity or activities from which a reasonable comparison of adverse effect can conceivably be drawn?4

Is the case before the court supported with cogent reasons to indicate whether the permitted baseline should, or should not, be invoked?  See5

If parties consider that application of the baseline test will assist, are they agreed on the permitted activity or activities to be compared as to adverse effect, and if not, where do the merits lie over the area of disagreement?6

Is the evidence regarding the proposal, and regarding any hypothetical (non-fanciful)   development   under   a   relevant   permitted   activity, sufficient to allow for an adequate comparison of adverse effect?7

Is a permitted activity with which the proposal might be compared as to adverse effect nevertheless so different in kind and purpose within the plan’s framework that the permitted baseline ought not to be invoked?8

Might application of the baseline have the effect of overriding Part II of the RMA?9

[36]     Of course that case was decided before the amendment in 2009 that imported the permitted baseline test into notification decisions, so it related to consent rather than notification.  Nonetheless, the principles espoused still have application albeit scaled to the notification context.

[37]     It is implicit in the Environment Court’s reasoning that smorgasbording the

permitted baseline is inappropriate.   Rather, a realistic counterfactual proposal or

3 At [21].

4      Refer Rem Developments Limited and Munro cases.

5      New Zealand fire Service Commission v Tauranga City Council.

6      See Wakatipu Environmental Society Inc v Queenstown Lakes District Council (Environment

Court, Christchurch C 36/05).

7      Refer Wellington and Ohope Beach Development Society cases (above).

8      Refer Kapiti Coast case (above).

9      Refer Kapiti Coast and Ohope Beach Development Society – although both cases pre-date the

2003 amending Act, they provide guiding assistance.

proposals must be put up for consideration and comparison.  I agree with that court’s approach.   A smorgasbord approach decontextualises effects producing both unrealistic comparators and results that undermine rather than uphold the principles in Part II of the Act.

[38]     At one level, comparing this proposal with a large scale dairy or dry stock farming operation is fanciful because the whole area in this case is broken up into one to two hectare blocks.   A small farm comparison does not help because no lifestyle size farm would have this amount of equipment on site.  Posing daily milk tanker visits as a counterfactual is also unrealistic given the subdivisional characteristics in this area.  In truth any realistic comparator would have to relate to a small scale rural or cottage type home occupation.   But there are none with the potentially significant effects that are traditionally associated with heavy machinery depots – even ones of modest scale such as this.  And Council planners rejected any suggestion that the proposal was a home occupation.

[39]     I conclude therefore that the Council misapplied the permitted baseline test in this case.

Conclusion

[40]     It must follow that, in orthodox public law terms, the Council has failed to take account of relevant considerations (i.e. effects on neighbours) and, by failing to apply a wary eye to the application, has come to a decision on notification that is irrational.   In addition, the Council applied the wrong test in its assessment under s 95E(2)(a).

[41]     The notification decision and consent are quashed accordingly and the matter is remitted back.   As suggested by Mr Drake, the notification decision is to be reconsidered entirely afresh by an independent planning expert who will either make a recommendation to the statutory delegatee, or exercise the delegation in his or her own right.

[42]     I have considered, as invited by Mr Maassen, whether to give directions as to the  particular  matters  of  amenity  that  should  be  the  subject  of  focus  in  the

reconsideration.  On reflection it seems to me that is a matter better left to the expert in whom the task has been entrusted.

[43]     Costs are reserved.

Williams J

Solicitors:

Cooper Rapley, Palmerston North
Whanganui District Council, Whanganui

Treadwell Gordon, Whanganui