Innova Tan Limited v Auckland Council
[2021] NZHC 3263
•1 December 2021
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2021-404-001226
[2021] NZHC 3263
UNDER The Judicial Review Procedure Act 2019 BETWEEN
INNOVA TAN LIMITED
Applicant
AND
AUCKLAND COUNCIL
First Respondent
MATAKANA COUNTRY PARK LIMITED
Second Respondent
Hearing: 23 November 2021 Appearances:
B S Carruthers for Applicant
L Bielby and B Cochrane for First Respondent S J Simons and K Storer for Second Respondent
Judgment:
1 December 2021
JUDGMENT OF WOOLFORD J
This judgment was delivered by me on Wednesday, 1 December 2021 at 4:00 pm pursuant to r 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Solicitors:Dyson Smythe and Gladwell (J Smythe), Warkworth, for Applicant Rice Speir (N Spier), Auckland, for First Respondent
Berry Simons Environmental Law (S Simons), Auckland, for Second Respondent Counsel: B S Carruthers, Auckland, for Applicant
INNOVA TAN LIMITED v AUCKLAND COUNCIL [2021] NZHC 3263 [1 December 2021]
[1] The second respondent, Matakana Country Park Limited (MCPL), operates an adventure playground on a 50-acre property located just outside Matakana at 1151 and 1153 Leigh Road, Omaha Flats, under the authority of a resource consent granted by the first respondent, Auckland Council (Council). The applicant, Innova Tan Limited (ITL), an adjacent land owner, now challenges by way of judicial review the grant of resource consent on the basis that it was not provided with information about the impact of the adventure playground — including the noise generated by it and the size and scale of its structures — when ITL’s sole director, Mr William Freeth, gave written approval to the application for resource consent.
[2]ITL also alleges that Council:
(a)Applied the wrong test when it disregarded the adventure playground’s effects on ITL’s property at 1 Takatu Road. The effects remained relevant in the absence of any genuine approval;
(b)Failed to properly assess the effects of the structures to be erected, having regard to the siting, scale, design and external appearance of the structures and the ability to minimise their impact through landscaping or screens;
(c)Failed to assess the impact on neighbouring sites; and
(d)Failed to assess the infringement of the riparian yard standard by considering the ecological effects of the proposed activity, including the effect of noise on freshwater, terrestrial and avian species within the riparian area.
Planning framework
[3] Matakana Country Park is zoned Rural – Mixed Rural Zone and subject to the Matakana 2 Precinct (Precinct) in the Auckland Unitary Plan (Operative in Part) (AUP(OP)). The stated purpose of the Precinct is to “enable the ongoing operation and expansion of Matakana Country Park, by permitting the use of a site for community events and tourist and visitor activities”. The Precinct “limits activities to
those with a rural and/or tourist theme to recognise its use as a ‘country park’”. Subdivision in this Precinct is controlled to ensure that Matakana Country Park continues to be managed and operated as a single entity, and to provide for some expansion of activities.
Activity Area 1
[4] The Precinct is made up of 10 “Activity Areas”. The 10 activity areas are identified on I552.11.1 Matakana 2: Precinct Plan 1 (Precinct Plan).
[5] At the time of the application for resource consent by MCPL, the Precinct Plan listed the following activities for Activity Area 1 (where the adventure playground has been sited):
Function Centre, Dance/Exercise Fitness Centre, Café, Playground, Petting Zoo, Aviary, Memorial Garden and Pet Garden.
[6] A consent notice registered on the title limited the use of Activity Area 1 to those activities and staff accommodation. The consent notice was subsequently varied on 23 November 2020, after the resource consent had been granted, to include additional activities described as “adventure playground/ninja course”.
Rural Tourist and Visitor Activities
[7]Rural tourist and visitor activities are defined in the AUP(OP) to mean:
Recreation activities or pursuits:
(a)Derived from and interacting with the rural environment or communities, including their history; and
(b)Functionally dependent on the natural or rural environment.
Includes:
·Paintball games;
·Bushwalks;
·Tree top walking;
·Birdwatching, including viewing birds in aviaries;
·Outdoor obstacle courses;
·Mini golf;
·Sculpture parks; and
·Sale of souvenirs and goods accessory to the activity.
[8] Precinct Rule I552.4.1 (A7) provides for rural tourist and visitor activities as a permitted activity subject to compliance with standards in I552.6. There are two standards for rural tourist and visitor activities as a permitted activity in the Precinct:
(a)It must be limited to one petting zoo for farm animals and one aviary for the housing of domesticated bird species; and
(b)The petting zoo and aviary must be located generally in accordance with the Precinct Plan.
[9] Otherwise tourist and visitor activities that meet the definition are a restricted discretionary activity in the Precinct (Rule I552.4.1.(A8)). The eight matters of discretion in I552.8.1(2) are:
(a)The type of activity proposed;
(b)Compatibility with existing activities;
(c)Number, timing and duration of visitors;
(d)Visitor requirements;
(e)Facilities provided;
(f)Amenity values;
(g)Impacts on neighbouring sites; and
(h)Access and parking.
[10] Tourist and visitor activities not meeting the definition are a discretionary activity under r C1.7.
New buildings
[11] New buildings less than nine metres in height are a controlled activity in the Precinct (Rules I552.4.1(A9) and I552.6.9). The four matters of control in I552.7.1 are:
(a)Building siting, scale, design and external appearance;
(b)Landscaping and screening;
(c)Access and servicing;
(d)Traffic, parking, loading and access.
[12] New buildings of up to 10.5 metres in height are also a controlled activity where the building has a roof pitch of 25 degrees or more and the maximum building height is nine metres plus an additional non-habitable roof space of 1.5 metres.
Riparian yard
[13] The underlying Rural - Mixed Rural Zone sets a number of standards, including minimum yard setbacks. A “riparian yard” of 20 metres is required by Rule H19.10.3. It is a restricted discretionary activity to infringe the yard with the matters of discretion set out in C1.9(3).
Application by Matakana Country Park Limited
[14] On 13 August 2020, MCPL submitted an application to Council for resource consent to establish an activity named “Matakana Action Ninja World” at Matakana Country Park. The application consisted of the following documents:
(a)Application form;
(b)Assessment of Environmental Effects (AEE) prepared by Paua Planning (PP);
(c)Appendix 1 – Certificate of Title;
(d)Appendix 2 – Application Plans;
(e)Appendix 3 – Flood Report.
[15] The application specified that MCPL was seeking consent to a “rural tourist and visitor activity” with new buildings that complied with the nine-metre height limit but infringed the riparian yard.
[16]The AEE submitted with the application explained the proposal in detail:
(a)Table 1 on pages 9 – 10 of the AEE set out the various activities, the size of each structure, the type of each structure and a brief description of each. With the exception of the “race track” and “zorb soccer”, all the activities involved inflatable airbags.
(b)Page 23 of the AEE stated that the “compressors for blowing up the airbags will not be audible at the notional boundary” of 1 Takatu Road.
(c)Pages 22 and 23 of the AEE stated that “existing vegetation” within Matakana Country Park would provide “ample screening” of the structures when viewed from 1 Takatu Road.
(d)Pages 18, 19, 23 and 25 of the AEE stated the facility would operate for seven months of the year, but the AEE also stated that the facility would operate “October – May”.
[17]The application plans contained 13 pages of plans:
(a)A site plan, being an aerial photograph prepared for the client titled “Coastal Properties Lot 1 DP519220 Matakana Country Park”. It
delineated with hatching a 3,850 square metre area for the proposed activity, which was named “Action/Ninja World”. It also showed with hatching a “Children’s Playground” adjacent to Leigh Road.
(b)A second plan was entitled “Matakana Action World”. It showed the proposed location and footprint of each structure on the site.
(c)The third plan was another aerial photograph which showed a 50-metre setback from Leigh Road but did not portray the 12.4 metre setback from 1 Takatu Road.
(d)Pages 4 – 13 were diagrams of equipment which showed the size and scale of some of the structures and their use.
[18] An updated AEE was subsequently submitted to Council on 6 September 2020. In this updated AEE, MCPL addressed the requirement for consent to vary the terms of existing consent notice (11288436.1) and changed the name of the proposal from “Matakana Action Ninja World” to “Matakana Country Park Adventure Playground”.
Written approval by ITL
[19] On 6 November 2020, the Council Planner enquired of MCPL whether written approval of the owner/occupier of 1 Takatu Road was to be requested and, if so, whether the application should be put on hold under s 88E of the Resource Management Act 1991 (RMA) while MCPL endeavoured to obtain approval.
[20] Mr Brendan Coghlan, the director of MCPL, then made arrangements to meet Mr Freeth, the 85-year old sole director of ITL, on 11 November 2020. At the meeting, Mr Freeth signed a standard “written approval of affected persons” form from Council and two pages provided to him by Mr Coghlan:
(a)A site plan prepared by surveyors from an aerial photograph for the client “Matakana Country Park Lot 1 DP519220” which identified the general location of an “Adventure Playground” without showing the extent of the 3,850 square metre area and its proximity to the boundary
of 1 Takatu Road. It was similar to the site plan included with the application for resource consent except for the change of name from “Action/Ninja World” to “Adventure Playground”. The “Children’s Playground” on the site plan included with the application had also been renamed “Existing Infants Playground”.
(b)A layout of the playground entitled “Matakana Country Park Children’s Adventure Playground” showing the proposed location and footprint of each structure within the 3,850 square metre area. Again, it was similar to the plan included with the application for resource consent except for the change of name from “Matakana Action World” to “Matakana Country Park Children’s Adventure Playground”.
[21] MCPL scanned and sent the written approval and additional two pages to Council on the same date.
Processing of Resource Consent Application
[22] Council proceeded to process MCPL’s application on the basis that it was a “rural tourist and visitor activity”. On 13 November 2020, Council decided to process the application non-notified (notification decision). The notification decision recorded it was made under ss 95A and 95C to 95D and 95B and 95E to 95G of the RMA. The notification decision was made in reliance on the report from a Council Planner recommending non-notification (notification report). The notification report recorded on page 12:
The applicant since the date of lodgement of the application has subsequently received the written approval from the owners of this property [1 Takatu Road] (refer to email from Charlotte Vellinga dated 11/11/2020) and therefore any adverse effects on 1 Takatu Road are disregarded.
[23] Also, on the same date, Council decided to grant consent to MCPL’s application and impose conditions (substantive decision). The substantive decision recorded it was made under ss 104, 104C and Part 2 of the RMA. Condition 1 requires the activity to be carried out in accordance with the AEE. Condition 3 allows MCPL to operate from 1 October to 30 May annually – a period of eight months.
[24] On 16 November 2020, Council decided to grant a variation to expand the activities allowed in Activity Area 1 of the Precinct Plan as follows:
Function centre, dance/exercise fitness class, café, playground, petting zoo, aviary, memorial garden and pet garden, staff accommodation, adventure playground/ninja course.
Applicant’s position
[25] ITL’s principal argument is that Council was wrong to accept ITL’s written approval at face value as it was clearly not an approval to the application in the form it was submitted to Council. The two plans signed and attached to the written approval were not the plans submitted to Council. The plans submitted to Council were for an “Action Ninja World” and a “Matakana Action World”, whereas the plans shown to Mr Freeth and signed by him were for an “Adventure Playground” and a “Matakana Country Park Children’s Adventure Playground”.
[26] Furthermore, the two plans signed and attached to the written approval did not show the size and scale of the adventure playground’s structures. Mr Coghlan had the AEE, which set out a description and the size of each structure as well as diagrams of many of the structures, which included their primary colours and their dimensions. He did not show any of these to Mr Freeth; nor did he obtain Mr Freeth’s signature on any such documents to confirm Mr Freeth’s understanding of the size and scale of the adventure playground’s structures.
[27] For example, the AEE described the ninja course (one of 15 activities) as being five metres x eight metres x six metres high (it has subsequently been measured by a survey technician to be 7.95 metres high). It is said to be made of steel framing and inflatable airbags. It is then described as follows:
This is designed for teenagers and adults. It is a race against the clock, requiring strength, coordination and agility. We have all seen Australia Ninja Warrior on TV and now we have a unique one of a kind Ninja course in Matakana. This will be the only one in New Zealand!!!
[28] If he had been shown the AEE, Mr Freeth would have realised that the proposed activity was more than the children’s playground he thought it was and as it was described in one of the plans he was shown and which he signed.
[29] A two-dimensional plan superimposed on a Google Earth Satellite image of the site does not give a realistic view of the size and scale of the structures. This plan
– which was shown to and signed by Mr Freeth — showed the location and footprint of each structure. On all but one of the footprints the name of the activity is entered in the smallest possible type. There is, however, no name on the footprint of the structure closest to 1 Takatu Road. This is a waterslide which is 28 metres long and
9.32 metre high (9.32 metres is the height of a two – three storey building). The waterslide is bright primary colours of blue and yellow. A coloured image of the waterslide showing its dimensions was included by the Council in its approved resource consent plan but was not shown to Mr Freeth.
[30] The erection of new buildings in Matakana 2 Precinct is a controlled activity, but I522.6.9 provides that buildings “must not exceed nine metres in height”. In its assessment of compliance with Auckland Unitary Plan Standard, PP stated that MCPL’s application for resource consent complied with I522.6.9 as:
No structures proposed to be above 9m that constitutes a building. The waterslide is the tallest of the [sic] all the structures, being 9m in height, however it is an inflatable airbag and therefore is not a permanent structure and does not meet the definition of building. Irrespective of this, it meets the maximum height of 9m for when it is inflated.
[31] Although it was accepted by the Council Planner in the notification report that “the definition of building includes any permanent or temporary structure and given the height of the structures, they are considered buildings”, Council acknowledges that the waterslide was wrongly assessed by Council as not exceeding the Precinct standard because it fell within the provision in Chapter J of the AUP(OP), which enables projections beyond the nine metre height restriction to be excluded if they are less than two metres in width on any elevation. The roof area of the waterslide does not fall within the exclusion. The non-compliance with the height restriction of nine metres should therefore have been treated as a restricted discretionary activity rather than a controlled activity.
[32]As to noise effects, PP stated:
The potential noise generated by the activity is associated with people having fun on the activities, and the compressors used to inflate the airbags. This
noise will only occur during operating hours and is not continuous noise and won’t generate noise nuisance on any person of the wider environment.
[33] Then in relation to the closest adjoining property, being 1 Takatu Road, PP stated:
The noise generated from the activity is limited to people having fun and the compressors for blowing up the airbags which will not be audible at the notional boundary of this adjoining property given the separation distance, type of noise generated, the existing vegetation and proposed fencing which will provide acoustic mitigation.
[34] There was no substantiation of PP’s opinion that the compressors would not be audible at the notional boundary of the adjoining property in the form of technical information about the compressors or an expert report.
[35] PP’s opinion was accepted by the Council Planner in her notification report dated 13 November 2020. After noting PP’s opinion that the noise generated at the site would be indiscernible, the Council planner stated that overall, she agreed with PP. She concluded:
The site is bound by Leigh Road to the north and Omaha Flats Road to the south. Leigh Road, in particular, has a steady flow of traffic along it and the noise of passing vehicles is noticeable when on the site and road noise is the dominant sound. Any noise experienced from the future use of the proposed activity will be heard against the backdrop of road noise and within the wider environment is unlikely to discernible.
[36] The Council Planner recommended that the application should be processed non-notified. This was accepted by the Council Team Leader, Resource Consents on the same day. A substantive decision was then made, again on the same day by the Council Team Leader, Resource Consents, to approve the application for resource consent. One of the reasons she gave was:
Given the existing ambient noise on the site which is dominated by road noise, and vehicles travelling along Leigh Road, it is considered that any noise generated from the proposal will have a less than minor effect on the amenity of the surrounding area.
[37] In his meeting with Mr Freeth on 11 November 2020, Mr Coghlan states that they had a long discussion about what the adventure park involved, including the noise generated by compressors to inflate the airbags and the sound of children having fun.
On the other hand, Mr Freeth says Mr Coghlan never mentioned the air compressors which would need to run all day.
[38] However the discussion progressed, Mr Coghlan would have relied on PP’s opinion that “the compressors for blowing up the airbags … will not be audible at the notional boundary of this adjoining property”. Mr Coghlan and through him Mr Freeth (if Mr Coghlan did indeed discuss the noise generated by the compressors with him) would therefore have both been misled as to the noise effects of the compressors. It is substantial.
[39] The relevant permitted activity standard is shown in Table E25.6.3.1, which provides:
Time
Noise level
Mon – Sat (7am – 10pm) Sunday (9am – 6pm)
55dB LAeq
All other times 45dB LAeq 75dB LAFmax
[40] After resource consent had been granted and after remediation measures had been taken including encasing the compressors in plywood and erecting a 1.8 metre close boarded fence between the properties, a Council compliance officer visited the site and took noise level readings. In his compliance report he annexed four readings taken at the boundary of 55.7dBA, 56.1dBA, 56.2dBA and 54.5dBA and concluded:
We measured the noise level at the property boundary, which was approximately 55dBA – acceptable for a mixed rural zone.
[41] The standard provides, however, that noise levels “must not exceed the limits in Table E25.6.3.1”. Three of the four readings did in fact exceed the limit.
[42] As noted, ITL’s principal argument is that Council was wrong to accept ITL’s written approval at face value as it was clearly not an approval to the application in the form it was submitted to Council. ITL has, however, a number of subsidiary and independent arguments. ITL argues that the Council wrongly ignored the effects on the occupier of 1 Takatu Road. Although ITL owns the property, it is occupied by
Mr Freeth’s adult son who has a traumatic brain injury and who is badly affected by the constant noise from the adventure playground. Although Mr Freeth’s son was at the meeting between Mr Freeth and Mr Coghlan, Mr Coghlan did not obtain the written approval of Mr Freeth’s son, who he knew occupied the address.
[43] ITL further argues that the Council failed to consider the siting, scale, design and external appearance of the structures, landscaping and screening in terms of I552.7.1 when treating the erection of the structures as a controlled activity. ITL says that all the Council Planner noted in her notification report was that the structures were “temporary in nature” and did not represent “urban development”. There was no consideration whatsoever of the scale and appearance of the structures. There was no mention of the bright primary colours or the material of the airbags. There was no consideration of whether the brightly coloured inflatable structures were consistent with the surrounding rural character and the rural design of the existing buildings.
[44] As to the landscaping and screening, beyond citing the statement in the AEE that “existing vegetation” within Matakana Country Park would provide “ample screening” of the structures when viewed from 1 Takatu Road, the Council Planner gave no consideration to or assessment of the lack of any landscaping or screening of the structures. ITL says that there is only one tree within Matakana Country Park capable of providing any level of screening of the structures in excess of three metres in height. Finally, ITL argues that the infringement of the riparian yard required the ecological effects from the proximity of the activity to be assessed, including the noise effects from both the air compressors and users of the facility on freshwater, terrestrial and avian species within the riparian area. This did not occur. ITL notes that in her affidavit dated 19 October 2021, Ms Madsen, PP’s director and principal planner, attempts to provide that assessment after the fact. ITL says that such an approach is not appropriate on judicial review.
Discussion
[45] I am of the view that this case falls within the fundamental principle enunciated in Troughton v Western Bay of Plenty District Council,1 that any consent to what is applied for in a resource consent should be “yoked” to the application. As Keane J noted:2
Problems begin when a consent authority accepts a consent which is very general, and does not have at least the defining aspect of the application to which it relates attached…
[46] The defining aspect of the application was the size and scale of the adventure playground structures. The noise problem arose later, once the adventure playground was operational. At the time of the application and its processing by Council, both PP and the Council wrongly considered that any noise generated by the air compressor would not be discernible at the notional boundary.
[47] Mr Coghlan had described the areas of non-compliance in the “written approval of affected persons” form signed by Mr Freeth as:
Noise (children having fun) Visual
Adventure Park in Matakana 2 Precinct.
[48] Constant noise from the air compressors is not mentioned; presumably because the noise problem only arose later. The handwritten word “Visual” can actually be read as “Usual”. Mr Freeth says that is how he read the word, but that he did not ask Mr Coghlan what it meant. In any event, the single word “Visual” does not describe how the application is non-compliant.
[49] As to the two plans provided to and signed by Mr Freeth, the first merely showed where in the 50 acre property the adventure playground was to be situated. Both Council and MCPL say the second plan was, however, sufficient for the Council
1 Troughton v Western Bay of Plenty District Council HC Tauranga CIV-2003-470-238, 18 February 2004.
2 At [53].
Planner to reasonably conclude that the written approval was for the proposed activity. Council submits:
The plan did not show a traditional playground with a swing set and slide, but rather a jumping pillow, maze, ninja warrior course, bunjee run, climbing wall, krazy ladder, tarzan swings and trapeze.
[50] On the other hand, Mr Freeth says he understood from the single two- dimensional plan that these items would be play equipment for children spread across an area connected by pathways. He says there was nothing to suggest the playground equipment was anything other than what you would expect at a children’s playground at a primary school. He was not told that the prices charged on admission would be
$25 for a child under 12 years old, $30 for a student and $35 for an adult.
[51] MCPL says Mr Freeth regrets providing the written approval and is asking the Court to overturn the decision to grant resource consent on the basis that the operation of the activity does not “now suit” him. I have no doubt, however, that Mr Freeth was, as he says, “quite simply astounded” when he was first shown the plans lodged by MPCL with its application to Council for resource consent, by his own counsel on 14 March 2021. It is not a question of Mr Freeth changing his mind. He never knew or had any appreciation of the size and scale of the structures.
[52] Mr Coghlan chose not to provide Mr Freeth with the 31-page AEE which clearly described the size and scale of the structures, nor with the 10 pages of diagrams of equipment, all of which had been lodged with the application for resource consent.
[53] The one plan shown to Mr Freeth — relied upon by Council and MPCL as sufficient to properly inform Mr Freeth — showed the location and footprint of the structures to be sited in the adventure playground superimposed on an indistinct satellite image. It was, however, only two dimensional and there was no scale shown on it. It conveyed nothing of the size and scale of the structures.
[54] MCPL considered the ninja course as one of the prime attractions and attached four diagrams of various perspectives of it with its application for resource consent. The diagrams had dimensions which showed the height of the structure to be
8.08 metres. Human figures were also shown on the structure from which it could be ascertained that the structure was as high as about five adult persons.
[55] Mr Coghlan does not say why these were not shown to or signed by Mr Freeth. What Mr Freeth was shown was, however, insufficient to fully inform him of the size and scale of the structures. His written approval therefore proceeded on the basis of a misunderstanding as to the nature of the adventure playground.
[56] Furthermore, the written approval was not “yoked” to the application for resource consent. This activity was out of the ordinary and, in these circumstances, the Council was required to satisfy itself of the neighbour’s consent. There were difficulties and ambiguities throughout the processing of the application. PP initially submitted that the adventure playground structures were not buildings, that none of the structures exceeded nine metres in height (when the waterslide clearly did so), and that the noise generated by the air compressors would not be discernible at the notional boundary (when subsequent measurements show otherwise). MCPL did not initially apply for a variation to an existing consent notice that was registered against the title and which was necessary to enable an expanded range of activities to take place at the site.
[57] The Council proceeded on the erroneous assumption that the protrusion of the roof of the inflatable waterslide through the nine metre height envelope met the definition in Chapter J of the AUP(OP), and in the absence of any information that confirmed compliance with the relevant noise standards in Chapter E25. Instead, the Council Planner said she agreed with PP that “any noise … is unlikely to be discernible”. The Council Planner also states that she did not consider the water quality effects associated with erecting buildings within the riparian yard because that was not raised as an issue in the AEE and that such an assessment was simply irrelevant to the proposal, particularly as it involved inflatable structures being located in the area on a temporary basis.
[58] The Council Planner knew after visiting the site that the adverse effects on 1 Takatu Road would be more than minor. She did not agree with the conclusion of the AEE that the structures would not appear overly dominant because she had the full
suite of documents submitted with the application, including the AEE and 14 pages of plans and diagrams. Mr Freeth did not, however, have the full suite of documents available to the Council Planner when he gave his written approval to the application for resource consent. Upon receipt of the written approval, the Council Planner did not consider further the adverse effects on the owners or occupiers of 1 Takatu Road, including visual effects,3 notwithstanding that she felt that the amenity values of the property at 1 Takatu Road would be adversely affected.
[59] In all the circumstances, I am of the view that Council failed to properly consider whether or not Mr Freeth had consented to the application as lodged. That is an error of law. Apart from the pro forma consent form, Mr Freeth signed two plans. The first showed where on the 50 acre site the adventure playground was to be sited. The second plan contained more relevant information as to the location and footprint of each structure within the playground. But that was only part of the picture and a small part at that. The size and scale of the numerous structures, together with their bright primary colours, makes the adventure playground overly dominant in relation to the property at 1 Takatu Road. The written approval did not refer to the adventure playground’s size and scale, which is its defining aspect.
[60] It was not necessary for Mr Freeth to be shown and/or to have signed the full suite of documents. However, given the adventure playground’s overly dominant visual impact on 1 Takatu Road, something more than a two dimensional plan (without any scale) of the location and footprint of each structure was needed for Council to be satisfied that Mr Freeth’s consent to the application for resource consent was genuine..
[61] I am, accordingly, persuaded that the application for judicial review should be granted and the notification decision quashed. In those circumstances, it is unnecessary for me to consider ITL’s subsidiary and independent arguments. Having quashed the notification decision, the substantive decision also cannot stand, and it too must be quashed. The application for resource consent is referred back to Council for reconsideration.
3 In accordance with s 95E(3)(a) of the Resource Management Act 1991.
[62] The applicant is entitled to costs. If they cannot be agreed, memoranda are to be filed within 28 days of the date of this decision.
Woolford J
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