Keir v Auckland Council
[2023] NZHC 1658
•30 June 2023
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2022-404-446
[2023] NZHC 1658
UNDER the Judicial Review Procedure Act 2016 BETWEEN
JOHN RICHARD KEIR and RACHAEL
KEIR for themselves and as trustees of the JOHN RICHARD KEIR TRUST AND RACHAEL SIMMS TRUST
Applicants
AND
AUCKLAND COUNCIL
First Respondent
ROBERT SIMMS AND LYNETTE JEAN SIMMS
Second Respondents
Hearing: 3 April 2023 Appearances:
M Casey KC and A J Davidson for the Applicants No appearance by or for the First Respondent
DTD Horton for the Second Respondents (excused during the hearing)
Judgment:
30 June 2023
JUDGMENT OF GAULT J
This judgment was delivered by me on 30 June 2023 at 11:00 am pursuant to r 11.5 of the High Court Rules 2016.
Registrar/Deputy Registrar
……………………………………
Solicitors / Counsel:
Mr M Casey KC and Ms A J Davidson, Barristers, Auckland
Mr N Woods (applicants’ instructing solicitor), Rice Craig, Papakura Ms L E Bielby and Ms K Fraser, Rice Speir, Auckland
Ms DTD Horton, Barristers, Auckland
Mr T Gibbons (second respondents’ instructing solicitor), Thomas Gibbons Law, Hamilton
KEIR v AUCKLAND COUNCIL [2023] NZHC 1658 [30 June 2023]
[1] In this judicial review proceeding, the Keirs challenge Auckland Council’s decisions of 19 May 2021 not to notify the Simms’ application for, and to grant, subdivision consent (the 2021 consent) to the Simms to allow for the division of a family farm through rearrangement of titles owned by the Simms, their son Bruce Simms and the Keirs.
[2] As Mr Casey KC, for the Keirs, submitted, this case has two unusual features. First, the Keirs own two of the subject sites but were not considered to be affected persons for the purposes of notification.
[3] Secondly, while Auckland Council and the Simms filed statements of defence and a two day hearing was allocated, they subsequently advised that they did not intend to file evidence or submissions and would abide the decision of the Court.1
[4] Despite the nature of judicial review, there was no appearance by or for Auckland Council at the hearing. Ms Horton appeared for the Simms but during the hearing sought and was granted leave to be excused. As a result, the hearing continued in effect as a formal proof hearing and the two days allocated was not required.
Factual background
[5] The Keirs own two lots on the western side of Glenbrook Road (formerly Glenbrook Beach Road). They also own and live in a house on the neighbouring farm lot, on the eastern side of the road, owned by Ms Keir’s parents, the Simms. The Simms live in another house on the farm lot. The farm lot is operated as a dairy farm. The Keir and Simms houses are accessed by a severely degraded access way which also serves as the main cow race for relocating stock across the farm. The Simms own a further lot neighbouring the Keir lots on the western side of the road and their son, Bruce Simms, Ms Keir’s brother, owns another neighbouring lot on the same side. A plan of the various lots is attached to this judgment as appendix 1. Together, I refer to these lots as the subject land.
1 Auckland Council did so on 25 August 2022. The Simms did so on 9 February 2023.
[6] In 2011 / 2012 the Keirs and the Simms entered into understandings which resulted in the Keirs purchasing their two lots and building their house on the farm lot. The agreed intention was for the Keir lots to be amalgamated to free up a title for the Keir house to be subdivided from the farm lot and transferred to the Keirs.
[7] In July 2016, Ms Keir became aware that the newly introduced proposed Auckland Unitary Plan was going to change the rules that applied to the subject land and that the intended amalgamation of the Keir lots and subdivision of the Keir house may not be approved under the new rules. The Keirs therefore engaged surveyors urgently to prepare and lodge an application for subdivision consent to give effect to the agreement between the Keirs and the Simms to subdivide the Keir house and land. That application was granted by Auckland Council on 8 August 2016 (the 2016 consent). The 2016 consent has been the subject of variations since that time.
[8]Key features of the 2016 consent are as follows:
(a)Two small lots are subdivided from the farm lot – one lot containing the Keir house and the other containing the Simms house.
(b)The remainder of the farm lot is amalgamated with the land located on the western side of (former) Glenbrook Beach Road owned by the Simms.
(c)the house lots are served by a right-of-way over the farm lot which provides vehicular access, as well as power and telephone services, from (former) Glenbrook Beach Road. The right-of-way has a minimum pavement standard and a required legal width of six metres, a formed width of four metres and a metal width of three metres and is required to be constructed prior to issue of the completion certificate under s 224(c) of the Resource Management Act 1991 (RMA).
(d)The Keir lots are amalgamated into a single lot. No specified building areas are included as conditions of the consent, meaning there is no restriction in the 2016 consent as to where a house could be built.
(e)The Bruce Simms lot is slightly enlarged.
[9] Titles for the 2016 consent have not been issued. The 2016 consent has a five year lapse date, which has been extended by one year, and survey plans have been submitted for both stages, meaning the consent has not yet lapsed.
[10] From approximately 2018, there was a gradual deterioration of the relationship between the Keirs, the Simms and Bruce Simms.
[11] The 2021 consent provides for subdivision of the subject land, amalgamating the Keir lots, subdividing the Keir house, amalgamating the Simms’ property with the farm lot and subdividing the Simms’ house. The main differences are that the right- of-way in the 2016 consent is not required to be constructed until after the Keir and/or Simms houses are sold outside the family, the addition of specified building areas to the Keir lots, and the farm lot is divided into two.
[12] The 2021 consent was applied for by the Simms, in conjunction with Bruce Simms, without the knowledge or agreement of the Keirs.
[13] In December 2019 the Simms arranged a pre-application meeting with Auckland Council for a new subdivision consent for the subject land. In April 2020, the Simms’ planning adviser, Mr Brown of CKL, explained to Auckland Council that his clients and the Keirs were not seeing “eye to eye” and that the Simms wanted an option that precluded any chance that the Keirs could legally stop them from implementing their plans to subdivide the farm with the inclusion of the Keir properties in their scheme. The correspondence indicates that the Simms wished to take advantage of the 2016 consent as a precedent to allow the 2021 consent to be approved.
[14] The application for the 2021 consent was lodged with Auckland Council in late November 2020, and there was correspondence between the Council and CKL from approximately December 2020 to May 2021.
[15] The Keirs first learned of the application on 21 April 2021 through their planning adviser, Ms Nairn. She immediately requested a copy of the application and plans, which were provided by the Council. On 22 April 2021 the Keirs advised Council that they were the owners of the Keir lots included in the application, that they had not given consent to the application and requested a full copy of the application. No further information was provided by Auckland Council.
[16] The Keir’s solicitor wrote to the Council advising it of the Keir’s interest in the application on 28 April 2021. The Keirs also wrote to Council on 11 and 16 May 2021. This correspondence recorded that they had not had any request for approval, consultation or information from the Simms in the preparation of the application, and had not provided permission, approval or consent. They also outlined a range of concerns about the application and asked that they be identified as affected persons so that they could have the opportunity to make a submission and be heard on the issue of how they, their family home and properties were to be affected.
[17] On 19 May 2021 Auckland Council decided to process the application on a non-notified basis and to grant the 2021 consent.
Non-notification decision
[18] The non-notification decision was based on a report prepared by a senior planner in the Resource Consents team of Auckland Council dated 17 May 2021. The report identified the subdivision as a non-complying activity under the Auckland Unitary Plan.
[19] The report referred to correspondence from the Keirs advising that they considered themselves to be affected parties. The report acknowledged they were owners of the Keir lots and occupied the Keir dwelling but noted that they were not owners of the land on which that dwelling was located.
[20] The report stated that adverse effects of the application on the environment and potential affected parties had been assessed. It stated that “private agreements or legal arrangements between the applicants and the Keirs are not matters to be considered under the RMA”.
[21] The assessment of effects commenced with considering the receiving environment:
Receiving Environment
The receiving environment beyond the subject site includes permitted activities under the relevant plans, lawfully established activities (via existing use rights or resource consent), and any unimplemented resource consents that are likely to be implemented. The effects of any unimplemented consents on the subject site that are likely to be implemented (and which are not being replaced by the current proposal) also form part of this reasonably foreseeable receiving environment. This is the environment within which the adverse effects of this application must be assessed.
[22] The report noted that the previously consented boundary relocation subdivision (the 2016 consent) had not yet been implemented and was to lapse in August 2021. It stated that implementation of the consent required the survey plan to be lodged with Council for approval under s 223 of the RMA. It said this would be “achievable” prior to the lapse date. It stated that the 2016 consent is a boundary relocation consent that created five new titles from five existing titles in a similar configuration to the current proposal.
[23] On the basis that the 2016 consent formed part of the receiving environment, the report set out the main adverse effects on the environment of the current proposal that may be discounted by the receiving environment. More particularly, the report considered that, apart from persons who have provided their written approval, no other person was considered adversely affected by the proposal because, relevantly:
·The new access to Lots 1 & 2 [the house lots] along the northern boundary of Lot 3/7 [the farm lot] was also anticipated by the existing consent and would serve two rural residential lots with relatively low traffic generation.
·… There were no identified house sites on the existing titles comprising Lot 6 [the amalgamation of the Keir lots] and a dwelling could be constructed anywhere on the site… any future dwelling on Lot 6 would have less than minor visual or privacy effects on the owners or occupiers of adjacent properties.
·Adverse effects on the owners of [the Keir lots] would be less than minor as there were no changes to the boundaries of Lot 6 [the amalgamation of the Keir lots] compared with the consented boundary relocation…
·There would be less than minor adverse effects on the occupants of the dwelling on proposed Lot 2 [the Keir house lot] taking into consideration the receiving environment, as the shared access to Lots 1 & 2 [the house lots] was in generally the same location as originally proposed, the area of Lot 2 was almost the same and the wastewater field serving the dwelling would be within the lot.
·Adverse effects on owners and occupiers of the application site and adjacent sites would therefore be less than minor.
[24] The report also concluded that, in relation to the existence of any special circumstances, that there was nothing exceptional or unusual about the application, and that the proposal had nothing out of the ordinary run of things to suggest that notification to any other persons should occur.
[25] The senior planner’s report recommended that the application be proposed non-notified.
[26] The notification determination was made by the delegated decision maker, Mr Andrews, principal planner, Resource Consents, “for the reasons set out in the above assessment and recommendation”.
2021 consent decision
[27]The 2021 consent decision stated:
Decision
I have read the application, supporting documents, and the report and recommendations on the application for resource consent. In determining the reporting planner’s notification assessment, I have taken particular regard to the matters raised in correspondence from J and R Keir. I am satisfied that those matters of relevance raised have been appropriately addressed in the planner’s report where the Keirs address environmental effects or adverse
effect to them. I find as owners of part of the properties to which the subdivision application relates, does not in itself lead to a special circumstance. Whether or not other statutory processes could limit the ability of this consent to be enacted have not influenced my resource management determination. I am further satisfied with the adequacy of the information submitted for the consideration of the matters required by the Resource Management Act 1991 (RMA) and make a decision under delegated authority on the application.
Acting under delegated authority, under sections 104, 104D, 104B, 106 and Part 2 of the RMA, the resource consent is GRANTED.
[28]The reasons for this decision relevantly included:
The receiving environment includes the [2016 consent] and that included the creation of the rural residential lots 1 & 2 around existing dwellings and the shared access to those lots along the northern boundary together with the amalgamation of titles on the west and the east of Glenbrook Beach Rd which are linked by stock underpass and the amalgamation of two existing titles to form Lot 6.
…
… the assessment relies upon the [2016 consent], consented under the provisions of the Auckland Council District Plan: Franklin Section as forming part of the receiving environment. That consent could be given effect to before it’s [sic] lapse date on 8 August 2021 by the submission of the survey plan to Council for approval under s223 RMA.
…
Overall, the proposal is considered to be acceptable given the receiving environment, identification of specified building areas on vacant lots which maintain rural character and amenity and lot sizes and configuration that retains productive potential of prime soils.
[29] The 2021 consent decision imposed conditions, including the ability to implement the 2021 consent in stages, the second stage comprising all dealings with the Keir lots and Keir house. Consent notices were needed to:
(a)secure the obligation to form the new accessway before the house lots are transferred or sold to new owners who are not (direct) family members of the Simms;
(b)require any dwelling or associated accessory building within Lot 6 to be located entirely within only one of the specified building areas identified on the approved plan.
Relevant statutory provisions
[30] Applications for resource consent must be assessed under s 95A of the RMA to determine whether public notification is required. If not, the consent authority must go on to consider whether limited notification is required. Section 95B sets out a stepped test for determining who is required to be limited notified. Relevantly, under step 3, s 95B provides:
Step 3: if not precluded by step 2, certain other affected persons must be notified
(7)In the case of a boundary activity, determine in accordance with section 95E whether an owner of an allotment with an infringed boundary is an affected person.
(8)In the case of any other activity, determine whether a person is an affected person in accordance with section 95E.
(9)Notify each affected person identified under subsections (7) and (8) of the application.
[31]Section 95E provides:
95E Consent authority decides if person is affected person
(1)For the purpose of giving limited notification of an application for a resource consent for an activity to a person under section 95B(4) and
(9) (as applicable), a person is an affected person if the consent authority decides that 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 assessing an activity's adverse effects on a person for the purpose of this section,—
(a)may disregard an adverse effect of the activity on the person if a rule or a national environmental standard permits an activity with that effect; and
(b)must, if the activity is a controlled activity or a restricted discretionary activity, disregard an adverse effect of the activity on the person if the effect does not relate to a matter for which a rule or a national environmental standard reserves control or restricts discretion; and
(c)must have regard to every relevant statutory acknowledgement made in accordance with an Act specified in Schedule 11.
(3)A person is not an affected person in relation to an application for a resource consent for an activity if—
(a)the person has given, and not withdrawn, approval for the proposed activity in a written notice received by the consent authority before the authority has decided whether there are any affected persons; or
(b)the consent authority is satisfied that it is unreasonable in the circumstances for the applicant to seek the person’s written approval.
(4)Subsection (3) prevails over subsection (1).
[32] Here, the activity was non-complying so there was no limit under s 95E(2) on the effects that could be considered. For the purposes of s 95E (3), Bruce Simms had given written approval, but the Keirs had not. There was no suggestion it would have been unreasonable to have sought their approval.
[33] In the case of non-complying activities, s 87A(5) provides that the consent authority may:
(a)decline the consent; or
(b)grant the consent, with or without conditions, but only if the consent authority is satisfied that the requirements of s 104D are met and the activity must comply with the requirements, conditions, and permissions, if any, specified in the Act, regulations, plan or proposed plan.
[34] Section 104D imposes a threshold whereby a consent authority may grant a resource consent for a non-complying activity only if it is satisfied that either:
(a)the adverse effects of the activity on the environment (other than any effect to which s 104(3)(a)(ii) applies) will be minor; or
(b)the application is for an activity that will not be contrary to the objectives and policies of—
(i)the relevant plan, if there is a plan but no proposed plan in respect of the activity …
[35] The Auckland Unitary Plan was the only relevant plan at the time the 2021 consent was processed.
[36]More generally, s 104 relevantly provides:
104 Consideration of applications
(1)When considering an application for a resource consent and any submissions received, the consent authority must, subject to Part 2 and section 77M, have regard to–
(a)any actual and potential effects on the environment of allowing the activity; and
…
(b)any relevant provisions of—
…
(vi) a plan or proposed plan; and
(c)any other matter the consent authority considers relevant and reasonably necessary to determine the application.
(2)When forming an opinion for the purposes of subsection (1)(a), a consent authority may disregard an adverse effect of the activity on the environment if a national environmental standard or the plan permits an activity with that effect.
…
(3)A consent authority must not,—
(a)when considering an application, have regard to—
…
(ii)any effect on a person who has given written approval to the application:
…
(d)grant a resource consent if the application should have been notified and was not.
…
(6) A consent authority may decline an application for a resource consent on the grounds that it has inadequate information to determine the application.
Approach to judicial review of non-notification decisions
[37] As Mr Casey submitted, the Court’s approach to judicial review of non-notification decisions was summarised in Coro Mainstreet (Inc) v Thames-Coromandel District Council:2
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.3
[38] In Lysaght v Whakatane District Council, Whata J summarised the approach as follows:4
Judicial review is not an opportunity to revisit the merits of a decision made by a Council to proceed on a non-notified basis or to grant a consent.5 An applicant for review must identify an error of law, failure to have regard to a relevant consideration, regard to an irrelevancy, unreasonableness or procedural unfairness. Overall, the objective of the review process is to secure both legality and substantive fairness. To this end, I must examine the Council’s decisions and reasons to ensure that the statutory discretion conferred by s 95E was exercised lawfully and fairly. 6
[39] In that case, Whata J also summarised the framework for notification assessment:7
Consent authorities must notify “affected persons” of resource consent applications.8 Section 95E(1) states that “a person is an affected person if the consent authority decides that the activity’s adverse effects on the person are minor or more than minor (but not less than minor).”9 “Less than minor”
2 Coro Mainstreet (Inc) v Thames-Coromandel District Council [2013] NZHC 1163, [2013] NZRMA 442 at [40]; upheld on appeal [2013] NZCA 665. [2014] NZRMA 73. See also Tasti Products v Auckland Council [2016] NZHC 1673, [2017] NZRMA 22 at [35].
3 Quarantine Waste NZ Ltd v Waste Resources [1994] NZRMA 524 (HC) at 548; Elderslie Park Ltd v Timaru District Council [1995] NZRMA 433 (HC) at 451.
4 Lysaght v Whakatane District Council [2021] NZHC 68, [2021] NZRMA 423 at [42].
5 Ennor v Auckland Council [2018] NZHC 2598, [2019] NZRMA 150 (HC) at [30].
6 McGrath v Accident Compensation Corporation [2011] NZSC 77, [2011] 3 NZLR 733 (SC) at [31].
7 Lysaght v Whakatane District Council [2021] NZHC 68, [2021] NZRMA 423 at [4].
8 Resource Management Act 1991, s 95B(8).
9 Section 95E.
means an effect insignificant in the “overall context” and so limited that it is objectively acceptable and reasonable in the receiving environment and to potentially affected persons.10 The exercise of discretion not to notify bears on natural justice considerations: a party who is not notified of an application is precluded from having input into the decision.11 Therefore, decisions not to notify a potentially affected person attract close scrutiny on judicial review where the court is required to assess whether, as here, a decision was open to the decision maker on the basis of adequate information before it.12 The effects must, however, be environmental effects,13 though this includes effects on people and communities.14 An “effect” also includes any cumulative effect which arises over time and any potential effect of high probability and any potential effect of low probability which has a high potential impact.15 However, where an activity is a restricted discretionary activity, only those effects of those parts of the activity subject to restricted discretionary assessment are relevant.16
Grounds of review / issues
[40] The Keirs say that both the notification decision and the 2021 consent decision suffered from errors of law which can be summarised as follows:
(a)Auckland Council was wrong to treat the 2016 consent as part of the receiving environment for the purposes of assessing the application for the 2021 consent.
(b)Given the 2016 consent did not form part of the receiving environment, the Council failed to have regard to relevant effects on the Keirs.
(c)If the 2016 consent did form part of the receiving environment, the Council nevertheless failed to have regard to relevant effects on the
10 As stated by Davidson J in Gabler v Queenstown Lakes District Council [2017] NZHC 2086, (2017) 20 ELRNZ 76 at [94]. See also McMillan v Queenstown Lakes District Council [2017] NZHC 3148, (2017) 20 ELRNZ 606, [2019] NZRMA 256 (HC) at [12]-[14] and Ennor v Auckland Council [2018] NZHC 2598, [2019] NZRMA 150 (HC) at [9].
11 Discount Brands v Westfield (New Zealand) Ltd [2005] NZSC 17, [2005] 2 NZLR 597 at [25], [26] and [116].
12 Pring v Wanganui District Council (1999) 5 ELRNZ 464 (CA) at 523; Discount Brands v Westfield [2005] NZSC 17, [2005] 2 NZLR 597 at [116]; Auckland Council v Wendco (New Zealand) [2017] NZSC 113, [2017] 1 NZLR 1008 at [37], though I note also the observation by the majority in Wendco at [47] that it is arguable a “less exacting standard” should now be adopted.
13 Seafield Farm (HB) Ltd v Hastings District Council [2018] NZHC 1980, (2018) 20 ELRNZ 746 at 755 citing Discount Brands v Westfield [2005] NZSC 17, [2005] 2 NZLR 597at [109].
14 Resource Management Act 1991, s 2.
15 Section 3.
16 Section 95E(2)(b). See also Auckland Council v Wendco (New Zealand) Ltd [2017] NZSC 113, [2017] 1 NZLR 1008 at [6].
Keirs by reason of the differences between the 2016 consent and the 2021 consent.
(d)Irrespective of the receiving environment, the Council failed to consider relevant adverse effects on the Keirs, including due to inadequate or inaccurate information provided to it by the Simms.
(e)The notification and 2021 consent decisions were manifestly unreasonable.
[41]I deal in turn with the issues raised in these grounds of review.
Receiving environment
[42] The Keirs do not dispute the test as stated by the Council except insofar as it said “must” in its statement set out above at [21]. The claim is primarily that the Council failed to apply the test to the facts.
[43] In Queenstown Lakes District Council v Hawthorn Estate Ltd, the Court of Appeal found that consents that had been granted and were likely to be implemented were to be considered part of the environment against which the effects of a proposed activity were to be addressed:17
In summary, we have not found … any reason to depart from the conclusion which we have reached by considering the meaning of the words used in s 104(1)(a) in their context. In our view, the word “environment” embraces the future state of the environment as it might be modified by the utilisation of rights to carry out permitted activity under a district plan. It also includes the environment as it might be modified by the implementation of resource consents which have been granted at the time a particular application is considered, where it appears likely that those resource consents will be implemented.
[44] In this context, likely to be implemented is to be distinguished from the less exacting non-fanciful test in the permitted baseline context.18
17 Queenstown Lakes District Council v Hawthorn Estate Ltd [2006] NZRMA 424 (CA) at [84].
18 See, for example, Arrigato Investments Ltd v Auckland Regional Council [2002] 1 NZLR 323, [2001] NZRMA 481 (CA) at [29]; and Protect Aotea v Auckland Council [2022] NZHC 1428.
[45] As Mr Casey submitted, while Hawthorn concerned the extent to which the environment might include future development on land surrounding the application site, in Far North District Council v Te Runanga-A-Iwi O Ngati Kahu the Court of Appeal confirmed that it also applied to the subject site.19
Was the 2016 consent likely to be implemented?
[46] As indicated, Auckland Council’s non-notification decision said that implementation of the 2016 consent before the lapse date in August 2021 was “achievable” and the 2021 consent decision noted that it “could be given effect to” before that date. Both decisions referred to the submission of a survey plan under s 223 as amounting to the consent being implemented.
[47] Mr Casey submitted there are two errors in the Council’s approach. First, the decision maker adopting the report did not turn his mind to whether it was “likely” that the 2016 consent would be implemented. Secondly, the decision maker erred in treating the submission of a survey plan for approval under s 223 as implementing the 2016 consent.
[48] I accept the submission that the Council appears not to have applied the correct test. References to “achievable” and “could be given effect to” set the bar too low.
[49] I also accept that submitting a survey plan for approval under s 223 was not sufficient to mean that the consent was likely to be implemented. If the Council had in mind s 125(3) of the RMA, it provides that a subdivision consent is given effect to when the survey plan in respect of the subdivision has been submitted under s 223 but that is only for the purposes of that section, which does no more than prevent a consent from lapsing for up to three years, being the time within which, under s 224, the survey plan must be deposited. The Council still needed to consider whether it was likely that the subdivision would be completed. Before the survey plan could be deposited, the conditions of the 2016 consent would need to have been met. These included constructing the vehicle crossings, culverts and driveways. That is the relevant
19 Far North District Council v Te Runanga-A-Iwi O Ngati Kahu [2013] NZCA 221 at [95].
implementation, changing the environment in a relevant way, that the Council needed to determine was likely to occur.
[50] As Mr Casey submitted, if the Council had applied the correct test, the only reasonable conclusion was that it was unlikely the 2016 consent would be implemented. The correspondence between Mr Brown of CKL and the Council indicates that the Council knew of the disagreement within the family and that the Simms had no intention of agreeing to implement the 2016 consent. With only two and a half months to run of a five year lapse period, in the absence of any stated intention to implement the 2016 consent within that period, the Council could not assume it was likely to be implemented. Completion of the 2016 consent required construction of the new right-of-way, which the Simms had indicated to the Council they did not want to construct as they considered it unnecessary and too expensive.
[51] The 2021 consent applied to the same subject land and was clearly intended to replace the 2016 consent in its entirety. This in itself called into question whether the 2016 consent was likely to be implemented.
[52] In these circumstances, the use of the 2016 consent purely to take advantage of a baseline for assessment, was flawed. As the Court of Appeal said in Hawthorn:20
It will always be a question of fact as to whether or not an existing resource consent is going to be implemented. If it appeared that a developer was simply seeking successively more intensive resource consents for the same site there would inevitably come a point when a particular proposal was properly to be viewed as replacing previous proposals. That would have the consequence that all of the adverse effects of the later proposal should be taken into account, with no “discount” given for consents previously granted.
[53] In Arrigato Investments Ltd v Auckland Regional Council, the Court of Appeal had earlier made a similar observation:21
There may be circumstances when it would be appropriate to regard the activity involved in an unimplemented resource consent as being part of the permitted baseline, but equally there may be circumstances in which it would not be appropriate to do so. For example implementation of an earlier resource consent may on the one hand be an inevitable or necessary precursor of the
20 Queenstown Lakes District Council v Hawthorn Estate Ltd [2006] NZRMA 424 (CA) at [79].
21 Arrigato Investments Ltd v Auckland Regional Council [2002] 1 NZLR 323, [2021] NZRMA 481 (CA) at [35].
activity envisaged by the new proposal. On the other hand the unimplemented consent may be inconsistent with the new proposal and thus be superseded by it. We do not think it would be in accordance with the policy and purposes of the Act for this topic to be the subject of a prescriptive rule one way or the other. Flexibility should be preserved so as to allow the consent authority to exercise its judgment as to what bearing the unimplemented resource consent should have on the question of the effects of the instant proposal on the environment.
[54] I also accept Mr Casey’s submission that the Council should have turned its mind to whether the fact that the 2016 consent was being used purely as a mechanism to achieve consent under a more stringent planning regime, meant that the 2016 consent being replaced ought not to have been treated as part of the environment.
Failure to have regard to relevant effects on the Keirs?
[55] Mr Casey submitted that if the 2016 consent did not form part of the receiving environment, then the Council’s decision wrongly disregarded certain effects on the basis they were also effects of the 2016 consent. The report identified a number of effects that were disregarded in reliance on the 2016 consent. These include effects on the environment and effects on the Keirs, as indicated.
[56] On the basis that the Council wrongly treated the 2016 consent as part of the environment, I accept there were relevant adverse effects on the Keirs which the Council failed properly to consider. In particular, as Mr Casey submitted, under the 2021 consent the Keir lots were to be amalgamated into a single lot. As the Unitary Plan allows for one dwelling per lot as of right (subject to meeting various standards), the effect of the amalgamation was to reduce the Keir’s ability to develop their land from two dwellings to one. Further, any construction needed to be in one of the two small specified building areas which the Keirs had no input into selecting. This amounts to a constraint that is not less than minor.
[57] Secondly, the Keir house was to be separated from the farm lot by a new boundary which the Keirs say appears to intercept their existing septic dispersal field and compromises the buffer area to the surrounding farmland. As Mr Casey submitted, the Council ought to have, but did not, consider whether that would have at least a minor effect on the Keir’s residential amenities.
[58] I accept that had the Council approached the assessment in the correct way, it ought to have been clear that there would be at least a minor effect on the Keirs such that they qualified as affected persons for the purposes of notification.
[59] For these reasons, I conclude that the Council’s notification decision erred. Given that the same errors infect the 2021 consent decision, and that a consent authority must not grant a resource consent if the application should have been notified,22 it follows that the consent decision also suffered from errors of law.
If the 2016 consent was part of the environment
[60] In the alternative, Mr Casey submitted that, even if the 2016 consent was part of the environment, the Council’s assessment was still incorrect. Given my earlier conclusions, I address this alternative submission only briefly.
[61] I accept that if the environment included the 2016 consent, then changes to that consent needed to be carefully considered. Mr Casey identified three key differences between the 2016 consent and the 2021 consent relevant to the Keirs:
(a)the removal of the requirement to construct an appropriate right-of- way, to engineering standards, servicing the Keir house;
(b)the identification of specified building areas on the Keir lots; and
(c)the change of the boundaries of lot 2 around the Keir house.
[62] I accept that the requirement in the 2016 consent that a right-of-way be constructed to engineering standards and free from stock use at the time of the subdivision of the Keir house from the farm lot was an important aspect for the Keirs. The evidence indicates that the existing access way is inadequate. The 2021 consent, however, was advanced on the basis that the right-of-way would not be constructed until the new house lots were sold outside the family. The Council officer sought more information on that issue. The response stated that:
22 Resource Management Act 1991, s 104(3)(d).
The existing driveway has served the existing dwellings on proposed lot 1 and
2 as well as the farm for several years now and the construction of a completely new driveway, given its length, is considered a disproportionate and unnecessary cost in the circumstances.
[63] As Mr Casey submitted, if the 2016 consent formed part of the environment, the observation that the existing dwellings currently used the existing driveway was strictly incorrect. Assuming the 2016 consent would be implemented, the new driveway would be assumed to be in place. Properly understood, the application was not for continuation of use of the existing driveway but the removal of the ability to use a new right-of-way constructed to engineering standards and required the Keirs to use a cow race to access their home instead. Therefore, the 2021 consent adversely affected the accessibility and residential amenity of the Keirs as owners and occupiers of the Keir house. The change could not be said to involve a less than minor adverse effect on the Keirs. The Council failed properly to address the effects on the Keirs of removing the obligation in the 2016 consent to deliver the new driveway.
[64] Further, the 2016 consent did not limit where on the amalgamated Keir lots a dwelling could be constructed. The planning evidence of Ms Nairn estimated that approximately 60 per cent of the title would have been available for building under the 2016 consent, but under the 2021 consent this is reduced to approximately four per cent. That is a significant limitation on the Keir’s ability to develop their land as they choose. As indicated, they had no input into the identification of the specified building areas. The Council considered only whether construction of houses within the specified building areas would have effects outside the Keir lots, that is, on the owners or occupiers of adjacent properties. The Council did not consider whether the effect of that restriction on the Keirs might have at least a minor effect.
[65] Also, in considering that the area of lot 2 was almost the same as in the 2016 consent, the Council did not recognise the effect on the Keirs of the fact that the new location of the southern boundary of lot 2 would intercept the Keir’s septic dispersal field, nor that its location in the 2016 consent created a buffer between the Keir’s house and the surrounding farmland which is compromised by its relocation under the 2021 consent.
[66] For these reasons, I accept that even if the 2016 consent were part of the environment, the Council’s assessment still erred.
Reliance on incorrect information
[67] As a further alternative, Mr Casey submitted that the adequacy of the existing driveway to provide access to a residential property was a question that properly arose regardless of whether the 2016 consent was in play, and the information provided by the applicant was incorrect in material respects. Again, I address this alternative only briefly.
[68] In determining who is an affected person for the purposes of notification, the Council must have adequate information before it.23 While a question arises as to whether the level of scrutiny in relation to the adequacy of information set out by the Supreme Court in Discount Brands Ltd v Westfield (New Zealand) Ltd 24 has changed as a result of subsequent amendments to the RMA, the Court of Appeal has recently found no need to revisit the standard in two cases where a less exacting standard was not pursued.25
[69] There is force in Mr Casey’s submission that regardless of the level of scrutiny applied, the information relied on by the Council in relation to the driveway was inadequate as to the extent of stock use on the accessway, informal passing bays and good sight lines.
Unreasonableness
[70] As a further alternative, Mr Casey submitted that the decision making process had gone awry and resulted in a manifestly unreasonable outcome. It is unnecessary to address this ground of review in any detail. I accept that given the impacts on the Keirs already referred to there is force in Mr Casey’s submission that the decision not
23 Tasti Products v Auckland Council [2016] NZHC 1673, [2017] NZRMA 22 at [46]; Ennor v Auckland Council [2018] NZHC 2598, [2019] NZRMA 150 at [31]; O’Keeffe v New Plymouth District Council [2020] NZHC 3099 at [43]-[51].
24 Discount Brands Ltd v Westfield (New Zealand) Ltd [2005] NZSC 17, [2005] 2 NZLR 597.
25 Norman v Tepūna Maunga o Tāmaki Authority [2022] NZCA 30, [2022] 3 NZLR 175 at [261]; and NZ Southern Rivers Society Inc v Gore District Council [2021] NZCA 296, [2022] NZRMA 50 at [28].
to notify the Keirs was one that no reasonable consent authority, having adequate and accurate information, could have made.
Conclusion
[71] For these reasons, I conclude that the Council’s notification and 2021 consent decisions suffered from errors of law. The errors were material and there is no reason to decline relief in the exercise of the Court’s discretion. Both decisions should be quashed. If the Simms’ application for consent is pursued, it will need to be reconsidered by the Council.
[72] The Keirs also seek by way of consequential relief that the Council’s decision on or about 16 September 2021 to approve the survey plan for the 2021 consent, under s 223 of the RMA, be quashed. In the circumstances of this case, I accept that such consequential relief is appropriate. The survey plan is reliant on the 2021 consent.
Result
[73] The application for judicial review is granted. Auckland Council’s decisions of 19 May 2021 not to notify the Simms’ application for, and to grant, subdivision consent to the Simms are quashed.
[74] The Council’s decision to approve the survey plan for the 19 May 2021 subdivision consent is also quashed.
Costs
[75] If costs cannot be agreed, memoranda not exceeding three pages are to be filed within 20 working days and I will determine costs on the papers.
Gault J
APPENDIX 1
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