Love Te Arai Society Incorporated v Auckland Council
[2024] NZHC 108
•8 February 2024
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2022-404-2215
[2024] NZHC 108
IN THE MATTER of an application for judicial review under
the Judicial Review Procedure Act 2016 and Part 30 of the High Court Rules
BETWEEN
LOVE TE ARAI SOCIETY INCORPORATED
Applicant
AND
AUCKLAND COUNCIL
First Respondent
AND
O’CALLAGHAN HOLDINGS LIMITED
Second Respondent
Hearing: 25 September 2023 Appearances:
LCA Farmer and T Westaway for the Applicant SF Quinn and K Parker for the First Respondent M Savage for the Second Respondent
Judgment:
8 February 2024
JUDGMENT OF FITZGERALD J
This judgment was delivered by me on 8 February 2024 at 11.00am, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date……………
Solicitors: Lindsay & Francis, Auckland
DLA Piper, Auckland
North Harbour Law, Auckland
To:L Farmer, Auckland M Savage, Auckland
LOVE TE ARAI SOCIETY INCORPORATED v AUCKLAND COUNCIL [2024] NZHC 108 [8 February 2024]
Introduction
[1] Love Te Arai Society Incorporated (the Society) applies for judicial review of Auckland Council’s (the Council’s) decision to grant a resource consent to O’Callaghan Holdings Ltd (OHL), to operate a contractors’ yard at a site on Lake Road, Te Arai (the Site). The Society also applies for review of the Council’s decision to process OHL’s application on a non-notified basis. The Society’s purposes and objectives include the protection and enhancement of the environmental character of the Te Arai District, hence its interest in the Council’s decision-making in relation to the Site.
[2] Until 2020, part of the Site was used to operate a quarry. The quarry had been in operation for many years (since around 1981) but, over time, had expanded its operations well beyond what was permitted under a 1981 resource consent. Operation of the quarry, and the associated truck movements to and from the Site, gave rise to many complaints by concerned locals. In 2018, the then owner of the Site applied for a resource consent,1 first to “regularise” the existing quarry operations and, second, in relation to a proposed — and substantial — expansion of the quarry.
[3] The Council declined the application, both in relation to the existing quarry operations and the proposed expansion. In a 2020 decision, which is of central relevance to the present proceedings, the Environment Court upheld the Council’s decision (the Quarry Decision).2
[4] A key aspect of the Society’s present application for judicial review is its submission that the Council’s decisions to grant the contractors’ yard consent and to process OHL’s application on a non-notified basis were unlawful because the Council failed to take into account the Quarry Decision when making those decisions. The Society says that the Quarry Decision was a mandatory relevant consideration, in that it was a recent Environment Court decision addressing an industrial activity at the Site, giving rise to the very same types of environmental effects as the proposed contractors’
1 OHL only purchased the Site shortly before proceedings in the Environment Court in relation to the quarry operations.
2 Lake Road Preservation Society Inc v Lake Road Quarry Ltd [2020] NZEnvC 27 [Quarry Decision]. The Society was a party to the Environment Court proceedings.
yard. The Society submits that the information contained in the Quarry Decision would have presented a balanced picture of the actual and likely environmental effects of the contractors’ yard, and highlighted the longstanding public concern about and interest in industrial activity at the Site. The Society says that, had the Quarry Decision been taken into account, the contractors’ yard consent would not have been granted or, at the very least, OHL’s application would have proceeded on a notified basis.
[5] The Council and OHL oppose the application for review. They say that the quarry operations and the operation of a contractors’ yard are very different activities. They accept that both activities give rise to similar types of effects, such as traffic movements, noise, and dust. However, the Council and OHL say that all relevant effects of the proposal actually before the Council — namely the contractors’ yard — were taken into account by the Council and found to be less than minor. They submit that an earlier Environment Court decision about a quite different activity, operating at a significantly greater scale, was not a mandatory relevant consideration. The Council and OHL also dispute that OHL’s application for a resource consent should have proceeded on a notified basis, submitting in particular that community interest in an earlier and different activity at the Site is not itself a reason to have notified the application.
[6] Before addressing the Society’s pleaded grounds for review and the parties’ submissions on them, it is helpful to summarise the history of the quarry operations at the Site, the Quarry Decision, and the factual background to the Council’s decisions in relation to OHL’s application.
Factual background
The Site and the quarry operations
[7] The Site is located within the Te Arai District. A feature of the District is the Te Arai stream, which is home to rare species of native fauna and, in particular, the New Zealand fairy tern, the Australasian bittern, and “inanga”, an at risk native
freshwater fish.3 In the Quarry Decision, the Environment Court described the Site as being “relatively close” to the Te Arai stream.4
[8] The Site itself is around 51 hectares in size. It was originally a farm and, from around 1981, a quarry was operated on it. In 1981, a resource consent was granted permitting the extraction of 2,000 m3 of material per year and around four truck movements per day (two in and two out). The Environment Court described such operations as having “no discernible impact” on the surrounding rural environment.5
[9] However, from around 1999, the quarry operations expanded, covering around 15 hectares of the Site. By 2011, approximately 15,000 m3 was being extracted per year, which generated a significant increase in road traffic associated with the extra tonnage. By 2018 (when the resource consent for the quarry was lodged), the Environment Court estimated that approximately 60,000 m3 of material was being extracted annually, with associated traffic movements of around 80 per day.6 The 2018 application for resource consent sought to legitimise this existing activity.
[10] As noted, the application also sought consent for a significant expansion to the quarry (to extend operations to around 38 hectares of the Site, with the quarry footprint itself to extend to 20 hectares), which would increase the amount of material extracted to 130,000 m3 per annum and the number of associated traffic movements to approximately 180 per day.
The Quarry Decision
[11] The application for a resource consent proceeded on a notified basis (at the then owner of the Site’s request). The Society was one of some 300 persons or parties
3 Juvenile inanga are also known as whitebait.
4 Quarry Decision, above n 2, at [11](g).
5 At [131].
6 At [19](ii). I note that, at [154] of the Quarry Decision, the Court refers to “80 trucks per day” (emphasis added), which could suggest up to 160 traffic movements per day (i.e. 80 trucks, each driving into, and then out of, the Site). However, the Court’s discussion of the quarry operations in 2018 is clear that the (then) existing operations involved a total of 80 traffic movements (at [19](ii)). At the hearing, Mr Savage, counsel for OHL, suggested that the reference at [154] of the Quarry Decision to “80 trucks” equated to 480 trucks (on a six-day basis) or 960 traffic movements per week. For the reasons just given, I do not accept that suggestion, and proceed on the basis that the 2018 quarry activity was assessed by the Environment Court on the basis of 80 traffic movements per day.
who submitted on the application, of which just over 200, including the Society, were opposed to the application.
[12] As noted, the Council declined the application and that decision was upheld by the Environment Court in the Quarry Decision. Importantly for the purposes of this judgment, the Quarry Decision related to both the existing quarry operations and the proposed expansion. I therefore agree with Mr Farmer, counsel for the Society, that it is wrong to focus only on the proposed expansion of the quarry when comparing the quarrying activity which was the subject of the earlier consent application and the operation of a contractor’s yard.
[13] It is clear from the Quarry Decision that the key reason the Court upheld the Council’s decision to decline the application for resource consent was that the Court considered there to be significant adverse visual environmental impacts as a result of the existing and proposed quarry operations.7 For example, the Court stated, “[in] the end, we have reached a very similar conclusion to the commissioners, largely for similar reasons relating to visual landscape effects.”8
[14] The Court also considered a number of other effects of quarry operations, including the impact on rural character and amenity. In a passage upon which the Society puts some weight in its present application, the Court stated that the quarry activities since 2012 had “inserted an increasingly industrialised activity within the rural character and amenity and [had] adversely affected it.”9 The Court also considered the presence and effects of noise, dust, and vibration, noting that “most effects of the quarry activity per se are contained within the quarry itself.”10 The Court concluded:11
[149]We recognise that there are likely to be discernible impacts of the activity in terms of noise and blasting beyond the property. Several witnesses identified certain blasts which have occurred and created significant shocks in their own property. Some had not been the subject of prior warnings. Even in respect of noise, we were surprised that we were able to hear the machinery from the Cooper property and
7 At [26], [39]–[40], [45], [128], and [137].
8 At [45].
9 At [135].
10 At [142].
11 Noting my observations, at above n 6, as to [154] of the Quarry Decision.
suspect that the Pow’s would similarly be able to hear machinery, at least once the northern face is worked as part of stage 2 and 3.
[150]Although we do not regard the impact as significant, it is, nevertheless, more than minimal and needs to be taken into account. We are satisfied that the activities do not maintain the existing amenity on surrounding properties. Thus, in terms of the Greenfields assessment, a consent represents some level of intrusion which has already occurred and an increased level of intrusion if the expansion is consented too.
[151]We are not able to reach the same conclusion in respect of dust and do not consider that there is adequate evidence to suggest that with the use of dust suppression methods dust will not propagate beyond the property boundaries. We intend to deal with the questions of noise and dust in relation to vehicle movement in a moment.
[15]In terms of traffic generation and safety, the Court stated:
[152]Unitary Plan provision E28.3(5)(c)(2) requires the management of adverse effects from traffic generation and maintenance of safety to all road users. Considerable evidence was given to us by residents as to their concerns with the truck movements on the road over the past few years, particularly, since 2010. It was clear to us from our site visit and from the evidence that we have received, that trucks going to and from the site can generate a significant amount of dust in dry periods and also have the capacity to compromise the safety of other road users at certain points along the access roads to the quarry. The applicant recognises this and proposes mitigation of this as part of the expansion of the quarry.
[153]Nevertheless, we are not satisfied that the past activity and that which is current existing has adequately managed those adverse effects or maintained safety. We do note that there have been several signs erected over the years asking truck drivers to slow down. We assume they were installed by either residents or the quarry operator.
[154]There are certain parts of the Lake Road where there is difficulty in ascertaining whether a large vehicle is coming the other way. We recognise that this is particularly from the east of the quarry entrance, but there are also several areas on Lake Road towards Te Arai Point Road to the west, where there are significant constraints. We do recognise that the proposal intends, as part of the expansion of the quarry, to seal part of this road and for certain improvements which should reduce the dust on the road and also improve safety from the current situation. We remain concerned that with the increase from up to 80 trucks per day to something in the order of 138 vehicles per day average and a peak of 180 trucks (both ways per day), the improvements may address the increase in traffic over the current situation, but not the effects that have already occurred to date.
[155]This is difficult to assess, but in short, we do not consider those effects to be minimal, nor do we regard them to be significant. The evidence acknowledges the dust. There is a dispute about the level of adverse
effects. They are nevertheless, to be taken into account as part of the assessment of concluding as to the appropriateness of the activity under the plan and Act.
[16] The Court also considered the effects of the quarrying on water quality, noting the lack of evidence before it on that point. Ultimately, it stated:
[165] It was asserted that operation of the quarry to date (up to around 60,000 m3 per annum) has not led to any significant impact from stormwater discharge. Nevertheless, for current purposes, we are still unclear as to whether or not the steps proposed by the applicant would avoid remedy or mitigate adverse effects. Having regard to the critically endangered species involved and the wider issues relating to the water down-stream, we consider that we should take a cautious approach and assume that there may be some adverse effect until the contrary is established. Certainly, increasing the scale of the quarry is likely to exacerbate any potential for failure and effect on the down- stream area.
[17] The Court was also concerned by land stability issues that had arisen on the Site, noting the potential for failure of the quarry slope and consequent effects on down-stream water.12
[18]Taking all of these matters into account, the Court concluded:
[182]Overall, we have concluded that this activity is not appropriate on the site or at this scale. We have considered all of the factors identified in this decision together with the general evidence given by all the parties in this case.
[183]While we recognise the importance of the mineral and its extraction potential, we remain concerned that the current plan provisions particularly in relation to amenity and visual landscape and the other matters that we have addressed from the relevant Policies cannot be achieved sufficient for consent to be granted. There are similarly a number of other effects which are more than minimal but not significant.
The Enforcement Decision
[19] The Society sought enforcement orders in the event the Environment Court upheld the Council’s decision. At the conclusion of the Quarry Decision, the Environment Court sought further submissions on the form of the orders for the
12 At [166].
cessation of current quarrying activities at the Site and whether supplementary orders ought to be made in relation to remediation.13
[20] In the event, the Society did not pursue remediation orders.14 In a decision delivered on 1 December 2020 (the Enforcement Decision),15 the Environment Court made enforcement orders requiring the cessation of quarrying activity at the Site, removal from the Site of all plant and machinery previously used for quarrying activities, and that the part of the Site that had been quarried be fenced to prevent unauthorised entry. In its reasons for making such orders, the Court stated:
[24] Finally, we do wish to note that there are permitted activities which can occur on this property and it is likely that some of those may generate effects. It is also possible, of course, that an application for resource consent for another activity may be sought and obtained. We do not suggest that [the enforcement orders] form a planning blight on the site that prevents other permitted uses of other consented uses from occurring.
[21] I mention this aspect of the Enforcement Decision in particular, as it was cited in the Council’s decision to both grant OHL’s resource consent application and to process the application on a non-notified basis.
The Fairy Tern Decision
[22] Before turning to OHL’s application, there is one further decision, New Zealand Fairy Tern Charitable Trust v Auckland Council (the Fairy Tern Decision), that, while not directly concerning the Site, is necessary to address.
[23] In 2019, the New Zealand Fairy Term Charitable Trust (the Trust) brought proceedings against the Council in a bid to have a weir removed from within the bed of the Te Arai stream.16 The weir was preventing fish and, in particular, inanga, travelling upstream to their spawning grounds above the weir. Despite concluding that the Council was not the proper respondent to the Trust’s proceedings, the Environment Court accepted that the ongoing inaction to remove the weir was having a detrimental effect on the lifecycle of inanga in the stream and consequently reducing the food
13 At [193].
14 The materials before me do not explain why.
15 Lake Road Preservation Society Inc v Lake Road Quarry Ltd [2020] NZEnvC 198 [Enforcement Decision].
16 New Zealand Fairy Tern Charitable Trust v Auckland Council [2019] NZEnvC 172.
species available for breeding Fairy Tern to feed their chicks. In the event, the weir was removed by consent in mid-2020.
OHL’s application for resource consent to operate a contractor’s yard
[24] On 10 May 2021, Osborne Hay (North) Ltd (Osborne Hay), on behalf of the then owner of the Site (Lake Road Quarry Ltd), filed a pre-application advice form with the Council, notifying the Council of a forthcoming application for resource consent to use part of the Site as a contractors’ yard.17 The lodging of the pre- application advice led to a meeting between Osborne Hay and a planning consultant contracted to the Council, Mr Colin Hopkins. Internal communications from Mr Hopkins to others at the Council prior to the meeting noted that the primary issue for consideration in relation to the proposed application would be the movement of trucks to and from the Site. Ms Chelsea Gosden, the Team Leader for North West Resource Consenting at the Council, raised with Mr Hopkins that “a robust assessment [of environmental effects]” would need to be provided with any application, “considering the site’s history.” Mr Hopkins also sought advice from others at the Council about whether there had been any complaints about the Site since it had ceased to be used as a quarry including, in particular, complaints about truck movements. Mr Hopkins was told that there had not been any such complaints but that there was “still a fair bit of interest in the old quarry though …”.
[25] Mr Hopkins passed this information to Osborne Hay (including that interest in the Site “remains high”) and, following the pre-application meeting, confirmed that the key matter to address in any application would be truck movements. Mr Hopkins suggested the application might include a proposed condition limiting the number of truck movements to and from the Site.
[26] Osborne Hay duly filed an application for a land use resource consent (the Application), together with an Assessment of Effects on the Environment of the proposed contractors’ yard (AEE). The Application referred to the former use of the
17 Resource consent was required, given the yard would be a discretionary activity under the relevant planning rules.
Site as a quarry, noting that it had ceased operations in April 2020, and also to the fact that earlier resource consent applications had been declined.
[27]The Application noted that the contractors’ yard would cover approximately
1.58 hectares of the Site. The AEE listed the potential environmental effects of the contractors’ yard as being visual, noise, traffic, effects on rural activities and amenities, and dust. The AEE suggested that those effects were negligible/less than minor. The AEE was accompanied by a traffic assessment report prepared by Flow Transportation Specialists Ltd (Flow).
[28] Taking up Mr Hopkins’ advice, the Application included a proposed condition limiting traffic movements to 300 per week (150 in and 150 out). On a seven-day basis, this equates to an average of 43 traffic movements per day or, on a six-day basis, to 50 per day. I interpolate to note that this compares with the estimated 80 traffic movements per day in connection with the quarry operations as they existed from 2018 onwards, and the proposed increase to 180 traffic movements per day under the quarry expansion.18 The Application also proposed conditions to the effect that there would be no dust beyond the Site that was “noxious, offensive or objectionable”, and that all necessary measures would be taken to prevent a dust nuisance to neighbouring properties and public roads.
[29] The Application proposed that it be processed on a non-notified basis, on the basis that any environmental effects were less than minor and that there were no special circumstances requiring notification. In relation to the latter, the Application stated:
This proposal does not involve any form of mineral extraction or cleanfilling. The yard will utilise an existing shed which was formerly used for the mineral extraction activity but such sheds are permitted in the Rural-Production Zone and did not rely on any earlier resource consent. This proposal is completely different from the earlier applications for mineral extraction activities and does not require notification under special circumstances on the basis that the earlier applications for mineral extraction activities were declined.
18 See above at [10].
The Council’s consideration of the application and OHL’s response
[30] Mr Ray Smith, a development engineer with the Council, considered the Application and raised a number of queries with Mr Hopkins, including stormwater runoff and stability of the quarry slopes. These queries were passed onto Osbourne Hay, who noted that stormwater management of the Site would be the same as it had been when the quarry was operated and advised that stabilising of the quarried slopes has not occurred “as there were no consents for this” and that “the quarry pit is now blocked off” to prevent access to the “unstable area”. Mr Smith later recommended that a condition of consent be added to require a geotechnical review of slope stability and the installation of appropriate fencing. Mr Smith also provided a technical report on the Application, concluding that the Application was acceptable from an engineering perspective, subject to those conditions set out in his report, including limits on traffic movements, signage placement and vegetation clearance on local roads, and unstable areas in the Site being safely managed and subject to a geotechnical engineering review.
[31] The Council also commissioned traffic and transportation advice from Auckland Transport and Flow subsequently provided further comments and information in response to matters Auckland Transport had raised. Auckland Transport commissioned Progressive Transport Solutions (PTS) to provide a technical report on the Application and the associated traffic implications. PTS concluded that the proposed condition limiting truck movements to 300 per week was appropriate, though raised some concerns about the weight and size of trucks travelling along Lake Road and the implications for road maintenance.
The Council Report and recommendation on notification
[32] On 17 December 2021, Mr Hopkins provided Osborne Hay with a list of draft conditions of consent, which were accepted by OHL on 20 December 2021.19 The same day, Mr Hopkins completed his report on the Application and his recommendations regarding notification. Mr Hopkins stated that, having reviewed the AEE, the further information provided by Osborne Hay, and the “assessments of the
19 All of these conditions found their way into the resource consent as granted.
Council Specialists” (which I take to be a reference to Mr Smith’s technical report and the PTS report), he was satisfied that any adverse effects from the contractors’ yard (visual, noise, traffic, effects on rural activities and amenities, and dust) would be less than minor. In relation to PTS’s concerns about road maintenance, and reflecting views provided by Osborne Hay, Mr Hopkins stated:
… I generally agree that the maintenance of the roads falls outside the scope of this consent (noting that the traffic assessments have not identified the road as being unsuitable to cater for the activity), and imposing conditions of this nature is not considered necessary in this case.
[33] In terms of public and limited notification, Mr Hopkins stated that there was “nothing exceptional or unusual” about the Application, and that “the proposal has nothing out of the ordinary run of things to suggest that public notification should occur.” Mr Hopkins recorded that “in reaching this conclusion I have considered the [Enforcement Decision]”, and referred to and set out paragraph 24 of that decision (see [20] above). Mr Hopkins did not refer to the Quarry Decision.
The Notification Decision
[34] On 27 January 2022, Mr Daniel Rodie, a Council Principal Specialist — Planning, made the decision on whether or not to notify the Application (the Notification Decision). It is convenient to set out the Notification Decision in full, which was very brief and was provided at the end of Mr Hopkins’ report. Mr Rodie stated “[a]cting under delegated authority, and for the reasons set out in the above assessment and recommendation, under [relevant sections] of the RMA, this application shall be processed non-notified.”
The Consent Decision
[35] Also on 27 January 2022, Mr Rodie considered the Application itself. He emailed Mr Hopkins, noting that he had made a few minor changes to Mr Hopkins’ report and proposing an additional consent condition:
… to reflect the enforcement order issued by the Environment Court relating to fencing of the quarry area to avoid unauthorised entry, presumably due to the unstable nature of some of the batters …
[36] In a written decision given that day, Mr Rodie granted the Application (the Consent Decision).
[37] The Consent Decision records that Mr Rodie had read “the [A]pplication, supporting documents, and the report and recommendation on the application for resource consent.” Actual and potential effects of the contractors’ yard (visual and amenity, traffic, dust, noise, sediment, stormwater and wastewater control) were considered either acceptable or less than minor. At paragraph 4 of the Consent Decision, Mr Rodie stated:
In terms of s104(1)(c) of the RMA, it is considered that the Enforcement Order issued by the Environment Court on 30 November 2020 with respect to the past quarrying operation that occurred within the site has some relevance to this application. As mentioned within the associated notification assessment the Court stated at paragraph 24 of its decision that “. It is also possible, of
course, that an application for resource consent for another activity may be sought and obtained. We do not suggest that these orders form a planning blight on the site that prevents other permitted uses or other consented uses from occurring.”
A condition will also be imposed to reflect the second clause within the enforcement order requiring the owner of the site to “securely and adequately fence the perimeter of that part of the property that has been quarried to prevent unauthorised entry to the satisfaction of the Third Respondent”.
(emphasis in original)
[38] Various conditions were imposed on the consent. These included: the limits on traffic movements set out at [28] above; that there was not to be any airborne dust beyond the Site that, in the Council’s opinion, was noxious, offensive or objectionable; that signage would be placed and vegetation cleared on Lake Road (as recommended by Flow); that discharge of sediment beyond the Site would be minimised and stormwater runoff would be controlled; that a geotechnical engineer would review the Site to identify any areas of instability and that appropriate safety measures would be taken; that the perimeter of those parts of the Site that had been used for quarrying would be adequately fenced; and that a review condition would be included pursuant to s 128 of the Resource Management Act 1991 (the Act), namely that the conditions of consent could be reviewed by the Council within 12 months of commencement of the operation of the contractors’ yard.
[39] I pause to note that, in an affidavit filed in opposition to the Society’s application for review, Mr Rodie says that he reviewed Mr Hopkins’ report “along with the supporting information contained within the Council file” prior to making the Consent Decision. Mr Rodie later says that he reviewed all the information submitted in support of the Application (which I take to be the Application, the AEE, and the Flow report), the correspondence that occurred between Osborne Hay and the Council in progressing the Application, as well as “technical memos” and reports written by Council specialists. Mr Rodie says that these “include[d]” Mr Smith’s and PTS’s reports. As he does not detail taking any other “technical memos” into account, I proceed on the basis that it is only these two reports to which he refers.
[40] Mr Rodie does not suggest that he took the Quarry Decision into account when making either of the Notification or Consent Decisions, though states that he was “aware” of the Quarry Decision, as he had had some involvement in the technical review of the quarry resource consent application. Mr Rodie does, however, give opinion evidence that, in his view, the quarry and contractors’ yard operations are “materially different”.
The approach to judicial review
[41] To the extent necessary, the legal principles relevant to the Society’s specific grounds for review are included in the later sections of this judgment. It is helpful, however, to briefly re-iterate the approach to judicial review of decisions such as those at issue in this proceeding.
[42] A leading decision on the proper approach to review of resource consent decisions remains the Court of Appeal’s judgment in Pring v Wanganui District Council.20 The Court stated:21
It is well established that in judicial review [proceedings] the Court does not substitute its own factual conclusions for that of the consent authority. It merely determines, as a matter of law, whether the proper procedures were followed, whether all relevant, and no irrelevant considerations were taken into account, and whether the decision was one which, upon the basis of the information available to it, a reasonable decision-maker could have made.
20 Pring v Wanganui District Council [1999] NZRMA 519 (CA).
21 At 523.
Unless the statute otherwise directs, the weight to be given to particular relevant matters is one for the consent authority, not the Court, to determine, but, of course, there must be some material capable of supporting the decision. Having said that, it must also be recognised that because neighbours and users of adjoining streets may well be adversely and directly affected by a development which obtains a certificate of compliance and thereby is deemed to have a resource consent (subs (6)), the Court will scrutinise what has occurred more carefully and with a less tolerant eye when considering whether the decision was one open to the consent authority on the material before it than it will do in a case where the decision which is being questioned required the balancing of broad policy considerations and there was less direct impact upon the lives of individual citizens as, for example, where the exercise of statutory power involved the striking of a general rate.
[43] In a similar vein, William Young J, writing for the majority of the Supreme Court in Auckland Council v Wendco (NZ) Ltd, emphasised that the courts’ focus is not on the substance of the relevant decision.22 As an illustration of that, the validity of the non-notification decision at issue in that case did not depend on the Court agreeing with the view taken by the consenting authority that the adverse effects of the activity would be less than minor.23 William Young J went on to state, however:
[46] … On the other hand, the Court must review the adequacy of the information before the Council when making the non-notification decision. This assessment must reflect the reality that in making the decision not to notify the application, the Council was precluding any opportunity for Wendy’s to have input into the decision. On this point it is sufficient to refer to the following passage from the judgment of Elias CJ in Discount Brands:
[25]… The requirement that the consent authority must be “satisfied” that effects are minor before deciding not to notify a resource consent application to undertake a discretionary or non-complying activity is a requirement of caution. The consent authority must be clear that notification would not elicit information or perspective which would cause it to view the effects of the activity on the environment as more than minor.
[26]It was not sufficient for the consent authority to have before it “some material of probative value”, …. Nor do I consider that the Court of Appeal was correct in the view … that the consent authority had to decide “on the information then available to them, whether any impact on existing centres would be so substantial as to threaten their viability”. The consent authority had to decide whether it could be satisfied without notification that the adverse effects on the environment were minor. It could not confine its
22 Auckland Council v Wendco (NZ) Ltd [2017] NZSC 113, [2017] 1 NZLR 1008. The majority consisted of William Young, O’Regan, and Ellen France JJ.
23 At [45].
consideration to the material before it, because that would be to avoid the question.
[citations omitted]
[47] It is arguable that subsequent changes to the RMA mean that an approach to non-notification decisions which is less exacting than that required by Discount Brands should now be adopted. This is discussed in some detail in Coro Mainstreet (Inc) v Thames-Coromandel District Council. Given that the Court below proceeded on the basis of Discount Brands and we are satisfied that the Discount Brands standard was in fact met, we see the associated arguments as best left for another case.
[44] As I noted in delivering judgment in Mills v Far North District Council,24 while the majority did not comment further on the impact, if any, of the legislative amendments on the approach to reviewing notification decisions, the minority (Glazebrook and Arnold JJ) observed that:25
Section 93 was substituted in 2003. Prior to its substitution, it required that once a consent authority was satisfied that it had received “adequate information”, it was to ensure that notice of the application was given as prescribed by s 93 unless the application did not need to be notified in terms of s 94. Despite the substitution and subsequent repeal of s 93, it remains the case that a consent authority making determinations as to notification must have sufficiently comprehensive information before it. Sound public administration permits nothing less.
(emphasis in original)
[45] In Gabler v Queenstown Lakes District Council, Nicholas Davidson J traversed a number of these and other relevant authorities and stated:26
[66] In short, I agree with Wylie J that the obligation on the Council to be “satisfied” that it has adequate information is no longer a separate and reviewable element of its decision making process. I do not consider that this in any way altered the need for a decision maker to be sufficiently and relevantly informed. It does not alter the need for the decision maker to apply relevant and not irrelevant considerations, and make a decision which stands up to the test of “reasonableness”. Being sufficiently and relevantly informed does not ensure these elements of decision making will be lawfully undertaken. In these respects Discount Brands in my view has undiminished force. It recognised a distinct step in the (repealed) legislation, but there must always be a secure foundation for such important decisions. Parliament cannot have intended to remove that foundation. That is not to endorse a counsel of perfection, but of sufficiency and relevance, and that is how I conclude the
24 Mills v Far North District Council [2018] NZHC 2082 at [140].
25 Auckland Council v Wendco (NZ) Ltd, above n 22, at [84].
26 Gabler v Queenstown Lakes District Council [2017] NZHC 2086, (2017) 20 ELRNZ 76 (emphasis added).
decision in this case should be judicially reviewed. It is fundamentally a test of the quality of the decision.
[46] There was no argument before me about these legal principles. I accordingly proceed on the basis that, while there is no separate ground for judicial review based on the (now repealed) statutory requirement for a consenting authority to be satisfied as to the adequacy of the information before it, a decision to notify a resource consent, and to grant a consent itself, must nevertheless be reached on the basis of adequate and reliable information. As Glazebrook and Arnold JJ observed in Auckland Council v Wendco (NZ) Ltd, “sound public administration permits nothing less.”27
[47]I turn now to the Society’s grounds of review.
First ground — alleged failure to take into account the Quarry Decision
Introduction
[48] The Society pleads that in making the Notification and Consent Decisions, the Council failed to take into account, or to take into proper account, the Quarry Decision and the evidence adduced in that proceeding, which raised a number of concerns regarding the Site and its impact on persons and the environment, including:
(a)truck movements to and from the Site generating dust and compromising road safety;
(b)the quality of water discharged from the Site; and
(c)the adverse downstream impact on the Te Arai stream, and the consequential impact on the Fairy Tern and other fauna, including the Australasian bittern and inanga.
27 Auckland Council v Wendco (NZ) Ltd, above n 22, at [84]. More recently, see also the Court of Appeal’s observations to a similar effect in O’Keefe v New Plymouth District Council [2021] NZCA 55, (2021) 22 ELRNZ 506 at [30]–[31]; and Norman v Tupuna Maunga o Tamaki Makaurau Authority [2022] NZCA 30 at [261].
[49] As the arguments were advanced, the Society’s focus was the alleged failure to take into account the Quarry Decision, rather than the evidence put before the Environment Court in the quarry consent proceedings. Indeed, none of that evidence was put before me on the present application. Further, to the extent the evidence was relevant to the Environment Court’s decision, it will have been referred to and/or reflected in the Quarry Decision itself. I therefore proceed on the basis that this aspect of the first ground of review is limited to the alleged lack of consideration of the Quarry Decision.
[50] Another matter of some importance is that the Society did not put before me any independent expert evidence calling into question the Council’s assessment of the effects of the contractors’ yard and its conclusion that those effects were less than minor. Rather, the Society’s position on this ground of review essentially reduces to the proposition that, as a matter of law, the Council was required to take into account the Quarry Decision when making the Notification and Consent Decisions, but failed to do so.
[51] As a final preliminary point, and telescoping forward to my decision on the third ground of review, I have concluded that the Council erred in deciding that the Application should proceed on a non-notified basis.28 The Notification Decision will therefore be set aside. Given that conclusion, it is strictly unnecessary for me to address the Consent Decision as the Council accepts that, if the Notification Decision is set aside, the Consent Decision must also be set aside. But, given the detailed written and oral submissions by both parties on whether the Quarry Decision was a mandatory relevant consideration, and in case I am wrong in my conclusion on the third ground of review, it is appropriate to engage substantively on this issue.
The Society’s submissions
[52] The Society says that the Council was required to take the Quarry Decision into account when making the Notification and Consent Decisions because:
28 The Council erred by failing to take into account mandatory relevant considerations.
(a)it provided detailed information about actual and potential adverse effects of similar levels of industrial activity at the Site, including in relation to traffic generation and safety, and downstream impact on indigenous fauna;
(b)it identified adversely affected persons, such as the Society and others who had opposed the quarry consent application; and
(c)the very fact of the Quarry Decision was demonstrative of special circumstances warranting public notification or, at the very least, limited notification.
[53] I have found it helpful to consider those matters raised above at (c) under the third ground of review, discussed later in this judgment.
[54] In relation to the remaining matters, Mr Farmer submits that consideration of the Quarry Decision would have ensured that the information before the Council when considering the effects of the contractors’ yard was balanced. This is said to be particularly so given the Environment Court was considering an industrial activity at the same site, giving rise to the same types of environmental effects. In this context, Mr Farmer submits that the Consent Decision’s conclusion that any adverse effects of the contractors’ yard on the traffic network beyond the Site would be less than minor contradicts the Environment Court’s findings and, in particular, that industrial activity at the Site and “associated traffic movements” had “inserted an increasingly industrialised activity within the rural character and amenity and [had] adversely affected it.”29
[55] Mr Farmer further submits that the Notification Decision’s conclusion that there were no affected persons who ought to be notified of the Application is also contrary to the Environment Court’s findings that “residents [had] been concerned about the operation of the quarry for some considerable time”,30 including being concerned about its associated traffic movements. Mr Farmer also submits that the
29 Quarry Decision, above n 2, at [135].
30 Quarry Decision at [12].
conclusion that no “special circumstances” warranting notification existed “ignores” the Environment Court’s finding of a risk of adverse downstream effects on endangered species, referring to that aspect of the Court’s decision referred to at [16] above.
The respondents’ submissions
[56] Mr Quinn for the Council submits that the Council had adequate information before it when making the Notification and Consent Decisions, and it did not need to consider the effects assessment undertaken for a different and earlier activity, namely quarrying.
[57] Mr Quinn emphasises that, in his submission, the nature and scale of quarrying operations (and associated activities) are quite different to the operation of a contractors’ yard. A central theme to his submissions is that the Society’s case simply does not reflect those very real differences. Mr Quinn submits that, first, the Council took into account all relevant effects of the proposal that was actually before it and, second, that the fact that the quarry activity gave rise to similar types of effects does not turn the Quarry Decision into a mandatory relevant consideration. For these reasons, Mr Quinn says that the Quarry Decision was not relevant or reasonably necessary to determine the Application, given the Council did consider all relevant effects and had adequate information before it to do so. He emphasises that there is no evidence before the Court to demonstrate that a relevant type of effect was not understood or considered by the Council.
[58] Mr Savage, counsel for OHL, made similar submissions. He also emphasised that the Council took into account all relevant effects of the proposed contractors’ yard, and that there is nothing to suggest that its assessment of those effects was flawed.
Discussion
[59] Putting aside the relevance of the Quarry Decision to the question of whether special circumstances existed requiring notification (addressed below), I do not consider the Quarry Decision was a mandatory relevant consideration when making the Notification and Consent Decisions. Mr Quinn accepts that a recent court decision
considering the environmental effects of a very similar activity at the same site, under the same planning rules, would likely be a mandatory relevant consideration when assessing a subsequent resource consent application. But I accept his and Mr Savage’s submissions that the two proposed activities — quarrying and operating a contractors’ yard — are sufficiently different so as to mean the Quarry Decision, in and of itself, was not a mandatory relevant consideration.
[60] There is a degree of common sense about this. As of 2018, the quarrying and associated activities extended across some 15 hectares of the Site. The Application states that the contractors’ yard will extend to some 1.58 hectares of the Site. The quarrying activities included blasting, excavation, processing and washing the extracted material, blending, and all associated traffic movements.31 The Application describes the contractors’ yard as involving the use of the existing shed at the Site for the maintenance and repair of machinery, the storage of machinery at the Site when not being used, the temporary storage of rock and soil products pending use in local projects, staff car parking, and associated traffic movements to and from the Site. An assessment of the environmental effects of quarrying at the Site does not itself speak to the environmental effects of a proposed contractors’ yard at the Site.
[61] As noted earlier, the Society puts much emphasis on the Environment Court’s comment that the then existing quarrying operations, and associated traffic movements, had “inserted an increasingly industrialised activity within the rural character and amenity and has adversely affected it.”32 But that comment must be read in context. The Court was not suggesting that any industrial activity at the Site would be unacceptable. Indeed, the Rural Production Zone envisages a “range of rural production, rural industries, and rural commercial activities”.33 What the Environment Court was assessing, and all it could assess, was the activity then before it, namely the existing quarry and its proposed expansion. It concluded that “this activity” was not appropriate at the Site or at “this scale.”34 Accordingly, the Environment Court’s assessment of the quarrying activity does not say anything of direct relevance to another proposed industrial activity at the Site.
31 Quarry Decision at [107].
32 Quarry Decision at [135].
33 Auckland Unitary Plan Operative in Part at H19.3.2.
34 Quarry Decision at [182].
[62] When making the Consent and Notification Decisions, the Council was obliged to take into account the actual and potential effects of the proposed contractors’ yard on the environment,35 and (in relation to the Consent Decision) “any other matter” the Council considered “relevant and reasonably necessary to determine the application.”36 For the reasons just discussed, the Quarry Decision concerned a quite different activity at the Site, albeit giving rise to the same types of effects. There is no dispute that the Council took into account all the types of effects considered by the Environment Court in the Quarry Decision, namely visual and amenity effects, noise, dust, and traffic safety. As noted earlier, there is nothing before me to suggest that the Council erred (in the sense amenable to judicial review) in its assessment of those effects. Further, given the Environment Court was considering the effects of a quite different activity at the Site, I do not consider the Quarry Decision was a mandatory relevant consideration on the basis it was “reasonably necessary to determine the [contractors’ yard] application.”
[63] The Society puts much emphasis on the Environment Court’s assessment of traffic movements to and from the Site as a result of the existing quarrying activities. The quarry activities involved approximately 80 traffic movements per day, rising to a possible peak of 180 per day under the proposed expansion. Again, however, the Council did take into account the traffic effects of the proposed contractors’ yard. Indeed, these effects were a particular focus of its consideration of the Application.
[64] I also do not accept that the mere fact that the Council did not take into account the Quarry Decision meant the Council had inadequate or unbalanced information before it about the traffic implications of the contractors’ yard. The Quarry Decision would have told the Council that the Environment Court assessed the effects of around 80 traffic movements per day, and the proposed increase to 180 traffic movements per day, to be neither significant nor minimal.37 In assessing the potential traffic effects of the contractors’ yard, the Council had before it, and took into account, the Flow traffic assessment, further information provided by OHL and Flow in response to Council queries, and expert advice from Auckland Transport and Mr Smith on the
35 Resource Management Act 1991, ss 95A(8), 95B(8), 95D, 95E, and 104(1)(a).
36 Section 104(1)(c).
37 Quarry Decision, above n 2, at [155].
traffic effects. There is nothing to suggest that this was inadequate information for the purpose of assessing the traffic implications of the contractors’ yard.
[65] Further, there is nothing on the face of the Quarry Decision to suggest that the Council’s assessment of the traffic effects of the contractors’ yard was so flawed as to be unlawful. The existing quarry operations gave rise to a significantly greater number of traffic movements than those permitted under the Consent Decision (being nearly double), and the proposed expansion of the quarry would obviously have involved an even greater number of movements. And, as noted earlier, the key reason for the quarrying consent being declined was the adverse visual effects of the quarry and associated activities.
[66] Finally, the Society puts some emphasis on Simon France J’s decision in Royal Forest and Bird Protection Society of New Zealand Inc v Kapiti Coast District Council (Forest and Bird),38 in terms of the relevance of an earlier Environment Court decision.
[67] Forest and Bird concerned a challenge to the Kapiti Coast District Council’s 2007 decision to process a subdivision resource consent application on a non-notified basis. Part of the challenge relied on the fact that, in 2000, the Environment Court had overturned the Council’s decision to process an earlier iteration of the proposed subdivision on a non-notified basis.
[68] Whether the earlier Environment Court decision was a mandatory relevant consideration in the Council’s 2007 decision-making process was not an issue for determination by Simon France J. Nevertheless, rather than support the Society’s case, the decision reinforces my view that the Quarry Decision was not a mandatory relevant consideration in this case.
[69] Simon France J said this about the 2000 Environment Court decision on the earlier version of the subdivision proposal:
[29] The reality, in my view, is that the Environment Court decision is a relevant piece of context, but should not be over-weighted in the present
38 Royal Forest and Bird Protection Society of New Zealand Inc v Kapiti Coast District Council, HC Wellington CIV-2007-485-635, 21 November 2007 [Forest and Bird]. Appealed on grounds not relevant to the present proceeding.
process. Once it is accepted, as it seems common ground, that the present proposal bears no real similarity to the one before the Court,[39] the limits on using the 2000 decision become plain. Certainly the Court’s findings on the value of the land in question needed to be given careful consideration, but as should be plain from the conclusions set out, those findings were not as expansive as seemed to be claimed. Also, they were influenced by the impact both on the site itself, and the adjacent sites which were to be the source of 65,000 cubic metres of fill.
(Emphasis and footnote added)
[70] I agree that, in this case, the Quarry Decision could have been a relevant piece of context. It would be difficult to argue that, had the Council taken it into account, it would have been an irrelevant consideration. But the question for determination is whether the Council’s decisions on the effects of the contractors’ yard were flawed in a legal sense, given it did not take the Quarry Decision into account. The italicised text from the above extract from Forest and Bird might be said to support the Society’s position. However, when read in context, it is clear from Simon France J’s judgment that the relevance of the 2000 Environment Court decision was in identifying the environmental effects that needed to be taken into account when considering the 2007 resource consent application and, in particular, the effect of the proposed subdivision on nearby sand dunes.40 Having referred to the Environment Court’s conclusion on the effects of the earlier proposed subdivision on the sand dunes, the Judge stated:
[68] In my view what one would expect in relation to the revised proposal is some sort of cross-referencing to these concerns. It is clear the present sub- division is much more modest, and involves a vastly different amount of earthworks. That its impacts on these landforms will be much less is not difficult to infer. How less though? And in what way? What does this proposal do to the dunes and the landform, and is that impact so minor as to fall within s 94?
[69] The passages I have cited from the [Council’s recommendation on notification] obviously fail to provide this information, nor do they suggest that such a consideration has been undertaken. It is necessary to then consider the affidavits of the two decision-makers.
[71] Simon France J then considered the decision-makers’ affidavits, noting that they evidenced “a clear focusing on the issues of concern to the Environment Court,”41 and that “the decision-maker [had] turned his mind to the issues that concerned the
39 Involving a 10 lot subdivision, compared to a 31 lot subdivision.
40 Forest and Bird, above n 38, at, for example, [52], [63]–[64].
41 At [74].
Court.”42 Ultimately, the Judge concluded that the decision-makers had taken into account the effect of the proposed subdivision on the sand dunes, and that they had sufficient information before them in order to conclude that notification was not necessary.
[72] In my view, the decision in Forest and Bird highlights that what is important in cases such as this is that the consenting authority takes into account all relevant effects of the proposed activity under consideration (being mandatory relevant considerations) and has sufficient information before it in order to do so. I do not read Forest and Bird as suggesting that an earlier court decision considering the effects of a different activity at the same site will, in and of itself, be a mandatory relevant consideration.
[73]This aspect of the first ground of review is accordingly not made out.
First ground — alleged failure to take into account Fairy Tern Decision, adverse effects on persons, and the significant number of objections to the quarry
[74] I can deal with the remaining aspects of the first ground of review briefly, as the parties’ written and oral submissions predominantly focused on the alleged failure to take into account the Quarry Decision.
[75] It is difficult to see why the Fairy Tern Decision is relevant to the assessment of the Application, let alone rises to the status of a mandatory relevant consideration. The Society submits that the Fairy Tern Decision provided detailed information about the immediate environmental context for the Site, thereby making it relevant to the potential downstream effects of the operation of the contractors’ yard. Again, however, the Council did take into account, and assessed, the effects of the contractors’ yard on sediment control, stormwater management and wastewater systems, and there is nothing before me calling into question the assessments in that regard. Ultimately, Mr Farmer did not press this aspect of the Society’s case to any real extent. I consider he was right not to do so.
42 At [76].
[76] As to the suggested failure to take into account adverse effects on persons, there is no dispute that this is a mandatory relevant consideration for the purpose of determining whether limited notification is required.43 The Council was required to consider whether the activity’s adverse effects on such persons were minor or more than minor.44
[77] The focus of the Society’s argument on this point is the effect of truck movements on local residents, including members of the Society itself.45 It submits that the Council’s consideration of this effect was “inadequate”.
[78] For the reasons given earlier, I do not accept this aspect of the Society’s case. The adverse effects of truck movements were plainly considered by the Council. As noted, they were a focus of its consideration of the Application. There is no expert evidence before the Court calling into question the Council’s assessment, and I have held that it had sufficient information before it to make the assessment it did.
[79] Finally, under this ground of review, the Society says that the Council failed to take into account objections from residents and other persons, which the Society says was a mandatory relevant consideration when determining whether there were any affected persons who should be notified, or any special circumstances existing that warranted notification. I have already addressed affected persons. The question of earlier objections, and whether they give rise to special circumstances, is addressed later in this judgment, under the third ground of review.
Second ground — Enforcement Decision was an irrelevant consideration
Introduction
[80] In its statement of claim, the Society alleges that in making the Notification and Consent Decisions, the Council took into account “and gave great weight” to the Enforcement Decision which, in isolation, was an irrelevant consideration.
43 Resource Management Act, s 95B(8).
44 Section 95E(1).
45 It also addresses the significant degree of interest in activity at the Site, and opposition to the quarry. I have considered this under the third ground of review, concerning special circumstances.
The Society’s submissions
[81] Mr Farmer points to the fact that, in each of the Notification and Consent Decisions, Mr Hopkins and Mr Rodie made express reference to paragraph 24 of the Enforcement Decision, set out at [20] above. Mr Farmer also emphasises that Mr Rodie took the Enforcement Decision into account as being something “relevant and reasonably necessary to determine the Application” when making the Consent Decision, pursuant to s 104(1)(c) of the Act.
[82] The core of the Society’s argument on this ground of review is that it was wrong for the Council to take into account the Enforcement Decision without also taking into account the Quarry Decision. For example, Mr Farmer notes that, had both decisions been read and taken into account, Mr Rodie would have been aware that there were concerns about downstream water contamination from further slippage of the unstable quarrying slopes and, further, there would have been no need for him to speculate about why there was a fencing obligation contained in the Enforcement Decision.
[83] Mr Farmer also submits that both Mr Hopkins and Mr Rodie wrongly focused on paragraph 24 of the Enforcement Decision, namely the Environment Court’s observation that a subsequent application for resource consent might be sought and obtained, which he submits is irrelevant to the issues that were before the Council. Mr Farmer further submits that, as that observation was expressly referred to in both decisions, it must have had some effect on the decision-making process and appears to have been wrongly interpreted by Mr Hopkins and Mr Rodie as giving some degree of comfort about future industries activities at the Site.
The respondents’ submissions
[84] Mr Quinn submits that, of the three Environment Court decisions (the Enforcement Decision, the Quarry Decision, and the Fairy Tern Decision), the Enforcement Decision is the most relevant. Mr Quinn submits that it was perfectly appropriate, and indeed logical, for the Enforcement Decision to be taken into account when making the Consent Decision, given the importance of not granting a consent, and attaching conditions to it, which potentially “cut across” existing enforcement
orders in relation to the Site. In relation to the Notification Decision, Mr Quinn submits that it was a clear illustration of the Society’s interest in the Site, and was therefore relevant to the Council’s assessment of special circumstances.
[85]Mr Savage made submissions to the same effect.
Discussion
[86] The relevance of the Enforcement Decision (or at least paragraph 24 of it) to the Notification Decision is not immediately apparent. But it is clear enough from Mr Hopkins’ Notification Report that it was considered in determining whether there were special circumstances requiring notification. I address special circumstances further below, in relation to the third ground of review.
[87] To the extent that the Enforcement Decision was otherwise an irrelevant consideration when making the Notification Decision, I do not consider this means the Notification Decision was unlawful. As the Society accepts, taking into account an irrelevant consideration does not automatically invalidate a decision. As stated in Shi v Chief Executive of the Ministry of Business, Innovation and Employment, the test for invalid decisions is whether “the decision maker would have acted that way but for having considered the irrelevant factor …”.46
[88] There is nothing in the Notification Decision to suggest that, if paragraph 24 of the Enforcement Decision had not been taken into account, the outcome of that decision would have been different. Indeed, paragraph 24 of the Enforcement Decision does not say anything of any real substance. It simply observes that there may be other permitted activities at the Site which “generate effects”, that resource consents for other activities at the Site might be sought and obtained, and that the enforcement orders do not prevent that. In that sense, paragraph 24 simply states the obvious. It is difficult to conclude, in my view, that taking into account a consideration that has no real substance renders a decision unlawful.
46 Shi v Chief Executive of the Ministry of Business, Innovation and Employment [2014] NZHC 1217 at [35].
[89] Turning to the Consent Decision, I do not consider the Enforcement Decision, or paragraph 24 of it specifically, was an irrelevant consideration rendering that decision unlawful. The observations above as to paragraph 24 apply equally to the Consent Decision. In addition, I accept Mr Quinn and Mr Savage’s submission that it was appropriate for the Council to take into account the Enforcement Decision so as to ensure that the contractors’ yard consent, and the conditions attaching to it, did not cut across any of the existing enforcement orders in relation to the Site.
[90] Mr Rodie was correct in speculating that the fencing condition was included as an enforcement order to ensure safety around the quarry slopes. Reference to the Quarry Decision (as a background to why the fencing enforcement order had been made) would have simply told him the same information. As to the Quarry Decision also informing Mr Rodie of the concern of further slippage giving rise to downstream water contamination, I do not see that as being a mandatory relevant consideration when considering whether consent ought to be given to the contractors’ yard. That activity does not involve the quarry slopes. Issues concerning the ongoing environmental effects of the quarry slopes would seem more logically addressed through any further enforcement orders in relation to the (unlawful) quarrying activities.
[91]For these reasons, the second ground of review is dismissed.
First and third grounds of review — special circumstances requiring notification
Introduction
[92] As noted at [52] above under the first ground of review, the Society argues that the very fact of the Quarry Decision was demonstrative of special circumstances warranting public notification or, at the very least, limited notification. The Society also alleges that the Council failed to take into account, or to take into proper account, the significant number of objections from residents and other persons to the consents which were the subject of the Quarry Decision. These included more than 200 written objections on grounds such as adverse environmental impact, traffic, noise, and dust.
[93] Under the third ground of review (error of law), the pleaded case is actually quite narrow. The Society alleges that, in the Notification Decision, the Council listed three factors for determining whether “special circumstances” exist,47 but failed to consider the third factor.
[94] It is not pleaded under the third ground of review that the only conclusion available to the Council on the evidence before it was that special circumstances existed (which would amount to an error of law).
The Society’s submissions
[95] The Society’s principle submission is that the Council erred in not determining that the Application ought to have been publicly notified under s 95A of the Act.
[96] The Society submits that the Council failed to take into account the significant amount of public interest in industrial use of the Site, as evidenced by the Quarry Decision itself,48 and the processes leading to it. Mr Farmer submits that there is no evidence that, when making the Notification Decision, Mr Rodie took into account the relevant aspects of the Quarry Decision, the broader history of controversy surrounding the Site, or the ongoing level of local interest in the Site at the time of the Application.49 Mr Farmer highlights that the Council was aware of the significant number of objections to the quarrying activities, given that a record of the objections was attached to the Council’s file for the Site, but there is nothing to suggest that these matters were taken into account by Mr Rodie when making the Notification Decision.
47 Being those that are, first, “Exceptional, abnormal or unusual, but something less than extraordinary or unique”, second, circumstances “outside the common run of applications of this nature”, or third, circumstances which make notification desirable “notwithstanding the conclusion that the adverse effects will be no more than minor” (for the purposes of public notification under s 95A(9)) or “notwithstanding the conclusion that no other person has been considered eligible” (for the purposes of limited notification under s 95B(10)).
48 For example, the Quarry Decision’s observations at [12] that “residents have been concerned about the operation of the quarry for some considerable time”, and that residents have “produced extensive correspondence with the council raising concerns”; in particular, “concerns with the truck movements on the road”.
49 Refer to the advice to that effect provided to Mr Hopkins, referred to at [24] and [25] above.
[97] Mr Farmer refers to a number of decisions which he says support the proposition that the significant public interest and concern in relation to industrial use of the Site can amount to special circumstances for the purposes of s 95A (or s 95B).50
[98] In relation to the third ground of review, Mr Farmer submits that there was no consideration by either Mr Hopkins or Mr Rodie of whether notification might elicit additional information bearing on the non-complying aspects of the Application. Mr Farmer further submits that the Notification Decision was short on reasons as to why no special circumstances existed, simply concluding that no such circumstances arose, without any substantive analysis. He refers to Forest and Bird, in which Simon France J observed that a decision “which simply says without more … that having considered the application … there are no special circumstances leaves itself open” to judicial review.51
[99] Finally, Mr Farmer submits that the Enforcement Decision alone should have been enough to give rise to special circumstances, as it reflects that the Site had been the subject of lengthy and complex litigation, and a substantial volume of complaints in relation to industrial activity at it. Mr Farmer argues that these matters required careful consideration, and not simple dismissal with a conclusory statement.
The respondents’ submissions
[100] Mr Quinn accepts that broad public interest in a proposed activity can give rise to special circumstances but submits there is no such broad public interest in this case, but rather only one interested party: the Society. He further submits that concern and interest in the earlier quarrying activities cannot give rise to special circumstances for the purposes of the Application which, for the reasons discussed earlier, concerned a very different, and much smaller scale, activity.
[101] Mr Quinn also submits that, even if special circumstances existed, the Council was still required to consider whether notification was desirable in terms of the
50 For example, Urban Auckland, Society for the Protection of Auckland City and Waterfront Inc v Auckland Council [2015] NZHC 1382, [2015] NZRMA 235 [Urban Auckland v Auckland Council]; North Holdings Ltd v Rodney District Council [2004] NZRMA 76, discussed further below.
51 Forest and Bird, above n 38, at [131]–[132].
likelihood of eliciting additional relevant information. Mr Quinn submits that the prospect of eliciting further information is not itself a driver of special circumstances; rather, it is a driver for notification when special circumstances are separately found to exist.
[102] Mr Quinn submits finally that the Notification Decision set out the correct legal tests for special circumstances, and assessed the Application against those tests. He argues that the Council did more than make a bare conclusion that special circumstances did not exist.
[103]Mr Savage endorsed the Council’s submissions on behalf of OHL.
[104] Finally, and as flagged earlier, the Council accepts that if the Court were to set aside the Notification Decision, the Consent Decision should also be set aside, but not as a result of s 104(3)(d) of the Act.52
Discussion
[105] There is no dispute as to what amounts to “special circumstances” for the purposes of notification. In Far North District Council v Te Rūnanga-ā-Iwi o Ngāti Kahu, the Court of Appeal stated:53
… A “special circumstance” is something, as White J accepted, outside the common run of things which is exceptional, abnormal or unusual but less than extraordinary or unique. A special circumstance would be one which makes notification desirable despite the general provisions excluding the need for notification. As Elias J noted in Murry v Whakatane District Council:
“… the policy evident in those subsections seems to be based upon an assumption that the consent authority does not require the additional information which notification may provide because the principles to be applied in the decision are clear and non-contentious (as they will generally be if settled by district plan) or the adverse effects are minor. Where a consent does not fit within that general policy, it may be seen to be unusual.”
52 Section 104(3)(d) provides that a consenting authority must not “grant a consent if the application should have been notified and was not.” The Council accepts that if the Application should have been notified, and this was known to the Council at the time of the substantive assessment, then s 104(3)(d) means that the consent should not have been granted. It submits it is not, however, an alternative pathway to judicial review, and is not a provision that enables reconsideration of the validity of the effects conclusions reached at the time of notification.
53 Far North District Council v Te Rūnanga-ā-Iwi o Ngāti Kahu [2013] NZCA 221 at [36]–[37], footnotes omitted.
[37] In order to invoke s 94C(2), the special circumstance must relate to the subject application. The local authority has to be satisfied that public notification, as opposed to limited notification to a party or parties, may elicit additional information bearing upon the non-complying aspects of the application.
[106] It is common ground that these principles continue to apply despite intervening legislative changes.
[107] A useful discussion of what constitutes public interest giving rise to special circumstances was provided in Urban Auckland v Auckland Council, which concerned whether Ports of Auckland Ltd’s (POAL’s) application to extend the Bledisloe Wharf into the Waitemata Harbour ought to have proceeded on a non-notified basis.54 Among other factors, Urban Auckland argued that the significant public interest and controversy surrounding past proposals for the extension gave rise to special circumstances.
[108] Venning J observed that “[c]oncern on the part of an interested party could not itself be said to give rise to special circumstances because if that were so every application would have to be advertised where there was any concern expressed by the people claiming to be affected.”55 That must be right. The Judge went on to record, however, POAL’s concession that public interest can be a factor in determining whether special circumstances exist (though POAL submitted it was not determinative). The Judge then stated:56
… it is fair to observe that the public interest generated in POAL’s plans for development in general and the broad base of interest in the proposed extension can be categorised as outside the common run of interest shown in applications for commercial development.
[109] He accordingly concluded that these factors gave rise to special circumstances which supported notification. Venning J then went on to consider whether the Council had erred in concluding not to notify POAL’s application, despite those special circumstances existing. He concluded that certain interested parties might have been
54 Urban Auckland v Auckland Council, above n 50.
55 At [137].
56 At [146].
expected to provide information relevant to the application, such that there was a purpose to be achieved from notification.57
[110] In an earlier, 2003 decision, North Holdings Ltd v Rodney District Council, Venning J also touched on the question of public interest giving rise to special circumstances, in the context of an application for subdivision consent.58 He noted that there had been public meetings in relation to subdivision development in the relevant area, such that the Council “could reasonably anticipate interest in future applications for subdivision”.59 Venning J stated that where there is a “history of public interest or concern about developments”,60 this may be a factor that a council can properly take into account when considering special circumstances. Venning J concluded that the applicant’s earlier applications for consent, the presence of an earlier Court of Appeal decision concerning subdivision in the area, the earlier public meetings concerning proposed development, and the Council’s awareness that parties were interested in the application, all supported notification.61
[111] A third decision to which I was referred, Point Chevalier Social Enterprise Trust v Auckland Council, also addresses public interest in the context of special circumstances.62 The decision concerned a challenge to Auckland Council’s decision to process an application for the development of Carrington Hospital in Point Chevalier, Auckland on a non-notified basis. The proposed development had been discussed at a meeting of interested parties, including the applicant Trust. The Local Board was advised of the application and requested that it be publicly notified. The Trust also corresponded with the Council before it engaged in its decision-making process, similarly submitting that the proposal should be publicly notified.
57 At [147] and [150].
58 North Holdings Ltd v Rodney District Council [2004] NZRMA 76 at [77].
59 At [77].
60 At [77].
61 The case was decided on other grounds however, such that these comments were obiter only.
62 Point Chevalier Social Enterprise Trust v Auckland Council [2023] NZHC 1926, [2023] NZRMA 490 (also decided by Venning J).
[112] Venning J distinguished the level of public interest in Carrington Hospital’s development with the level of interest in the development in issue in Urban Auckland, stating:63
The circumstances surrounding the development at the Carrington Hospital site is quite different [to those in Urban Auckland v Auckland Council.] There is nothing exceptional or outside the common run of interest about it. There was no error in the finding that special circumstances did not exist.
[113] Turning to the circumstances of this case, there is no evidence of any broad public interest in the Application. However, that is likely because no one was aware of it until after the Consent Decision had been made (on a non-notified basis). The broader context to the Application nevertheless included the following:
(a)The Site which was the subject of the Application had been the subject of considerable and ongoing public concern and interest over many years in relation to the quarry operations.
(b)The public concern related to the same types of environmental effects arising for consideration under the Application.
(c)The public concern had generated more than 200 written objections from persons opposed to the earlier quarry consent application, in addition to ongoing complaints to the Council more generally.
(d)The Site was the subject of recent Council consent decisions (including those made on a notified basis), extensive evidence (including expert evidence) from interested persons on the effects of the quarry operations, and a recent decision of the Environment Court, all addressing the same types of environmental effects as being assessed under the Application.
(e)The Council was aware that, despite there being no complaints since the closure of the quarry, interest in the Site itself remained high.
63 At [94].
[114] It is not my task under this ground of review to determine whether any of these factors, or all of them in combination, gave rise to special circumstances. The difficulty for the Council, is however, that given public interest and concern in relation to the development or use of a site can give rise to special circumstances, the above factors were directly relevant to determining that question. Despite this, there is no evidence that either Mr Hopkins or Mr Rodie took any of them into account, either at all or in any substantive way, when considering notification. Mr Rodie says that he reviewed the Notification Report “along with the supporting information contained within the Council file”, but does not suggest that this review extended to information about public engagement with the Council in relation to the Site over the years.
[115] Further, nowhere in the Notification Report or Notification Decision is there any suggestion that either Mr Hopkins or Mr Rodie turned their mind to whether, if special circumstances did exist, they warranted notification (public or otherwise) on the basis of possibly eliciting information relevant to the Council’s assessment of the Application.
[116] Rather than any substantive consideration of these matters, the reasons given in the Notification Decision for concluding that the Application did not need to be notified because of special circumstances are sparse at best, and arguably absent altogether. While not determinative, the lack of reasoning is of concern, particularly given the importance of a notification decision.64
[117] To illustrate the point, Mr Hopkins’ Notification Report simply recites the test for public notification and then sets out his conclusion 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 public notification should occur. There is no real reasoning or analysis to support this conclusion.
[118] Mr Hopkins then goes on to say that in reaching his conclusion, he had taken into account the Enforcement Decision, and he includes a quote of paragraph 24 from that decision. As I have noted earlier, however, paragraph 24 does not actually say
64 As to the importance of a notification decision, see Auckland Council v Wendco (NZ) Ltd, above n 22, at [70].
anything of substance. The remainder of the Enforcement Decision disclosed the fact that the Society had sought enforcement orders in relation to the Site, but did not go any further than that. Mr Hopkins then states that “in light of the circumstances, and the level of adverse effects generated, … I do not consider the past Environment Court proceedings create a special circumstance that would warrant notification of this application.” It is not entirely clear to what Mr Hopkins is referring when he refers to “the past Environment Court proceedings”, but from the surrounding text of his report, it appears to be to the Enforcement Decision only.
[119] The same approach is taken to, and conclusions are reached on, whether the Application should be the subject of limited notification. The Notification Decision is even briefer again, with Mr Rodie simply referring back to the contents of the Notification Report.
[120] I am accordingly satisfied that the Council’s failure to turn its mind to those matters set out at [113] above renders the Notification Decision flawed in a legal sense. I reiterate that this conclusion does not suggest that there were special circumstances, or even if so, they warranted public or limited notification. All that can be said is that given the information available, or that could have been available, to the Council at the time the Notification Decision was made, it is difficult to conclude that there was plainly no purpose to notification.65
[121]The Notification Decision will accordingly be set aside.
Fourth and fifth grounds of review — irrational/unreasonable decision
[122] The fourth ground of review alleges that the Notification Decision was either irrational or unreasonable, for the same reasons advanced under the earlier grounds of review. The fifth ground of review makes the same allegations in relation to the Consent Decision. The parties did not address these grounds of review in any real
65 For completeness, I do not consider that post-quarry concerns raised about the sediment pond, and whether one of its walls had been breached in May 2020, would itself have been sufficient to indicate that there was likely to be some purpose from notification. That appeared to be a one-off matter raised, and seems to have been factually incorrect in any event. In addition, I do not consider the fact that (as far as I am aware) the Society is the only party that has opposed the present Application, is relevant to the validity of the Notification Decision. That would involve an exercise in hindsight.
detail in either their written or oral submissions. Mr Farmer confirmed that they “hinged” on the earlier grounds for review.
[123] Given the conclusions I have reached to this point, it is not necessary for me to address the fourth and fifth grounds of review in a substantive way:
(a)As noted, the Notification Decision will be set aside as a result of the Council’s failure to take into account mandatory relevant considerations. Any new decision on notification will need to take into account the matters raised in this judgment, as well as the circumstances existing at the time that decision is made.
(b)As the Council accepts, if the Notification Decision is set aside, the Consent Decision must also be set aside. For the avoidance of doubt however, for the reasons given under the first and second grounds of review, the fourth and fifth grounds of review in relation to the Consent Decision would not have been made out.
Relief
[124] Neither the Council nor, importantly, OHL, submitted that if any of the grounds of review were made out, relief should nevertheless be denied. There will accordingly be orders setting aside the Notification and Consent Decisions.
Result
[125] The Council erred as a matter of law in making the Notification Decision, by failing to take into account those matters set out at [113] above when determining whether special circumstances existed warranting notification.
[126]The Notification Decision is accordingly set aside.
[127]As a consequence, the Consent Decision is also set aside.
[128] For the avoidance of doubt, had the Notification Decision not been set aside, the application for judicial review of the Consent Decision would have been dismissed.
Costs
[129] On the materials presently before the Court, there appears to be no reason why the Society should not be awarded costs on a scale 2B basis. There may, however, be scope for some reduction to any costs award, given the Society has not been successful on all of its grounds of review and, in particular, its argument that the Quarry Decision was a mandatory relevant consideration when considering the effects of the contractors’ yard. That issue occupied a substantial proportion of the parties’ written and oral submissions.
[130] If the parties cannot agree costs, the Society may file a costs memorandum within 15 working days of the date of this judgment, with the respondents filing costs memoranda within a further five working days. No memorandum is to be longer than three pages in length (excluding any accompanying schedules of costs). I will thereafter determine costs on the papers.
Fitzgerald J
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