Lysaght v Whakatane District Council - [2021] NZHC 68

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE

CIV2020-470-55

[2021] NZHC 68

BETWEEN
IAN WALLACE LYSAGHT AND ADRIANNE JUNE LYSAGHT

Applicants

AND

WHAKATANE DISTRICT COUNCIL

First Respondent

GULATI ENTERPRISES LIMITED

Second Respondent

CIV-2020-470-71

BETWEEN

TE RŪNANGA O NGĀTI AWA
Applicant

AND

WHAKATANE DISTRICT COUNCIL

First Respondent

GULATI ENTERPRISES LIMITED

Second Respondent

Hearing:
12 November 2020

Memorandum of Te Rūnanga O Ngāti Awa of 26 November 2020

Counsel:

M Williams for Applicant in CIV-2020-470-55

M Wikaira and K Tarawhiti for Applicant in CIV-2020-470-71 A Green and R Smith for First Respondent

V Hamm and T Conder for Second Respondent

Judgment:

10 February 2021

JUDGMENT OF WHATA J

This judgment was delivered by me on 10 February 2021 at 4.00 pm,
pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar Date: ………………………….

LYSAGHT v WHAKATANE DISTRICT COUNCIL [2021] NZHC 68 [10 February 2021]

Introduction

[1] These are applications for judicial review in respect of the non-notified grant of a consent by Whakatāne District Council (the Council) for a service station located on a Māori roadway (the Roadway). The resource consent applicant, Gulati Enterprises Limited (Gulati), is one of the owners of the Māori Roadway. Other occupiers of land adjacent to the Roadway, Ian and Adrianne Lysaght and two whānau of Ngāti Awa, complain that they are directly affected by the proposed activity which requires, among other things, physical modification to the Māori Roadway. They also complain that these modifications and the proposed service station, adversely affects their use and enjoyment of the Māori Roadway.

[2] Te Rūnanga o Ngāti Awa (TRONA) claims that it is an affected person, too, because it is the mandated iwi authority and kaitiaki in respect of tāonga tuku iho, including whenua Māori. TRONA complains it was told its written approval would be sought and that the Council would seek its input before making any notification or consent decisions. It claims that this gave rise to a legitimate expectation of ongoing engagement prior to any final decision being made. However, in breach of that expectation, the Council granted the consent without engaging with them as promised.

[3] I must therefore resolve whether the Council erred in law or procedurally when granting the consent for the service station without notifying the Lysaghts or otherwise engaging with TRONA.

Framework for notification assessment

[4] Consent authorities must notify “affected persons” of resource consent applications.1 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).”2 “Less than minor” 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.3 The

1      Resource Management Act 1991 (RMA), s 95B(8).
2      Section 95E.
3      As stated by Davidson J in Gabler v Queenstown Lakes District Council (2017) 20 ELRNZ 76 (HC) at…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] NZHC 68
Decision Date: 10 February 2021

CaseChat Overview and Summary

Ian and Adrianne Lysaght and two whānau of Ngāti Awa sought judicial review of the Whakatāne District Council's decision to grant a resource consent for a service station on a Māori roadway without notifying them of the consent application. Te Rūnanga O Ngāti Awa (TRONA), which represents Ngāti Awa, also sought judicial review. The applicants and TRONA argued that the decision was unreasonable and that the Council breached a legitimate expectation of engagement prior to making a decision. The Council argued that the applicants were not affected persons within the meaning of the Resource Management Act 1991 (RMA) and that TRONA was not an affected person. The Court found that the Council's decision to proceed without notifying the applicants was unreasonable because it failed to adequately assess the potential for conflict between vehicular traffic and local resident pedestrian use of or near to the Roadway. The Court also found that the Council breached its legitimate expectation to engage with TRONA prior to making a decision. However, the Court found that TRONA was not an affected person in this case because it did not show a potentially relevant adverse effect on the iwi which is minor or more than minor. The Court set aside the Council's decision and directed that it be reconsidered in light of the Court's judgment.

Orders