Mahora Residents Society Inc v Hastings District Council
[2024] NZHC 1651
•21 June 2024
IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY
I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE
CIV-2024-441-000017
[2024] NZHC 1651
UNDER The Judicial Review Procedure Act 2016 IN THE MATTER OF
An application for judicial review
BETWEEN
THE MAHORA RESIDENTS SOCIETY INC
Applicant
AND
HASTINGS DISTRICT COUNCIL
First Respondent
NZ HOUSING GROUP HASTINGS LIMITED
Second Respondent
Hearing: (On the papers) Counsel:
M B Lawson for Applicant
M E Casey KC and A J Davidson for First Respondent M J Slyfield for Second Respondent
Judgment:
21 June 2024
JUDGMENT OF LA HOOD J
An application for the decision maker to be heard on judicial review
[1] The Mahora Residents Society Inc (the Society) has applied for judicial review of decisions by the Hastings District Council (the Council) granting land use and subdivision consents on a non-notified basis to NZ Housing Group Hastings Ltd (NZ Housing Group) in respect of a residential development in Mahora, Hastings. In this application, the Council applies to be heard at the substantive hearing of the case. The Society opposes that application.
THE MAHORA RESIDENTS SOCIETY INC v HASTINGS DISTRICT COUNCIL [2024] NZHC 1651 [21
June 2024]
[2] The Society’s substantive claim was summarised by McQueen J in her decision declining interim relief as follows:1
[18] The Society’s statement of claim pleads nine causes of action against the Council. They are based on illegality/improper purpose, mistake of law, irrelevant considerations, unreasonableness, and legitimate expectation. The Society seeks orders quashing both the Council’s notification decision and the consent decision. There are complaints from the Council and the NZ Housing Group about the way the claim is pleaded, but I do not need to resolve them at this time.
[19] The heart of the Society’s claim is that the Council has not correctly applied the appropriate tests under the Resource Management Act 1991 (the Act) in determining whether NZ Housing Group’s application for resource consents should be subject to public notification and should be granted. Mr Lawson says this is important in that an application can be made to permit an activity that contravenes the District Plan but the correct approach to such an application must be taken to respect the integrity of the Plan.
[3] The Society pleads (among other things) that the Council acted unlawfully by applying a “permitted baseline” to its notification assessment and decision, and to its resource consent assessment and decision, when no permitted baseline arises. A permitted baseline involves a comparison of the effects of an activity for which consent is being sought with the effects of an activity that could be undertaken as of right as a permitted activity under the District Plan. The Society says that because the District Plan has no permitted activity with the same effects as the development, no “permitted baseline” arises. As a result, the Society says that the Council disregarded the adverse effects on the environment of the proposed land-use and subdivision activities, contrary to the relevant provisions of the Resource Management Act 1991 (RMA) and the objectives of the District Plan.
[4] The Council and NZ Housing Group contend that the Council has taken a completely orthodox approach to the requirements of the RMA, and in particular to the application for the “permitted baseline” approach. They say that it is not whether the intended activity is permitted (as it is not, if consent is required, as is the case here) but how its effects compare with those activities that are permitted.
1 The Mahora Residents Society Incorporated v Hastings District Council [2024] NZHC 893 (footnote omitted).
This application
[5] On 10 May 2024, the Council applied for leave to participate in the substantive hearing on the basis that it has the potential to impact on, and raises important issues relating to, its administration, functions and duties under the RMA consenting regime and in implementing its District Plan. The application was made in reliance on ss 9 and 14 of the Judicial Review Procedure Act 2016 and with reference to the decision in Fraser v Central Hawke’s Bay District Council.2 NZ Housing Group supports the Council’s application.
[6] The Society opposes the order in reliance on the principle that a decision maker in a judicial review proceeding “should not become a protagonist and enter the fray” but should abide the Court’s decision, also referring to Fraser.3 The Society submits that the Council’s decision and its reasoning (or lack thereof) speaks for itself; arguments in support of the decision will be made by NZ Housing Group as the consent holder; the Council should remain impartial as a possible outcome is it’s reconsideration of the decision; and that there is no exceptional circumstance justifying its participation as the judicial review does not raise issues about the administration of the RMA or the District Plan. The proceeding is focused on the procedure adopted by the Council within the confines of its jurisdiction under those instruments and the Council should not be permitted to provide alternative justification or argument in support of the impugned decisions.
Legal principles
[7]The starting point is s 9 of the Judicial Review Procedure Act, which provides:
9 Respondents
(1)The following persons must be named as a respondent to an application:
(a) the person whose act or omission is the subject matter of the
2 Fraser v Central Hawke’s Bay District Council [2021] NZHC 2981.
3 The Society refers to Fraser, above n 2, at [16]; Goodman Fielder Ltd v Commerce Commission [1987] 2 NZLR 10 (CA) at 13; Secretary for Internal Affairs v Pub Charity [2013] NZCA 627, [2014] NZAR 177 at [27]; Fonterra Co-Operative Group Ltd v The Grate Kiwi Cheese Company Ltd (2009) 19 PRNZ 824 (HC); and the Supreme Court observations in Environment Defence Society Inc v New Zealand King Salmon Co Ltd [2014] NZSC 41, [2014] 1 NZLR 717 at [12] and n 1.
application; and
(b) if the application relates to any decision made in proceedings, every party to those proceedings.
[8] Section 10(1) provides that “a respondent to an application must file a statement of defence unless otherwise directed by a Judge under section 14.”
[9] The general principle is that a judicial or quasi-judicial body subject to an application for review of its decision is to not actively participate in the proceeding and should abide the decision of the Court.4 The underlying reason for this principle is that once a judicial or quasi-judicial decision maker has heard full argument in an adversarial setting and has delivered a decision setting out the justification for its decision, normally it should not be given a second opportunity to justify its decision on judicial review. Its decision should speak for itself. As noted above, s 9 of the Judicial Review Procedure Act provides that all the parties to a decision made “in proceedings” must be named as parties on any judicial review of the decision. This reflects that in an adversarial setting, usually it will be the role of an opposing party to act as contradictor on any judicial review application.
[10] Palmer J in Fraser discussed these issues in the context of RMA decisions, as follows:5
The role of a decision-maker in judicial review of RMA decisions
[16] It is well-established that, in judicial reviews and appeals, the decision-maker should not to [sic] become a protagonist and enter the fray, but should abide the Court’s decision. That is particularly the case when the decision-maker has exercised a judicial or quasi-judicial function in deciding between competing submissions of two or more parties. Those parties then carry the argument in the judicial review proceeding. The adversarial system relies on the heightening of contradictions in this way, to facilitate decision- making. The decision-maker is impartial, speaks through its decision, and does not seek to justify it further. That has obvious benefits where the decision-maker is required to consider the decision again.
[17] There is an exception, where “considerations of public interest and the effective administration of an Act arise”. This may occur particularly where there is no contradicting party, as the adversarial system then loses balance
4 TVWorks Ltd v Broadcasting Standards Authority HC Wellington CIV-2007-485-2438, 3 October 2008.
5 Fraser, above n 2 (footnotes omitted).
and the Court lacks assistance with one side of the issues. As the Court of Appeal in Secretary for Internal Affairs v Pub Charity put it:6
Exceptionally, the court may allow a decision-maker to appear where the court considers it may benefit from the decision-maker’s assistance, for example in matters relating to the administration of the legislation at issue. A court will also sometimes hear from a decision- maker on questions of jurisdiction.
[11] Palmer J considered the legislative background to ss 9 and 10 of the Act, noting that they appear to have been modelled on the equivalent provisions of Ontario's Judicial Review Procedure Act of 1971 aimed to “avoid technicalities arising as to who are the proper parties”.7 He stated:
[21] The requirements of ss 9 and 10 of the New Zealand JRPA apply to all decision-makers. They ensure the decision-maker is notified of the challenge to its decision. They enable the Court to seek, and the decision- maker to provide, assistance if required with a minimum of technical difficulty. They do not require or entitle the decision-maker to take an active role in the proceeding if the Court would not be assisted by that.
[12] Further, Palmer J accepted the proposition that the general principle that a judicial decision-maker abides an appeal or review has not generally been applied to local authorities’ consenting function under the RMA. He noted: 8
[23] Councils have a central role in RMA decision-making and have an ongoing interest in the workability and enforcement of the resource management regimes and the layers of planning instruments involved. This may well mean that the active involvement of a council as decision-maker in a judicial review will often assist the Court. This would be consistent with the exception to the general rule. ...
Assessment
[13] This is not a case where the decision-maker has exercised a judicial or quasi- judicial function in an adversarial setting. In dismissing the interim relief application, McQueen J noted:
[8] In November 2023, an Independent Commissioner, under delegated authority from the Council, decided both that the application for resource consents could be dealt with on a non-notified basis (the notification decision) and that the application should be granted (the consent decision). The
6 Secretary for Internal Affairs v Pub Charity [2013] NZCA 627, [2014] NZAR 177 at [27].
7 Fraser, above n 2, at [20] citing: James C McRuerRoyal Commission of Ontario Inquiry into Civil Rights: Volume 1 (Frank Fogg, 1968) at 329.
8 Fraser, above n 2 (footnote omitted).
decisions relied on the report prepared by the Council officer who assessed the applications. The parties agree that in the circumstances the officer’s report can be understood as reflecting the reasoning for the Council’s decisions.
[14] Care needs to be taken in applying cases about decision makers becoming protagonists in appeals from their own decisions,9 in cases involving judicial review of essentially administrative decisions. The nature of an appeal is that it will usually involve the exercise of a judicial or quasi-judicial function in an adversarial setting. That is not normally the case in judicial review of administrative decisions.
[15] This is a case where there has been an essentially administrative decision made in a non-adversarial setting, but there is a respondent who can act as a contradictor. In such a case, in my view the essential issue is whether hearing from the decision maker will assist the Court because the decision maker has an interest in, knowledge of, or perspective on, the issues to be resolved beyond that of the contradictor. I consider that is the situation here.
[16] In challenging the Council’s decision not to notify, and its consequent decision to grant the application by the second respondent for consent, the Society raises issues of interpretation of the notification provisions, ss 95 to 95E, and the consent provision, s 104, of the RMA. The Society takes issue with the Council’s application of the “permitted baseline” tests under these sections.10
[17]More broadly, the claim appears to raise the following issues for determination:
(a)The correct approach to the “permitted baseline tests” under the notification and consent provisions of the RMA.
9 For example, Secretary for Internal Affairs v Pub Charity above n 6; Environment Defence Society Inc v New Zealand King Salmon Co Ltd above n 3.
10 For example, the Society challenges the Council’s determinations under ss 95A and 95D that the adverse effects on the environment would be not more than minor (and that consequently public notification is not required); and under ss 95B and 95E that the adverse effects on any person would be less than minor (and that consequently limited notification on affected persons is not required). A particular focus of the claim is Council’s application of the “permitted baseline”. The Council submits that it has generally been understood that the test applies to the discounting of adverse effects that might arise from a permitted activity, when considering the effects of the activity for which consent is sought. The Society appears to argue for a different approach –– where the activity for which consent is being sought is not a permitted activity, then there can be no permitted baseline.
(b)The consultation obligations (if any) on the Council in respect of the community or any potentially affected person in deciding whether or not to notify and/or grant consent.
(c)The relevance (if any) of the District Plan’s objectives and policies to the Council’s determination of whether to notify a resource consent application, and in particular, if the alleged non-compliance with these objectives and policies itself constitutes an “adverse effect”.
(d)Whether District Plan provisions can give rise to an actionable “legitimate expectation”.
(e)The correct interpretation of a provision in the District Plan restricting traffic generation on Access Roads.
[18] The Council submits that these issues will have significant impacts on the Council’s administration of its District Plan and its resource consenting and notification decisions under the RMA. I agree that they appear to raise considerations of broader public interest, with implications for other consent applications and for other consenting authorities. Accordingly, the Court would be assisted by the Council’s participation in determining the claim.
[19] Leave for the Council to participate in the substantive hearing is granted accordingly.
La Hood J
Solicitors:
Lawson Robinson, Napier for Applicant
Hastings District Council, Hastings for First Respondent Sainsbury Logan & Williams, Napier for Second Respondent
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