Mahora Residents Society Incorporated v Hastings District Council
[2024] NZHC 3322
•8 November 2024
IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY
I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE
CIV-2024-441-017
[2024] NZHC 3322
BETWEEN THE MAHORA RESIDENTS SOCIETY INCORPORATED
ApplicantAND
HASTINGS DISTRICT COUNCIL
First Respondent
NEW ZEALAND HOUSING GROUP HASTINGS LTD
Second Respondent
Hearing: 17 September 2024 Appearances:
M B Lawson for Applicant
M Casey KC for First Respondent M J Slyfield for Second Respondent
Judgment:
8 November 2024
JUDGMENT OF CHURCHMAN J
Introduction
[1] The Mahora Residents Society Inc (Society) seeks judicial review of decisions made by the Hastings District Council (the Council) not to notify, and to grant, resource consents to NZ Housing Group Hastings Ltd (NZ Housing Group) to undertake a 10-unit residential development in Mahora, Hastings.
Grounds of review
[2] The applicant’s amended statement of claim runs to some 32 pages. As identified by the respondents, the statement of claim does not comply with a number
THE MAHORA RESIDENTS SOCIETY INCORPORATED v HASTINGS DISTRICT COUNCIL [2024]
NZHC 3322 [8 November 2024]
of the requirements for a statement of claim as set out in Reay v Attorney-General.1 Despite these issues, the respondents have expressed a preference for the matter to be disposed of without undue delay, and thus are content to proceed with the existing statement of claim.
[3] The applicant has advanced 10 grounds of judicial review, some of which overlap or are repetitive. The grounds can be summarised into the following main points:
(a)the Council acted illegally and/or for an improper purpose in applying a permitted baseline to its notification decision and resource consent decision when no such permitted baseline existed;
(b)in considering its notification decision and resource consent decision, the Council acted under a mistake of law by having regard to an alternative development scenario that was not a controlled activity;
(c)the Council had regard to an irrelevant consideration, namely the permitted baseline when no such permitted baseline existed, in making its notification decision and resource consent decision;
(d)the Council acted unreasonably in making its notification decision and resource consent decision by pursuing an improper purpose, failing to take into account relevant considerations, taking into account irrelevant considerations, and/or acting under a mistake of law; and
(e)the Council made a mistake of law and/or a mistake of fact in applying the maximum number of vehicle movements for the access road under standard 7.2.5M of the District Plan.
[4]These grounds give rise to three primary issues to be determined:
(a)Whether the Council erred in its application of the permitted baseline;
1 Reay v Attorney-General [2016] NZCA 519; [2016] NZAR 1672 at [16].
(b)Whether the Council erred in its use of the alternative development scenario; and
(c)Whether the Council erred in its application of standard 7.2.5M of the District Plan concerning traffic generation.
The RMA application
[5] In its application, NZ Housing Group sought a land use consent to establish a residential development comprising 10 residential dwelling units that exceeded the General Residential Zone Density Standards of the Operative Hastings District Plan as a discretionary activity under r GR28. It also sought a subdivision consent to undertake a fee simple subdivision as a non-complying activity under r SLD25 to create 11 lots, comprising 10 residential lots and one jointly owned access lot (JOAL), which did not comply with the minimum lot size. Lastly, a resource consent was needed under reg 10 of the NES for Assessing and Managing Contaminants in Soil to Protect Human Health2 as a restricted discretionary activity.
[6]The 10 residential dwelling units proposed comprised:
(a)Two two-bedroom, one-storey duplex units of 78 m2 Gross Floor Area (GFA) per unit, facing toward Rimu Street, each with a single vehicle park located at the rear of unit accessed via the JOAL; and
(b)Three two-bedroom, two-storey duplex units of 41 m2 per unit, located to the rear of the single level units, with one onsite carparking space and accessed via the JOAL.
[7] In addition to the proposed development, the application also sets out an alternative development scenario. This is a five-lot controlled activity subdivision, with each lot able to support a primary and supplementary residential dwelling and a complying outdoor living space and a single carparking space with reverse manoeuvring within the JOAL access. This alternative development scenario is
2 Resource Management (National Environmental Standard for Assessing and Managing Contaminants in soil to protect Human Health) Regulations 2011.
envisaged to be able to support up to 22 bedrooms, consistent with the scale of residential occupancy proposed, which is 20 bedrooms. The application states that this alternative development scenario would result in development at a similar intensity of use across the subject site but with a lesser degree of integrated design and attention to outcome as has been applied to the proposal.
Legal principles
[8] Under s 95 of the Resource Management Act 1991 (RMA), a consent authority that has received a resource consent application must decide, in accordance with ss 95A and 95B whether to give public notification or limited notification of the application.
[9] One of the considerations that the consent authority must have regard to in deciding whether to publicly notify is whether the activity proposed by the application will or is likely to have adverse effects on the environment that are more than minor.3 Section 95D(b) provides that in deciding whether an activity will have or is likely to have adverse effects, the consent authority may disregard an adverse effect of the activity if a rule or national environmental standard permits an activity with that effect.
[10] When determining whether to give limited notification of a resource consent application, the consent authority must determine whether there is an affected person under s 95E,4 in which case that person must be notified of the application. A person is an affected person if the consent authority decides that the activity’s adverse effects on that person are minor or more than minor.5 When assessing the adverse effects on a person, the consent authority may disregard an adverse effect of the activity on that person if a rule or national environmental standard permits an activity with that effect.6
[11] Section 104(1)(a) of the RMA provides that when considering an application for a resource consent, the consent authority must have regard to any actual and potential effects on the environment of allowing the activity. Section 104(2) states
3 Resource Management Act 1991, s 95A(8)(b).
4 Section 95B(8).
5 Section 95E(1).
6 Section 95E(2)(a).
that when assessing the actual and potential effects on the environment, the consent authority may disregard an adverse effect of the activity on the environment if a national environmental standard or the district plan permits an activity with that effect.
[12] Sections 95D(b), 95E(2)(a) and 104(2) codify an approach to determining a resource consent application called the “permitted baseline”.
[13] Orthodox principles of judicial review apply in this case. These principles were summarised in Coro Mainstreet (Inc)7 as follows:
[40] It is not the function of the Court on an application for review to substitute its own decision for that of the consent authority. Nor, will the court assess the merits of the resource consent application or the decision on notification. The inquiry the Court undertakes on an application for review is confined to whether or not the consent authority exceeded its limited jurisdiction conferred by the Act. In practice the Court generally restricts its review to whether the Council as decision maker followed proper procedures, whether all relevant and no irrelevant considerations were taken into account, and whether the decision was manifestly reasonable. The Court has a discretion whether or not to grant relief even if it is persuaded that there is a reviewable error.
[14] The aims and purposes of the RMA do not justify a more intensive standard of review of a non-notification decision than would otherwise be appropriate for a Court when exercising its powers.8
Issue One: the permitted baseline
[15] The applicant has raised three main issues with how the Council applied the permitted baseline. These are:
(a)The unbundling of the subdivision consents from the land use consents which allowed the Council to apply a permitted baseline to the land use consents, knowing there is no permitted baseline for subdivision.
7 Coro Mainstreet (Incorporated) v The Thames-Coromandel District Council [2013] NZHC 1163 at [40] footnote omitted.
8 Far North District Council v Te Runanga-A-Iwi O Ngati Kahu [2013] NZCA 221 at [56], [2013] ELHNZ 211 at [56].
(b)The application of a “partial” permitted baseline by only having regard to the effects over and above that of a permitted activity.
(c)The conflating of the concepts of “permitted baseline” and “the environment”.
The “unbundling” of consents
Submissions
[16] Mr Lawson, for the applicant, submits that the requirement to consider the effects of “activities” and not individual “consents” on the environment has resulted in a long-established principle that the effects of the whole activity should be considered together on the basis of the most restrictive activity. He submits that the Council should have determined the activity to be examined was the subdivision of the land into 10 lots on which 10 new homes would be built, and assessed whether there was an activity permitted by a NES or rule in the District Plan that permits an activity with the same effects as a 10-lot subdivision with 10 new homes.
[17] He argues that instead of following this approach, the Council unbundled the consents and applied a permitted baseline only to the land use consent component. Mr Lawson submits this runs counter to the long-established principles behind bundling of consents as well as s 88 and the provisions of sch 4, and ss 95D, 95E and 104 which all require consideration of “activities” and envisage that multiple consents may be required for those activities.
[18] Mr Casey KC for the Council submits that the applicant’s argument overlooks the purpose of the permitted baseline, which is to assist with the assessment of effects of the proposal as a whole, rather than being an activity-by-activity comparison of its component parts. Mr Casey submits that it is commonly observed in RMA decisions that subdivision itself often does not involve adverse effects on the environment, but rather it is the activities that can be undertaken on the resultant lots that have the potential to cause such effects. If similar effects can be generated without any
subdivision occurring, then those effects can form part of the permitted baseline. Counsel relies on Rawlings v Timaru District Council as supporting this approach.9
[19] Mr Slyfield, counsel for NZ Housing Group, submits the Council did not unbundle the consent, which would have meant it would have assessed the individual components of the proposal according to their distinct activity classes, but instead identified and applied a permitted baseline.
[20] In response to the applicant’s contention that it was impermissible for the Council to apply a permitted baseline to land use but not subdivision, Mr Slyfield submits bundling does not impose limits on how the permitted baseline is applied, rather it remains open to a consent authority, when assessing effects, to identify and disregard any effect if the plan permits an activity with that effect. Mr Slyfield states the applicant’s concern with “unbundling” does not in fact relate to bundling but the general practice of assessing a proposal in a combined, overall or holistic way.
[21] Mr Slyfield agrees that subdivision is an integral part of the project but argues the applicant’s focus on this is misguided because it is the land uses that generate the potential adverse effects of the project, not the subdivision. The subdivision merely alters the boundaries internally within the subject land. If NZ Housing Group had applied for the same land uses without applying for consent to subdivide, all material effects on neighbours and on the wider environment would be exactly the same. Although the subdivision does create non-compliance with the standard for height in relation to the boundary, this was assessed and it was found the shading or overshadowing was generally limited to carparking or access areas, away from identified outdoor living spaces and main living areas.
Analysis
[22] In Te Rūnanga o Ngāti Awa v Bay of Plenty Regional Council,10 the Court of Appeal cited with approval the description of “bundling” in Protect Aotea v Auckland Council:11
9 Rawlings v Timaru District Council [2013] NZEnvC 67 at [18].
10 Te Rūnanga o Ngāti Awa v Bay of Plenty Regional Council [2022] NZCA 598 at [132].
11 Protect Aotea v Auckland Council [2021] NZEnvC 140 at [17].
Bundling, in the context of resource management in New Zealand, refers to applications for two or more resource consents being considered together, it denotes a practice of how to assess the class or status of the bundled activities overall. Where the activities involved are of different classes in terms of s 87A of the Act and any relevant regulation, national environmental standard or plan rule, the applicable class for the bundled application may be the most stringent class. For example, if a proposal involves some activities which are classed as discretionary and some as non-complying, the whole proposal may be assessed as non-complying.
[23] This appears to indicate that “bundling” concerns the consideration of activities together, rather than the consideration of resource consents. Since different activities often need their own consents, this may require the consideration of consents together as well. However, as submitted by Mr Lawson, the focus is on whether adverse effects will result from “activities”. This is clear from the wording of the requisite sections:
95D Consent authority decides if adverse effects likely to be more than minor
A consent authority that is deciding, for the purpose of section 95A(8)(b), whether an activity will have or is likely to have adverse effects on the environment that are more than minor—
…
(b) may disregard an adverse effect of the activity if a rule or national environmental standard permits an activity with that effect; and
…
95E Consent authority decides if person is affected person
(1)For the purpose of giving limited notification of an application for a resource consent for an activity to a person under section 95B(4) and
(9) (as applicable), a person is an affected person if the consent authority decides that the activity’s adverse effects on the person are minor or more than minor (but are not less than minor).
104 Consideration of applications
(2)When considering an application for a resource consent and any submissions received, the consent authority must, subject to Part 2 and section 77M, have regard to—
(a) any actual and potential effects on the environment of allowing the activity; and
…
(2) When considering an application for the purposes of subsection (1)(a), a consent authority may disregard an adverse effect of the
activity on the environment if a national environmental standard or the plan permits an activity with that effect.
(Emphasis added)
[24] As observed in Protect Aotea, bundling is a rule of practice and not a requirement of the RMA itself, although it does act to implement a number of provisions of the RMA, namely ss 30(1)(a), 31(1)(a), 103 and 270.12 In particular, s 103 provides that:
(1)Where 2 or more applications for resource consents in relation to the same proposal have been made to a consent authority, and that consent authority has decided to hear the applications, the consent authority shall hear and decide those applications together unless—
(a) the consent authority is of the opinion that the applications are sufficiently unrelated so that it is unnecessary to hear and decide the applications together; and
(b) the applicant agrees that a combined hearing need not be held.
[25] The assessment report clearly records that the Council did bundle the activities and applied the most stringent class, namely the non-complying activity class that the land use and subdivision activities fell within. This is demonstrated on the first page of the report where the “Assessment of Status” is stated to be “Non-Complying Activity (as bundled)”.
[26] It is accepted by all parties that there is no permitted baseline for subdivision. However, the potential adverse effects envisaged by the applicant, which appear to relate to residential character and amenity, do not arise from the subdivision itself, but from the consequential construction of buildings and other land use activities that arise from the associated land use consent.13 Such effects are not dependent on the subdivision consent being granted, as demonstrated by the permitted baseline itself. Under the District Plan, it is possible for five buildings to be constructed without the need for the site to be subdivided. As submitted by Mr Slyfield, the subdivision consent merely alters the boundaries internally within the subject site. I accept the reasoning of Mr Casey that since similar effects can be generated without any subdivision occurring, those effects can form part of the permitted baseline.
12 Protect Aotea v Auckland Council [2021] NZEnvC 140 at [18].
13 Rawlings, above n 9, at [18].
[27] When examining the wording of the assessment report, there is nothing to indicate that the reporting officer “unbundled” the activities and assessed each of them according to their individual classes. Rather, she focussed on the land use activities, which were those that have the potential to cause adverse effects that are more than minor. The applicant has not been able to identify any effects caused by the subdivision that the Council failed to have regard to. I consider that the reporting officer did not err in focussing on the land use activities when applying the permitted baseline, and consequently the Council did not err in relying on those findings when making its notification and resource consent decisions.
Application of a “partial” permitted baseline
Submissions
[28] Mr Lawson submits that irrespective of whether four or five residential dwellings plus a supplementary residential building are permitted as of right, that is not the same as the effects of 10 residential buildings as proposed. He states the limited jurisdiction under the RMA does not allow a consent authority to disregard a percentage of effects on the basis that such percentage or proportion might arise from permitted activities and only consider the effects over and above the effects that are disregarded. Mr Lawson argues that, having disregarded the effects associated with an erroneous permitted baseline, the assessment report adopted by the decisions undertook a limited analysis of the effects on the environment.
[29] With respect to the applicant’s assertion that there was no permitted baseline that could be applied, Mr Casey submits this is fundamentally wrong and refers to the description of permitted baselines in Arrigato Investments Ltd v Auckland Regional Council, namely:14
… The permitted baseline … is the existing environment overlaid with such relevant activity (not being a fanciful activity) as is permitted by the plan. Thus, if the activity permitted by the plan will create some adverse effect on the environment, that adverse effect does not count … It is part of the permitted baseline in the sense that it is deemed to be already affected the environment … it is not a relevant adverse effect. The consequence is that only other or further adverse effects emanating from the proposal under consideration are brought into account.
14 Arrigato Investments Ltd v Auckland Regional Council [2002] 1 NZLR 323 at [29].
[30] Mr Casey submits that the applicant’s approach ignores the final sentence of the above extract, as it argues that if there are other or further adverse effects compared to a permitted activity, the permitted baseline cannot be applied. He submits the correct and well-accepted approach to permitted baselines is to identify a non-fanciful activity that could occur on the site without needing resource consent, consider the effects such an activity would have, and compare those effects with the effects of the proposed activity. He refers to Empire Entertainment v Ellzin Trust, where the High Court stated:15
… When working through the s 104 process, the task would be to identify additional adverse effects (if any) resulting from a larger floor area and hence more patrons than would be allowed as a permitted activity.
[31] Mr Slyfield submits that the application of what is described as a “partial” baseline is exactly what the permitted baseline allows. He states the statutory provisions authorise the Council to disregard an effect of the activity if the plan permits an activity with that effect. He provides the example of a 12-metre house in a residential zone where 10 metre houses are permitted, and points out that the focus is on the effect of the top two metres.
[32] Mr Slyfield relies on Auckland Regional Council v Living Earth Ltd as supporting the view that what the applicant describes as a “partial” permitted baseline is neither improper nor invalid.16 In that case the Court of Appeal expressed its view that “precise correspondence between effects permitted under the baseline and those associated with a proposal is not fundamental to the application of the permitted baseline test”.17 Mr Slyfield argues that the applicant submits that precise correspondence between the proposal and the baseline is required when it argues that the discretion to consider a permitted baseline did not arise because no permitted activity allows for a 10 unit residential land use at the densities proposed.
[33] Mr Slyfield further submits the proposal does not actually involve 10 residential buildings as stated by the applicant, rather it involves only five residential buildings, each comprising a pair of townhouses with a common wall. He notes that
15 Empire Entertainment v Ellzin Trust [2010] NZRMA 525 at [58].
16 Auckland Regional Council v Living Earth Ltd [2008] NZCA 349, (2008) 14 ELRNZ 305.
17 At [62].
all of the proposed townhouses are of modest size, being two-bedroom units with a floor area of either 77.9 m2 or 79.3 m2, with the overall dimensions of each of the five buildings being comparable to a standard three or four-bedroom family home. These buildings are also designed and located within the site so that they comply with all permitted standards for height, side and rear setbacks, height in relation to boundary (HIRB) and building coverage. Even if scale was a relevant consideration to the application of the permitted baseline (contrary to Living Earth), it is submitted that the scale and design of the structure is not in fact significantly different from a permitted development of the site for five family homes.
Analysis
[34] The use of permitted baselines is an approach to assessing the likely effects on the environment of activities that originated with the Court of Appeal’s decision in Bayley v Manukau City Council.18 In Bayley, Blanchard J referred to a statement of Salmon J in the case Aley in which Salmon J stated “…a consideration of the effect on the environment of the activity for which consent is sought requires an assessment to be made of the effects of the proposal on the environment as it exists”.19 Blanchard J expanded on this statement adding that the assessment of effects was to be not only on the environment as it exists but also “as it would exist if the land were used in a manner permitted as of right by the plan”.20
[35] In further decisions such as Smith Chilcott Ltd, Arrigato Investments Ltd, and Dye,21 the Court of Appeal clarified the concept of permitted baselines, and made clear it meant the consent authority was only entitled to have regard to adverse effects of discretionary and non-complying activities that were “other or further” than those adverse effects permitted as of right.22 After concerns were raised around the mandatory direction to disregard permitted effects, which appeared to conflict with s
104 of the RMA which required consideration of the effects of the activity, amendments to the RMA were introduced in 2003. These codified the permitted
18 Bayley v Manukau City Council [1991] 4 ELRNZ 461 (CA).
19 At 473 citing Aley v North Shore City Council [1998] NZRMA 361 at 377.
20 At 473.
21 Smith Chilcott Ltd v Auckland City Council [2001] 3 NZLR 473 (CA); Arrigato, above n 14; and
Dye v Auckland Regional Counil [2002] 1 NZLR 337.
22 Stephen Blakeley Environment Handbook (online ed, Thomson Reuters) at [PB3].
baseline approach but made it clear consent authorities were not compelled to disregard permitted effects, but rather had a discretion to do so.23
[36] The factors to consider in determining whether the consent authority should have exercised the discretion to apply a permitted baseline were set out in the Lyttelton Harbour decision.24 These were:25
·Does the plan provide for a permitted activity or activities from which a reasonable comparison of adverse effect can conceivably be drawn?
·Is the case before the Court supported with cogent reasons to indicate whether the permitted baseline should not be invoked?
·If the parties consider that the application of the baseline test will assist, are they agreed on the permitted activity or activities to be compared as to adverse effect, and if not, where do the merits lie over the area of disagreement?
·Is the evidence regarding the proposal, and regarding the hypothetical (non-fanciful) development under relevant permitted activity, sufficient to allow for an adequate comparison of adverse effect?
·Is a permitted activity with which the proposal might be compared as to adverse effect nevertheless so different in kind and purpose within the plan’s framework that permitted baseline ought not to be invoked?
·Might application of the baseline have the effect of overriding Part 2 of the RMA.
[37] The current provisions codifying the permitted baseline, namely ss 95D(b), 95E(2)(a) and 104(2), provide that when considering the effects of a proposed activity to decide whether to notify or grant a resource consent, the consenting authority may “disregard an adverse effect of the activity on the environment if a national environmental standard or the plan permits an activity with that effect”.
[38] It appears clear that, as submitted by the respondents, the application of a “partial” baseline is in fact the correct application of the permitted baseline test. The purpose of a permitted baseline is to simplify the resource consent process by allowing the consenting authority to focus only on those effects that exceed the effects of those
23 At [PB4].
24 Lyttelton Harbour Landscape Protection Association Inc v Christchurch City Council [2006] NZRMA 559.
25 At [21].
activities that are permitted under a district plan or national environmental standard. As made clear by the Court of Appeal in Arrigato, it is only those adverse effects “over and further” than those within the permitted baseline that are brought into account.26 The reporting officer undertook an orthodox approach in disregarding those effects that were considered within the permitted baseline, in other words effects that would have resulted from a permitted activity such as the construction of five residential dwellings and a supplementary residential building.
[39] With respect to the question of whether five residential dwellings and a supplementary residential building was an appropriate permitted baseline, I accept the submission of Mr Slyfield that, as found in Living Earth, precise correspondence between the effects permitted under the baseline and those associated with the proposal is not necessary. The permitted baseline applied was one with which a reasonable comparison could be made. Although the development is for 10 units, these units are housed in five buildings and are each of a relatively small size. The assessment report in fact noted the permitted baseline had a greater building site coverage of 908.55 m2 compared to 602.32 m2 for the proposed development. I consequently do not consider that, as alleged by the applicant, an erroneous permitted baseline was applied.
Conflating permitted baseline with the environment
Submissions
[40] Mr Lawson submits that the Council in undertaking an assessment of the application and in accepting the recommendation of the assessment conflated the concept of a permitted baseline with the environment and did this in a way that is not permitted by the permitted baseline concept. He submits the Council’s approach extended the environment to include applications that might be made in the future or as an alternative on the subject site, which resulted in double discounting of the effects on the environment. Mr Lawson refers to Queenstown-Lakes District Council v Hawthorn Estate Ltd27 and states in that decision the Court of Appeal expressly rejected the suggestion that the effects of resource consent applications that might be
26 Arrigato, above n 14, at [29].
27 Queenstown – Lakes District Council v Hawthorn Estate Ltd, 12 ELRNZ 299.
made in the future should be brought to account in considering the likely future state of the environment.
[41] Mr Slyfield submits it is not clear what evidence the applicant relies on to support this submission, other than a statement on page 33 of the assessment report which reads “[i]n considering both the existing environment and the District Plan enabled environment …”. Mr Slyfield submits that when this is read in context, this is referring to the character and amenity as it presently exists and as it might change over time with permitted development. They are not being conflated, but rather are each being recognised as important parts of the assessment. Mr Slyfield says there is nothing contrary to Hawthorn in this, as the Officer is not discussing the environment in terms of its potential receipt of effects, but in terms of the attributes it possesses (now and as it evolves over time) that collectively make up residential character and amenity, along with the attributes of the site.
Analysis
[42] In Hawthorn, the Court of Appeal clarified the scope of what was meant by “the environment” in the context of the assessing the effects of activities under s 104(1)(a) the RMA. The Court confirmed the receiving environment should be assessed in respect of the potential to accommodate permitted activities in the future, but not on potential consent applications as that was too speculative.28 The relevant paragraph of the judgment reads:29
… In our view, the word “environment” embraces the future state of the environment as it might be modified by the utilisation of rights to carry out permitted activity under a district plan. It also includes the environment as it might be modified by the implementation of resource consents which have been granted at the time a particular application is considered, where it appears likely that those resource consents will be implemented. We think Fogarty J erred when he suggested that the effects of resource consents that might in future be made should be brought to account in considering the likely future state of the environment.
[43] Additionally, earlier in the Hawthorn decision, the Court of Appeal noted that the High Court Judge in that case appeared to have incorrectly used the term
28 Kenneth Palmer Local Government Law in Aotearoa New Zealand (online ed, Thomson Reuters) at [18.2.5].
29 Hawthorn, above n 27 at [84].
“permitted baseline” to refer to the likely developments that would take place beyond the boundary of the subject site, utilising existing resource consents. The Court of Appeal considered that nothing turned on the label the Judge used to refer to lawfully authorised environmental change beyond the subject site. But they made it clear that assessing the permitted baseline is a different exercise to ascertaining the effects on the environment as the permitted baseline focusses solely on the site of the resource consent application.30
[44] Mr Lawson, for the applicant contends that the Council erred in applying the permitted baseline by confusing it with the environment as the High Court Judge in Hawthorn did.
[45] Mr Lawson has not identified where in the assessment report or the notification and resource consent decisions this conflation and what was said to be the extension of the environment to include future consent applications has occurred. The assessment report discussed the potential future state of the environment at pages 33 and 35:
Notwithstanding the current residential environment, the current District Plan provisions do not preclude two storied dwellings up to 8 metres high on these sites at a density of 1 dwelling on 350 m plus provision for a supplementary dwelling. The site is not located in the Hastings Residential Character Zone where higher minimum densities have been established to protect an identified character. The site is also not located in an area specifically identified for CRD. The District Plan provides for CRD outside of identified areas is a Discretionary Activity, allowing assessment of a proposal on its merits, although noting this proposal does not meet the definition of a CRD.
…
Whilst the immediate area presently does not have multi-unit developments or two storied dwellings, the current District Plan does not preclude more (even when considering what could be done under an alternative development scenario). While the proposal does not meet the permitted density of 1 residential building per 350m2 or the CRD density of 1 residential dwelling per 250m2 the density proposed is not dissimilar to what could be developed as an alternative feasible development within this land area. Furthermore, the proposed building coverage is less than what could be provided by a permitted activity. This is an appropriate comparison to determine the suitability of these sites for the proposed density.
30 Hawthorn, above n 25 at [90].
[46] It is clear from these passages that the reporting officer did not consider future applications for resource consent when considering the future state of the receiving environment. Rather, she acknowledged that under the current District Plan, higher densities of development were permitted. This is consistent with the approach set out by the Court of Appeal in Hawthorn.
[47] Throughout the assessment report, the reporting officer correctly uses the term permitted baseline, namely, to refer to a permitted activity that could occur on the site without consent that has similar effects to the proposed activity. This was considered separately from the environment.
[48] The applicant has not established that the Council erred in its application of the permitted baseline.
Issue 2: the alternative development scenario
[49] In relation to the Council’s consideration of the alternative development scenario, the applicant submits that the scenario was an irrelevant consideration as:
(a)the alternative development scenario was not a controlled activity due to its inconsistency with r 26.1.6A of the District Plan relating to minimum access way width;
(b)the alternative development scenario was not a controlled activity due to the fact the net site area of each lot was under the minimum of 350 m2; and
(c)The alternative development scenario was not part of the environment as, per Hawthorn, the future environment does not include consents that may be applied for and granted in the future.
The minimum accessway width
Submissions
[50] Mr Lawson submits that what he describes as the erroneous consideration of the alternative development scenario was further exacerbated by the fact it was considered a controlled activity when it in fact was not. This was because it did not meet the requirements under r 26.1.6A of the Hastings District Plan for a minimum access way of 4.5 metres to service four to six household units.
[51] Mr Lawson also notes that Mr Wiffen, who provided an affidavit in support of the respondents’ opposition to the judicial review, disagreed with the requirement of a
4.5 metre minimum width on the basis that a supplementary residential building is not a separate household unit. Mr Lawson submits that NZ Housing Group cannot have it both ways, in that it cannot on the one hand put forward that the primary and supplementary residential dwelling on each of the five lots as being akin to 10 residential homes on a 10 lot subdivision and on the other contend that for the purposes of calculating the required width of an accessway, a supplementary residential building is not a separate household unit.
[52] Mr Slyfield submits that the alternative development scenario was correctly described in the application and in the Council’s decisions as a controlled activity. He notes the width of the JOAL which services the rear three lots is 3.6 metres at its narrowest and states the District Plan standards requires a private access way servicing three properties to have a minimum width of 3.6 metres and a private access serving four to six household units to have a minimum width of 4.5 metres.
[53] Mr Slyfield submits the District Plan does not define “household unit” and submits that Mr Wiffin, in his affidavit, correctly interpreted a household unit by reference to relevant Plan provisions including the definition of supplementary residential buildings, and the fact these buildings do not require a separate parking space and are exempted from density and outdoor living space standards. These considerations are submitted to strongly support the interpretation that supplementary residential buildings are not to be treated as separate household units for the purposes of vehicle access.
Analysis
[54]Rule 26.1.6A of the Operative Hastings District Plan provides:
1. Access to Property
…
(c) The minimum legal widths for private access are contained in Table 26.1.6.1-1 below. Private access to properties shall allow the safe passage from the edge of the road to the legal boundary of the lot for a single site or household unit. For two or more sites or household units or for any Right of Way, formation of the access to the activity undertaken on the site is required in compliance with Table 26.1.6.1-1.
[55] Table 26.1.6.1-1 specifies that for private access ways that service three household units in urban zones, the minimum legal access width is 3.6 metres, whereas for private accesses servicing 4–6 household units, the minimum legal access width is
4.5 metres.
[56] Household unit is not defined under the District Plan. However, s 7 of the Building Act 2004 provides:
household unit—
(a) means a building or group of buildings, or part of a building or group of buildings, that is—
(i)used, or intended to be used, only or mainly for residential purposes; and
(ii)occupied, or intended to be occupied, exclusively as the home or residence of not more than 1 household; but
(b) does not include a hostel, boarding house, or other specialised accommodation.
[57] A supplementary residential building is defined under the District Plan as “a residential building which supports the principal dwelling on the site and is therefore located within the curtilage of the principal dwelling and shares its vehicle access and services”. A principal residential dwelling is defined as “the main dwelling on the site and is the primary living space for the site”. Lastly, a residential building is defined as “a building, a room, or a group of rooms, used or intended to be used exclusively by one or more persons as a single, independent and separate household unit”.
[58] These definitions are consistent with the submission that supplementary residential buildings are household units. However, the requirement under the Building Act that a household unit is occupied as the residence of not more than one household suggests that, given supplementary residential buildings are generally intended to host other family members,31 that they are not a household unit and that rather supplementary residential buildings together with the principal residential dwelling make up the household unit. This interpretation is also supported by the fact that supplementary residential buildings are not required to meet the density or outdoor living space standards, as provided in standard 7.2.6C of the District Plan.
[59] When read together, the relevant provisions of the District Plan indicate that supplementary residential buildings do not fall within the definition of a household unit. Consequently, a width of 3.6 metres for the accessway to the rear three lots was compliant with standard 26.1.6A of the District Plan. The width of the accessway did not render the alternative development scenario a non-compliant activity.
The net site area
Submissions
[60] Mr Lawson submits that the alternative development scenario is not a controlled activity due to the fact the net site area per dwelling is less than 350 m2, since common use areas, access lots, access strips and entrance strips are excluded from the calculation of this area. He states this means where a supplementary residential building is located on the site, the net site area must be 350 m2 plus 36 m2 of shared outdoor living space and plus the areas used as common driveways, access lots, access strips and entrance strips.
[61] Mr Casey submits that Mr Stickney’s interpretation of “common use area” that the applicant relies on is not sustainable. He contends that the definition of net site area distinguishes between areas set aside for the exclusive use of its owners, lessees or tenants, which are included in the definition, and “common use areas” which are
31 I note that the outcome statement that accompanies Standard 7.2.6C of the Operative Hastings District Plan states that “this provision provides flexibility in providing for extended family (and the like) or supplementary accommodation on SITE and contributes to utilising land is an efficient manner while maintaining residential AMENITY for occupants and neighbours”.
excluded. He submits the clear intention is for a supplementary residential building to be used as an extension of the principal dwelling, meaning any occupiers would be anticipated to be part of the owners’ family or their tenants. Mr Casey argues the outdoor living space between occupiers of the principal and supplementary is land set aside for those occupants and therefore forms part of the net site area.
[62] Mr Slyfield supports the Council’s submissions and submits further that Mr Stickney’s approach referred to by the applicant relies improperly on Figure 9 of Appendix 68 to the Plan. He submits that, as Mr Wiffin identified in his affidavit, all examples of common use areas depicted in Figure 9 involve areas that rely upon easements or legal instruments to protect or enable the use. In contrast, a supplementary building shares the outdoor living space of the principal dwelling, without the need for legal instruments to enable that shared arrangement, which is consistent with the stated purpose of the Plan’s provision for supplementary residential buildings.
Analysis
[63]Under the Operative Hastings District Plan, net site area is defined as:
Net Site Area: means a single contiguous site area set aside for the exclusive use of its owners, leases or tenants and shall exclude all common use areas, (excluding easements for water, power, phone, sewer and stormwater), access lots or access strips and entrance strips but in the Rural Areas/Zones shall also include the total of two or more such areas separated by any common use areas, access lots or access strips. See Appendix 68 – Figure 9
[64] Although common use area is not defined in the District Plan, Figure 9 in Appendix 68 to the District Plan sets out a number of examples of what constitutes net site area and what does not. Examples include rights of way, shared access, and shared parking and manoeuvring areas. In the cross-lease example, the shared parking and manoeuvring area is excluded from the net site area as it is not an “exclusive use area”.
[65] The cross-lease example indicates that what is determinative of whether an area is a common use area or part of the net site area is whether it is an “exclusive use area”. I consider that the fact that supplementary residential dwellings are exempt from the outdoor living space requirements under the District Plan to be compelling
here. Supplementary residential buildings are intended to provide additional accommodation for members of a household and to support the principal dwelling. This contrasts with the cross-lease example where two different households are sharing parking and manoeuvering area. The outdoor living space between the supplementary residential buildings and the principal dwellings are for the exclusive use of that household.
[66] I therefore consider that the net site area requirements under the District Plan were complied with by the alternative development scenario, and thus the reporting officer correctly identified the alternative development scenario as a controlled activity.
Contradictions with Hawthorn
Submissions
[67] Mr Lawson submits that the alternative development scenario was an irrelevant consideration as it was not part of the permitted baseline, nor part of the environment. He states that, applying Hawthorn, the future environment does not include consents that may be applied for, and granted in the future.
[68] Mr Slyfield submits that the Council did not consider the alternative development scenario contrary to Hawthorn. He argues that Hawthorn confirmed a distinction between the site on which an activity is proposed and the environment surrounding that site, which receives the effects of such a proposal. While Mr Slyfield accepts that it would be contrary to Hawthorn for the Council to consider the alternative development scenario in the receiving environment, he states this is not what the Council did. Rather, it assessed the alternative scenario as a development that could occur on the site itself. He submits that it was a relevant consideration that the Council was well aware it could not treat as a permitted baseline, as was stated a number of times by the reporting officer. The alternative scenario was used in a very limited way to consider effects that might occur in relation to residential amenity without any ability to impose conditions addressing matters such as urban design.
Analysis
[69] As noted above at [42], the discussion in Hawthorn concerned the meaning of “environment” in terms of the receiving environment, rather than the subject site itself. The inclusion of potential future consents that had not yet been granted in the consideration of the “environment” was found to be too uncertain.
[70] The alternative development scenario concerns a potential development on the site itself which would be a controlled activity, in that it required a subdivision consent. A consent authority must grant a consent for a controlled activity32 except in certain circumstances, such as where the consent is for a subdivision and there is a significant risk from natural hazards or sufficient provision has not been made for legal and physical access to each allotment created by the subdivision.33 Given sufficient legal and physical access is provided by the alternative development scenario (see paragraphs [54]–[59] above), the concerns around uncertainty identified in Hawthorn do not apply, as the Council would be required to grant the consent. In any event the principles discussed in Hawthorn do not relate to potential development on the subject site but potential developments of other unrelated sites, and thus are largely irrelevant here.
[71] As is clear from the practice of permitted baselines, the comparison of a proposed development with a non-permitted activity is not contrary to the purposes and principles of the RMA. I accept the submission of Mr Slyfield that the Council used the alternative development scenario in a limited way to assist in the assessment of the effects of the proposal on residential character and amenity in combination with the permitted baseline. The repeated statements that the alternative development scenario was not a permitted baseline demonstrated that the reporting officer was live to risks of the scenario being improperly relied on. There is nothing identified by the appellant nor apparent from the assessment report or decisions that suggests that by having regard to the alternative development scenario the reporting officer and/or the Council had regard to an irrelevant consideration.
32 Resource Management Act, s 87A.
33 Section 106(1)(a) and (c).
Traffic generation
Submissions
[72] Mr Lawson submits that the reporting officer’s application of Standard 7.2.5M of the District Plan, that 30 vehicle movements per day on access roads applied to 30 vehicle movements per day per site, was inconsistent with the clear wording of the rule. He submits the rule imposes a threshold of 30 vmpd for vehicle movements on access roads, not 30 vehicle movements per day per site.
[73] Mr Casey contends that the applicant’s interpretation of Standard 7.2.5M of the District Plan is not supported by the text, nor would it serve a valid management purpose. He refers to Mr Wiffin’s second affidavit, which noted that Rimu Street already has approximately 10 times the volume of traffic that an access road is restricted to according to the applicant. Mr Casey also points to the note to the standard which states that under the standard “movement” means “the arrival and departure of a vehicle as a result of an activity on a site”, and states this pins the standard directly to vehicles generated by “a site” and not the number of vehicles using the road.
[74] Mr Casey also submits that applying the threshold to the road instead of the application site means the standard would fail to respond to an effect of the activity proposed for that site. He argues there could be no permitted or controlled activities at all, because the standard could never be complied with. Such an approach would be directed at avoiding virtually any traffic at all, rather than the “high traffic volumes” as stated in the standards outcomes.
[75] Mr Casey also submits the District Plan adopted the NZTA’s “One Network Road Classification” system to differentiate the types of roads and anticipates that the average daily traffic on an access road, such as Rimu Street, would be less than 1,000 for urban roads. He submits there is no indication of any road being expected to have as few as only 30 vehicle movements per day.
Analysis
[76]Standard 7.2.5M of the Operative Hastings District Plan provides:
7.2.5M TRAFFIC GENERATION
All Hastings Residential Zones
Motor vehicle movements on access roads as shown in Appendix 69, shall not exceed the following threshold limits:
Vehicle Class/Type – Maximum Number of Movements Per Day or Averaged Per Day Over Any 7 Day Period:
HCV-II - Nil HCV-I -1
All Others - 30
Note: Movement: means the arrival and departure of a vehicle as a result of an activity on a site.
[77] The outcome sought to be achieved by this standard is the “avoidance of nuisance and safety impacts of heavy Vehicles and high traffic volumes in residential areas”.
[78] As submitted by Mr Casey, the note to the standard makes clear that movement concerns the arrival and departure of a vehicle from a site. It is therefore a logical corollary that the maximum of 30 movements per day would apply to each site, and not to the entire access road itself. An overview of recent case law34 concerning vehicle movements per day makes clear this is generally concerned with vehicle movements per day per site, rather than per road.
[79] I also accept the affidavit evidence of Mr Wiffin, in which he argues 30 vehicle movements per day for the whole of Rimu Street would be nonsensical, given it already sustains far more than 30 vehicle movements per day. As noted by Mr Wiffin, the traffic impact assessment appended to the resource consent application estimated average daily traffic on Rimu Street was 164 vehicles per day. Given there appears to be around 20 properties on Rimu Street, a 30 vehicle movements per day limit for the street would be unworkable and would mean any change to any land use on a site on
34 Currie v Palmerston North City Council [2023] NZEnvC 27; Daisley v Whangarei District Council [2022] NZHC 1372; Car Distribution Group Ltd v Christchurch City Council [2018] NZEnvC 235;
Rimu Street would require a resource consent. Such a limit would far exceed the outcome sought by the standard to avoid the nuisance and safety impacts of high traffic volumes in residential areas.
[80] I therefore consider that the Council did not make a mistake of law and/or a mistake of fact in applying the maximum number of vehicles movements for the access road to reach individual site under standard 7.2.5M of the District Plan.
Conclusion
[81] The Council acted neither illegally nor for an improper purpose in applying a permitted baseline in its notification decision and resource consent decision. The correct legal test was applied, with the applicant failing to demonstrate that the Council either “unbundled” the consents/activities, applied a “partial” permitted baseline, or conflated the permitted baseline with the environment in a manner contrary to the findings in Hawthorn. The permitted baseline was also not an irrelevant consideration, but rather provided an appropriate potential permitted development to compare against the proposed development in order to ascertain the effects in excess of what was permitted under the District Plan.
[82] The Council also did not act under a mistake of law or fact in using an alternative development scenario in its assessment of the resource consent application. The alternative development was in fact a controlled activity and did not seek to expand the concept of the environment to include future consents, as was deemed impermissible in Hawthorn.
[83] The applicant has failed to advance a convincing argument that the Council acted unreasonably in coming to its notification and resource consent decisions.
[84] Lastly, the Council clearly did not make a mistake of law in interpreting and applying standard 7.2.5M of the Hastings District Plan, but rather correctly determined that the 30 vehicle movements per day limit applied per site rather than per access road.
[85] I consequently find that none of the grounds of review advanced by the applicant are made out.
[86]The application is dismissed.
[87] I invite the parties to agree costs, however, if that is not possible the respondents are to file and serve their applications within 14 days of the date of this judgment with the applicant to have 14 days after service to file and serve a reply. I will then deal with the matter on the papers.
Churchman J
Solicitors:
Lawson Robinson Limited, Napier for Applicant
Hastings District Council Solicitor, Hastings for First Respondent Sainsbury Logan and Williams, Napier for Second Respondent
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