Marche Limited v Auckland Council

[2016] NZHC 145

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2015-404-001899 [2016] NZHC 145

UNDER

the Judicature Amendment Acts 1972 and

1977 or in the alternative Part 7 of the
High Court Rules

IN THE MATTER

of the Resource Management Act 1991

BETWEEN

MARCHE LIMITED First Plaintiff

JOCELYN ARMSTRONG Second Plaintiff

AND

AUCKLAND COUNCIL First Defendant

GARY DEENEY Second Respondent

Hearing:	7 December 2015
Appearances:	R Brabant and D J Sadlier for Plaintiffs N Whittington for First Respondent R E Bartlett QC and A Webb for Second Respondent
Judgment:	12 February 2016

JUDGMENT OF WOOLFORD J

This judgment was delivered by me on Friday, 12 February 2016 at 4:00 p.m., pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:           Ellis Gould, Auckland for the Plaintiffs

Meredith Connell, Auckland for the First Respondent

Pidgeon Law, Auckland for the Second Respondent

Counsel:            R Brabant, Auckland

R Bartlett, Auckland

MARCHE LIMITED & ANOR v AUCKLAND COUNCIL & ANOR [2016] NZHC 145 [12 February 2016]

Introduction

[1]      The owner of a 1926 two-storey bungalow at 48 Seaview Road, Remuera, Auckland, wants to remove it and build a new two-storey house in its place.   He applied for resource consent on 2 April 2015.

[2]      On 28 May 2015, two independent commissioners appointed by Auckland Council decided that the application should proceed on a non-notified basis (notification decision).  Following a hearing of the application on 15 July 2015, two other independent commissioners granted consent in a decision dated 7 August 2015 (substantive decision).

[3]      The neighbours of the property at 48 Seaview Road now seek judicial review of both decisions.  They ask for the decisions to be set aside and an order that the Council reconsider the application for resource consent.

Approach to application for review

[4]      The principles of an application for judicial review are well known.  It is not an appeal on the merits.  Judicial review is concerned about the process of decision- making.   The merits are only relevant if the decision is one that no reasonable Commissioner could have made.  That is not the case here, as both decisions were clearly open to the Commissioners, so the focus is on the process.  I do not express any view on the merits of either decision.

[5]      The plaintiffs allege that the Commissioners appointed by the Council made a number of errors of law, failed to take relevant considerations into account, had regard to irrelevant considerations, and failed to have regard to natural justice considerations and the right of members of the public to be heard.

[6]      I do not intend to traverse all matters raised in the amended statement of claim and in the submissions of counsel for the plaintiffs, but I am of the view that a number relate to the merits of the decisions and are not amenable to judicial review. For example, the amended statement of claim alleges that the stark difference in the conclusions reached in the reports of the Council’s conservation architect and the

applicant’s consultant heritage architect meant that, contrary to the notification decision,   there   were   relevant   reasons   warranting   public   notification   of   the application.

Notification decision

[7]      The notification decision is a short one.  It states:

Under sections 95A, 95B and 95C of the RMA this application shall proceed without public or limited notification because:

·     Rule 4.3.2.6 of the Operative District Plan enables the application to be considered without the need for public notification or either obtain the written approval of affected persons or notify them.

·     There are no protected customary rights groups or marine title groups in the region affected by this proposal.

·     Having regard to the general discretion to notify under s 95A(1) and whether there are any special circumstances under s 95A(4), we find that there are no relevant reasons to warrant public notification.

Accordingly, this application shall proceed on a NON-NOTIFIED basis.

[8]      The notification decision was sent as an attachment in an email from the Duty Commissioner, Mark Farnsworth, to a Council staff member, Celia Chan, at 4:11 pm on 28 May 2015.  However, just over three hours earlier, at 1:07 pm, Mr Farnsworth had emailed Ms Chan expressing his initial view that the application should be notified.  He wrote:

…

2.        The site visit confirmed the place of the house at 48 Seaview Road in  terms  Res  2C.    All  of  the  immediately  adjacent  houses,  with  one exception, are of an equal or older age. All of the houses, with the exception of  the  house  at  46  Seaview  Road  are  well  maintained  and  contribute positively to the special character.  We came to an initial viewpoint that the demolition of the house 48 Seaview would incrementally detract from what we consider the obvious special character of the area and therefore should be notified.

In terms of section 95 we are considering whether “special circumstances exist” which would provide grounds for notification.

The complicating issue for us is the clause in the Auckland District Plan which  exempts  this  type  of  application  (the  demolition)  of  buildings  in Res 2C   from   notification;    does   this   clause   “trump”   s95   special circumstances?

We are seeking clarification on the above matters.

[9]      Just over an hour later, at 2:11 pm, Mr Farnsworth again emailed Ms Chan. He wrote:

Gary  Glasgow  [Council  Conservation  Architect]  has  provided  heritage demolition assessment.

We are seeking clarification on the implications of his conclusion. The application should be notified?

The application could potentially proceed to be non-notified as long as the application was amended as per Rule 4.3.2.6.

[10]     It is apparent from further email exchanges that Mr Farnsworth then had a conversation with a Council planner, Harry Halpin. At 2:37 pm,  Mr Halpin emailed Ms Chan and asked her to forward to Mr Farnsworth his assessment that demolition of the existing building was not acceptable in this instance as it would result in [un]acceptable adverse special character streetscape effects.

[11]     At 2:50 pm Ms Chan emailed Mr Farnsworth stating:

Below is information furthering your conversation with Harry (planner). Please let me know if this reinforces your view.

[12]     In a Duty Commissioner record sheet dated the same day, Mr Farnsworth has also recorded a comment as follows:

The site visit clearly demonstrated that the house contributed to the special character of the area.

[13]     The next day, 29 May 2015, the Council Principal Planner, Peter Kensington, emailed Ms Chan:

Also – you might want to get Mark to update the comment he made on his record sheet before releasing the decision.

It does not appear that Mr Farnsworth did so, however.

[14]     The  other  Commissioner,  Cherie-Ann  Lane,  was  also  in  contact  with Ms Chan at 5:29 pm on 28 May 2015, less than an hour and half after the decision had been sent to Council, Ms Lane emailed Ms Chan as follows:

Was good working with Mark on this one.

But it was a bit of a tricky one and you will see my email regarding the possibility of a workshop on these matters.

We found the rule that such activities (demolition in the Res 2 zone) not be notified, to be particularly vexing!

I was already of the “Church” decision, but its application was really only as a result of another DC determination for demolition.

Hope this sort of forum can be organised soon – would be really appreciated.

[15]     These email exchanges show an element of confusion or misunderstanding on the part of the Commissioners.  First, in his email of 1:07 pm, Mr Farnsworth was obviously referring to clause 4.3.2.6 of the District Plan, which specifically provides: “Except as provided for in s 95A(4) of the Act, [demolition or removal] will be considered without public notification or the need to obtain the written approval of or serve notice on affected persons”.   It is inappropriate to refer to that clause as trumping s 95A(4) special circumstances.  The provisions sit side by side.  One does not trump the other.

[16]     Secondly, it is difficult to understand Mr Farnsworth’s reference in his email of 2:11 pm to proceeding on a non-notified basis “as long the application is amended as per Rule 4.3.2.6”.  Rule 4.3.2.6 does not deal with the amendment of applications.

[17]     Ms Lane filed an affidavit setting out her qualifications and experience and the documents she had before her when making the notification decision.  She also confirms that she visited the site the day before with Mr Farnsworth and discussed her initial impressions with him, but does not elucidate her reasons for making the decision not to publicly notify the application.   We are left then with the decision itself.

[18]     However, the notification decision itself presents further difficulties.  It states that  the  Commissioners  had  regard  “to  the  general  discretion  to  notify  under s 95A(1)”.  Section 95A(1) is however not applicable to the current application.  It enables a consent authority, in its discretion, to decide whether to publicly notify an application for a resource consent.  The application was, however, to be dealt with under ss 95A(3) and (4).  Section 95A(3) provides that:

(3)      Despite  subsections  (1)  and  (2)(a)  a  consent  authority  must  not publicly notify the application if:

(a)      a rule or national environmental standard precludes public notification of the application; and

(b)      subsection (2)(b) does not apply.

In this case there was a rule which precluded public notification of the application, that being rule 4.3.2.6.   Subsection (2)(b) also did not apply.   It provides that a consent authority must publicly notify the application if the applicant requests public notification of the application, which the applicant did not do.  Section 95A(4) was therefore the relevant subsection for the Commissioners to consider.  It provides:

(4)       Despite sub-section (3) a consent authority may publicly notify an application if it decides that special circumstances exist in relation to the application.

[19]     The Commissioners found that “there are no relevant reasons to warrant public notification.”  Counsel for the plaintiffs submits that this does not meet the requirements of s 113(4), which provides:

Every decision on an application for a resource consent that is not notified must be in writing and state the reasons for the decision.

[20]     Counsel submits that a finding that there are no relevant reasons does not

state “the reasons for the decision.” He submits something more is required.

[21]     It does not appear to me that s 113(4) is directly applicable.   It deals with decisions on applications which have proceeded on a non-notified basis, not with the initial decision on whether an application is to be notified.   Nevertheless, I will consider whether, as the plaintiffs submit, something more by way of reasons was required in this case.

Discussion

[22]   Looking closely at the notification decision in the present case, I am unfortunately unable to discern the reasons for the decision.   The finding of “no relevant reasons” raises more questions than it answers –

·       What factors were considered by the Commissioners?

·      What   weight   was    given   to   the   factors    considered   by   the

Commissioners?

·      How was the decision on relevance reached?

[23]     In Palmer v Tasman District Council Gendall J reviewed a decision not to notify an application for the replacement of a dwelling house and associated earthworks.1   In doing so he noted that:

[150]    An authority is not legally required to provide a written report, but a failure to give reasons on matters which affect the rights of citizens may make it difficult, in the absence of a record, to establish that the power has been properly exercised.  It may make vulnerable the exercise of that power when challenged by way of review.

[24]     This concern was echoed in Royal Forest & Bird Protection Society of New Zealand Inc v Kapiti Coast District Council and Anor.2   In that case Simon France J rejected any suggestion that the broad nature of the discretion contained in the now repealed s 94C of the Act to publicly notify an application if the applicant requested or if special circumstances existed, made it immune from review so long as the decision-maker merely acknowledged the existence of the discretion.3    The Judge also acknowledged that a decision which says, without more, that having considered the application there were no special circumstances, leaves itself open [to criticism].4

[25]     Similarly, in Westfield (New Zealand) Limited v North Shore City Council Elias CJ noted both “the importance of decisions on notification and the growing recognition of the obligation on public authorities to give reasons”.5

[26]     The Court of Appeal has summarised the rationale for requiring reasons.  In

Singh v Chief Executive Officer, Department of Labour & Anor the Court stated:6

Before we consider the particular alleged failure to give reasons, there is value in recalling the rationale for requiring reasons.

1      Palmer v Tasman District Council HC Nelson CIV-2009-442-00331, 30 March 2010.

2      Royal Forest & Bird Protection Society of New Zealand Inc v Kapiti Coast District Council and

Anor HC Wellington CIV-2007-485-635, 21 November 2007 at [131].

3 At [131].

4 At [132].

5      Westfield (New Zealand) Limited v North Shore City Council [2005] NZSC 17 at [56].

6      Singh v Chief Executive Officer, Department of Labour & Anor [1999] NZAR 258 at 262–263.

They include:

(1)       The discipline on the decision maker itself: it is commonplace that preliminary views  can  be changed  when the process  of thinking through the reasons and writing them down is undertaken.

(2)       Assurance to those affected that their evidence and arguments have been assessed in accordance with the law, a matter relating to the next two points.

(3)       Assistance to those affected in deciding whether to challenge the decision, for instance by appeal, review or other complaint mechanism – since the statement of reasons may satisfy them that they have no real prospect of a successful challenge.

(4)       If  a  review  is  mounted,  assistance  to  the  parties,  counsel  and deciders engaged in the review.

(5)       The establishment, where appropriate, of a body of precedent or at least  of  guidance,  governing  or  affecting  the  exercise  of  the particular power.

(6)      Assurance to the wider public of the legitimacy, openness and accessibility of the exercise of the power – an aspect of accountability.

[27]     The Court of Appeal went on to state that the authorities make it clear that it is not enough simply to state a conclusion in the words of the empowering statute;7 the reasons must be proper, adequate ones dealing with the point in contention.8

[28]     Having regard to these authorities I do not consider that the reasons provided by  the  Commissioners  in  this  case  were  adequate.    This,  combined  with  the following factors, has persuaded me that the application should be allowed and the decision quashed.

[29]     The first factor is the possibility that Mr Farnsworth was influenced by the thought he expressed in the email at 1:07 pm, three hours before issuing the notification decision, that r 4.3.2.6 “trumps” s 95 special circumstances.  I consider this to be a real possibility because of Mr Farnsworth’s initial view that the application should be notified.  As I have said, those provisions sit side by side and one does not trump the other.   Given the brevity of the reasons provided, I must consider that the decision may well have been made on the basis of an error of law.

[30]     Second,  I  have  similar  concerns  about  the  reference  in  the  notification decision to the Commissioners having regard to the general discretion to notify under s 95A(1).   Section 95A(1) was, strictly speaking, inapplicable and no explanation was given as to why or how the Commissioners had regard to s 95A(1).

[31]     Third, the notification decision is obviously derived from a template.   For example, the decision notes that there are no protected customary rights groups or marine title groups in the region affected by the proposal.  The relevance of marine title groups to an application to remove a house in Seaview Road, Remuera, is unclear, but almost exactly the same wording was used in non-notification decisions by Commissioners on 31 October 2014 and 23 December 2014 in relation to applications  by Ports  of Auckland  Limited  to  extend Bledisloe Wharf,  where a reference to marine title groups may have more relevance.

[32]     A template can be beneficial to good decision-making, but care must be taken to ensure that it is appropriate to the case at issue. Alterations and additions to it also need to be actively considered.

[33]     Finally, in Urban Auckland v Auckland Council and Ports of Auckland Ltd, Venning J held that the Commissioners who decided that the application to extend Bledisloe Wharf should be non-notified had misdirected themselves because on the face  of  the  decision,  it  appeared  that  the  principal  reason  they decided  special circumstances did not exist, was that the wharf extension was a controlled activity and an expected form of development.9   Venning J noted that the relevant rule in the coastal plan itself contemplated that even though the activity might be controlled there may still be special circumstances justifying public notification in accordance with s 95A(4).

[34]     Venning J also noted that the evidence before the Court suggested one of the Commissioners had some issues with the recommendation for Council that the application be non-notified.   Venning J quoted a communication between the Council’s consultant planner and the Council’s lead planner:10

I have spoken with [Commissioner Macky] and she is all good.  She really appreciated being able to talk through the application with me as she was having a wee bit of concern around notification!  She is feeling much more comfortable now – phew! Give me a call and I can enlighten you further.

[35]     There appear to have been similar discussions here inasmuch as three hours before   releasing   his   decision   that   the   application   should   be   non-notified, Mr Farnsworth recorded his view that the application should be publicly notified. This reinforces my concerns about the lack of reasons provided and the Commissioner’s potential misunderstanding of the relevant law.

[36]     Having  quashed  the  notification  decision,  the  substantive  decision  also cannot stand and it too must be quashed.  I do not go so far as Venning J in Urban Auckland v Auckland Council and Ports of Auckland Ltd and find that the application for resource consent should be publicly notified.  I express no view as to whether the application in the present case should be notified, but a fresh decision is to be made by the  Council  or  by independent  Commissioners  under  delegation.    The  fresh decision should make reference to the evidence considered and the key factors taken into account and explain why the particular decision is made.  The notification and substantive decisions are therefore quashed and the application for resource consent is referred back to the Council for reconsideration.

[37]     The plaintiffs are entitled to costs.  If they cannot be agreed, memoranda are to be filed within 28 days of the date of this decision.

……………………………….

Woolford J