McMillan v Queenstown Lakes District Council
[2017] NZHC 3148
•14 December 2017
IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY
I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE
CIV-2017-425-51 [2017] NZHC 3148
UNDER the Judicial Review Procedure Act 2016 IN THE MATTER
of the granting of resource consent under the Resource Management Act 1991
BETWEEN
KINGSLEY FRANCES MCMILLAN AND VERNA MARGARET MCMILLAN
Plaintiffs
AND
QUEENSTOWN LAKES DISTRICT COUNCIL
First Defendant
CORONET MANAGERS PROPRIETARY LIMITED Second Defendant
Hearing: 10 October 2017 Appearances:
R W Donnelly for the Plaintiffs
N Whittington and A Balme for the First Defendant
W Goldsmith and R Hill for the Second DefendantJudgment:
14 December 2017
JUDGMENT OF MANDER J
[1] Mr and Mrs McMillan seek judicial review of a decision of the Queenstown Lakes District Council (the Council) to grant Coronet Managers Proprietary Limited (Coronet) a resource consent to construct a new residential dwelling on a non-notified
basis. The McMillans maintain the decision to grant the consent without notification
MCMILLAN v QUEENSTOWN LAKES DISTRICT COUNCIL [2017] NZHC 3148 [14 December 2017]
to them as the owners of an adjacent property resulted in a flawed process which invalidates the consent.
Background
[2] The McMillans are the owners and occupiers of a property situated at 681
Peninsula Road, Kelvin Heights, Queenstown. To their immediate west lies the neighbouring property of 685 Peninsula Road. Both properties face the north and have an outlook over the Frankton arm of Lake Wakatipu.
[3] In early December 2016, the McMillans were approached by Coronet regarding the construction of a dwelling at 685. The plans for this building involved breaches of the Operative District Plan (ODP) which had the potential to cause adverse effects to the McMillans’ use of their own property.
[4] On 7 December, Mr McMillan met with a planning consultant engaged by Coronet for the purposes of the development. Mr McMillan was shown plans of the proposed building, and there was discussion about the impact of the proposed building on the McMillans’ property. These concerns included the shadowing effect of the proposed new house, loss of views, and concerns regarding earthworks required for the foundations.
[5] Because of their concerns regarding the dimensions of the proposed building and its potential impact upon their property, the McMillans instructed their own professional advisor, Mr Ferguson. In response to the McMillans’ concerns, Coronet offered to make a number of amendments to the house plans. However, the McMillans did not consider those changes sufficiently ameliorated the effects on their property. Mr Ferguson wrote to Coronet in late February 2017 expressing their views.
[6] Coronet made further amendments to the house plans which it considered largely responded to and addressed the concerns expressed by Mr Ferguson on behalf of the McMillans. These plans were submitted to the Council as part of the consent application for the proposed development. Aspects of the proposed building within the low density residential zone for which consents were required included:
(a) breaches of the height limit relating to the eastern elevation of the house closest to the McMillans’ property;
(b)a footprint for the building which exceeded the allowable 40 per cent site coverage by six per cent;
(c) earthworks;
(d) vehicle access from 685 onto Peninsula Road; and
(e) issues relating to the western elevation that are not relevant to the present proceedings.
[7] Mr Ferguson became aware that an application for consent to build the new dwelling had been filed with the Council without further reference to the McMillans. Following his inspection of Coronet’s application and the plans lodged for the resource consent, he wrote to the Council on 13 April 2017. Mr Ferguson was aware the Council would have to make a decision as to whether the application would have to be notified. He advised the Council that the McMillans considered the adverse effects of Coronet’s proposal on them to be more than minor. The letter reviewed why the adverse effects would be of that nature and the key concerns for the McMillans, including the fact Coronet had elected to lodge its consent application without adequately resolving the McMillans’ concerns.
[8] On 27 April 2017, the Council made its decision to process Coronet’s application on a non-notified basis and to grant a consent subject to conditions.1
Notification of consent applications
[9] When a consent authority receives an application for resource consent it must decide whether it will provide public, limited or no notification of the application.
Under the Resource Management Act 1991 (the Act), it is mandatory for a consent
1 Decision of the Queenstown Lakes District Council on application RM170281. This decision was
re-issued on 8 June 2017 to correct an error with an aerial photograph that was included in the decision.
authority to provide public notification if it decides the activity will have or is likely to have adverse effects on the environment that are more than minor, the consent applicant requests public notification, or a rule or national environmental standard requires public notification.2
[10] When assessing the likely adverse effects on the environment, the consent authority is required to disregard any effects on persons who own or occupy any land adjacent to the land on which the proposed activity will occur.3 The effects on such persons, which in this case would include the McMillans as neighbouring land owners, is to be addressed through the statutory regime which provides for limited notification to affected persons.
[11] If a consent authority decides not to publicly notify an application it must decide whether there is any affected person in relation to the activity.4 The consent authority is required to give limited notification of the application to such a person.5
Section 95E of the Act provides:
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).
(2) The consent authority, in assessing an activity’s adverse effects on a person for the purpose of this section,
(a) may disregard an adverse effect of the activity on the person if a rule or a national environmental standard permits an activity with that effect;
...
(3) A person is not an affected person in relation to an application for a resource consent for an activity if
(a) the person has given, and not withdrawn, approval for the proposed activity in a written notice received by the consent authority before the authority has decided whether there are any affected persons; or
2 Resource Management Act 1991, s 95A(3).
3 Section 95D(a)(ii).
4 Section 95B(1).
5 Section 95B(4), (9) and (10).
(b) the consent authority is satisfied that it is unreasonable in the circumstances for the applicant to seek the person’s written approval.
[12] For a person to be an affected person for the purposes of s 95E of the Act, the adverse effects on that person must be minor or more than minor (but not less than minor). Whether an effect is “minor” involves an assessment of fact and degree. While such an effect sits at the lower end of the scale, which includes major and moderate effects, it used to be said that it must be something more than de minimis.6
[13] More recently in Green v Auckland Council, Priestly J considered that in undertaking the required qualitative assessment of effects when applying the statutory test provided by s 95E(1) regard must be had to the context in which the assessment is being made:7
The statutory tests of “minor”, “more than minor”, and “less than minor” can only be informed by context. One is dealing with degrees of smallness. Where the line might be drawn between the three categories might not be easily determined. “Less than minor”, however is the only category which relieves a consent authority of its s 95E(1) obligation to notify.
[14] Davidson J, in Gabler v Queenstown Lakes District Council, considered that the term “less than minor” means an effect that in “the overall context” is insignificant and one which is so limited that it is objectively acceptable and reasonable in the receiving environment and to a potentially affected person.8
[15] A consent authority must not grant a resource consent if the application should have been notified and was not.9 As was acknowledged by the Council, it follows that any such consent will be invalid and unlawful.
The application for judicial review
[16] The McMillans challenge the Council’s decision to proceed to determine
Coronet’s application on a non-notified basis. The McMillans maintain that as owners of the adjoining property the Council was obliged to determine they were affected
6 King v Auckland City Council (1999) 6 ELRNZ 79 (HC) at [29].
7 Green v Auckland Council [2013] NZHC 2364, [2014] NZRMA 1 at [126].
8 Gabler v Queenstown Lakes District Council [2017] NZHC 2086 at [94].
9 Resource Management Act 1991, s 104(3)(d).
persons in relation to the activity because its adverse effects on them were minor or more than minor. They contend the Council’s conclusion that any potential adverse effects on them were less than minor was wrong, and that the consent decision was erroneously processed on a non-notified basis.
[17] The McMillans allege the Council’s decision was unlawful because it:
(a) failed to process the application in accordance with a proper process;
(b) erred in law in its application of the permitted baseline; (c) failed to take into account relevant considerations; and (d) was unreasonable.
[18] The McMillans seek an order setting aside the Council’s decision to grant
Coronet consent on a non-notified basis.
Judicial Review
[19] It is not the function of the Court on an application for review to address the general merits of the consent authority’s decision, either as to its decision regarding notification or the grant of the consent itself.10 The Court’s role is to ensure the consent authority did not exceed its limited jurisdiction and followed a lawful process in making its decision. The established principles of judicial review to be applied to a decision of this kind are not in dispute:11
(a) All relevant considerations must be taken into account, and irrelevant considerations ignored.
10 Ferrymead Retail Ltd v Christchurch City Council [2012] NZHC 358 at [98]; Coro Mainstreet (Incorporated) v Thames-Coromandel District Council [2013] NZHC 1163, [2013] NZRMA 442 at [40]; Gabler v Queenstown Lakes District Council, above n 8, at [11].
11 Gabler v Queenstown Lakes District Council, above n 8, at [11]; Coro Mainstreet (Incorporated) v Thames-Coromandel District Council, above n 10, at [40]; Pring v Wanganui District Council (1999) 5 ELRNZ 464 (CA) at [7].
(b)The decision must be one a reasonable decision-maker could reach on the basis of the material available to it.
(c) The weight given to relevant matters is for the decision-maker and not the Court but there must be some material capable of supporting the decision.
(d)This Court will scrutinise the decision more closely and with a less tolerant eye than it would decisions where there are broad policy considerations and less impact on people’s lives.
[20] Some care is needed when applying the last of those identified principles. The McMillans argued that because the Council’s decision “significantly” impacted on them, the Court was entitled to scrutinise the decision with greater intensity than would otherwise be the case. In Pring v Wanganui District Council, the Court of Appeal after formulating the orthodox grounds of review observed:12
... It must also be recognised that because neighbours and users of adjoining streets may well be adversely and directly affected by a development which obtains a certificate of compliance and thereby is deemed to have a resource consent (subs (6)), the Court will scrutinise what has occurred more carefully and with a less tolerant eye when considering whether the decision was one open to the consent authority on the material before it than it will do in a case where the decision which is being questioned required the balancing of broad policy considerations and there was less direct impact upon the lives of individual citizens as, for example, the exercise of statutory power involved the striking of a general rate (Wellington City Council v Woolworths New Zealand Limited No 2 [1996] 2 NZLR 537).
[21] The Court of Appeal’s observation of a “less tolerant eye” being applied to scrutinise decisions directly impacting on affected individuals was made in contrast to the orthodox reluctance of the Court to re-examine broad policy considerations taken into account by an elected local authority when making decisions that are to apply across the wider community.13
[22] The review of decisions that specifically affect individuals will be less restrained, but I do not consider, within that category of case, it can be suggested there
12 Pring v Wanganui District Council, above n 11, at [7].
13 See for example CREEDNZ Inc v Governor-General [1981] 1 NZLR 172 (CA) at 198.
is an oscillating level of review depending on how an individual may be discerned as having been affected by a consent decision. That issue will often be the very nub of the dispute. Additionally, while the level of scrutiny may be relatively more intense than where a local authority’s decision involved the weighing of policy considerations, the Court is required to recognise that a consent authority’s decision will involve specialised determinations which involve both professional expertise and local knowledge.
Procedural impropriety
[23] Section 88(2) of the Act provides that an application for a resource consent must be made in the prescribed form and manner, and include information relating to the activity, which is required to include an assessment of the activity’s effects on the environment, as required by sch 4, the Assessment of Effects on the Environment (AEE).
[24] Schedule 4 sets out the information required to be included in an application for resource consent, and relevantly provides:
Schedule 4
Information required in application for resource consent
1 Information must be specified in sufficient detail
Any information required by this schedule, including an assessment under clause 2(1)(f) or (g), must be specified in sufficient detail to satisfy the purpose for which it is required.
...
6 Information required in assessment of environmental effects
(1) An assessment of the activity’s effects on the environment must include the following information:
...
(f) identification of the persons affected by the activity, any consultation undertaken, and any response to the views of any person consulted:
...
(3) To avoid doubt, subclause (1)(f) obliges an applicant to report as to the persons identified as being affected by the proposal, but does not—
(a) oblige the applicant to consult any person; or
(b) create any ground for expecting that the applicant will consult any person.
[25] Coronet was under no obligation to consult about its resource consent application.14 However, there was consultation. The McMillans initially met with a representative of Coronet, and Mr Ferguson subsequently dealt directly with Coronet’s agents regarding proposed amendments to the design. Changes to the building’s plans were made but no agreement was reached.
[26] Coronet subsequently submitted for resource consent an amended but still non- compliant design to the Council without further reference to the McMillans. In its AEE, Coronet noted that affected party approval had been obtained from the owner of the adjoining property to the immediate west of the site. It did not record that consultation had been undertaken with the McMillans, or outline its response to the views they had expressed.
[27] The McMillans maintain the AEE provided to the Council by Coronet failed to meet the requirement of cl 6(1)(f) of sch 4. It failed to identify them as persons affected by the activity, the consultation that had taken place, and a response to their views, as persons so consulted. Mr Donnelly on behalf of the McMillans submitted the failure by Coronet to provide this information was a material omission which resulted in the application being processed on an improper basis and “invalidated” the decision.
[28] Mr Donnelly submitted the requirement for this information to be included in the AEE was designed to identify to the consent authority persons who the applicant considered it was appropriate to consult because of the effect of the activity. This obligation ensured the consent authority’s attention would be drawn to those persons it may need to assess to be affected persons for the purpose of limited notification, and
it would be provided with information to inform it in making that decision.
14 Resource Management Act 1991, s 36A(1)(a).
[29] The Council rejected the approach taken by the McMillans that Coronet’s failure to provide information relating to its consultation with the McMillans meant the Council processed the application on an improper basis. Mr Whittington on behalf of the Council submitted the issue needed to be examined through the lens of the adequacy of information that was provided to allow the Council to make an informed decision. He acknowledged that the standard of information needed for it to be “adequate” is presently uncertain.
[30] In Westfield (New Zealand) Ltd v North Shore City Council (Discount Brands), Blanchard J observed:15
... the information in the possession of the consent authority must be adequate for it (a) to understand the nature and scope of the proposed activity as it relates to the district plan; (b) to assess the magnitude of any adverse effect on the environment; and (c) to identify the persons who may be more directly affected. The statutory requirement is that the information before the consent authority be adequate. It is not required to be all-embracing but it must be sufficiently comprehensive to enable the consent authority to consider these matters on an informed basis.
[31] The Court of Appeal has since remarked that because of the removal in 2003 of a statutory requirement that a consent authority be satisfied it had received adequate information, and substantial amendments to the Act in 2009 which may be interpreted to have given consent authorities greater scope to decide not to notify resource consent applications, the approach mandated by the Supreme Court as to the adequacy of information may no longer apply.16
[32] Wiley J, in Tasti Products Ltd v Auckland City Council, noted there was no longer a statutory requirement that a Council must be satisfied it has received adequate information. He considered that while the decision a Council makes on notification is amenable to judicial review, and the adequacy of the information before the Council may reflect in the quality of its decision, the adequacy of the information itself was not a matter which falls within the scope of s 4 of the Judicature Amendment Act
1972.17
15 Westfield (New Zealand) Ltd v North Shore City Council [2005] NZSC 17, [2005] 2 NZLR 597, at [114].
16 Coro Mainstreet (Incorporated) v Thames-Coromandel District Council [2013] NZCA 665, (2013) 17 ELRNZ 427 at [38]-[41].
17 Tasti Products Ltd v Auckland Council [2016] NZHC 1673 at [45].
[33] In Gabler, Davidson J agreed with Wylie J that the obligation on a consent authority to be satisfied that it has adequate information is no longer a separate and reviewable element of its decision-making process.18 However, he considered that the approach taken by Blanchard J in Discount Brands continues to have application, and that a decision-maker must be sufficiently and relevantly informed.19 Mr Whittington submitted the approach taken by Wylie J in Tasti Products reflects the current legal position, but that it was not necessary in the present case to determine the point because the Council did have complete and adequate information before it to meet the Discount Brands test.
[34] In my view, the obligation placed on an applicant to provide certain information is to ensure the consent authority is properly informed. Only by the consent authority being sufficiently informed of all relevant aspects of an application for resource consent can a sound decision be achieved.20 The purpose of requiring information relating to consultation that has taken place is to ensure a consent authority is informed of all views relating to a proposal which an applicant may not, or cannot, itself identify or adequately explain.21 If the applicant fails to identify persons affected by the activity, or to sufficiently inform of consultation that has taken place, that may be reflected in the standard of the decision achieved. The resulting inadequacy in the decision will be able to be traced to that procedural fault.
[35] The AEE was deficient as a result of failing to identify the McMillans to the Council and inform it of the consultation that had taken place. Coronet sought to argue “the activity” for which consent was sought was confined to the proposed development set out in the modified building plans that accompanied the consent application, about which it was under no obligation to consult.22 The suggestion appears to be that the amended plans represented a different “activity” and, because the McMillans were not consulted over the particular plans submitted to the Council, there was no requirement to identify them as persons affected by the activity, or of consultation undertaken with
them.
18 Gabler v Queenstown Lakes District Council, above n 8, at [66].
19 At [58]-[66].
20 Gabler v Queenstown Lakes District Council, above n 8, at [46] and [47].
21 Ngati Hokopu Ki Hokowhitu v Whakatane District Council (2002) 9 ELRNZ 111 (EnvC) at [68].
22 Resource Management Act 1993, s 36A.
[36] The unattractiveness of that proposition is highlighted by the circumstances of the present case. The McMillans directly engaged with Coronet about the proposed new dwelling on the neighbouring site, and there followed communications between their professional advisors about the proposed building. I do not accept that Coronet can bypass the requirement of cl 6(1)(f) of sch 4 by simply submitting the most recent iteration of the building plans which had not been referred to the McMillans and claim it is a different “activity”.
[37] I accept that in some situations issues about which persons may have been previously consulted may have been resolved or become redundant. In such cases information relating to previous consultation with persons affected may be immaterial, although where the proposal still breaches the ODP, it is likely to be the subject of an affected party approval, as was the case with the landowner to the immediate west of the site. The McMillans’ concerns were ones they had raised with Coronet from the outset, including in particular breaches of the height limits along the eastern elevation and excessive maximum building coverage, leading to issues relating to sunlight, views, dominance, and privacy. These remained unresolved at the time Coronet made its application for resource consent.
[38] I reject Coronet’s submission that “the activity” for which consent was ultimately requested was distinct from “the activity” the McMillans had been consulted about. The activity for which consent was sought was substantially the same, namely the construction of a residential dwelling for which resource consent was required because of breaches of the ODP, to which the McMillans were not prepared to agree.
[39] A failure to provide information required to be included in an applicant’s AEE may result in the application being processed by a consent authority on an improper basis. However, the focus must be on the process itself and whether, in spite of deficiencies in the content of an application, a proper process was applied by the consent authority in determining the application for resource consent, or whether any deficiency had an impact on the integrity of that process.
[40] Mr Woodford, a senior planner with the Council, was responsible for the decisions which are at issue in this proceeding. He considered the material available to him was complete and adequate for the purpose of assessing the recommendations made to him that Coronet’s application be processed on a non-notified basis and granted subject to conditions. In reaching that conclusion, Mr Woodford had available Mr Ferguson’s letter of 13 April 2017, in which he raised the McMillans’ concerns about the proposed activity. Mr Ferguson requested the Council consider these concerns when determining whether to notify the application.
[41] Mr Woodford deposed to having reviewed and considered the letter before making his decisions. It is necessary to set out Mr Ferguson’s letter in full:
We write on behalf of Kingsley and Verna McMillan (the McMillans) as neighbouring landowners at 681 Peninsula Road to a resource consent application received by the Council to construct a new house 685 Peninsula Road (RM170281).
The McMillans consider the adverse effects of the activity on them to be more than minor and are affected in terms of s.95E(1) of the Act. Given the scale of the proposed activity and the breach of several of the zone standards for this zone, there is the further likelihood that the adverse effects of the environment generally are more than minor in terms of s.95D.
We record for the Council’s benefit that out client has engaged with representatives for the applicant in pre-lodgement discussions and have previously expressed concerns with the proposal directly to the applicant and their representatives. The applicant has elected to lodge consent without adequately resolving the concerns of the McMillans and without having
secured affected party approval.
The site sits within the Residential Low Density Zone of the Operative District Plan. This zone anticipates generally maintaining the dominant low density development within the existing Queenstown living areas and enhancing the general character of the established residential environments. As such, the rules relating to building height and site coverage are very important standards that work collectively to maintain an acceptable level of amenity between sites.
Based on the plans lodged with the resource consent application the key issues that continue to have the most impact on the amenity of the McMillans are from the dominance, scale, loss of views and location of the proposed building and the potential overlooking.
We further understand from the plans extensive cuts are proposed in proximity to our client’s boundary. These are of particular concern because of the potential duration of construction and noise and vibration, and the retaining systems required to stabilise the eastern boundary of the application site.
The application fails to include measures to either avoid or mitigate adverse effects on the McMillans. A site plan has been including (sic) showing a fence and the apparent layout or vegetation that is neither defined in terms of species, scale or effectiveness as a mitigation tool.
Mr John Thomson is the director of the applicant company and the owner/director of the adjoining property immediately west at 689 Peninsula Road, from which an affected party approval has been supplied with the resource consent application. It would be entirely within the control of the applicant to internalise the adverse effects of this proposal if they were to utilise their own land.
The proposed house is extensive for its site and breaches a number of the critical rules designed to maintain residential amenity values. The consideration of the adverse effects on the neighbouring landowners is an important legal step required of the Council. We respectfully ask for the Council to consider the above issues in determining notification and who may be adversely affected by this proposal.
I am more than happy to discuss with you if that would assist.
[42] Non-compliance with the requirements of sch 4 does not require a consent authority to reject the application. It has a discretion to return an incomplete application to an applicant if it does not include the information prescribed by regulations or required to be included by sch 4.23 The failure to include prescribed material cannot of itself invalidate the process. Rather, the adequacy of the information available to the consent authority will inform whether any failure to include such information invalidates the process by which a subsequent consent has been issued.
[43] In the present case, the Council had available to it, and indeed took into account, the information provided by Mr Ferguson in his letter of 13 April. The information provided by Mr Ferguson alerted the Council to the applicants’ position, that they considered themselves to be affected persons, and apprised the Council of the details of their concerns. Mr Ferguson’s letter set out the details of the consultation that had occurred with Coronet, and that notwithstanding that engagement the issues raised had not been adequately resolved.
[44] Mr Donnelly submitted that Mr Ferguson’s letter was not sufficiently detailed to meet the requirements of sch 4, however, I do not consider that contention is
23 Resource Management Act 1991, s 88(2) and (3A).
sustainable when regard is had to the content of the letter. Mr Ferguson advised the Council that the McMillans considered the adverse effects of the activity on them to be more than minor, and that they were affected “in terms of s 95E(1) of the Act”. The scale of the proposed activity and the breach of several of the zone standards were noted, such that he considered there was a likelihood of adverse effects on the environment generally being more than minor in terms of s 95D of the Act.
Mr Ferguson informed the Council that the McMillans had engaged with representatives of Coronet in pre-lodgement discussions and had previously expressed concern regarding the proposal directly to Coronet and their representative. It was noted that Coronet had elected to lodge a consent application without adequately resolving these concerns and without having secured affected party approval.
[45] It is apparent from the content of the Council’s decision, which gave particular focus to the effects on the McMillans of the proposed activity, that Mr Ferguson’s letter was effective in identifying the McMillans as persons who considered themselves affected by the activity, and the nature of their concerns regarding the detrimental effects on their property. The letter provided information to the Council which was otherwise lacking from Coronet’s AEE. I am satisfied that notwithstanding Coronet’s failure to meet its obligation to provide the information required by cl 6(1)(f) of sch 4 of the Act, the information provided by Mr Ferguson adequately compensated for that omission and sufficiently informed the Council of the McMillans’ position.
[46] The effect of Mr Ferguson’s letter was to render Coronet’s omission from the AEE redundant. The Council considered this letter before making its notification and consent decisions. Insofar as the requirement of cl 6(1)(f) of sch 4 was designed to bring relevant information to the consent authority’s attention regarding the effect of the activity on identified persons and consultation undertaken with those persons, I consider the Council was adequately informed. The deficiency in the AEE did not result in any procedural impropriety in the Council’s consideration of Coronet’s application.
Error of law – permitted baseline
[47] Section 95E(2)(a) of the Act provides that a consent authority may disregard an adverse effect of an activity on a person if a rule permits an activity with that effect, this being the so-called “permitted baseline”. The McMillans allege the Council’s determination that the proposed activity would have a less than minor effect on them contained an error of law because the Council erred in exercising its discretion to apply the permitted baseline.
[48] The Council considered Coronet’s explanation of the permitted baseline set out in the AEE to be accurate and considered it was appropriate to apply the permitted baseline as described in the AEE when assessing the effects of the proposal. As a result, in determining whether there were any affected persons for the purpose of s
95E of the Act, the Council disregarded any adverse effects of the proposed activity that were permitted by the ODP. The explanation of the permitted baseline set out in the AEE was as follows:
Part 7 of the ODP permits the construction of a residential unit on a site where all of the applicable site and zone standards are met. The relevant site and zone standards for this application include:
• a road setback of 4.5 m.
• two internal boundary setbacks of 2 m and one of 4.5 m. An accessory building may be located within these distances where the total length of the walls do not exceed 7.5 m in length.
• a continuous building length of 16 m or provisions ... an additional 0.5 m setback of the entire building, or an additional 0.5 m setback for each 6 m length of the building exceeding 16 m.
• 40% building coverage.
• a 7 m building height for sloping sites.
[49] Mr Donnelly submitted that a consent authority cannot simply adopt an applicant’s description of the permitted baseline, as the Council had done in the present case. He submitted the AEE contained a series of assertions rather than information, and did not provide the detail necessary in the form of drawings or plans to allow the Council to evaluate the differences in effects between a building that conformed to the permitted baseline and that being proposed by the applicant.
[50] Mr Donnelly developed his argument by reference to the need to provide adequate information as to the actual effects of the permitted activity which form the permitted baseline. Drawing on observations made by the Supreme Court regarding the need for a consent authority to address itself to whether it has adequate information to determine whether it can be reasonably satisfied the adverse effect of a proposed activity on the environment was no more than minor without notification, it was submitted the Council could not confine its consideration to the material provided by Coronet. It was submitted the material that was made available was insufficient to gauge the effects of the permitted baseline and therefore the impact of the even greater effect of the non-complying activity as a result of the breaches of the rule.24 Because of the inadequacy of the information provided, the McMillans allege the Council wrongly utilised its discretion to disregard the adverse effects of the permitted baseline.
[51] The Council rejects the McMillans’ argument that it simply adopted Coronet’s use of the permitted baseline. It submitted it made its decision as an independent exercise of discretion. In any event, it was submitted the Council is not precluded from agreeing with or adopting parts of an application in its own decision. Section
113(3) of the Act expressly provides that a decision on an application for a resource consent may adopt all or part of the AEE provided by an applicant and, that instead of repeating information, it may cross-refer to all or part of that material.
[52] Mr Goldsmith on behalf of Coronet submitted the relevance of the adequacy of information available to a consent authority to establish the permitted baseline for comparison purposes depends on the nature of the rules from which the permitted baseline is drawn. He submitted rules related to height, boundary setbacks, recession planes and site coverage are relatively straightforward to apply and easy to establish. In contrast, potential adverse effects relating to breaches of rules involving noise, effects on retail activities, reverse sensitivity effects and the like, can be difficult to quantify, and the decision-maker will likely be dependent upon the quality of the
information provided to establish the permitted baseline. In the former category of
24 Westfield (New Zealand) Ltd v North Shore City Council, above n 15, at [46] and [146].
case, the likely effects of breaches would be obvious to experienced decision- makers.25
[53] Various statements are made in the AEE under the headings “Dominance”, “Views”, and “Shading” which contend the effects of breaches of the height plane are less than minor, and some such statements may be interpreted as advocacy. For example, it is noted there are many areas in which the dwelling is well under the height plane as viewed along the eastern elevation. A further example relates to the breach of the site standard for building coverage which is exceeded by six per cent. The AEE includes a statement that the site coverage calculation is a cumulative calculation over the different floors, and that due to the steep stepped design of the dwelling up the slope the increased site coverage does not manifest in a large bulky building, and also includes calculation of outdoor terraces and open structures with glazed balustrades, before submitting that the potential “dominance effects” are mitigated and considered to be less than minor.
[54] Mr Donnelly objected to these and other particular passages in the AEE which he described as examples of assertion rather than of fact. A prime example upon which he relied was a statement to the effect that neither the areas of the dwelling which exceed the height plane nor the proposed increase to the site coverage is anticipated to result in any significant adverse effects on views from the adjoining property to the east. Mr Donnelly was critical of such a conclusionary statement.
[55] I acknowledge the AEE included elements of advocacy and conclusionary statements. However, I do not consider the Council in its decision simply adopted the approach taken by Coronet in its AEE, nor that it could not have regard to the points being made by Coronet in that document. Undoubtably, the Council accepted Coronet’s assessment of the effects. It described that section of the AEE as being “comprehensive, and accurate” which it was “prepared to adopt for the purposes of this report”. If the Council had left matters there, then the focus would have necessarily been limited exclusively to the content of the AEE, in respect of which
most of Mr Donnelly’s critique was directed. However, the Council proceeded to
25 Auckland Regional Council v Living Earth HC Auckland CIV-2006-404-6659, 26 June 2007;
Keystone Ridge Ltd v Auckland City Council HC Auckland AP24/01, 3 April 2001.
make its own assessment based upon whether the adverse effects beyond the permitted baseline would have, or would likely have, adverse effects on the McMillans that are minor or more than minor.
[56] It is necessary to consider the Council’s assessment of the effects on the McMillans and the relevant parts of the AEE. Breaches of the height plane on the McMillans’ site were considered in the AEE under the heading “Dominance”:
The proposed dwelling has been set back from the eastern boundary by between 3-4 m to ensure that the setback and continuous building length complies in relation to this boundary. Three areas of the dwelling breach the
7 m height plane as viewed from the west; however these are limited to two small areas of the balustrading on Level 2 and 3 and the northeast corner of
the Level 3 bedroom.
The balustrading which protrudes through the height plane is glazed and limited to a very small area (0.3 m2 for Level 2 and 0.1 m2 for Level 3). Further, these areas are located 3 m from the eastern boundary. Consequently these will not create any adverse dominance effect.
The area of the proposed Level 3 bedroom which exceeds the height plane comprises a window, eave and roof. The eastern elevation of the bedroom and eave are located 3 m away from the boundary and the roof above is set back 4 m. The area which protrudes through the height plane is approximately 2.2 m2; however it is not all in one solid plane, being separated into window, eave and roof forms with different setbacks. ...
[57] The Council considered and individually assessed each of the three separate height breaches created by the proposed dwelling in its decision. In relation to the two breaches caused by the glass balustrades on levels two and three, after diagrammatically setting out how each of the glass balustrades pierced the 7 m height plane and the dimensions of those breaches, observations were made regarding each breach. In respect of the level two balustrade it was noted the breach would be located at a lower elevation in comparison to the existing dwelling located at 681.
[58] In regard to the level three balustrade it was noted (as with the level two balustrade) that the infringing component would be made of glass and there would be minimal shading effects arising from that breach. It was further noted that, when viewed in the context of the entire proposed building, the area of the breach would be indiscernible from a complying balustrade and, even if noticed, the effects were anticipated to be less than minor.
[59] In relation to the third height breach, which was clearly more substantive, after again diagrammatically setting out the intrusion beyond the height plane, the Council observed:
The area of this breach will be approximately 3 m2, and will extend to a maximum of approximately 1.5 m above the 7 m maximum height plane. Although this will [be] higher than the dwelling located at 681 Peninsula Road, the main outlook for this building is to the north towards the lake and is reflected in the placement of the windows, and is not to the northwest as shown in the image below:
[The decision then included a photograph described as ‘View of 681 Peninsula
Road from 685 Peninsula Road’]
As shown in the image above, the placement of the windows on the second floor of the northern elevation of the neighbouring building, and the form of the balcony is such which demonstrates that it has been designed to be orientated towards the north. Therefore, the extension of the proposed building at 685 Peninsula Road above the maximum height plane, although this will have an effect on 681 Peninsula Road, due to this being located to the northwest of the aforementioned neighbour, these effects are anticipated to be less than minor.
Leaving aside the merits of the analysis, it cannot be said the Council has not applied its own independent analysis to the anticipated effect of the breach.
[60] In relation to the related potential consequences of the height breaches, the Council set out its reasoning under the headings “Dominance”, “Shading” and “Overlooking” as follows:
Dominance
When assessing dominance, the effects in terms of the level 2 and 3 glass balustrades are considered to be less than minor due to the small area and transparent material used.
In terms of the level 3 roof and wall component, when compared to the permitted baseline of a 7 m high structure located at 2 m from the boundary with a 0.6 m eave entering into the 2 m internal setback, the additional height proposed, when viewed from the balcony or first floor window located at approximately 5 m above ground level, will be reduced to approximately 1 m. Given this, and the further application of a permitted chimney which is able to extend 1.1 m above the maximum height plane, the dominance effects on
681 Peninsula Road are anticipated to be less than minor.
Shading
Although the proposed building will extend above the maximum height plane, the shadowing effects when compared to a building of complying height, in
addition to the explanation previously provided for dominance, are considered to be less than minor.
...
Overlooking
The slope of the site and the subsequent site response has resulted in a dwelling which is orientated to face the lake, to the north of the site. Notwithstanding this, should the terrace be reduced by 0.3 m in height, it would then be compliant. When compared to this permitted baseline, the effects in regard to potential overlooking above this are considered to be less than minor.
In relation to the issue of coverage over the site, the Council concluded:
Coverage
In terms of coverage, the reduction of the building to a compliant coverage (reduction of six %) would not alter the size of the building when viewed from the 681 Peninsula Road. In this instance the proposed building complies with continuous building length and setback standards in respect of the eastern property boundary. Therefore the reduction in floor area along the western portion of the building would allow for an identical appearance when viewed from 681 Peninsula Road, which would then be compliant in terms of site coverage. Therefore the effects on 681 Peninsula Road in respect of coverage are considered to be less than minor.
[61] In assessing the effects on the McMillans, the Council identified what Coronet could build as of right on the site and then assessed the effects of the proposed activity over and above this, in relation to height, dominance, shading, overlooking, and building coverage. Mr Donnelly submitted that by taking this approach the Council did not have information available to it as to the difference between the baseline effect compared with the effects resulting from the breaches. He gave as an example how the breaches of the height plane affected the McMillans’ privacy, and maintained the Council’s reasoning was based upon assertion rather than any underlying analysis of what he described as the “factual premise”, which resulted in the Council making conclusionary statements.
[62] I do not consider Mr Donnelly’s critique bears scrutiny. The application of the height plane to the proposed activity was an exercise that was able to be carried out without difficulty. I accept Mr Goldsmith’s submission that the permitted baseline was able to be established by applying the rules which allowed the Council to understand the consequential effect of the breaches without difficulty. The Council
was therefore entitled to take the approach it did in assessing the effects of the proposed activity beyond that which would otherwise be permitted by the rules. It should be noted the Court is concerned with the process by which the Council informed itself both of the effects of the baseline and those aspects of the proposed activity which went beyond the baseline, and whether the information available to it was adequate for that purpose, rather than the merits of its conclusions.
[63] Where the application of the baseline may have been considered less clear, namely when considering the effect on the McMillans’ views, or the effect of the increased coverage of the site, the Council explained its justification for concluding the effects to be less than minor. Mr Donnelly described the Council’s considerations of the issues of shading and overlooking as being conclusionary in nature, but again both involved either discussion of consequences derived from breaches of the readily ascertainable height plane, or an assessment of the comparative overall impact of what was permitted to be built without the requirement of a consent and that being proposed in the application.
[64] Having regard to the nature of the breaches which were accurately set out in the Council’s decision and the factors it took into account, including considerations of the nature and design of the infringing components of the non-complying structure, it is difficult to apprehend what further information would have assisted the Council in making its decision. While I appreciate the McMillans had an expectation as a neighbouring landowner of being provided with the opportunity to formally participate in the Council’s decision-making process by being formally notified, it was not explained to me what further objective information they could have provided to assist the Council in assessing the effects, both of the permitted baseline and beyond the baseline as proposed in the application.
[65] Mr Ferguson opined that the Council as part of its assessment of the effect of the breaches of the height planes should have obtained further information by undertaking various investigations to understand the nature of the effects from the proposed new dwelling. He referred to the erection of “profiles poles” to gauge the impact of the “over-height” structures, or the use of “visual simulation” to understand the impact of the over-height components on views, privacy, and outlook. He also
referred to the use of shade diagrams to demonstrate how the McMillans’ property would be affected.
[66] Mr Ferguson’s suggestions are based on the application of the readily discernible baseline provided by the height plans, and I accept the processes he listed to obtain further information would likely in many situations provide important information without which a consent authority could not be properly informed. However, these suggested initiatives cannot be considered in a vacuum, and whether such steps are necessary will depend on the circumstances of each case. Mr Ferguson did not explain in his evidence, nor was it suggested in submissions, how the results of such testing in the present case would have materially advanced the Council’s knowledge of the expected effect of the relatively limited breaches of the height plane which was not otherwise apparent to its planners. Nor was it explained how the Council’s assessment regarding the McMillans’ views, which was based on the orientation of their home, would be advanced.
[67] While I have acknowledged there were elements of advocacy in the AEE, it is not apparent the Council’s assessment placed reliance on any identified erroneous statements included in the AEE. As an example, the observation made in the AEE that the three areas which exceed the height plane in relation to the eastern boundary primarily comprise glazing which will allow light to pass through is a consideration which the Council could legitimately take cognisance of in assessing whether shading effects would be considered less than minor.
[68] I do not consider the Council made an error of law in the exercise of its discretion to apply the permitted baseline, nor in the way in which it went about that exercise. As discussed earlier in this judgment, the current legal position regarding the issue of the adequacy of information available to the consent authority is presently uncertain. Mr Donnelly relied upon statements made in judgments from Discount Brands which may no longer represent the law since significant amendments to the Act in 2003 and 2007. However, proceeding on the basis that it can be confidently accepted that a decision-maker must proceed on a sufficiently and relevantly informed basis, I am satisfied the information available to the Council regarding the issues
relating to the application of the permitted baseline was adequate to allow it to make that assessment.
Failure to take into account relevant considerations
[69] The McMillans allege the Council, in making its decision, failed to take into account the following matters:
(a) policy 3 of s 7.2.3 of the ODP (general character of residential environments);
(b) policy 2.6 of s 14.1.3 of the ODP (reversing traffic);
(c) the objectives and policies of s 7.2.1 and s 7.2.2 of the Queenstown
Lakes Proposed District Plan (PDP); and
(d)the wider ramifications of a breach of zone standards relating to height and building coverage, across the zone and wider environment.
Failure to have regard to policy 3 of s 7.2.3 of the Operative District Plan
[70] The McMillans allege the Council failed to have regard to policy 3 of s 7.2.3 of the ODP, which reads as follows:
To enhance the general character of established residential environments in terms of density, height, access to sunlight, privacy and views.
[71] Mr Donnelly additionally argued that relevant to the consideration of policy 3 was policy 3.13 of s 7.1.2 which was also not referred to in the Council’s decision. Objective 3 of Chapter 7 of the ODP provides:
Objective 3 – Residential Amenity
Pleasant living environments within which adverse effects are minimised while still providing the opportunity for community needs.
Policy 3.13 states:
3.13To require an urban design review to ensure that new developments satisfy the principles of good design.
Mr Donnelly’s argument is largely based on Mr Ferguson’s opinion that the Council’s decision failed to identify and consider the requirements of policy 3.13, which requires an urban design review.
[72] Ms Leith, a planner engaged by Coronet, responded to Mr Ferguson’s view that an urban design review was required. In her opinion, policy 3.13 was not implemented by any rule or assessment matter which is relevant to the Council’s decision. She is unaware, from her experience as a former Council consent planner and from her current private practice, of any single residential unit application being required to be subject to an urban design review. She notes the only references to the Council’s urban design process in the ODP Residential Zone Rules relates to high density residential zones or buildings for non-residential activities, and that none of the site and zone standards under which consent was required in respect of the subject activity necessitated an assessment against the Council’s urban design protocol.
[73] Ms Leith’s evidence was supported by Mr Whittington’s analysis of the background to policy 3.13 which was inserted into the ODP by a plan change entitled “Improving Amenity in the High Density Residential Zones”. Mr Whittington noted that while s 7.1.2 deals with “district-wide residential objectives and policies”, policy
3.13 is required to be read in the context of the methods and rules by which it is to be given effect elsewhere in the chapter. In particular, he noted the policy was inserted into the section at the same time as policy 3.3, which provides for and encourages high density residential development within the high density residential zones.
[74] The plan change which introduced the policy also provided for a new restricted discretionary activity – multi-unit developments (three or more) in the high density residential zone which requires the Council to have regard to the New Zealand Urban
Design Protocol, which was also inserted by the plan change. Mr Whittington noted the implementation methods of objective 3, which policy 3.13 is designed to advance, does not include reference to urban design panels or urban design guidelines, whereas the implementation methods for objective 3, relating to the high density residential zones, do.
[75] I accept that policy 3.13 was focussed on ensuring that urban design principles were assessed as part of proposed activities in the high density residential zone. I do not consider where the activity relates solely to a single residential dwelling in a low density residential zone, such as where the present proposed activity is to be sited, that policy 3.13 was required to be taken into account by the Council when making its decision. Furthermore, I do not consider that policy 3.13 has direct relevance in the present case. Apart from being co-located within the residential chapter of the ODP, policy 3.13 of s 7.1.2 and policy 3 of s 7.2.3 have different purposes. I accept Mr Goldsmith’s submission that policy 3.13 addresses the urban design characteristics of the particular development which is under consideration. It does not seek to address the external effects of those characteristics, although it should be acknowledged that elements of the design may have such consequential effects. In comparison, policy 3 specifically addresses the effects of the characteristics of a development on the wider surrounding neighbourhood.
[76] The Council’s decision refers to the relevant objectives and policies as being those contained within sections 7 (residential areas), 14 (transport), and 22 (earthworks). It considers the assessment of the application in respect of relevant objectives and policies in the applicant’s AEE as comprehensive and accurate, and adopts that assessment for the purpose of its decision. The objectives and policies specifically referred to in the AEE are as follows:
O perat ive Dist ri ct P lan
Objectives and policies relevant to this application are found in Part 7 – Residential Areas, Part 14 – Transport and Part 22 – Earthworks.
District Wide Residential
Objective 3 – Residential Amenity
Pleasant living environments within which adverse effects are minimised while still providing the opportunity for community needs.
Policies:
3.1To protect and enhance the cohesion of residential activity and the sense of community and well being obtained from residential neighbours.
3.2To provide for and generally maintain the dominant low density development within the existing Queenstown, Wanaka and Arrowtown residential zones, small townships and Rural Living areas.
...
3.4To ensure the external appearance of buildings reflects the significant landscape values and enhance a coherent urban character and form as it relates to the landscape.
...
3.6To ensure a balance between building activity and open space on sites to provide for outdoor living and planting.
3.7To ensure residential developments are not unduly shaded by structures on surrounding properties.
...
3.9To encourage on-site parking in associated (sic) with development and to allow shared off-site parking in close proximity to development in residential areas to ensure the amenity of neighbours and the functioning of streets is maintained.
[77] Policy 3 of s 7.2.3 of the ODP was not expressly referred to in the AEE, nor the Council’s decision. However, as Mr Donnelly acknowledged, it is not necessary for a decision to expressly refer to every relevant consideration taken into account by the consent authority, it being for the Court to determine whether the relevant provision has been considered.26 Each of the amenities referred to in the policy, namely density, height, access to sunlight, privacy and views, were taken into account in the Council’s decision when it assessed the effects of the proposed activity on the McMillans’ property.
[78] While that assessment was focussed on the effects on the McMillans rather than the general character of the residential environment, it was not demonstrated to
26 Rogers v Auckland Council [2017] NZHC 1540.
me how the single, albeit large, dwelling proposed for the site would impinge on the wider character of the residential environment beyond the effects on neighbours. In that regard, I note the AEE included a number of observations relating to how the proposed dwelling would be viewed from other aspects of the surrounding area. I do not consider the Council’s failure to specifically refer to policy 3 of s 7.2.3 amounts to a failure to have had regard to a relevant consideration.
Failure to have regard to policy 2.6 of s 14.1.3 of the Operative District Plan
[79] Policy 2.6, s 14.1.3 of the ODP reads as follows:
To ensure intersections and accessways are designed and located so:
• good visibility is provided;
• they can accommodate vehicle manoeuvres;
• they prevent reverse manoeuvring onto arterial roads; and
• are separated as not to adversely affect the free flow of traffic on arterial roads.
[80] The Council engaged a consultant to consider the effects of reversing onto
Peninsula Road from the site. He summarised his findings as follows:
The property is located near the end of Peninsula Rd where the traffic volumes are significantly lower and the predominant reversing manoeuvres will be to reverse onto the lane closest to the property and not cross over the entire width of the road. Additionally, the posted speed limit on this section of Peninsula Road is 50 km/h and this further reduces the effect of the proposed reverse manoeuvres. Based on the above, I am satisfied that the effects of reversing onto Peninsula Rd from the property are anticipated to be less than minor and unlikely to result in unsafe traffic outcomes. I therefore make no recommendations in this regard.
[81] Policy 2.6 was not referenced by Mr Woodford, the Council decision-maker, in his decision. However, I do not consider that constitutes a material omission. The issue of reversing from the site was addressed in the AEE under the heading “Manoeuvring” and an assessment carried out against transport objectives and policies under the ODP, including policy 1.10 of Chapter 14 which requires access to a property to be of a size, location and type to ensure safety and efficiency of road functioning. Mr Woodford had both the AEE and a copy of the consultant’s report before him, both of which concluded the effects of vehicle manoeuvring and reversing onto Peninsula
Road would be less than minor. As earlier noted, Coronet’s AEE was considered by the Council to be comprehensive and accurate, and its conclusion aligned with that of the consultant engaged by the Council.
[82] While policy 2.6 was not expressly referenced in the Council’s decision, it did refer to the relevant ODP objectives and policies contained within Part 14.1, which includes policy 2.6. A comparable policy was referred to in the AEE, and I accept the issue was fully traversed in the assessment carried out by the consultant engaged by the Council for the purpose of considering the effects of reversing onto Peninsula Road. It follows that had policy 2.6 been expressly referenced the same conclusion would have been reached based upon the available professional assessment. I therefore do not consider the failure to specifically list policy 2.6 of s 14.1.3 resulted in a failure to have regard to a relevant consideration.
Failure to have regard to the objectives and policies of ss 7.2.1 and 7.2.2 of the
Proposed District Plan
[83] Mr Donnelly initially submitted the Council’s decision did not address any parts of the Proposed District Plan (PDP). He relied upon the approach taken by Wylie J in Tasti Products Ltd v Auckland Council to submit the Council was required to be satisfied in reaching its decision to grant a consent on a non-notified basis that the activity would not be contrary to the objective and policies of both the ODP and the PDP.27 The McMillans rely upon the opinion of Mr Ferguson, that the PDP’s objectives for the low density residential zone takes a more “directive stance” towards the protection of amenity values than under the ODP.
[84] The Council disputes it failed to address any parts of the PDP. It referred to the AEE, which included a separate section relating to the PDP, which concluded the proposed activity was not considered to be contrary to the objective and policies of Part 7 of the PDP. The Council’s decision recorded that it considered the applicant’s assessment in respect of the relevant objectives and policies found in that part of Coronet’s AEE to be comprehensive and accurate, and the Council adopted that
assessment.
27 Tasti Products Ltd v Auckland Council, above n 17, at [81].
[85] Mr Donnelly acknowledged the AEE did specifically reference objective 7.2.2 and policy 7.2.2.2. However, he submitted the AEE was neither comprehensive nor accurate and did not adequately engage with the PDP.
[86] Objective 7.2.2 and policy 7.2.2.2 of the PDP was considered in the AEE in the following way:
Proposed District Plan
Stage 1 of the PDP was notified on 26 August 2015 and included Chapter 7 – Low Density Residential. The Earthworks and Transport chapters were not included as part of Stage 1. As decisions on the PDP are yet to be released, little weight can be applied to the objectives and policies of the PDP at this time.
The following objective and policy are of relevance to the current application:
7.2.2Objective – Ensure protection of amenity values in recognition of the zone’s lower intensity character, whilst providing for subtle and low impact change.
7.2.2.2Apply height, building coverage, and bulk and location controls as the primary means of retaining the lower intensity character of the zone and ensuring protection of amenity values in terms of privacy, access to sunlight, and impacts arising from building dominance.
Under the PDP, the building height, coverage, setback and continuous building length provisions are similar to the ODP requirements and therefore consent would also be required under the PDP. It is considered that the design of the dwelling will still maintain the lower intensity character of the zone. The subject site is relatively large being 1075 m2 and although the house proposed is also large, it is considered that the design of the dwelling and its orientation to the south ensures that the amenity values of the adjoining sites are maintained.
Overall, although minimal weight can be applied to the above objective and policy, the proposed dwelling is not considered to be contrary to the objectives and policies of Part 7 of the Proposed District Plan.
[87] Apart from Mr Donnelly’s general critique of the AEE, I was not directed to any deficiency or error in the way objective 7.2.2 and policy 7.2.2.2 had been considered in the AEE. This analysis was expressly adopted by the Council for the purpose of its decision.
[88] The objective and policies of s 7.2.1 of the PDP read as follows:
7.2.1Objective – The zone provides for low density residential living within the District’s urban areas.
7.2.1.1Low density zoning and development is located in areas that are well-serviced by public infrastructure, and is designed in a manner consistent with the capacity of infrastructure networks.
7.2.1.2The zone is suburban in character and provides for a low density housing development on larger urban allotments primarily comprising dwellings up to two storeys in height.
[89] This objective and policy relate to low density residential zones and were therefore relevant to the assessment. However, I accept the Council’s submission that these policies are relatively generic, and it is difficult to envisage how any express reference to them in the body of the decision or in the AEE would have resulted in any different outcome. If there was a failure by the Council to refer to the objective and policies, I do not consider it was material.
[90] In any event, I do not accept Mr Donnelly’s submission that the Council is necessarily required to be satisfied, in reaching its decision to grant consent on a non- notified basis, that the activity would not be contrary to the objectives and policies of both the ODP and PDP. Mr Donnelly’s submission relies upon a passage from Wylie J’s judgment in Tasti Products which, if taken in isolation, appears to support that proposition. The relevant passage reads as follows:
[81] Consideration of the context in which the notification decision needed to be made is informative. A decision whether or not to notify an application either publicly or on a limited basis, must logically precede the decision on the application itself. When considering an application for a resource consent under s 104(1), the consent authority is required to have regard to various specific matters, including any relevant provisions of a plan or proposed plan. Similarly, under s 104D(1), a consent authority may grant a resource consent for a non notifying activity, only if it is satisfied in regard to various specified threshold matters. Where there is a relevant operative plan and a relevant proposed plan, it has to be satisfied that the application is for an activity that will not be contrary to the objectives and policies of both plans.
[82] If the policies and objectives contained in a proposed plan are required to be taken into account in making the substantive decision on the resource consent application, then, in my judgment, it is axiomatic that they must be relevant in determining whether a person is affected by the application, so as to require that the consent authority find the person to be effected under s
95E(1), and then give limited notification of the application to that person pursuant to s 95B(2).
[91] Section 104D(1) of the Act relevantly reads:
(1) ... a consent authority may grant a resource consent for a non- complying activity only if it is satisfied that either
(a) the adverse effects of the activity on the environment... will be minor; or
(b) the application is for an activity that will not be contrary to the objectives and policies of
...
(iii) both the relevant plan and the relevant proposed plan, if there is both a plan and a proposed plan in respect of the activity.
[92] Mr Goldsmith submitted that under s 104D(1) consent may be granted for a non-complying activity only if one of two alternative threshold tests is met; either that any adverse effects will be not more than minor, or that the proposal will not be contrary to the objectives and policies of both operative and proposed plans.
Mr Goldsmith submitted that Wylie J’s analysis may be liable to mislead because it does not appear to recognise there were alternative threshold tests. He submitted
Mr Ferguson in his analysis which was relied upon by the McMillans, had fallen into error.
[93] Mr Goldsmith rightly acknowledges that a failure to consider the objectives and policies of a PDP may provide grounds for review of a consent authority’s decision, both as to the issue of notification and the substantive consent decision itself. The Tasti Products decision is an example of such a result, although the circumstances of that case are far removed from the present. There, the consent authority failed to address the objectives and policies in the proposed plan which signalled a significant rezoning of the relevant area. The proposal would be contrary to specific objectives and policies of the PDP. The consent authority’s notification decision completely failed to refer to, or consider, the proposed change in zoning.
[94] A Court may give more weight to the proposed plan where it marks a significant shift in Council policy.28 In the present case, any comparison between the
28 Keystone Ridge Ltd v Auckland City Council, above n 25, at [16]-[20]; Mapara Valley Preservation
Society Inc v Taupo District Council EnvC Auckland A083/07, 1 October 2007, at [39].
ODP and the objectives and policies of the PDP indicates they are relatively consistent. The focus, both under the ODP and PDP, is on objectives, policies and rules to seek to control height, privacy, and other similar amenity values and are effects based. It is perhaps unsurprising therefore that the McMillans have not put forward any analysis beyond Mr Ferguson’s description of the PDP taking a “more directive stance” towards the protection of amenity values. The situation in the present case is clearly distinguishable from that in Tasti Products, where there was a fundamental change in the proposed plan.
[95] The weight to be given to a proposed plan will also depend on the stage in the process that the relevant provision has reached. More weight will be afforded to a proposed plan which has made greater progress through the notification and hearing process.29 Mr Woodford’s evidence was that decisions have yet to be released on the PDP. It follows the objectives and policies of the PDP will be less influential when considering an application for resource consent under s 104.
[96] I am satisfied the Council was aware in considering the application that it was required to have regard to the PDP, as per s 104(1)(b) of the Act, in addition to the ODP. Insofar as no specific reference was made to the objective and policies of s
7.2.1, as I have already observed, I am satisfied these policies are substantially similar to those under the ODP, and they could not have materially altered the Council’s assessment of whether the effects on the McMillans were minor or less than minor for the purpose of determining whether the McMillans were affected persons to whom limited notification of the application must be given.
Failure to take into account wider ramifications of a breach of zone standards
[97] Mr Donnelly submitted the Council erred by not taking into account “the wider ramifications of the multiple breaches of the zone standards across the zone”. He submitted that while the Council’s decision focussed upon the impact of the activity on the McMillans, it still needed to engage with the wider ramifications of the multiple
breaches of the zone standards. Mr Donnelly submitted the decision did not include
29 Bayley v Manukau City Council [1999] 1 NZLR 568 (CA).
any proper assessment of the impact on the character of the zone as a result of the proposed activity.
[98] Mr Whittington submitted that the wider effects on the overall integrity and amenity of the low density residential zone is not a relevant factor when assessing whether a person is directly affected for the purposes of notification under s 95E. I consider that must be so. Such an assessment is necessarily focussed on the immediate effects of the proposed activity on persons in the immediate vicinity, to determine whether they are affected persons, rather than on any wider ramifications across the zone.
[99] Insofar as such a consideration may be relevant to the Council’s decision to grant consent under s 104, the McMillans did not elucidate on the wider ramifications for the zone beyond how they were individually affected. It is indisputable the breaches infringed on zone standards and rendered the proposed activity non- compliant. However, other than noting that the relationship of open space to building is a characteristic of the low density residential zone, no other wider alleged consequences were identified.
[100] The AEE did address the potential impact of the proposed activity for the integrity of the zone’s standards. It was noted:
As a non-complying activity, consideration could be given to the potential for the granting of the application to undermine the integrity of the district plan. In this case, the proposal will not create a precedent as it is for a residential unit within the Low Density Residential zone and the scale of the height effects is limited to small areas of the development, predominantly as a result of the topography of the site. Furthermore, the proposed residential unit is consistent with the scale of other new dwellings which have recently been constructed along Kelvin Peninsula.
[101] Mr Donnelly submitted the acceptance and adoption by the Council of that statement was insufficient to discharge its responsibility to have regard to the wider impact of a breach of zone standards. However, in the absence of it having been demonstrated why the assessment contained in the AEE regarding the impact of the non-complying activity on the low density residential zone and on the integrity of the ODP as a whole was a view the Council could not reasonably accept, this ground of challenge fails.
Acknowledged error in decision
[102] Coronet omitted to apply for consent to breach the ODP’s rule relating to the queuing length required for cars between the driveway and Peninsula Road.30 Mr Donnelly submitted the failure by the Council in its decision to expressly address non- compliance with this rule meant the decision was flawed, and that its failure to have regard to that breach or to take it into account affected the validity of the decision not to notify the McMillans. Having made that submission, Mr Donnelly responsibly acknowledged he could not realistically contend the decision not to notify the McMillans would have been different had this particular breach been taken into account, or by itself could justify the grant of relief. However, he submitted the Court would need to consider whether this error in conjunction with others may justify such a result, and that the omission was indicative of the approach taken by the Council to Coronet’s application.
[103] Coronet has since applied for and obtained a consent for the breach of the queuing rule which was granted on a non-notified basis. There has been no challenge to that decision.31 However, the Council does not accept that it was necessary for Coronet to do so in order to remedy the position.
[104] Mr Whittington rejected the proposition that the original decision was flawed because this particular rule breach had not originally been identified. He cited a decision of Judge Kirkpatrick in the Environment Court, Arapata Trust Ltd v Auckland Council, which held that a resource consent is properly understood as authorising an activity, rather than as authorising a breach of a particular rule.32 Relying on that authority, Mr Whittington submitted that because the Council in the present case considered and assessed the traffic effects of the proposed activity, the original resource consent could properly be construed as authorising that activity, and the
supplementary resource consent was unnecessary.
30 Rule 14.2.4.1(xi).
31 Decision of the Queenstown Lakes District Council on application RM170669.
32 Arapata Trust Ltd v Auckland Council [2016] NZEnvC 236 at [35]; Duggan v Auckland Council
[2017] NZHC 1540, [2017] NZRMA 317 at [28] and [37], citing the Aparata decision.
[105] It is not necessary for me to resolve that issue. Mr Ferguson and Ms Leith appear to agree that, from a policy perspective, this rule breach was probably addressed as part of the Council’s consideration of breaches of other transport rules. Access, cross-over, and manoeuvring effects were assessed in the AEE and by the Council’s traffic consultant when the non-complying proposed driveway for the site was considered. As Mr Ferguson acknowledged, these transportation rules, including vehicle crossing, length, and reverse manoeuvring, which were addressed in the consent application, overlap with the onsite queuing rule.
[106] There was no suggestion, either in the evidence or in submissions made by
Mr Donnelly, that the breach of the queuing rule caused any adverse effects on the McMillans. The error has now been cured. I do not consider the error capable of invalidating the Council decision, either as it relates to the issue of notification or the grant of the consent itself. Furthermore, it could not support the grant of any relief as the error, if it was an error, has now been cured.
Unreasonableness
[107] The McMillans allege the Council’s decision to grant resource consent on a non-notified basis was unreasonable. Mr Donnelly submitted the decision not to notify the McMillans was not supported by reasoned justification. He submitted the Council simply adopted Coronet’s conclusions or assertions without properly reviewing the underlying evidence, or what he submitted was the lack of evidence. He likened the decision to a rubberstamping exercise made without sufficient evidence.
[108] In support of his argument that the Council’s decision was unreasonable,
Mr Donnelly repeated a number of the arguments already traversed under different headings relating to a failure by the Council to have regard to the character of the residential environment and a lack of detailed information in the AEE as to the effects of the proposed activity. He also referred to Mr Ferguson’s letter of 13 April, which placed the Council on notice regarding the McMillans’ concerns and alleged identified failings in the consent application, in particular in the AEE, and which, in his submission, added weight to the contention that the Council’s decision was unreasonable. A further matter relied upon was the decision to grant consent without
taking account, or even acknowledging, that the building would breach the ODP’s
“queuing” rule, which is an aspect I have already addressed.
[109] Mr Donnelly placed considerable reliance on the judgment of Dunningham J in Watson v Chief Executive of the Department of Corrections in support of his submission there has been a loosening of the bounds of Wednesbury unreasonableness.33 Mr Whittington challenged whether that was so in the absence of any cited authority that a lesser approach is to be applied to decisions made under the Act. He submitted, to the contrary, the usual approach has been to apply Wednesbury.34
[110] The Courts have sought to clarify the threshold for unreasonableness which may otherwise have been considered too strictly by the literal application of the standard of “irrationality”. Examples of unreasonableness cited in the Watson decision include where a decision-maker had more than one option, but the decision reached was unsupported by reasoned justification; or that the decision was so disproportionate in its weighting of competing factors the outcome was unreasonable. Such conclusions are, in my view, no more than findings of unreasonableness based upon orthodox Wednesbury principles; they are decisions that are so unreasonable that no reasonable decision-maker could have made them.
[111] The McMillans’ allegation of unreasonableness largely rests upon the collective consideration of the alleged errors traversed in this judgment. I accept the proposition put by Mr Donnelly that because the proposed activity was non- complying, and therefore “does not generally belong”, it must be scrutinised in that light.35 A non-notification decision requires the decision-maker to be sufficiently and relevantly informed and to bring that information properly into account in a reasoned way.36 However, the focus must be on the non-complying aspect of the proposed
activity and the assessment of effects derived from that non-compliance.
33 Watson v Chief Executive of the Department of Corrections [2015] NZHC 1227, [2015] NZAR
1049; Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223 (CA).
34 Associated Churches of Christ Church Extension and Property Trust Board v Auckland Council
[2014] NZHC 3405, (2014) 18 ELRNZ 237 at [52]; Videbeck v Auckland City Council [2002] 3
NZLR 842 at [32].35 Gabler v Queenstown Lakes District Council, above n 8, at [67].
36 At [67].
[112] I do not accept Mr Donnelly’s submission that the Council’s decision represents effectively a “rubberstamping” of the application. The Council focussed on each of the identified breaches as they potentially affect the McMillans, having exercised its discretion to apply the permitted baseline. I have reviewed the information taken into account by the Council and the analysis undertaken to reach the conclusion that the effects were less than minor. In coming to that conclusion, I am satisfied the Council had available to it the necessary and relevant information from which to make an informed decision to process the application on a non-notified basis and to grant consent.
[113] While generic statements have been made expressing concerns regarding the proposed new dwelling, it has not been demonstrated to me how the Council’s assessment of the breaches of the various rules, and most pertinently the three breaches of the height rule, produced adverse effects which no reasonable decision-maker could consider to be less than minor. Nor has it been established what further information the Council should have ensured was available to it which was of a type that would have made a material difference to that assessment.
[114] Whether taken individually or in combination, the alleged errors relied upon by the McMillans, which I have considered earlier in this judgment, do not, in my view, render the Council’s decision unreasonable. I confess to having reason to pause in reaching that conclusion, resulting as it does in preventing a neighbouring landowner from formally participating in the consent decision-making process in relation to the construction of a new building on an adjoining site in breach of the ODP. However, as this case demonstrates, where it is reasonably open to the consent authority to assess the adverse effects of the non-complying activity as being less than minor, the statute does not require notification.
[115] Having concluded the Council’s decision to process Coronet’s application without notification and to grant the resource consent was lawful, no issue arises as to the question of relief.
Result
[116] The McMillans’ challenge to both the notification and substantive decisions of the Council fail. The application for judicial review is therefore dismissed.
[117] Costs are reserved.
Solicitors:
Preston Russell Law, Invercargill
Anderson Lloyd,Queenstown Lakes District Council, Queenstown
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