Mills v Far North District Council
[2018] NZHC 2082
•15 August 2018
IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE
CIV-2017-488-79
[2018] NZHC 2082
UNDER the Judicial Review Procedure Act 2016 IN THE MATTER
of the Resource Management Act 1991
BETWEEN
GARY EDWARD MILLS
First Applicant
PAUL WAYNE FIELDMAN
Second ApplicantAND
FAR NORTH DISTRICT COUNCIL
First Respondent
BODGAN VITALEVICH GAN and OLESYA NIKOLAEVNA GAN
Second Respondents
Hearing: 12 March 2018; further submissions 15 March and 11 April 2018 Counsel:
MJE Williams for applicants JS Baguley for first respondent
CH Prendergast for second respondent
Judgment:
15 August 2018
JUDGMENT OF FITZGERALD J
This judgment was delivered by me on 15 August 2018 at 3:30 pm pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date……………
Solicitors: Richard Mark, Kerikeri
Law North Ltd Kerikeri
Henderson Reeves Lawyers, Whangarei
Mills v Far North District Council [2018] NZHC 2082 [15 August 2018]
CONTENTS
Factual background [4]
The need for resource consent [5]
Pre-lodgement activities and communications [9]
Post-lodgement activities and communications [16]The decisions [31]
Post-consent events [43]
The claims
Overview [56]
First cause of action [59]
Second cause of action [61]Third cause of action [62]
Fourth cause of action [64]
Fifth cause of action [66]
Sixth cause of action [69]
Proper approach to judicial review [70]
First cause of action
The parties’ submissions [75]
Analysis [85]
Second cause of action
The parties’ submissions [91]
Analysis [96]
Third cause of action
The parties’ submissions [117]
Analysis – the legal position [123]
Analysis – application to the facts [143]
Fourth cause of action [153]
Fifth cause of action
Introduction [158]
What is the interpretation issue? [160]
Did the Council fail to consider whether special circumstances existed? [173]
Sixth cause of action
The parties’ submissions [184]
Analysis [188]
Relief
The parties’ submissions [195] Analysis [202] Costs [208]
[1] This application for judicial review concerns two large sheds which have been built within the Te Waimate Heritage Precinct (“Heritage Precinct”) near Waimate North. The Heritage Precinct is specifically recognised in the Far North District Plan, which describes it as a “pre-eminent historic landscape of national significance”.1
[2] The applicants challenge the Far North District Council’s decision to grant a resource consent permitting the sheds to be built and that the application for consent proceed on a non-notified basis. In short, the applicants say that sheds of such a size and scale ought not to have been allowed to be built in the Heritage Precinct. The applicants accordingly seek a declaration that each of the Council’s decisions is invalid, or alternatively an order setting aside each of the decisions, together with costs.
[3] The Council, supported by the second respondents (the Gans, who own the sheds), deny there were any deficiencies in the process by which the two decisions were reached, or in the content of the decisions themselves. The Council says it took into account all matters it was required to take into account, and it was appropriate for the application to have proceeded on a non-notified basis. The Gans submit that even if the Court were satisfied that any of the grounds for judicial review were made out, the Court ought to exercise its discretion and decline to grant relief, because they sought planning advice in good faith, relied on the resource consent and expended several hundred thousand dollars in the interim constructing and completing the sheds.
Factual background
[4] Before considering the claims and the parties’ submissions in relation to them, it is necessary to set out the factual background in further detail.
The need for resource consent
[5] The Far North District Plan is an “effects-based” plan. This means the need for resource consent is triggered when a proposed activity breaches a rule or rules within the Plan applicable to a particular site. The number and type of breaches
1 Far North District Council Far North District Plan, ch 12.5A.
determines the Activity Status of the proposed activity, namely whether it is a Controlled, Restricted Discretionary, Discretionary or Non-Complying activity.
[6] The site on which the sheds were to be constructed is located in the “Rural Production Zone” of the Far North District Plan and also within the Heritage Precinct (an overlay to the Rural Production Zone). The larger of the two sheds, which I will refer to as the “Totalspan shed”, has a maximum height at its gable of 6.4 metres.2 It was therefore within the permitted threshold for height in the Rural Production Zone (being 12 metres).
[7] It is not in dispute, however, that the proposal to erect the sheds breached other provisions of the District Plan and thus triggered the need for resource consent. Those breaches can be summarised as follows:
(a)First, the proposal breached stormwater management rule 8.6.5.1.3, because of the impermeable surface site coverage.
(b)Second, the proposal breached rule 8.6.5.1.4, concerning setback from boundaries.
(c)Third, the proposal involved “new building[s] visible from a public place” (namely the nearby road) within the Heritage Precinct. Rule 12.5A.6.3.2 provides that any new building within a heritage precinct is to be treated as a Restricted Discretionary activity.
[8] In light of the combined effect of those breaches, the proposal’s overall Activity Status was considered “Discretionary”. That categorisation is not in dispute. As a result, when considering the application, the Council was required to consider application against the assessment criteria set out in rule 12.5A.7. This relevantly provides as follows:
12.5A.7 ASSESSMENT CRITERIA
The matters set out in s104 and s105, and in Part II of the Act, apply to the consideration of all resource consents for land use activities.
2 The smaller of the two sheds, the “Versatile shed”, had a height of 3.6 metres.
In addition to these matters, the Council shall also apply the relevant assessment matters set out below:
(a)the extent to which any work adversely affects the existing character of the various Heritage Precincts as a whole;
(b)the extent to which any proposed work uses similar materials and is of similar design to the existing building or buildings on the same site;
…
(d)the extent to which landscaping is appropriate to the character of the buildings on site;
(e)the extent to which work or an activity adversely affects or destroys any archaeological site;
…
Pre-lodgement activities and communications
[9] The Gans employed the services of a planning consultant, Ms Felicity Foy, to prepare and lodge their application for resource consent. Ms Foy swore an affidavit in this proceeding. She notes that when preparing the application and specifically the assessment of effects report, she did not include details of the specific heights of the sheds, as both sheds complied with the height permitted standards under the Rural Production Zone.
[10] Prior to lodgement, on 22 December 2016, Ms Foy forwarded the draft application to Heritage New Zealand Pouhere Taonga (“Heritage NZ”) for comment. Heritage NZ is a statutory body with a broad mandate to protect historic heritage in New Zealand.3
[11]Ms Foy emailed the draft application to Mr Butler at Heritage NZ, stating:
I am contacting you to be provided comments to include as part of the consent application. If you could kindly provide comments from Heritage New Zealand regarding this proposal it would be much appreciated.
[12] Ms Foy’s email broadly set out the proposal to construct the two sheds, including their location and proposed colour scheme.
3 Heritage New Zealand Pouhere Taonga Act 2014, s 13.
[13] Later the same day, Mr Butler responded to Ms Foy, seeking elevation plans for the proposed sheds. Ms Foy forwarded that information to Mr Butler the same day, 22 December 2016, stating “attached are the proposed elevation plans for the Versatile Shed and Totalspan shed”. It now transpires that only the elevations for the smaller Versatile shed were provided. Ms Foy states in her affidavit that it was only when she was going through her records after she had been told that the resource consent was being challenged that she realised the Totalspan elevations had been omitted. I have no reason to doubt that evidence. There is no suggestion that was anything other than inadvertent. The footprint for each shed was provided and highlighted that the Totalspan shed was much larger than the Versatile shed. Nevertheless, it appears Heritage NZ proceeded on the basis that, given the content of Ms Foy’s email and that only one set of elevations had been provided, the elevations of both sheds would be similar.
[14] Mr Butler responded to Ms Foy on 9 January 2017. He noted that the proposed site, within the Heritage Precinct, was alongside a 1960s weatherboard dwelling that also has similar garages or sheds to those which were proposed. Mr Butler went on to state:
Ideally, the buildings would be constructed of timber. However all things considered, the proposed new structures with their recessed colours are considered to be acceptable in this particular location given the environment that already exists on the property next door and the distance from other older homesteads.
[15] Ms Foy responded later that day, thanking Mr Butler for his comments, and also noting that the Gans would offer, as a condition of the resource consent, to plant a hedge along the front of the site, to better integrate the sheds into the Heritage Precinct.
Post-lodgement activities and communications
[16] Ms Foy thereafter took steps to finalise the application. It was lodged with the Council on 10 January 2017. In a section within the application headed “Assessment of District Plan Objectives and Policies”, the application stated that the “relevant Objectives and Policies of the Plan are those related to the Rural Environment, Rural
Production Zone and the Te Waimate Heritage Precinct”. In that context, the application stated, inter alia, that:
The proposal is a Discretionary Activity. However, the development is considered to be generally consistent with the objectives and policies of the Plan. Heritage New Zealand has provided comments to the proposal and is unopposed to the development.
[17] The application also referenced s 6 of the Resource Management Act 1991 (“Act”), matters of national importance, which include “the protection of historic heritage from inappropriate subdivision, use, and development”.4 The application stated that “overall the proposal is considered to recognise and provide for the matters identified under Section 6 of the Act.”
[18] Rule 12.5A.6.3.2 (new buildings in heritage precincts) was addressed in a later section of the application headed “Assessment of the actual potential effects on the environment of the proposed activity”. Under the sub-heading “the extent to which any work adversely affects the existing character of the various Heritage Precincts as a whole” (one of the assessment criteria under r 12.5A.7), the application stated:
The proposed activities on the subject site will have minimal adverse effects on the existing character of the Heritage Precincts as a whole. The subject site is located within an area predominantly used as lifestyle blocks. The adjacent properties are also used for this purpose. The colour scheme for the proposed sheds have been accepted by Heritage New Zealand. The proposal is not considered to create any adverse effects on the character of the Heritage Precinct as a whole. A hedge along the frontage of the site will allow the proposal to better integrate the buildings into the Heritage Precinct.
[19] The application also considered the extent to which any proposed work used similar materials to or was of similar design to the existing buildings on the site (another assessment criterion under r 12.5A.7). In this context, the application stated:
Mike Butler (Heritage New Zealand) considered that the proposal is acceptable in this particular location, given the environment that already exists on the adjacent property and the distance from other older homesteads.
[20] The Gans’ application was referred to a planning consultant for consideration and processing, Mr Leonard Dissanayake. Mr Dissanayake swore an affidavit in these proceedings. Mr Dissanayake’s qualifications and experience include 33 years in the
4 Section 6(f).
architectural and planning professions, 18 of which involve planning experience in New Zealand. The Council’s Acting Manager – Resource Consents, Mr Patrick Killalea, also swore an affidavit in these proceedings. Mr Killalea explains that when Mr Dissanayake received the application, it was also forwarded to several interested parties for comment, including Heritage NZ.
[21] Building consent was required to construct the sheds, and a separate application was also filed by the Gans. On 13 January 2017, the Gans informed the Council’s Building Consent section that the sheds’ purpose was “storage, residential storage of vehicles and items from some of our other properties”.
[22]Mr Dissanayake carried out a site visit on 25 January 2017.
[23] Heritage NZ (through Mr Butler) commented on the application by way of an email to Council on 26 January 2017. Mr Butler stated:
…
4.Historic heritage is a matter of national importance under Section 6(f) of the Resource Management Act 1991 (the RMA). The definition of historic heritage under Part 2 of the RMA includes archaeology. Under section 104(1) of the RMA, a territorial authority must consider Part 2 matters (which includes section 6(f)) when making a decision on an application. Therefore effects on archaeological sites must be taken into account by council when assessing a consent application.
5.Section 2 of the [Heritage New Zealand Pouhere Taonga Act 2014] defines an archaeological site as:
(a)any place in New Zealand, including any building or structure (or part of a building or structure), that —
(i)was associated with human activity that occurred before 1900 or is the site of the wreck of any vessel where the wreck occurred before 1900; and
(ii)provides or may provide, through investigation by archaeological methods, evidence relating to the history of New Zealand.
6.The Heritage New Zealand Pouhere Taonga Act 2014 provides protection for all archaeological sites, whether recorded or not. It is unlawful to modify or destroy an archaeological site without the prior authority of Heritage New Zealand. By careful project design, it is frequently possible to avoid any such modification. However, where avoidance of an archaeological site is not possible, an Archaeological
Authority will be required. An Authority is also required if there is reasonable cause to suspect that an archaeological site may be modified or destroyed. All applications for Archaeological Authorities must be made to Heritage New Zealand.
7.The proposal has been discussed with our Northland Area Office who recommends an Accidental Discovery Protocol as per the attached.
[24] As will be noted, Heritage NZ did not address the sheds themselves; rather its comments focussed on the protection of archaeological sites and the recommendation of an Accidental Discovery Protocol. This may have been in light of Heritage NZ’s earlier comments on the sheds, from Mr Butler’s communication with Ms Foy at the pre-lodgement stage.
[25] After considering the application and his site visit, Mr Dissanayake determined that further information was required. On 7 February 2017, the Council sent a request to the Gans (via Ms Foy) pursuant to s 92 of the Act, requesting the following further information:
(a)floor plans for both sheds and elevations for the Totalspan shed;
(b)confirmation of the nature of the use of the sheds (commercial or residential);
(c)details of impermeable surface calculations; and
(d)clarification of the engineering report provided with the application.
[26] On 23 February 2017, a representative of Totalspan, Bay of Islands, forwarded Mr Dissanayake the requested information. The cover email noted that there had been a discussion with Mr Dissanayake that morning, and that he was welcome to speak further with a representative of Totalspan, if required.
[27] On 27 February 2017, Mr Dissanayake sent an email to Ms Foy, noting that his report under s 95 of the Act and draft decision were almost ready. He also provided Ms Foy with a proposed condition of the consent, requiring the applicants to submit a planting plan within three months of consent being granted. The proposed condition
specified a minimum hedge height of four metres from ground level “in view of the maximum height of the Total Span shed which is 6.4 metres”, to ensure better visual integration of the sheds into the streetscape and Heritage Precinct. Ms Foy replied the same day, confirming that the proposed condition was suitable.
[28] Mr Killalea explains that on 27 February 2017, he received Mr Dissanayake’s draft decisions on the consent application and whether it ought to be notified, for review. Mr Killalea states that when checking the drafts, he became aware that Council had also received a building consent application for the sheds, which included a wastewater treatment system. Mr Killalea says that the proposal for a wastewater system (designed for six persons) caused him to question the proposed use of the larger Totalspan shed. As a result, a second request for information was sent to the Gans on
28 February 2017. In the request, Mr Killalea noted that the building consent application indicated there was to be a wastewater disposal system on site for the equivalent of four-bedroomed dwelling. He sought further information, including an updated site plan, an update or confirmation of the proposed use of the Totalspan shed (“given that it now requires an effluent disposal system”), and information why the owners of the adjoining property to the west, whose dwelling was very close to the boundary with the Gans, had not been considered a potentially affected person. He also noted that the resource consent application would be suspended pending receipt of the requested information.
[29] Ms Foy responded to the second information request by email on 2 March 2017. She provided an updated site plan and, in relation to the use of the Totalspan shed, stated:
The use of the shed will not change as result of having the bathroom facility. The shed will be utilised for storage purposes and will also have bathroom facilities that will be utilised by the owners of the shed when they are utilising the shed. It is anticipated that the consent will contain an advice notice regarding the use of the shed.
[30] Ms Foy commented that the adjacent neighbour was not to be affected by the proposal, as the proposal complied with the permitted standards relating to the setback and sunlight rules along the relevant boundary. She also noted that the proposal included mitigation measures regarding stormwater control, such that there would be
no adverse stormwater effects on the adjacent property. Ms Foy concluded that the proposal was therefore considered to have less-than-minor effects on that particular neighbour. She indicated that if the Council’s planner took a different view, then further hedge planting (at a lower level to that proposed for the road front) could be considered.
The decisions
[31] The notification and consent decisions were made on 3 March 2017. Mr Dissanayake’s affidavit sets out the various matters he considered and took into account when assessing the Gans’ application. I have addressed Mr Dissanayake’s comments later in this judgment, under my consideration of the applicants’ various causes of action in their claim. In this section, I simply record key aspects of the notification and consent decisions themselves.
[32] Paragraph 4 of the notification decision recorded that the “surrounding area [to the site] is characterised by rural residential lots, lifestyle properties, farm lands and historic buildings”.
[33] Paragraph 5 then provided a general description of the site, including a general description of the proposed activity and why consent was required. It said:
5. Full Description of Proposed Activity and why consent is required
The proposed activity is to construct a ‘Total Span’ shed and a ‘Versatile’ shed for the storage of personal belongings on the site. The floor areas of these two sheds are 303m2 and 86.4m2 respectively. The ‘Total Span’ shed includes bathroom facilities. The applicants’ agent has confirmed that these facilities will be used by the owners when they are utilising the shed. The applicants have confirmed that the proposed buildings are intended for the purpose of storage of personal belongings (storage of vehicles and items from some of their other properties) and are not for commercial use.
[34] The decision then set out details of the rules breached.5 The decision confirmed that, overall, the proposal was a “Discretionary” activity under the Operative District Plan.
5 See [7] above.
[35] In terms of the assessment of environmental effects, it is necessary to set out the relevant extract of the decision in full, given its central relevance to the applicants’ claim:
Cultural and Heritage effects
The site is located within the Te Waimate Heritage Precinct. Construction of a new building which is visible from a public space within this Precinct is considered a restricted discretionary activity under Rule 12.5A.6.3.2. However, since the proposal is overall a discretionary activity, the following assessment criteria listed under Rule 12.5A.7 were considered in assessing this application. [Assessment criteria listed.]
The applicant has assessed the proposal against the above criteria and I generally agree with that assessment.
In terms of landscaping, the applicant is proposing to provide a hedge along the road frontage. However, no details such as the type of planting, hedge height etc. were indicated in the application. Given that the maximum height of the Total Span shed is 6.4m and the Versatile shed is 3.6m, a hedge with a minimum height of 4m was suggested to the applicants’ agent that has been accepted. It is considered that 4m high hedge with suitable plant species would appropriately screen the buildings from the road being a public place and would integrate the development with the streetscape and the heritage precinct.
The applicants have proposed the following colour scheme for the proposed sheds
Total Span shed
Walls & roof - Sandstone Grey (29.5% LRV)
Doors, windows, roller/sliding doors - Grey Friars (12.8% LRV)Versatile shed
Walls & roof - Grey Friars (12.8% LRV)
Heritage New Zealand in its e mail dated 09/01/17 to the applicants’ agent has commented as follows; ‘Ideally, the buildings would be constructed of timber. However all things considered, the proposed new structures with their recessed colours are considered to be acceptable in this particular location given the environment that already exists on the property next door and the distance from the other older homesteads’.
The additional requirement from the Heritage NZ is to include ADP advice note in the consent.
No response has been received from local iwi authorities.
It is considered that, subject to proposed mitigation measures relating to landscaping and colour scheme, the proposal will not create any adverse effects on the character of the Heritage Precinct.
[36]The notification decision concluded that:
Taking into account the above assessment, it is considered that the proposal will have no more than minor adverse effects on the wider environment.
[37] The decision also stated that “it is considered that special circumstances do not exist leading to the conclusion that the application should be notified?” While framed as a question (due to the standard-form template used for notification decisions), it is nevertheless clear this was intended as a conclusion that special circumstances did not exist.
[38] The decision also noted that the owners of an adjoining property affected by the boundary setback rule had provided written approval to the proposal. The effects on three other adjoining properties were considered less than minor. The decision therefore recommended that the application need not be publicly notified, or only notified on a limited basis.
[39] As noted, the resource consent decision was also made on 3 March 2017. It was granted on certain conditions, including that:
(a)the activity was to be carried out in accordance with the approved plans which had been provided;
(b)the exterior colour scheme of the proposed sheds was to be as specified in the consent; and
(c)within three months of the date of the resource consent, the planting plan was to be provided to the Council for approval. The plant species chosen were to have the characteristics of growing to a height enabling them to be maintained at least four metres from the ground level at maturity.
[40]The consent decision also included advice notices, for example:
This application has been processed on the basis of the applicants’ confirmation that the uses of the buildings are intended for the purpose of storage of personal belongings and not for a commercial use. The applicants are advised that a resource consent may be required in the event of any change to the nature of the use of the sheds.
[41]It is again useful to set out the reasons for the consent decision in full:
Reasons for the Decision
1The Council has determined (by way of an earlier report and resolutions) that the adverse environmental effects associated with the proposed activity are no more than minor and that there are no affected persons or affected customary rights group or customary marine title group [sic].
2The proposed activity is considered to have adequately taken into account, and be consistent with, relevant statutory provisions, including the following objectives and policies from the Operative Fair North District Plan.
Chapter 8.6 – Rural Production Zone
8.6.3.1 To promote the sustainable management of natural and physical resources in the Rural Production Zone.
8.6.3.2 To enable the efficient use and development of the Rural Production Zone in a way that enables people and communities to provide for their social, economic, and cultural well being and for their health and safety.
8.6.3.3 To promote the maintenance and enhancement of the amenity values of the Rural Production Zone.
8.6.4.1 That [a] wide range of activities be allowed in the Rural Production Zone subject to the need to ensure that any adverse effects including any reverse sensitivity effects on the environment resulting from these are avoided remedied or mitigated.
8.6.4.3 That land management practices that avoid, remedy or mitigate adverse effects on natural and physical resources be encouraged.
8.6.4.4 That the intensity of development allowed shall have regard to the maintenance and enhancement of the amenity values of the Rural Production Zone
8.6.4.5 That the efficient use and development of physical and natural resources be taken into account in the implementation of the Plan.
Chapter 12.5A – Heritage Precincts
12.5A.3.1 To recognise and protect retain [sic] the heritage values of the various heritage precincts derived from the sites, buildings and objects of historic significance, and to protect such sites, buildings and objects from inappropriate subdivision, use and development.
12.5A.3.3 To recognise and protect the special character of the various heritage precincts that derives from the built form in combination with the landforms.
12.5A.4.1 That the type, scale and nature of alterations to existing buildings be limited so as to ensure the retention of the heritage character of the various heritage precincts and of buildings of historic significance within those heritage precincts.
12.5A.4.3 That the location, scale and nature of new buildings and structures be controlled so as to not adversely affect the historic character, streetscape or landscape values of the various heritage precincts and of buildings of historic significance within those heritage precincts.
The above objectives and policies seek to enable measured development within the Rural Production zone and the protection of heritage values (in relation to Te Waimate Heritage Precinct) whilst ensuring the effects of such development are minimised or appropriately mitigated. It is considered that the proposal is consistent·with the objectives and policies of the Far North District Plan. The potential adverse effects of the proposal are considered to be no more than minor subject to the conditions of consent.
4Relevant regional planning provisions include:
a) The Regional Policy Statement (RPS) for Northland
b) The Northland Regional Water & Soil Plan
The above Policy Statement and the Plan were considered and there appears to be no matters of concern.
5Part 2 Matters
The Council has taken into account the purpose & principles outlined in sections 5, 6, 7 & 8 of the Act. It is considered that granting this resource consent application achieves the purpose of the Act.
[42] As can be seen, the resource consent decision relied substantially on the content of the notification decision as to why the proposal’s environmental effects were considered no more than minor.
Post-consent events
[43] Construction works on site commenced on 7 March 2017. Between 3 April and 18 April 2017, materials were delivered to the site and the sheds’ framework began to be erected. One of the applicants, Mr Fieldman, states in his affidavit that the applicants became aware of the scale of the development on 20 April 2017 (when the steel framework for the Totalspan shed was erected). By 7 May 2017, a petition
containing some 62 signatures had been organised and submitted to the Council. Ten days later, on 17 May 2017, the Totalspan shed’s exterior was complete.
[44] A meeting was held between the applicants, other community representatives, representatives of Heritage NZ and relevant Council officers on 23 May 2017. Mr Fieldman states that he was informed at the meeting that judicial review was the only available option.
[45] Mr Fieldman also explains how on 8 May 2017, he had visited Heritage NZ’s Kerikeri office and spoken to Mr Bill Edwards and his colleagues about the sheds then under construction. Mr Fieldman states that the meeting resulted in an email dated 10 May 2017 from Mr Edwards, which recorded:
We are re-examining the resource consents and getting a second opinion if they were presented in a misleading fashion to cloak the true intent of the development. The building of its size and scale should not be there and is out of place in a heritage landscape. Once we have an opinion on the consent documents I will be able to report to you more fully.
[46] In subsequent emails between Mr Butler of Heritage NZ and Mr Killalea at the Council, Mr Butler commented:
Hi Pat, I will send through separately the emails now of the plans etc we have details surrounding the pre-ap. Basically when we asked for the elevation and got one set of elevations we assumed that while the footprint was much bigger on the Totalspan shed, that the height etc would be similar and in sending us one elevation this was implied.
We didn’t see both elevations, just the smaller garage one.
Ideally we should have picked this up. We didn’t realise it would be used for a honey centre etc but thought it was for household goods, eg rural silage, tractors, rural machinery.
[47] On 6 June 2017, a letter from counsel representing the applicants put the Gans and the Council on notice of potential judicial review proceedings. A subsequent letter dated 29 June 2017 confirmed that proceedings would be filed. These proceedings were ultimately commenced on 5 July 2017.
[48] Final Council inspection and sign-off of the sheds occurred on 6 July 2017. A code of compliance certificate was issued on 25 August 2017.
[49]Mr Gan states in his affidavit that he and his wife have incurred costs of
$523,570.33 on the sheds’ development. Larger items of expenditure include
$147,313.27 for the purchase of the land (including legal fees) and $302,945.27 for the Totalspan shed itself.
[50] Mr Gan confirms the sheds are to be used for the storage of items belonging to him or his wife. He notes that the applicants have assumed that because he is involved in the honey-making business, he will use the sheds to make honey. He says that is incorrect. Mr Gan states:
I do work for a honey making company, and I am a director and shareholder in another company involved in the honey making business. But it is not my intention to use the sheds for that purpose. The sheds are for the storage of various goods and equipment belonging to me.
[51] Mr Gan annexes to his affidavit photographs showing the property currently stored in the Totalspan shed. He says he is aware that if he wants to use the building for anything other than storage, such as for a commercial purpose, he will need to make a further application for resource consent for a change of use, and that the Council may or may not grant that application. He further notes that he personally owns a number of honey boxes and apiary associated plant. For the six or seven months of the year when they are not being used, they will probably be stored in the Totalspan shed.
[52] In terms of potential future use of the shed for accommodation, Mr Gan concludes:
My wife and I have toyed with the idea of converting the Totalspan shed at some stage in the future to allow for living accommodation on a mezzanine level and retaining storage on the ground floor. I understand that provided I/we get a resource consent to do so, I would be able to do that. The shed has been built in such a way as to provide flexibility of use in the future, as it would be much more expensive to try to change the construction later.
(Emphasis in original)
[53] As I indicated to Mr Williams, counsel for the applicants, at the hearing, I have no reason to doubt Mr Gan’s evidence as to the intended use of the sheds. To suggest that the evidence is either misleading or false is a serious allegation and was not pressed at the hearing. Accordingly, I agree with counsel for the Gans’ submission
that the various (subjective) concerns as to use expressed by the applicants (and others who have provided affidavits in these proceedings) are somewhat of a red herring. There is no evidence, for example, that the sheds are or will be used as a “honey centre” as suggested in Heritage NZ’s email to the Council at [46] above.
[54] Further, I do not consider the storage of honey boxes and apiary associated plant owned by the Gans in the Totalspan shed is a commercial use. I gave an example at the hearing of a concrete mixer used in a person’s separate business being stored in their residential garage. Such storage alone does not mean the garage is being used for a commercial purpose, or a business is being conducted from it.
[55]I accordingly say nothing further about the intended use of the sheds.
The claims
Overview
[56] Before summarising the pleaded causes of action, Mr Williams explained that there are two central propositions to the applicants’ case:
(a)First, mandatory relevant considerations were not considered by the Council when making the notification and resource consent decisions. In particular, the planning provisions of ch 12.5, which give substance to s 6(f) of the Act, were not taken into account. Mr Williams says these provisions required the impact of the sheds to be considered in the context of the Heritage Precinct as a complete entity, with its historic character, landscape setting and amenity values conserved and protected from adverse effects, but this did not occur.
(b)Second, while the Council did purport to take into account ch 12.5A (which is said to be supplementary to ch 12.5), there was inadequate information to support any reasoned conclusion about the impact of the sheds on the Heritage Precinct in any event.
[57] Mr Williams submits that both issues taint the Council’s decisions. In short, he says the whole application was approached from the “wrong starting point at the outset”.
[58]I now turn to summarise the various causes of action.
First cause of action
[59] Section 6(f) of the Act provides that the protection of historic heritage from inappropriate subdivision, use and development is a matter of national importance. Section 6 is found within pt 2 of the Act. Pursuant to s 104(1), consideration of any application for resource consent must be made “subject to Part 2”.
[60] The applicants allege the Council failed to recognise and provide for the matters set out in s 6(f) of the Act, in that there was no direct reference to or consideration of s 6(f) of the Act when the Council made its decision on the resource consent application. The applicants say that in reaching its decision, the Council therefore failed to take into account a mandatory relevant consideration.
Second cause of action
[61] The applicants’ second cause of action alleges a failure to consider relevant District Plan objectives and policies, particularly ch 12.5, in addition to ch 12.5A. The applicants say the Objectives and Policies of ch 12.5 are a mandatory relevant consideration for assessment of the consent application. It is submitted the failure to expressly address these provisions comprises a reviewable error which had a material bearing on the consent decision.
Third cause of action
[62] The applicants further say the Council plainly had insufficient information before it to dispense with either public or limited notification of the application and to grant the resource consent itself.
[63] The applicants submit that the notification decision relied heavily on the (limited) assessment of environmental effects set out in the application for consent itself, as well as materially inaccurate information from Heritage NZ. The claim pleads that there was accordingly no information before the Council at any stage to properly assess the impact of the sheds in the context of the Heritage Precinct.
Fourth cause of action
[64] The fourth cause of action alleges that the consent decision was irrational. It is said that it was irrational for the Council to accept that the Totalspan and Versatile sheds, at the scale proposed, were intended for the storage of personal belongings and not for commercial use.
[65] As I indicated to Mr Williams at the hearing, and as I have noted already above, the affidavit material filed on behalf of the Gans confirms the current use of the sheds. Mr Williams, quite properly in my view, did not press this cause of action to any significant degree as a free-standing claim.
Fifth cause of action
[66] The fifth cause of action relates to the notification decision only. It is advanced on the basis that the Council erred in making the notification decision by failing to consider whether there were “special circumstances” justifying notification, for the purposes of s 95A(4) of the Act.
[67] Specifically, the statement of claim alleges that the Council failed to consider the relationship of the site within the Heritage Precinct, and its connection with the wider Waimate North area. It is also alleged that “special circumstances arise through the sheer scale and nature of the sheds in the heritage, landscape and character settings of the site, but were not considered” when the notification decision was made.
[68] At the conclusion of the hearing, a further issue was raised in relation to the proper interpretation of s 95A(4) of the Act, the resolution of which might mean the fifth cause of action is unavailable to the applicants (regardless of the merits of the
substantive argument). The interpretation issue is whether public notification as a result of “special circumstances” is only triggered in the event s 95A(3) applies, where, but for special circumstances, a consent authority must not publicly notify an application.
Sixth cause of action
[69] The sixth cause of action alleges the Council’s findings in making the notification and consent decisions, that construction of the sheds would meet the relevant assessment criteria of the District Plan, were demonstrably unreasonable. The statement of claim alleges that “the true and only reasonable conclusions able to be reached contradict the Council’s findings”.
Proper approach to judicial review
[70] The proper approach to judicial review in the resource management context is not in dispute. Nevertheless, given the content of some of the affidavit evidence filed in support of the claim, which effectively invites me to reach a different view to the Council on the substance of the notification and resource consent decisions, it is appropriate to reiterate that approach.
[71] The leading approach to the appropriate level of review in the resource management context remains the Court of Appeal’s observations in Pring v Wanganui District Council.6 The Court said:7
It is well established that in judicial review [proceedings] the Court does not substitute its own factual conclusions for that of the consent authority. It merely determines, as a matter of law, whether the proper procedures were followed, whether all relevant, and no irrelevant considerations were taken into account, and whether the decision was one which, upon the basis of the information available to it, a reasonable decision-maker could have made. Unless the statute otherwise directs, the weight to be given to particular relevant matters is one for the consent authority, not the Court, to determine, but, of course, there must be some material capable of supporting the decision. Having said that, 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 therefore is deemed to have a resource consent (subs (6)), the Court will scrutinise what
6 Pring v Wanganui District Council [1999] NZRMA 519 (CA).
7 At 523.
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, where the exercise of statutory power involved the striking of a general rate.
[72] In a similar vein, William Young J, writing for the majority of the Supreme Court in Auckland Council v Wendco (NZ) Ltd, emphasised that the courts’ focus is not on the substance of the relevant decision.8 The validity of the non-notification decision at issue in that case did not depend on the Court agreeing with the view taken by the consenting authority that the adverse effects of the activity would be less than minor.9
[73] Finally, a helpful and often cited statement by this Court of the approach to judicial review in resource consent proceedings is that of Wylie J in Coro Mainstreet (Inc) v Thames-Coromandel District Council:10
[40] It is not the function of the Court on an application for review to substitute its own decision for that of the consent authority. Nor, will the Court assess the merits of the resource consent application or the decision on notification. The inquiry the Court undertakes on an application for review is confined to whether or not the consent authority exceeded its limited jurisdiction conferred by the Act. In practice, the Court generally restricts its review to whether the Council as decision maker followed proper procedures, whether all relevant and no irrelevant considerations were taken into account, and whether the decision was manifestly reasonable. The Court has a discretion whether or not to grant relief even if it is persuaded that there is a reviewable error.
[74]I respectfully agree with and adopt Wylie J’s comments.
8 Auckland Council v Wendco (NZ) Ltd [2017] NZSC 113, [2017] 1 NZLR 1008. The majority consisted of William Young, O’Regan and Ellen France JJ.
9 At [45].
10 Coro Mainstreet (Inc) v Thames-Coromandel District Council [2013] NZHC 1163, [2013] NZRMA 442 (footnote omitted); upheld on appeal: Coro Mainstreet (Inc) v Thames-Coromandel District Council [2013] NZCA 665, [2014] NZRMA 73.
First cause of action
The parties’ submissions
[75] Mr Williams’ submissions focussed on the proposition that, given s 104(1) of the Act requires consideration of an application for resource consent to be made “subject to Part 2”, a decision-maker must have direct regard to pt 2 of the Act when exercising its decision-making power.
[76]As noted earlier, s 6 of the Act sits within pt 2. It provides:
In achieving the purpose of this Act, all persons exercising functions and powers under it, in relation to managing the use, development, and protection of natural and physical resources, shall recognise and provide for the following matters of national importance:
…
(f)the protection of historic heritage from inappropriate subdivision, use, and development:
[77] Mr Williams acknowledges that the consent decision references the Council having “taken into account” the purpose and principles outlined in the provisions of pt 2, but submits that does not specifically address s 6(f).
[78] Mr Williams acknowledges that in the recent High Court decision in RJ Davidson Family Trust v Marlborough District Council, Cull J concluded that direct resort to pt 2 is not generally required under s 104 when deciding a resource consent application.11 Rather, Cull J applied the Supreme Court’s decision in Environmental Defence Society Inc v The New Zealand King Salmon Company Ltd, concluding that where more detailed planning instruments prepared under the Act “flesh out” or “give substance” to the pt 2 requirements, giving effect to the former is sufficient to act in accordance with the latter.12
11 RJ Davidson Family Trust v Marlborough District Council [2017] NZHC 52, [2017] NZRMA 227 at [76].
12 Environmental Defence Society Inc v The New Zealand King Salmon Co Ltd [2014] NZSC 38, [2014] 1 NZLR 593 at [151]–[152].
[79] Mr Williams noted that leave to appeal Cull J’s decision in RJ Davidson Family Trust had been granted13 and a hearing in the Court of Appeal took place in November 2017 (though as at the date of this judgment, the Court of Appeal’s judgment has not been released). Mr Williams rightly notes that I am not bound by the approach taken by the High Court in RJ Davidson Family Trust. He alternatively sought to distinguish the approaches taken in RJ Davidson Family Trust and King Salmon.
[80] Notwithstanding RJ Davidson Family Trust, Mr Williams submits the consent decision in this case was required to be made subject to pt 2. While, on the face of the consent decision, the Council records it has “taken into account” the purpose and principles in ss 5–8 of the Act, he argues it did not “recognise and apply” the provisions set out in s 6.
[81] In the alternative, if the RJ Davidson Family Trust approach is to be followed, Mr Williams submits the relevant provisions of the District Plan which “flesh out” and “give substance” to s 6(f) are chs 12.5 and 12.5A. As is alleged in the second cause of action, Mr Williams says ch 12.5 was not taken into account by the Council in any event.
[82] The Council, supported in its submissions by counsel for the Gans, submits the District Plan provisions relating to historic heritage are themselves designed to discharge the Council’s duty under s 6(f) and thus any consideration of an application under those provisions must implicitly be operating within the framework of s 6(f). The respondents endorse the reasoning in RJ Davidson Family Trust, arguing there was no obligation on the Council to specifically or directly consider pt 2 when considering the application for resource consent. Ms Baguley for the Council accepts that chs 12.5 and 12.5A are the relevant aspects of the District Plan which “flesh out” and give effect to s 6(f). She accordingly submits that the essence of the applicants’ concerns are properly addressed under the second cause of action rather than the first.
[83] Ms Baguley further submits that even if I were not to follow the approach adopted in RJ Davidson Family Trust, the resource consent decision expressly references pt 2 of the Act, including s 6 specifically, such that it cannot be said that the
13 RJ Davidson Family Trust v Marlborough District Council [2017] NZCA 194.
Council failed to take into account a mandatory relevant consideration. Ms Baguley also notes that there is express reference to s 6(f) in the material the Council received from the applicants, as well as from Heritage NZ during consultation, which formed part of the Council’s overall assessment.
[84] It is fair to say that through his oral submissions at the hearing, Mr Williams did not press this first cause of action to a significant degree, at least as a ground of complaint separate to the second and third causes of action.
Analysis
[85] I accept the respondents’ position in relation to this cause of action. In doing so, I do not need to form a concluded view on whether the approach adopted in RJ Davidson Family Trust ought to be followed, or whether direct recourse to pt 2 of the Act is required when considering a resource consent application under s 104.
[86] Both Mr Williams and Ms Baguley accept that chs 12.5 and 12.5A flesh out or give effect to the matters of national importance set out in s 6(f) of the Act. On that basis, the issue then becomes whether those matters were taken into account by the Council — the subject of the applicants’ second cause of action.
[87] Further, if direct recourse to pt 2 is required, and specifically s 6, then the resource consent decision did state on its face that the Council had taken into account the purposes and principles outlined in ss 5, 6, 7 and 8 of the Act, and that it considered granting the consent achieved the purposes of the Act. It is not this Court’s function to “second guess” the Council’s conclusion in that regard.
[88] I acknowledge that the decision states the Council “took into account” the provisions of pt 2, rather than specifically stating it “recognised and provided for” those matters set out in s 6(f). I also acknowledge that to recognise and provide for something is different to taking something into account.14 However, the reference to “taking into account” the purposes and principles outlined in ss 5, 6, 7 and 8 of the Act
14 See, for example, Bleakley v Environmental Risk Management Authority [2001] 3 NZLR 213 (HC) at [72].
addresses a broader range of matters than simply s 6(f). The “taking into account” of those various provisions is more aptly measured against the directive in s 104 — that when considering an application for a resource consent, the consenting authority must have regard to certain matters, “subject to” pt 2. The resource consent decision expressly states that in reaching its decision, the Council has taken into account the provisions of pt 2 (and thereby has taken into account the directive in that part of the Act to recognise and provide for the protection of historic heritage). There is nothing to suggest, therefore (from a process, rather than merits based perspective), that its decision was not made “subject to” pt 2.
[89] Whether the consent decision does “recognise and provide” for those matters set out in s 6(f) is a different matter, concerning the substance of the decision. It is not the function of this Court to inquire into the substance of decision-making.
[90]For these reasons, the first cause of action is dismissed.
Second cause of action
The parties’ submissions
[91] Mr Williams submits that s 104 of the Act requires that, when considering an application for a resource consent, the Council must have regard to any relevant provisions of a district plan. Mr Williams says that the Objectives and Policies of ch 12.5 were a mandatory relevant consideration in the Council’s assessment.
[92] Mr Williams notes that on the face of the decisions, the Council confined its assessment of the application to the Objectives and Policies of the Rural Production Zone and ch 12.5A. He highlights that ch 12.5A is said in the Plan to be supplementary to ch 12.5, and not a replacement for it. In his written submissions, Mr Williams states that at best, ch 12.5A contains a “shorthand assemblage of the imperatives of the broader objectives of chapter 12.5”.
[93] In the views of Mr Kemp, who gave expert evidence for the applicants, chs 12.5 and 12.5A are different and consideration of the latter does not itself mean
consideration of the former. Mr Kemp states that in his opinion, a proper application of ch 12.5 would have resulted in a completely different approach to the application, including requesting independent professional assessments on topics such as landscape and heritage values. He opines that had this been done, the proposal would either have been declined or modified to result in a reduced scale of the building.
[94] Mr Williams submits that Mr Dissanayake’s evidence on whether ch 12.5 was taken into account is inconsistent. First, it states that no “specific” consideration was given to the general Objectives and Policies in the Heritage Zone (ch 12.5). Second, however, it states that those provisions were “also considered” but that they were not expressly referenced in the decision because the site was not affected by any specific heritage resources. Mr Dissanayake states in his evidence that the only issue was that the sheds were within a heritage precinct for which the separate ch 12.5A is particularly assigned in the District Plan.
[95] Ms Baguley, for the Council, submits that this cause of action must also fail. First, she rejects the proposition that Mr Dissanayake did not consider the provisions of ch 12.5. He expressly states that he did consider those provisions, but did not consider them relevant to the application. Second, there is no evidence that consideration of the Objectives and Policies of ch 12.5 would have resulted in a different outcome in any event. It is submitted that Mr Kemp’s evidence in this context is inadmissible — as a planner, he is not qualified to give evidence on architectural assessments. Third, Ms Baguley submits, with reference to Duggan v Auckland Council, that there is no obligation on the Council to commission expert reports, particularly on matters of dubious relevance.15
Analysis
[96] I am satisfied that ch 12.5 was a relevant provision of the District Plan for the purposes of assessing the resource consent application. I have reached this conclusion for three principal reasons.
15 Duggan v Auckland Council [2017] NZHC 1540, [2017] NZRMA 317 at [64].
[97] First, it was accepted at the hearing that both ch 12.5 and ch 12.5A are the aspects of the District Plan which “flesh out” or give substance to those matters set out in s 6(f) of the Act. It is therefore difficult to see how ch 12.5, concerning heritage, would not be relevant to a resource consent application engaging heritage issues.
[98] Second, ch 12.5A itself makes it clear that it is supplementary to ch 12.5, rather than being an alternative to it. For example, each of ch 12.5A’s statements of Issues, Environmental Outcomes Expected, Objectives and Policies expressly “supplement those set out in” ch 12.5.
[99]Reinforcing this approach is the content of r 12.5.5.3, which states:
Those parts of the District which have a concentration of heritage resources within a relatively small locality are identified in this Plan as Heritage Precincts (refer to Section 12.5A). Rules in this section and in the Heritage Precinct section, will apply to assist in the preservation of the heritage values of these Heritage Precincts.
(Emphasis added)
[100] Further, the commentary to ch 12.5 confirms its direct relevance to heritage precincts:
Some settlements in the District have clusters of historic buildings that, in associate with the immediate environment, have special amenity and character in addition to their historical values. This character can be adversely affected by inappropriate use, subdivision and development. These parts of settlements are identified as Heritage Precincts and special provisions have been included that are tailored specifically for the purpose of protecting their particular heritage values and character (refer Objective 12.5.3.4, Policies 12.5.4.1, 12.5.4.2, 12.5.4.8, 12.5.4.9 and 12.5.4.11, Methods 12.5.5.3 and 12.5.5.8).
[101] Third, Mr Dissanayake states in his affidavit that he identified the provisions of, among other matters, ch 12.5 as those “to be given regard to in the assessment of the application”. The planner responsible for assessing the resource consent application accordingly also considered ch 12.5 to be a relevant consideration.
[102] The next issue is whether ch 12.5 was actually taken into account when the Council made the resource consent decision. The statement of claim alleges that Objective 12.5.3.4, and Policies 12.5.4.1 and 12.5.4.11 were required to be but were not considered. The statement of claim further alleges that the Council failed to consider the assessment criteria set out under r 12.5A.7.
[103] None of the above matters was expressly referenced in the resource consent decision. It is clear, however, that a decision maker is not required to recite every provision considered by it in its decision making. As Venning J observed in Duggan v Auckland Council:16
[79] The requirement to “have particular regard” to some criterion requires the consent authority to consider the relevant provisions and weigh them as part of the overall decision. However, a consent authority is not required to expressly refer to every relevant consideration and decision on every application. Where the provisions are not expressly referred to in the relevant decision it is for the Court to determine on the facts of the case before it whether it can be said that the consent authority has considered the relevant provisions and weighed them as part of its decision.
[104] Further, questions as to the weight to be given to a relevant factor are matters for the decision-maker, not the Court.17
[105] Given the decision itself did not refer to the District Plan provisions referred to in the statement of claim, I must look to the other material before me to determine whether those provisions were in fact considered. The only other relevant material is Mr Dissanayake’s affidavit. Unfortunately, it is not particularly clear on this issue.
[106] Mr Dissanayake states that in terms of s 104(1)(b), he identified that the provisions in the “Rural Environment”, “Rural Production”, “Heritage” (ch 12.5) and “Heritage Precincts” (ch 12.5A) chapters of the District Plan “were to be given regard to in the assessment of the application”. That itself does not confirm, however, that each of those matters was in fact “given regard to.”
[107] Mr Dissanayake states that he concluded that the most relevant provisions applicable to the site and the proposed activity were those in the Rural Production Zone and the Heritage Precincts chapter (ch 12.5A). This suggests consideration was given to the other provisions, in order to form the view that they were not the “most relevant” provisions.
[108]However, Mr Dissanayake then says:
16 Footnotes omitted. See also Campaign for a Better City Inc v New Zealand Historic Places Trust (Pouhere Taonga) [2004] NZRMA 493 (HC) at [136]–[137].
17 Isaac v Minister of Consumer Affairs [1990] 2 NZLR 606 (HC) at 633.
As the site was not affected by any heritage resources, except it being located within a heritage precinct for which a separate chapter is particularly assigned in the District Plan, no specific consideration was given with regard to the general Objectives and Policies in the Heritage zone.
(Emphasis added)
[109] Finally, in response to Mr Kemp’s suggestions in his affidavit that no consideration was given to rr 12.5.3 or 12.5.4, which relate to the general Objectives and Policies of the Heritage section, Mr Dissanayake states “as I have already stated, these Objectives and Policies were also considered”.
[110]The position is, with respect, somewhat confused and inconsistent.
[111] The Council stated in its written submissions that Mr Dissanayake considered ch 12.5 “but this was not relevant to this application as the application site was not affected by any of the heritage resources protected by Chapter 12.5”. I have concluded, however, that ch 12.5 was relevant to the application, given it, as well as ch 12.5A, is aimed at the protection of heritage precincts.18 Further, as noted above, ch 12.5 itself makes it clear that it is applicable to heritage precincts, in addition to ch 12.5A.
[112] Ultimately, I am not satisfied on the material before me that in making the resource consent decision, the Council considered rr 12.5.3.4, 12.5.4.1 or 12.5.4.11. Mr Dissanayake states that no “specific consideration” was given to the Objectives and Policies of ch 12.5, the sections of the chapter within which these rules appear. I accordingly conclude that the Council erred in failing to take into account these particular Policies and Objectives of ch 12.5.
[113] Whether consideration of these matters would have had a material effect on the outcome of the resource consent decision is not a matter the Court can or needs to decide. For these reasons, I have put to one side much of Mr Kemp’s evidence, directed at the consequences of taking the matters into account. Different planners might take different approaches and reach different conclusions. Just as it is not a function of judicial review to substitute the decision maker’s view with the Court’s view, nor is it appropriate to substitute one expert’s view with another’s.
18 See [96]–[101] above.
[114] For completeness on this cause of action, I record that I am satisfied the Council took into account r 12.5A.7, being the assessment criteria of the District Plan for activities in heritage precincts. Mr Dissanayake is clear in his affidavit that he gave particular consideration to r 12.5A.7, given the proposal breached r 12.5A.6.3.2.
[115] The second cause of action is accordingly made out, in terms of rr 12.5.3.4, 12.5.4.1 and 12.5.4.11.
[116] Even if I had been satisfied that the Council did take into account the relevant provisions of ch 12.5, I would still need to have considered whether it had sufficient information before it for it to have properly done so. That is the subject of the third cause of action, to which I now turn.
Third cause of action
The parties’ submissions
[117] Mr Williams points to a line of authorities which, in his submission, confirm that the approach to adequacy of information adopted by the Supreme Court in Discount Brands Ltd v Westfield (New Zealand) Ltd remains applicable.19 Ms Baguley, for the Council, agrees with the applicants’ statement of the legal position, though as discussed below, disputes its application in this case.
[118] In Discount Brands, Blanchard J stated that while the information before the consent authority is “not required to be all-embracing but it must be sufficiently comprehensive to enable the consent authority to consider” the relevant issues before it on “an informed basis”.20
[119] The applicants say there was no information before the Council, at any stage, to enable it to assess the impact of the sheds in the broader context of the Heritage Precinct, and relative to the historic character, amenity, landscape and heritage values of that resource as a “complete entity”. In written submissions it was submitted that
19 Discount Brands Ltd v Westfield (New Zealand) Ltd [2005] NZSC 17, [2005] 2 NZLR 597.
20 At [114].
even in its consideration of ch 12.5A, the Council essentially abdicated the exercise of its discretion and relied on advice from Heritage NZ, which itself was based on a clear misunderstanding of the true scale of the Totalspan shed.
[120] At the hearing, Mr Williams acknowledged that the allegation of abdication of exercise of its discretion likely over-pitched the point. He nevertheless submitted that the only information before the Council on heritage issues was one paragraph in the applicants’ own application, and information from Heritage NZ which was based on an incorrect assumption. Mr Williams asked, rhetorically, how can that possibly amount to sufficient information? He also referred to Mr Killalea’s evidence that separate advice from a heritage architect was not necessary, given no adverse effects were identified in relation to heritage. Mr Williams submits this is a circular argument, given without information and advice such as that to be supplied by a heritage architect, it cannot properly be determined whether there were adverse effects in relation to heritage.
[121] Ms Baguley rejects the proposition that there was insufficient information. She notes there were two separate instances where Heritage NZ was involved in the resource consent process: first, in consultation with the applicant in advance of its application being lodged; and second, after the application had been lodged with Council, when Heritage NZ was sent a copy as an interested party. Ms Baguley notes that while it appears the Totalspan shed elevations were not available to Heritage NZ, it expressed no concern as a matter of principle to sheds of this nature and scale being located in the Heritage Precinct. She says the scale of the Totalspan shed would have been evident to Heritage NZ from the information it did have.
[122] Ms Baguley further submits that the Council was entitled to rely on the response provided by Heritage NZ and to take it into account in its assessment.
Analysis – the legal position
[123] The starting point on the question of sufficiency of information is the Supreme Court’s decision in Discount Brands.
[124] As s 93 of the Act was framed at the time of the decision that came before the Supreme Court,21 a pre-condition to the making of the substantive decision on notification required the consenting authority to be satisfied it had adequate information to proceed to that substantive decision-making phase.
[125] The Supreme Court unanimously held that the Council did not have adequate information for the purposes of the statutory pre-condition. The leading judgment was given by Blanchard J (with whom Tipping and Richardson JJ agreed).
[126] Blanchard J referred with approval to the Court of Appeal’s observations in Pring v Wanganui District Council that before a consent authority could properly be satisfied as to the adequacy of information, it must have sufficient information “in order to be able to make a thorough comparison of the proposal with the applicable rules”22 of the district plan.23 In Discount Brands, Blanchard J observed:
[107] The information before the authority can be supplied by the applicant, gathered by the authority itself or derived from the general experience and specialist knowledge of its officers and decision-makers concerning the district and the plan. But in aggregate the information must be adequate both for the decision about notification and, if the application is not to be notified, for the substantive decision which follows to be taken properly – for the decisions to be informed, and therefore of better quality.
(Emphasis added)
[127] As noted above, Blanchard J stated that the information need not be “all- embracing”, but must be sufficiently comprehensive to enable the consent authority to consider the relevant issues before it on “an informed basis”.24
[128]Blanchard J further observed that:
[115] The statutory requirement addresses more than the scope of the information. The consent authority must necessarily be satisfied as well that the information is reliable, especially so where an expert opinion is tendered. The authority will need to consider whether the author of the opinion is both appropriately qualified to speak on the subject and sufficiently independent of the applicant so as to be seen as giving expert advice rather than acting as an advocate for the applicant.
21 Section 93 is reproduced by Blanchard J at [100].
22 Pring v Wanganui District Council [1999] NZRMA 519 (CA) at 524.
23 Discount Brands Ltd v Westfield (New Zealand) Ltd [2005] NZSC 17, [2005] 2 NZLR 597 at [106].
24 At [114].
(Emphasis added)
[129] Legislative amendment, commencing in 2003, removed the express requirement for the consent authority to be “satisfied” it had received adequate information. What, if any, effect these amendments had on the requirement for a consenting authority to have adequate information has been the subject of several subsequent decisions.
[130] Lang J considered this issue in Northcote Mainstreet Inc v North Shore City Council.25 He concluded that, notwithstanding the 2003 amendments, consent authorities “remain under an obligation to ensure that, at each stage of their decision- making process they are in possession of adequate, or sufficient, information to ensure they are able to make their decisions on an informed basis.”26 Noting that it was impossible to prescribe any all-embracing test, Lang J stated:27
If the object of the test is to ensure that consent authorities reach their decisions on an informed basis, the measure of the information provided in any given case will be whether or not it is sufficient to properly inform the consent authority regarding the particular issues raised by the application in question.
[131]His Honour also noted that the “material will need to be reliable; information
that is not reliable will not pass the test of adequacy”.28
[132] In reaching these conclusions, Lang J acknowledged that Blanchard J’s observations in Discount Brands were made in the context of the Act as it stood prior to 2003, but concluded that they nevertheless reflect the appropriate approach for the Court to take to the post-2003 Act. He stated:29
Although the Court is not now required to review the exercise of a “gatekeeper” function as the Supreme Court was required to do in the earlier proceeding, it is still required to determine whether the commissioners had adequate information before them to make their decision regarding notification of the application. That issue falls into a different category to proceedings in which the Court is asked to review a substantive (as distinct
25 Northcote Mainstreet Inc v North Shore City Council [2006] NZRMA 137 (HC).
26 At [107].
27 At [108].
28 At [109].
29 At [126].
from procedural) decision made by a specialist body having expertise in a particular area.
[133] A similar approach was taken by this Court in Petone Planning Action Group Inc v Hutt City Council,30 Mt Victoria Residents Assn v Wellington City Council31 and Ferrymead Retail Ltd v Christchurch City Council.32
[134] The Court of Appeal considered (obiter) the implications of further amendments to the Act in 2009 in Coro Mainstreet (Inc) v Thames-Coromandel District Council.33 The 2009 amendments introduced the provisions in the form in which they existed at the time of the Council’s notification decision in this case. In Coro Mainstreet, counsel had agreed on the relevant principles, including the continued applicability of the Supreme Court’s approach in Discount Brands (and, in particular, Blanchard J’s judgment). While noting that the continued applicability of Discount Brands had not been argued in any detail before it, the Court of Appeal observed:34
… [W]e consider that the possibility that the substantial amendments to the relevant provisions of the [Act] since the decision in Discount Brands, which were directed at providing greater facility for non-notification, have altered the law as articulated in Discount Brands needs further evaluation. The changes to the statute have been significant.
[135] However, as the argument before the Court had proceeded on the basis of the requirements as outlined in Discount Brands, the Court dealt with the case on that basis.
[136] The Court of Appeal referred to the High Court’s conclusion in that case that the consenting authority’s officers had adequate expert and independent information before them to be able to make “a fully informed decision” with respect to the potential adverse effect of the application.35 The Court of Appeal observed that much of the argument in the High Court had centred on experts’ differing views about the heritage
30 Petone Planning Action Group Inc v Hutt City Council HC Wellington CIV-2006-485-405, 10 October 2006.
31 Mount Victoria Residents Assoc v Wellington City Council [2009] NZRMA 257 (HC).
32 Ferrymead Retail Ltd v Christchurch City Council [2012] NZHC 358.
33 Coro Mainstreet (Inc) v Thames-Coromandel District Council [2013] NZCA 665, [2014] NZRMA 73.
34 At [34].
35 At [50].
aspects of the proposal. The Court of Appeal saw no basis for challenging the High Court’s conclusion in a judicial review proceeding based on procedural propriety, where the Court is concerned with the lawfulness of the decision, not its merits.36 It noted that the appellant’s submissions “essentially highlight differences of view between [the experts], and ask us to favour [one expert’s] view”.37 This invited the Court to second guess the Council’s decision, which was inappropriate on a judicial review proceeding.38
[137] In Tasti Products Ltd v Auckland Council, Wylie J again considered the question of sufficiency of information in a judicial review context.39 The parties proceeded on the basis that the adequacy of the information before the Council was a free-standing ground for judicial review, Wylie J disagreed. He observed:40
There is no longer a statutory requirement that a Council must be satisfied that it has received adequate information. To my mind, as the law now stands, what is amenable to judicial review is the decision the Council makes on notification. The adequacy of the information before the Council may well reflect in the quality of its decision, but the adequacy of the information itself is not a matter which falls within the scope of s 4 of the Judicature Amendment Act 1972.
[46] Nevertheless, it was common ground between counsel that, in determining who is an affected person for the purposes of notification, the Council must have adequate information before it. For this reason, and in case I am wrong in my view set out above, I deal with the issue, albeit relatively briefly.
[138]The Judge thereafter dealt with the argument on the basis of Discount Brands.
[139] Subsequently, in Auckland Council v Wendco (NZ) Ltd, the majority of the Supreme Court “left for another case” the question of whether the amendments to the Act meant the approach to non-notification decisions would be “less exacting” than required by Discount Brands.41 Again, the parties proceeded on the common basis
36 At [50].
37 At [50].
38 At [50].
39 Tasti Products Ltd v Auckland Council [2016] NZHC 1673, [2017] NZRMA 22.
40 At [45].
41 Auckland Council v Wendco (NZ) Ltd [2017] NZSC 113, [2017] 1 NZLR 1008 at [47] per William Young, O’Regan and Ellen France JJ.
that the approach set out in Discount Brands continues to apply. On the basis of
Discount Brands, the majority observed that:42
… [T]he Court must review the adequacy of the information before the Council when making the non-notification decision. This assessment must reflect the reality that in making the decision not to notify the application, the Council was precluding any opportunity for Wendy’s to have input into that decision.
[140] While the majority did not comment further on the impact, if any, of the legislative amendments, the minority (Glazebrook and Arnold JJ) observed that:43
Section 93 was substituted in 2003. Prior to its substitution, it required that once a consent authority was satisfied that it had received “adequate information”, it was to ensure that notice of the application was given as prescribed by s 93 unless the application did not need to be notified in terms of s 94. Despite the substitution and subsequent repeal of s 93, it remains the case that a consent authority making determinations as to notification must have sufficiently comprehensive information before it. Sound public administration permits nothing less.
(Emphasis added, footnotes omitted)
[141] Finally, in Gabler v Queenstown Lakes District Council, Nicholas Davidson J traversed the above authorities and rejected a submission that the Court’s analysis in Tasti Products indicated a reduced intensity of review.44 While he agreed that the obligation on the Council to be “satisfied” that it had adequate information is no longer a separate and reviewable element of its decision-making process, the Judge stated that:
[66] In short, I agree with Wylie J that the obligation on the Council to be “satisfied” that it has adequate information is no longer a separate and reviewable element of its decision making process. I do not consider that this in any way altered the need for a decision maker to be sufficiently and relevantly informed. It does not alter the need for the decision maker to apply relevant and not irrelevant considerations, and make a decision which stands up to the test of “reasonableness”. Being sufficiently and relevantly informed does not ensure these elements of decision making will be lawfully undertaken. In these respects Discount Brands in my view has undiminished force. It recognised a distinct step in the (repealed) legislation, but there must always be a secure foundation for such important decisions. Parliament cannot have intended to remove that foundation. That is not to endorse a counsel of perfection, but of sufficiency and relevance, and that is how I conclude the decision in this case should be judicially reviewed. It is fundamentally a test of the quality of the decision.
42 At [46].
43 At [84].
44 Gabler v Queenstown Lakes District Council [2017] NZHC 2086 (2017) 20 ELRNZ 76.
(Emphasis added)
[142] As noted, there was no argument before me as to these legal principles, and indeed, the Council expressly endorsed the applicants’ statement of them, including as set out in Gabler above. I accordingly proceed on the basis that while there is no separate ground for judicial review based on the (now repealed) statutory requirement for a consenting authority to be satisfied as to the adequacy of the information, a decision to notify a resource consent, and to grant a consent itself, must nevertheless be reached on the basis of adequate and reliable information. As Glazebrook and Arnold JJ observed in Auckland Council v Wendco (NZ) Ltd, “sound public administration permits nothing less.”45
Analysis – application to the facts
[143] I have concluded that the Council did not have sufficient or adequate information in order to make the notification decision or the consent decision, for the following reasons.
[144] First, it was not suggested in the evidence, or by way of submission, that the Council officers concerned, Mr Dissanayake who prepared the draft decisions and Mr Killalea who reviewed them before they were finalised, possessed any specialist expertise on the heritage matters to which the application gave rise. While both officers are clearly very experienced planners, the affidavit evidence does not disclose any particular qualifications in respect of heritage.
[145] Accordingly, the only information the Council had before it on these matters was the applicants’ own assessment of heritage effects, as set out in the application, together with the advice received from Heritage NZ.
[146] As to the former, the application contained only a brief statement as to the proposal’s heritage impacts. It also assessed the proposal against ch 12.5A only. Mr Dissanayake stated in the notification decision that he “generally agreed” with the applicants’ assessment. While Blanchard J made it clear in Discount Brands that
45 Auckland Council v Wendco (NZ) Ltd [2017] NZSC 113, [2017] 1 NZLR 1008 at [84].
information upon which consenting authorities base their decisions can include information from an applicant itself, that information is nevertheless not independent. A planning consultant in Ms Foy’s position can be expected to advocate for their client’s position, rather than provide independent expert advice.
[147] Heritage NZ, however, is plainly an independent and expert body. No doubt for this reason, and as is apparent from the decisions themselves, the Council relied to a not-insignificant extent on the pre-lodgement consultation with Heritage NZ, as well as Heritage NZ’s response to the application when it was provided to it as an interested party. Indeed, Mr Dissanayake states in his affidavit that:
I did accept the communications from Heritage New Zealand because they are the statutory body with a mandate to protect historic heritage in New Zealand. It would have been imprudent to reject their comments.
[148] While there is nothing wrong in Heritage NZ’s views being given some weight in the Council’s overall decision-making process, as the authorities referred to above emphasise, information relied on for decisions such as the notification decision must be reliable. Ultimately, an expert opinion based on mistaken facts is not reliable.
[149] Adopting the formulation of Nicholas Davidson J in Gabler, a brief assessment of the heritage impacts by the applicants themselves, together with expert opinion based on mistaken facts is not a secure foundation for an important decision such as a notification of a resource consent or the consent itself.
[150] It is a separate question whether the outcome would have been any different had adequate information been before the Council when making its decisions. The applicants have adduced evidence from an experienced architect, Mr Barnes, with planning and heritage expertise (including being employed at the New Zealand Historic Places Trust from 2001 to 2014 and as Team Leader: Built and Cultural Heritage Policy at Auckland Council). Mr Barnes concludes that the proposal has significant adverse effects on the historic character and perceptions of the heritage values of the Heritage Precinct. The report makes it clear that it is not only the Totalspan shed’s height which gives rise to Mr Barnes’ concerns. On the other hand, Heritage NZ was aware of at least the nature and significant scale of the Totalspan shed in particular, although not the precise height.
[151] What the above demonstrates, however, is that notification, or obtaining further expert opinion or advice, was unlikely to have been futile, and may well have elicited further information to assist the Council in carrying out its decision-making functions.46
[152]I accordingly conclude that the third cause of action is made out.
Fourth cause of action
[153] The applicants say the Council’s decision to grant the consent was irrational given that it “defies credibility” that the applicants would invest in some 390 square metres of shed floor area for the storage of “personal” belongings.
[154] In light of my observations at the hearing and summarised at [53] above, this head of claim was not pressed strongly by the applicants. In my view, Mr Williams was quite right to take this approach. The suggestion inherent in this cause of action, that the applicants have misled the Council, is a serious allegation for which there is no proper or admissible evidence. Further, in my view, there can be no objection to items such as honey boxes and apiary associated plant being stored in the Totalspan shed. To the extent those items belong to the applicants, they are storage of personal property. I refer to the concrete mixer example given at the hearing and referred to at
[54] above.
[155] In addition, as Ms Baguley notes, the Council turned its mind to the question of use and included an advice notice in the consent in the following terms:
The application has been processed on the basis of the applicants’ confirmation that the use of the buildings are not for a commercial use. The applicants are advised that a resource consent may be required in the event of any change to the nature of the use of the sheds.
[156] I accordingly accept Ms Baguley’s submission that it is incorrect to advance hypothetical future uses of the sheds and assess the application against those hypothetical uses. That, in and of itself, would result in flawed decision-making.
46 See similar observations of Randerson J in King v Auckland City Council [2000] NZRMA 145 (HC) at [52].
[157]The fourth cause of action must therefore fail.
Fifth cause of action
Introduction
[158] The fifth cause of action alleges that the Council failed to consider whether “special circumstances” existed, for the purposes of s 95A(4) of the Act, justifying notification of the resource consent application.
[159] At the hearing, all counsel addressed me on the substantive merits of this cause of action. However, at the conclusion of the hearing, Mr Williams quite responsibly raised an issue in relation to the drafting of s 95A, as it existed at the time of the notification decision, which potentially precludes the fifth cause of action being available to the applicants. I granted leave to the parties to file further written submissions on this topic.
What is the interpretation issue?
[160] At the time the notification decision was made, s 95A of the Act was framed as follows:
95A Public notification of consent application at consent authority's discretion
(1)A consent authority may, in its discretion, decide whether to publicly notify an application for a resource consent for an activity.
(2)Despite subsection (1), a consent authority must publicly notify the application if—
(a)it decides (under section 95D) that the activity will have or is likely to have adverse effects on the environment that are more than minor; or
(b)the applicant requests public notification of the application; or
(c)a rule or national environmental standard requires public notification of the application.
(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.
(4)Despite subsection (3), a consent authority may publicly notify an application if it decides that special circumstances exist in relation to the application.
(Emphasis added to (4))
[161] The issue Mr Williams raised was whether the three words emphasised in the above text (“despite subs (3),”) mean the question of special circumstances arises only where subs (3) has first been triggered — where notification is precluded by a rule in a plan, and the consent applicant has not requested public notification (under subs (2)(b)).
[162] The applicants have helpfully traced the legislative history of s 95A, as it stood at the time of the notification decision, as well as subsequent legislative amendments. Having examined the earlier and subsequent versions of s 95A, I accept the applicants’ submission that the provisions, both prior to and subsequent to s 95A as it stood at the time of the notification decision, do not constrain the application of subs (4) only to when subs (3) is first triggered.
[163] Subsection (4) was first introduced under the Resource Management (Simplifying and Streamlining) Amendment Bill 2009. In the first version of the Bill, the question of special circumstances would have prevailed over all other determinations made in the notification decision-making sequence and was the subject of a separate section to be inserted in the Act.47 At the second reading stage, however, and following the Select Committee Report, those provisions were substantially redrafted into the form in which they stood at the time of the notification decision.48
[164] Having reviewed the Select Committee Report, I also accept the applicants’ submission that there is no suggestion in the Report of any intention to reduce (quite
47 See s 94AAE as introduced through cl 68 of the Resource Management (Simplifying and Streamlining) Amendment Bill 2009 (18–1).
48 Resource Management (Simplifying and Streamlining) Amendment Bill 2009 (18–2), cl 68.
significantly) the scope of when the question of “special circumstances” can be considered. Substantive changes then proposed in relation to public notification were specifically addressed in the Report, but the Committee noted that it did not comment on minor and technical changes which helped “fine-tune the Bill and thus improve its workability.”49 I consider it unlikely the Committee intended a substantive change to the application of “special circumstances”, yet did not comment on any such change in the section of the Report specifically dealing with new rules for determining whether to notify an application.
[165] Further, under the provisions currently in force (following amendments as a result of the Resource Legislation Amendment Act 2017), the consideration of special circumstances prevails over a finding that the adverse effects of the activity would be minor.50 Indeed, the explanatory note to the Resource Legislation Amendment Bill noted that fewer applications would be notified than under the provisions as in force at the time the notification decision in this case was made.51
[166] For these reasons, I accept the applicants’ submission that to construe s 95A (as it existed at the time the notification decision was made) by restricting subs (4)’s application only to when subs (3) has been triggered, would be an anomaly.
[167] Mr Williams submits that to the extent required, the Court can correct a drafting error, or fill a gap so as to make the statute work as intended.52 However, I do not consider it necessary to correct a drafting error or fill a gap in this case, rather than simply interpret the legislation as drafted.
[168] Looking at the overall scheme of s 95A (as it stood at the time of the notification decision), subs (1) plainly gives the consent authority a discretion whether to publicly notify an application for a resource consent. Subsection (2) confirms that despite the existence of that discretion, a consent authority must publicly notify the
49 Resource Management (Simplifying and Streamlining) Amendment Bill 2009 (18–2) (select committee report) at 2.
50 See the Resource Management Act 1991, ss 95A(8) and (9).
51 Resource Legislation Amendment Bill 2015 (101–1) (explanatory note) at 25.
52 Referencing JF Burrows & RI Carter Statute Law in New Zealand (4th ed, LexisNexis, Wellington, 2009) at 301, 306 and 310; and also Northland Milk Vendors Assoc Inc v Northern Milk Ltd [1988] 1 NZLR 530 (CA).
application if the activity will have or is likely to have adverse effects on the environment that are more than minor. In turn, subs (3) overrides subs (1) and (2)(a), providing that an application must not be publicly notified in certain circumstances. Subsection (4) then provides that “despite subs (3)”, the consent authority may publicly notify an application if it decides that special circumstances exist in relation to the application.
[169] Subsection (3) is accordingly the only provision within s 95A which expressly prohibits public notification. It is for that reason subs (4) needs only to refer back to subs (3) in its opening words. If subs (2) applies, the consent authority must publicly notify the application, and thus the need to consider special circumstances does not arise. If neither subss (2) or (3) apply, then the question remains a matter of the consent authority’s discretion, pursuant to subs (1). I accordingly read these provisions as enabling a consent authority to consider whether special circumstances exist when exercising its discretion pursuant to subs (1), but requiring special circumstances to exist in the event subs (3) is triggered.
[170] For completeness, I do not consider the manner in which s 95A(4) was considered by Venning J in Urban Auckland, Society for the Protection of Auckland City and Waterfront Inc v Auckland Council is contrary to this approach.53 In that case, the planning instrument in question did preclude public notification. Venning J concluded, however, that the consent applications in that case should have been “bundled”, thereby displacing the rule precluding public notification.54 His Honour went on to address the question of special circumstances on the following basis:
[105] The last issue pleaded regarding notification relates to the issue of “special circumstances”. If I am wrong in determining the Council erred in not bundling the applications and so notifying them, both the rule under the Coastal plan and s 95A(4) still apply. The Council had a discretion to notify the application for the extension if “special circumstances” existed. For present purposes I do not consider the difference in wording between the rule and s 95A(4) on the issue of special circumstances to be material.
53 Urban Auckland, Society for the Protection of Auckland City and Waterfront Inc v Auckland Council [2015] NZHC 1382, [2015] NZRMA 235.
54 At [93].
[171] I do not read the above extract from his Honour’s judgment as indicating that s 95A(4) would apply only in the event s 95A(3) had been triggered. Rather, the Judge was simply observing that if he was wrong in his view as to bundling and notification, the rule precluding notification still applied. Because of that, s 95A(3) was triggered and therefore s 95A(4) applied. Venning J did not need to (nor did he) examine the question of whether s 95A(4) applied in any other circumstances, given his earlier finding on bundling and notification.
[172] Accordingly, despite Mr Williams quite responsibly raising this point, I do not consider the opening words of s 95A(4) preclude the fifth cause of action. I therefore turn to consider the substance of that cause of action.
Did the Council fail to consider whether special circumstances existed?
[173] As Mr Williams properly acknowledged, there is limited scope for judicial review of a decision as to whether special circumstances exist. As Venning J observed in Urban Auckland, such a decision “involves the exercise of a discretion based on the Council’s assessment of the factual position and use of its expertise and judgment.”55
[174] Nevertheless, the broad nature of the discretion does not make it completely immune from review.56 As Simon France J observed in Royal Forest & Bird Protection Society of New Zealand Inc v Kapiti Coast District Council, a report which says nothing more than there were no special circumstances leaves itself open to criticism.57 Simon France J nevertheless accepted that this “is an area where experience is an important component in assessing whether an application gives rise to special circumstances”, and “[a]ny review must recognise the familiarity a Council has with resource consent applications.”58
[175] The statement of claim pleads that the Council erred in making the notification decision by “failing to consider whether there were special circumstances”, and “in
55 At [137], citing S & M Property Holdings Ltd v Wellington City Council [2003] NZRMA 193 (HC) at [48].
56 Royal Forest & Bird Protection Society of New Zealand Inc v Kapiti Coast District Council HC Wellington CIV-2007-485-636, 21 November 2007 at [131].
57 At [132].
58 At [131].
particular relating to the proximity of the site to the Waimate North Zone”. The particulars state that the notification decision does not record any reasons for the conclusion that special circumstances do not exist, and the Council failed to consider the relationship of the site within the Heritage Precinct and its connection with the wider Waimate North Area. The particulars further allege that special circumstances arise through the sheer scale and nature of the sheds in the heritage, landscape and character setting of the site, but were not considered in making the notification decision.
[176] The parties agree on the legal principles, including that a special circumstance is something which is “exceptional, abnormal or unusual but less than extraordinary or unique”.59
[177] On the basis upon which this cause of action is pleaded, it does not, in my view, add materially to the second and third causes of action. Nevertheless, had I dismissed the second and third causes of action, I would not have been persuaded that the fifth cause of action could succeed as a free-standing claim.
[178] The claim alleges that the Council erred in failing to consider whether there were special circumstances for the purposes of s 95A(4) of the Act. However, Mr Dissanayake expressly states in his affidavit that he did not consider there were any special circumstances which warranted public notification. The evidence therefore demonstrates the Council did consider whether there were special circumstances for the purposes of s 95A(4).
[179] Further, I do not consider the mere fact that construction of the sheds does not “fit” within the general policy of the District Plan means their construction is exceptional, abnormal or unusual, in the sense of giving rise to special circumstances. Development itself within the Heritage Precinct is not unusual. Rather, the Plan provides for controls on the development of any building within a heritage precinct which can be seen from a public place, irrespective of its nature and scale.
59 Far North District Council v Te Rūnanga-Ā-Iwi O Ngāti Kahu [2013] NZCA 221 at [36].
[180] In addition, the maximum height permitted in the Rural Production Zone is 12 metres, and even in the Waimate North Zone, 10 metres. While I fully accept Mr Williams’ submission that one does not work “backwards” from these permitted heights, or adopt them as a “permitted baseline”,60 the fact the sheds are well within heights permitted by the two Zones indicates that height alone is unlikely to constitute a special circumstance. Rather, and similar to the approach adopted in Sydney St Substation Ltd v Wellington City Council, when considering r 12.5A.6.3.2, height will be a matter of specific context.61
[181] Nor do I consider the proximity of the site to the Waimate North Zone itself amounts to a special circumstance. If it did, it would mean any development on a site with proximity to that Zone could be argued always to give rise to “special circumstances”. The question of special circumstances must require examination of all of the facts and circumstances of each specific case.
[182] Finally, while it appears the sheds, or at least the Totalspan shed, are larger than any existing shed in the relevant area (at least not tied to a lifestyle development), the evidence demonstrates there are several similar sheds in the area. In other words, sheds such as these are not in and of themselves exceptional or abnormal in the Rural Production Zone or the Heritage Precinct.
[183] Accordingly, while the decision does not record any reasons or explanation for the conclusion that no special circumstances exist (which does leave it open to criticism), I am not satisfied the Council erred in failing to consider whether there were special circumstances. The fifth cause of action is accordingly dismissed.
Sixth cause of action
The parties’ submissions
[184] The applicants’ sixth cause of action is directed to the notification decision only. The applicants submit that the Council’s findings that the construction of the
60 See Sydney St Substation Ltd v Wellington City Council [2017] NZHC 2489, [2018] NZRMA 93 at [69] to [73].
61 At [73].
sheds would meet the relevant assessment criteria of the District Plan, and would be consistent with the Plan’s Objectives and Policies, were demonstrably unreasonable. The statement of claim alleges that the “true and only reasonable conclusions able to be reached contradict these findings”.
[185] The applicants have produced expert opinion which they say demonstrates that, on a proper analysis, it was not reasonable to reach the conclusion that the effects of those sheds would be minor or (as required to dispense with limited notification) less than minor.
[186] Mr Williams characterised this cause of action as akin to “being confronted with a house of cards”. He submits the platform for that house of cards is Council’s view that there are no adverse effects. Mr Williams submits that if the house of cards rests on the Heritage NZ email and the one-paragraph assessment in the application itself, then all that is left is a grey shed with some hedging next to it, and that is demonstrably unreasonable.
[187] Ms Baguley supported by counsel for the Gans, highlights the high threshold required for a finding of unreasonableness. She submits that the expert evidence presented by Mr Barnes does not address the matters the Council was required to assess in its assessment criteria. Mr Dissanayake, on the other hand, considered each provision carefully and, coupled with the landscaping conditions, properly came to the conclusion that the adverse effects were no more than minor.
Analysis
[188] This particular cause of action was given reasonably scant attention in the parties’ written and oral submissions. In my view, they were right to take that approach. Putting aside issues such as sufficiency of information (being the subject of the third cause of action), the threshold for unreasonableness is high.
[189] Lord Greene MR’s classic statement of “Wednesbury unreasonableness” is drawn from his Lordship’s speech in Associated Provincial Picture Houses Ltd v Wednesbury Corp, namely that:62
It is true to say that, if a decision on a competent matter is so unreasonable that no reasonable authority could ever have come to it, then the courts can interfere. … But to prove a case of that kind would require something overwhelming.
[190] In this jurisdiction, a leading formulation is Cooke P’s reference in Webster v Auckland Harbour Board to a decision “outside the limits of reason”.63
[191] I am not satisfied that, viewed as a free-standing cause of action, the Council’s decision could be characterised as unreasonable. The applicants adduced evidence from Mr Kemp and Mr Barnes through which they sought to establish that the only reasonable and logical conclusion that could have been reached was that the proposal’s effects on the environment would be more than minor. What that analysis invites, however, is no more than a “battle of the experts”. I anticipate that in areas such as this, which involve value judgments and subjective views, a range of experts could come to a range of conclusions. For example, but for the additional height at the gable of the Totalspan shed (approximately 3 metres), Heritage NZ did not object to the concept of what on any view was a very large shed of an industrial nature within the Heritage Precinct.
[192] Nor are the subjective and non-expert views of members of the community, expressed in several additional affidavits adduced by the applicants, relevant or persuasive for these purposes. While I accept those views are no doubt genuinely and firmly held, many activities for which resource consent is sought will be unpalatable to some members of the community. That does not make them unreasonable.
[193] Ultimately, on the available evidence, I am not satisfied the Council’s notification decision was a decision no reasonable consenting authority could have reached.
62 Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 (CA) at 230.
63 Webster v Auckland Harbour Board [1987] 2 NZLR 129 (CA) at 131.
[194]The sixth cause of action is accordingly dismissed.
Relief
The parties’ submissions
[195] Mr Williams notes that the “default” position is that once a ground of review is made out, relief ought to be granted and there must be strong grounds to refuse it.64 Mr Williams also submits that there has been no “disentitling conduct” on the part of the applicants, in that they moved promptly to commence these proceedings as soon as the true nature and scale of the development became apparent to them. And, although the judicial review proceedings were commenced after the sheds were largely complete, he notes that the nature of the sheds was such that they were able to be constructed in a matter of weeks. He says that the steps taken by the applicants in the intervening period were reasonable steps, to determine from the Council exactly what had been approved and to engage with both the Council and Heritage NZ in relation to the heritage issues.
[196] Further, Mr Williams submits that this is not a case of an “innocent” consent holder, in the sense explained by Heath J in Videbeck v Auckland City Council.65 He argues the applicants’ planning consultant “put time pressure on the Council to process and decide the application as soon as possible”, and submits Ms Foy resisted attempts to secure more complete and accurate information from the applicants. Mr Williams further suggests that the true intended use of the sheds appears quite different from that stated in the applicants’ response to specific questions on the issue.
[197] Mr Williams also submits that it is feasible to reduce the height of the Totalspan shed to that assumed by Heritage NZ. That would be at a scale more consistent with the approved use of that shed being for the storage of personal belongings. This is by reference to a one-paragraph (and hearsay) statement by Mr Fieldman that:
However since the key issue resolves around its height (6.4 metres) rather than the height assumed by [Heritage NZ] (circa 3.6 metres) we have made inquiries about that engineering feasibility of reducing this. I have consulted with a construction company about this (Specialised Structures Ltd) and the
64 Citing Air Nelson Ltd v Minister of Transport [2008] NZCA 26 at [60].
65 Videbeck v Auckland City Council [2002] 3 NZLR 842 (HC) at [71].
initial response is that this should be possible without completely dismantling the structure. To obtain a proper estimate would require the full structural plans and a site visit.
[198] Finally, Mr Williams notes that there is evidence of widespread concern in the community about the sheds and by contrast, there are no third parties that would be prejudiced by granting relief.
[199] In submitting that relief ought not to be granted, counsel for the Gans, Ms Prendergast, notes that since the Court of Appeal’s decision in Air Nelson, subsequent decisions of the Court of Appeal have confirmed that a more nuanced approach is required. She refers to Tauber v Commissioner of Inland Revenue, in which the Court of Appeal stated:66
[91] We agree with the observation made in Rees that Air Nelson is directed towards situations where the claimant has suffered “substantial prejudice”. We also support the suggestion that a more “nuanced” approach than that set out in Air Nelson is likely to be appropriate in many cases. We wish to record that, even if we had determined that the affidavit contained insufficient information to justify a warrant in relation to Ms Bockett, we are satisfied that no relief ought to have been granted.
[200] Ms Prendergast also refers to this Court’s decision in King v Auckland City Council, in which Randerson J stated:67
[68] Whether relief should be granted will include such matters as the gravity of the error, the effect on the plaintiffs of declining to grant relief, whether there has been any element of undue delay in commencing the proceedings and the extent of any prejudice to the opposite party and third parties who may have acted in reliance upon the validity of the decision.
[201] Ms Prendergast submits there was delay in the applicants bringing the proceedings once they appreciated the scale of the sheds, and there will be significant prejudice to the Gans in the event relief is granted but a different approach taken by the Council when revisiting its decisions. Ms Prendergast highlights that the Gans took appropriate planning advice, relied on the validity of the consent and have spent several hundred thousand dollars on the proposal, most of which was incurred prior to the proceedings being issued.
66 Tauber v Commissioner of Inland Revenue [2012] NZCA 411, [2012] 3 NZLR 549.
67 King v Auckland City Council [2000] NZRMA 145 (HC).
Analysis
[202] I have carefully considered the competing submissions. On balance, I have concluded that the appropriate outcome in this case is to exercise my discretion to decline relief. I have done so for the following four reasons.
[203] First, there is no suggestion the presence of the sheds will have any direct or prejudicial effect on the applicants themselves. Nor is there evidence that either of the applicants (or those who have provided affidavits in support of the applicants’ claim) are the owners of the directly adjoining properties to the site. In addition, the owners of the adjoining property affected by the breach of the boundary set-back rule approved the proposal. Accordingly, this is not a case, such as in Air Nelson, where the applicants themselves have suffered direct and substantial prejudice.
[204] Second, and in contrast, there is a real risk of significant prejudice to the Gans were relief to be granted. The proposal was fully implemented some time ago, and the Gans have incurred significant sums of money in relation to it. If the question of notification, for example, was to be set aside and referred back to the Council and a different decision taken, a requirement for public notification, reconsideration and possible subsequent appeal would no doubt involve significant further costs. Similarly, a requirement to either take down the Totalspan shed, or modify it in the manner suggested by Mr Fieldman, would also no doubt involve significant additional costs. It would potentially render the shed useless for the Gans’ (possible) long-term plan of constructing a residential unit in the mezzanine space. For the reasons already explained in this judgment, I do not accept that the Gans sought to mislead the Council or otherwise conceal the sheds’ true intended use.
[205] Third, as is evident from this judgment, the applicants’ key concern in relation to the Totalspan shed is its height. As noted earlier, however, Heritage NZ did not express concern at the time in relation to a shed of the nature and scale (based on footprint) of the Totalspan shed being constructed in the Heritage Precinct.
[206] Finally, I am satisfied that there was at least some delay on the applicants’ part, particularly in the context of the (evident) speed with which sheds of this nature can be constructed. As Mr Fieldman himself acknowledges, the applicants were aware of
the scale of the sheds by 20 April 2017. However, the Council and the Gans were not put on notice of potential judicial review proceedings for a further two months, by which point the works were, and expenditure was, substantially complete.
[207] Accordingly, and in the particular circumstances of this case, I decline to grant relief.
Costs
[208] There remains the issue of costs. My preliminary but non-binding view is that the applicants ought to be considered the successful party overall.
[209] While they have not succeeded on all aspects of their claim, they have succeeded on the second and third causes of action. And while I have declined to grant relief, I anticipate the conclusions reached in this judgment in relation to what ought to have been taken into account when the Council assessed the Gans’ application, and the sufficiency of information before the Council when it did so, are findings of some utility in a broader sense.
[210] As the Court of Appeal has highlighted in two recent decisions, limited success is still success for the purposes of assessing costs.68 Following that approach, an appropriate outcome may be an award of scale costs in favour of the applicants, discounted to reflect the causes of action on which the applicants did not succeed and that I have ultimately declined to grant the relief sought.
[211] I emphasise, however, that these are initial and non-binding views. If the parties are unable to agree costs, memoranda may be filed. Any party seeking costs may file a memorandum, not exceeding five pages in length, within 15 working days of the date of this judgment. Memoranda in response, also no longer than five pages in length, may be filed within a further 5 working days. I will thereafter determine costs on the papers.
68 Weaver v Auckland Council [2017] NZCA 330 and Water Guard NZ Ltd v Midgen Enterprises Ltd
[2017] NZCA 36.
[212] Finally, and as I noted at the conclusion of the hearing, I am grateful to counsel for their comprehensive and helpful written and oral submissions.
Fitzgerald J
Mills v Far North District Council [2018] NZHC 2082
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