NZ Southern Rivers Society Incorporated v Gore District Council
[2021] NZCA 296
•5 July 2021 at 11 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA498/2020 [2021] NZCA 296 |
| BETWEEN | NZ SOUTHERN RIVERS SOCIETY INCORPORATED |
| AND | GORE DISTRICT COUNCIL |
| PHILLIP RAYMOND JOOSTENS Second Respondent |
| Hearing: | 6 May 2021 |
Court: | Cooper, Gilbert and Goddard JJ |
Counsel: | M R Walker and B B Gresson for Appellant |
Judgment: | 5 July 2021 at 11 am |
JUDGMENT OF THE COURT
A The appeal is dismissed.
BThe appellant must pay the first respondent costs calculated for a standard appeal on a band A basis, together with usual disbursements. We certify for second counsel.
____________________________________________________________________
REASONS OF THE COURT
(Given by Cooper J)
In March 2019, the second respondent, Mr Phillip Joostens, applied to the first respondent, the Gore District Council (the Council), for resource consent to establish a river rafting tourism activity on the Mataura River.[1] On 10 October 2019 an independent Commissioner appointed by the Council to consider the application, Mr Andrew Henderson, granted consent on a non-notified basis.
[1]Another application lodged with Southland District Council also sought resource consents for activities focused on other sections of the Mataura River, in addition to the Oreti and Waikaia Rivers. The application was also granted on a non-notified basis on 18 November 2019. That decision has not been the subject of litigation.
The appellant, NZ Southern Rivers Society Inc (the Society), comprises a group of anglers who fish on rivers located within the Southland and Gore Districts. It was incorporated on 12 December 2019, about two months after the consent was granted. It sought judicial review of the decision to grant the application on a non‑notified basis. The Society’s application was declined by Osborne J in a judgment delivered on 7 August 2020.[2] The Society now appeals to this Court.
[2]NZ Southern Rivers Society Inc v Gore District Council [2020] NZHC 1996 [High Court judgment].
Mr Joostens has taken no steps in the proceeding. But the Council opposed the application for judicial review in the High Court and has also resisted the appeal in this Court.
For the reasons that we address, we have concluded that the High Court was right to decline the application for judicial review and the appeal must be dismissed.
Relevant facts
The Mataura River is located in the Southland and Gore Districts. It is well known for trout fishing and has been recognised by the Water Conservation (Mataura River) Order 1997 (WCO) as having outstanding fisheries and angling amenity features. Protection for the Mataura River is achieved through the WCO which, among other things, stipulates minimum rates of flow, restricts water and discharge permits and prevents damming. However, the WCO does not otherwise address what uses may be made of the Mataura River or what land use consents may be granted in relation to it.
The application for resource consent
Mr Joostens’ application was lodged on his behalf by Mr Hamish Weir of Landpro Ltd on 25 March 2019. The proposal involved rafting routes over the Mataura, Oreti and Waikaia Rivers.
The application sought resource consent for three excursions catering for tourists, described as “Excursion 2”, “Excursion 3” and “Excursion 4”, which were located within the Mataura River Floodway contained in the Gore District Plan.[3] The excursions related to different parts of the river, as described in the application. They may be summarised as follows:
(a)Excursion 2: Otamita or Monaghan’s Beach to Gore. This excursion would have three components involving rafting, short stops and gold prospecting experiences. The rafting would involve a maximum of three rafts capable of carrying six clients and one guide each, but there would be only two trips on any one day and a maximum of 10 per week.
(b)Excursion 3: Gore to Mataura. Rafting would be the only activity offered. There would be a maximum of three excursions on any one day and a maximum of 15 per week. Each excursion would involve one raft, capable of carrying six clients and the option of one guide per trip.
(c)Excursion 4: Mataura to Wyndham. This excursion would begin in the Gore District and travel along the Mataura River for approximately five kilometres before entering the Southland District. It would comprise both rafting and short stops. There would be a maximum of two rafts, each capable of carrying six clients and one guide. One excursion was proposed on any given day, giving a maximum number of 14 people per day for the activity. There would be a maximum of two excursions per week.
[3]Excursions 1, 5 and 6 were located within the Southland District and were considered by the Southland District Council.
The relevant parts of the river corridor affected in the Gore District were within the Rural Zone of the District Plan, with the exception of the Mataura carpark, located in the Industrial Zone. Under the relevant rules of the District Plan the activity was not specifically referred to in the list of permitted activities. This meant the proposal required resource consent as a discretionary activity.
The application stated that the proposed activity would require meeting places where paying clients would assemble. The excursions were to commence from the Mataura carpark, which was described as a “sparsely used” area providing parking for the town centre. The base of operations would be Mr Joostens’ property adjacent to Mataura. An existing home office would function as an administrative hub for the business; vehicles, rafting and camping equipment would be stored at that address when not in use.
For present purposes it is relevant to note that the application briefly addressed interaction with other users of the river. The application set out that:
The applicant proposes that short stops, during the excursions proposed, will not be undertaken within 200m of any other river users unless their permission is obtained. Specific care will be taken not to intrude on Anglers encountered during any excursion.
The application also included an assessment of environmental effects. These were addressed under headings that reflected matters listed for assessment in the District Plan and included effects on ecology, wildlife habitats and water quality; effects on other existing surface water activities and safe and efficient navigation; noise; visual amenity effects; and the protection of the habitat of trout and salmon. One subject discussed in the assessment was the effect on recreational opportunities and public use of water bodies and their margins. After noting that the activity proposed would improve the public’s ability to access the rivers by providing additional means of access, the application stated:
The rafting and recreational use of the rivers will not prevent existing users of other river craft from travelling along the river. The rafts are slow moving and do not pose a threat to people swimming or wading in the rivers. Fishermen currently using the river may be momentarily affected as the rafts pass along the river or by one of the short stops. This effect could currently be experienced by general members of the public using the river and is not considered to be unreasonable or unexpected. Mitigation strategies when encountering anglers has been discussed earlier in this report.
Another issue addressed in the assessment of environmental effects was the effect on “natural character, amenity and cultural values”. It was said that:
The dependency of the activity on the state of the environment ensures that natural character and amenity will be preserved.
Consultation with Te Ao Marama Inc & Ngai Tahu has not identified any effect on indigenous values associated with the rivers.
The written consent of a number of interested parties was also provided with the application. This included the written approval of the Southland Fish & Game Council (Fish and Game), which had provided its written approval to Excursions 2, 3 and 4.[4] Te Rūnanga o Ngāi Tahu and Te Ao Marama Inc, representing Māori interests, also provided written approval, as did the Department of Conservation and Environment Southland (the Southland Regional Council). Written approval was also provided by Land Information New Zealand as the “assumed owner of: part bed of Mataura River”.
Processing the application
[4]In a letter of 19 March 2019 addressed to Mr Joostens and attached to the resource consent application, Fish and Game provided approval in principle for Excursions 2, 3, 4 and 5 but withheld approval for Excursions 1 and 6. That position was later confirmed in an email dated 25 September 2019.
The Council instructed an independent planning consultant, Mr Robert Buxton, to review and assess the application. After he had considered it he sought further information and asked that the written approval of affected persons be obtained. His email of 11 April 2019, addressed to Mr Weir, relevantly read as follows:
… I consider the owners and occupiers of the land over which the operation will be undertaken (drop off points, pick up points and access to the river, as well as the car parking area in Mataura) are deemed to be affected.
Pursuant to section 92 of the Resource Management Act 1991:
1. Identify the owners and occupiers of land over which the operation will be undertaken (drop off points, pick up points and access to the river, as well as the car parking area in Mataura).
2.Advise how the car parking arrangement in Mataura will be legally secured for the use by the operator.
3.Advise the toileting arrangement for day trips.
Pursuant to Section 92(3) of the Resource Management Act 1991, the [reason] for requesting this further information is to ensure full understanding of the proposal.
In accordance with Section 92A of the Act, within 15 working days of receiving this request, you have the options of:
(a)providing the information, or
(b)advising the Gore District Council in a written notice that you agree to provide the information, or
(c)advising the Gore District Council in a written notice that you refuse to provide the information.
Once you have identified each of the owners, and occupiers (if different from the owner), please get each of the owners, and occupiers, to fill in the Affected Person Approval Form and to sign or initial a copy of the plans. Alternatively, if you do not obtain all written approvals, you may request that the Council process the consent on a Limited Notified basis where the owners and occupiers who have not provided written approval will be served a copy of the application and given 20 working days to provide a submission to the Council. [Additional] deposit fees will be required to proceed with Limited Notification. The processing of the application will be suspended until you have provided the written approvals or requested Limited Notification and paid the fees as outlined above.
Mr Weir provided a comprehensive reply to the issues raised in Mr Buxton’s request for further information in a letter (with various attachments) dated 25 July 2019, but apparently not received by the Council until 8 August 2019.
Between 22 August 2019 and 28 September 2019, the Council and the Southland District Council received a substantial number of emails from concerned members of the angling community opposing Mr Joostens’ application and requesting public notification.
Mr Buxton was satisfied there was sufficient information to report on the application. On 3 October 2019, he provided a recommendation to the Council in the form of a draft decision granting consent. This also contained his assessment for the purposes of deciding whether the application should be notified. The report was framed as a draft grant of consent on a non-notified basis.
The consent
On 10 October 2019, the Council by its delegate, Mr Henderson, granted resource consent on a non-notified basis for Excursions 2, 3 and the portion of Excursion 4 that fell within the Gore District. In the decision, the Council recorded that no person, other than those who had already given their approval, could reasonably claim to be affected by the proposal to the extent that their approval or notification was required.
Specifically, the decision recorded that:
Any disturbance of aquatic wildlife will also be infrequent and short-term. The Applicant has advised that on his own trips through Excursion 1 (the Upper Mataura River in the Southland District), trout have been observed and continued feeding while the raft drifted past. I note that this experience appears to be similar to that of the Manager of Rafting NZ who has provided (in further information from the applicant) a statement about their operation on the Tongariro River, noting:
“The rafts have a minimal effect on the fishing, with the fish looking quite relaxed in the water as we float over them from above.”
While it is acknowledged that the Tongariro River is a deeper river, I accept Mr Buxton’s view that the experience of observing the fish will encourage clients to reduce any activities that would disturb the fish. In the description of the excursions, the Applicant has mentioned that the trips will involve leisurely travel, and it is accepted this can occur without significant disturbance to aquatic life.
Overall, I am satisfied that the proposal will have less than minor adverse effects on ecology, wildlife habitats and water quality due to the infrequent and short-term contact time, and the small scale of the operation. In reaching this view I also note that [the Department of Conservation], Environment Southland and [Fish and Game] have given their written approvals to the proposal.
As to potential interactions with existing river users, the decision included the following:
Existing users of the surface of the water will mainly be trout anglers and jet boating events …
Similar to the adverse effects on ecology and wildlife habitats discussed above, I consider that any interaction with trout anglers will be infrequent and short-term, at both the launching and landing sites as well as during the trip. I agree that any interaction can be managed by the rafting operators to minimise any impact. For example, the Applicant has stated
“The Applicant proposes that short stops, during the excursions proposed, will not be undertaken within 200m of any other river users unless their permission is obtained.”
The rafting operator can also manage interactions at launch and retrieval sites by undertaking pre-trip briefings well away from any anglers, and launching and removing the rafts efficiently so that time spent at the river’s edge is minimised. The launch and retrieval sites generally have enough space for the operation to provide a suitable separation from other users.
The Society sought judicial review of the decision, claiming that the Council had made three errors, each of which each rendered the decision not to notify invalid. The Society claimed the Council had erred by:
(a)treating Fish and Game’s approval as representative of the interests and views of the angling community when it was not;
(b)failing to take account of relevant considerations for the purposes of s 95A of the Resource Management Act 1991 (the RMA); and
(c)failing to be sufficiently informed before deciding to proceed on a non‑notified basis.
Statutory scheme
Section 95A(1) of the RMA provides that a consent authority must follow the steps prescribed in that section to determine whether to publicly notify an application for resource consent. Under subs (7)(a), public notification is required if:[5]
… the consent authority decides, in accordance with section 95D, that the activity will have or is likely to have adverse effects on the environment that are more than minor.
[5]Resource Management Act 1991, s 95A(8)(b).
Section 95D(e) provides that in determining whether adverse effects are more than minor, the consent authority must disregard any effect on a person who has given written approval to the relevant application.
If an application is not publicly notified, a consent authority must consider limited notification under s 95B.[6] Provided limited notification is not precluded, a consent authority must notify “affected person[s]” under s 95B(8). Pursuant to s 95E(1), a person is an “affected person” if the consent authority decides the proposed activity’s adverse effects on the person will be minor or more than minor (but not less than minor). It has not been suggested that there should have been limited notification of the application in this case.
[6]Section 95B(1).
The statutory provisions as they stood before the RMA was amended to assume its current form by the Resource Management (Simplifying and Streamlining) Amendment Act 2009 were discussed by the Supreme Court in Discount Brands Ltd v Westfield (New Zealand) Ltd.[7]In that case, Blanchard J summarised the information required before a decision could be made on whether an application for resource consent should be publicly notified in the following passage:
[114] So, in summary to this point, the information in the possession of the consent authority must be adequate for it: (a) to understand the nature and scope of the proposed activity as it relates to the district plan; (b) to assess the magnitude of any adverse effect on the environment; and (c) to identify the persons who may be more directly affected. The statutory requirement is that the information before the consent authority be adequate. It is not required to be all-embracing but it must be sufficiently comprehensive to enable the consent authority to consider these matters on an informed basis.
[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.
[116] Because the consequence of a decision not to notify an application is to shut out from participation in the process those who might have sought to oppose it, the Court will upon a judicial review application carefully scrutinise the material on which the consent authority’s non-notification decision was based in order to determine whether the authority could reasonably have been satisfied that in the circumstances the information was adequate in the various respects discussed above.
(Emphasis added).
[7]Discount Brands Ltd v Westfield (New Zealand) Ltd [2005] NZSC 17, [2005] 2 NZLR 597.
Blanchard J had earlier said that the information before the consent authority:[8]
… 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 district 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.
[8]At [107].
The 2009 amendments to the RMA changed the statutory provisions, and in Coro Mainstreet (Inc) v Thames-Coromandel District Council this Court observed that the amendments to the statute since Discount Brands were substantial and had been directed at “providing greater facility for non-notification”.[9] The Court held out the possibility that the law articulated in Discount Brands might need further evaluation in the revised statutory setting.[10] It was however unnecessary to carry out such further evaluation in that case and the Court did not do so.
[9]Coro Mainstreet (Inc) v Thames-Coromandel District Council [2013] NZCA 665, [2014] NZRMA 73 at [34].
[10]At [41].
In this case there is also no need to revisit the standard set out in Discount Brands, as neither party has sought to argue that a less exacting standard is appropriate. Further, in the High Court, Osborne J held that notwithstanding the 2009 amendments, Discount Brands continued to be good law on the information that a consent authority should have when deciding whether to notify a resource consent application.[11] The absence of any argument by the parties that he was wrong makes it inappropriate for us to reach a different view on appeal in this case.
High Court decision
[11]High Court judgment, above n 2, at [44], citing Ferrymead Retail Ltd v Christchurch City Council [2012] NZHC 358 at [80].
Osborne J rejected the Society’s challenge. As to the first alleged error, he held that the Society’s submissions misconstrued the Commissioner’s report by suggesting that he had treated the written approval from Fish and Game as representing the interests and views of the angling community.[12] Rather, the Commissioner identified Fish and Game’s provision of its consent, before considering whether there were adverse effects on anglers. This was the “antithesis of treating Fish and Game’s approval as representing the interests of the entire angling community”.[13] The Judge noted the existence of the emails expressing concerns about the proposal, and summarised the Society’s submission on the emails as follows:
[68] The Society has not pleaded that the Council erred in the consideration or scrutiny the Council might have given to the email correspondence. The Society pleads the existence of the email correspondence simply as a basis for the assertion that the Council treated the Fish and Game approval as given on behalf of the angling community.
[12]At [59].
[13]At [60].
Accordingly, the Judge considered that on the facts, it was not necessary to consider further what the substance of the email correspondence may have shown or suggested.[14] However, the Judge noted that:[15]
There may be a tenable argument that, in some circumstances, particularly where such correspondence involves incontrovertible information, the decision-maker might be required to consider further such information. This is not an appropriate case in which to consider such an approach or to identify what would be its limits.
[14]At [69].
[15]At [69].
Turning to the second alleged error, the Judge held that the Council did not fail to take into account relevant considerations. It was not correct, as the Society alleged, to dismiss as a mere assertion the content of the proposal which set out the restrictions and circumstances under which the rafting would occur.[16] The Council had reached its conclusions from the information properly before it as to the nature and duration of the rating excursions, which the Council had found to be “not significantly different to a non-commercial operation” and to be “infrequent and short‑term”.[17]
[16]At [88].
[17]At [93].
Given the Judge’s findings on the earlier issues, he also dismissed the third alleged error based on the Council’s alleged failure to be sufficiently informed.[18]
Appeal
[18]At [96].
The Society appeals the High Court judgment on three grounds. It concedes that the Council did not treat Fish and Game’s approval as given on behalf of the whole angling community, but nevertheless claims that:
(a)The Judge was wrong to dismiss the Society’s claim that the Council had insufficient information for its decision not to notify the application.
(b)The Judge was wrong to find that the Society had not pleaded that the Council erred in failing to consider the email correspondence sent to it by members of the angling community.
(c)As a result of the error in (b), the Judge erred in not determining whether the Council made an error of law as a result of the information not being referred to by Mr Buxton in his recommendations on notification to the Commissioner.
We deal with each of these grounds of appeal in turn.
First issue — insufficient information to make the decision not to notify the application
In advancing this aspect of the appeal, Mr Walker, counsel for the Society, noted that the Judge held there was sufficient information before the Commissioner on the basis that the application had set out the frequency and duration of the proposed rafting excursions, the controls which were proposed in terms of the management plans submitted with the application and what Mr Walker described as “Mr Joostens’ assertions as to his own experience and observations through the Mataura River”.
Mr Walker submitted that the information was insufficient for the Council to make an informed decision as to whether the adverse effects of the proposal on angling and recreational amenity would be minor or more than minor. While the opinions of the angling community, set out in the emails forwarded to the Council but not considered by the Commissioner, did not amount to expert evidence, the views of anglers as to why they appreciated the amenities of the Mataura River was of more relevance and probative value than the applicant’s own observations. Mr Walker contended that an assessment of an effect on amenity values was necessarily subjective, and a “values based” judgment of the kind required in this case must commence with an understanding of the subjective appreciation of the relevant amenity values as articulated by those who enjoy them. Information about the frequency and duration of the activity could not properly be assessed without reference to that subjective appreciation.
In the High Court, the argument that the Council had not considered all relevant potential adverse effects of the proposal because the Commissioner did not consider the numerous emails which had been received from the members of the angling community was advanced in the context of a pleading which asserted that the Council had failed to consider those emails because it had wrongly treated the written approval of Fish and Game as an effective approval of the application “by the angling community”. That argument has not been pursued in this Court, but an argument based on failure to take the emails into account has nevertheless been advanced on the basis that the views of the angling community should have been considered. In essence, the allegation now is that without having the views of anglers who fish on the Mataura River, the Council lacked the information necessary to determine that the adverse effects of the proposed activity on the environment would not be more than minor.
In dealing with the argument in the High Court, the Judge rejected the Society’s proposition that the content of the application was “mere assertion”.[19] The application had set out restrictions and circumstances under which the proposed activities would occur. The three excursions for which consent was sought had been defined and a maximum number of trips on a daily and weekly basis had been provided. The Judge considered the information contained in the application was “the very material on which the Council was able to reach reliable conclusions as to such key matters as the period of interaction”.[20] He continued:[21]
Such details were not challenged in this proceeding. The Commissioner for instance observed in relation to ecology considerations that, at a speed of approximately 4 km/hr, it would take approximately three minutes for the rafts to travel from 100 m above a nesting site to 100 m below a nesting site. Similarly, in relation to trout anglers in particular, the Commissioner recorded that:
… a trout angler may experience up to two rafts passing within 100m of their location over a period of approximately 3 minutes for each raft over the period of the day.
[19]At [88].
[20]At [88].
[21]At [88] (footnotes omitted).
The Judge also dealt with the argument that the Commissioner had given too much weight to observations of Mr Joostens based on his own experience, and comparisons that had been drawn with the Tongariro River. The Judge observed:
[91] The point at which the Commissioner recorded those was in the assessment of effects on ecology and wildlife habitats. The context is relevant and I set out the section in question:
Any disturbance of aquatic wildlife will also be infrequent and short-term. [Mr Joostens] has advised that on his own trips through Excursion 1 (the Upper Mataura River in the Southland District), trout have been observed and continued feeding while the raft drifted past. I note that this experience appears to be similar to that of the Manager of Rafting NZ who has provided (in further information from [Mr Joostens]) a statement about their operation on the Tongariro River, noting
“The rafts have a minimal effect on the fishing, with the fish looking quite relaxed in the water as we float over them from above.”
While it is acknowledged that the Tongariro River is a deeper river, I accept Mr Buxton’s view that the experience of observing the fish will encourage clients to reduce any activities that would disturb the fish. In the description of the excursions, [Mr Joostens] has mentioned that the trips will involve leisurely travel, and it is accepted this can occur without significant disturbance to aquatic life.
[92] Mr Joostens’ information as to his own experience cannot be viewed as independent evidence and there was no detailed analysis to measure the impact of fish on the Tongariro River. But those matters were demonstrably secondary, serving to provide some explanation of the dominant conclusions in the first and last sentences of the Commissioner’s reasoning set out at [91] above. The Council’s conclusions were clearly driven by the timing detail of the proposal for excursions (“Any disturbance of aquatic wildlife will also be infrequent and short-term”) and in the description of the excursions (Mr Joostens having “mentioned that the trips will involve leisurely travel … without significant disturbance to aquatic life”).
(Footnote omitted.)
On this basis, the Judge found that the Commissioner’s conclusions were derived from information properly before the Council as to the nature and duration of the rafting excursions which the Commissioner considered would not be “significantly different to a non-commercial operation” and would be “infrequent and short-term”.[22] On this basis, the Judge rejected the Society’s challenge based on insufficient information.[23]
[22]At [93].
[23]At [96].
The Commissioner discussed the assessment of effects forming part of the application in some detail. He noted that existing users of the surface of the water would mainly be trout anglers and those involved in jet boating events. There would also be occasional recreational users in the form of kayaks or similar activities. He expressed the view that “any interaction with trout anglers will be infrequent and short-term, at both the launching and landing sites as well as during the trip”. He considered that any such interaction could be managed by the rafting operators to minimise any impact and he noted that the application proposed that short stops during the excursions would not be undertaken within 200 meters of any other river users unless their permission was obtained. He also observed that the rafting operator could manage interactions at the launch and retrieval sites by undertaking pre-trip briefings in a location distanced from any anglers, and launching and removing the rafts efficiently so that time spent at the river’s edge was minimised. There was enough space for the operation to provide suitable separation from other users.
The Commissioner concluded that at the scale of operation proposed, the proposal was not significantly different to a non-commercial operation. He said:
Although a commercial operation by its very nature will generally be more regular than a non-commercial use, the level of interaction by the proposal is still considered to be infrequent and short-term. For example, a trout angler may experience up to two rafts passing within 100m of their location over a period of approximately 3 minutes for each raft over the period of the day. It is also noted that some of the clients may be trout anglers who want to access some parts of the river inaccessible by land.
We accept Mr Garbett’s submission for the Council that these facts were all able to be ascertained from the details and description of the proposal in the consent application. They enabled the Commissioner to assess the likely interaction between anglers and rafts and the time a raft would take to pass an individual angler. We accept that it was reasonably open to the Commissioner to determine that the level of interaction with and potential effect on anglers would be infrequent, short-term and small in scale.
It is also worth noting that conditions were imposed requiring provision of an operational management plan, including procedures covering the launching and retrieval of rafts, rafting, short stops, interaction with other users of the river (including times when it might be appropriate to cease activity) and other matters. The operational management plan was required to be provided before commencement of the operation.
Second issue — failure to consider email correspondence not pleaded
We have already touched on this issue in the preceding discussion. The Judge held that the Society had not pleaded that the Council erred in failing to consider the email correspondence sent to it by members of the angling community.[24] Rather, he considered the pleaded claim to be that the Council had wrongly treated Fish and Game’s written approval as given on behalf of the angling community, the emails from the anglers being relied on to negate any suggestion that Fish and Game spoke for them. Since he considered the Council had not proceeded on the basis that Fish and Game’s approval was given on behalf of anglers generally, that was sufficient to dispose of this cause of action. It was therefore unnecessary to consider a direct allegation that the Council had wrongly failed to consider the emails.[25]
[24]At [68].
[25]At [69].
Mr Walker complained that as a result of this approach, the Judge had found it unnecessary to consider further the substance of the emails and the information they contained. He argued that the Judge misconstrued the statement of claim, and that the Society had pleaded directly that the Council erred by not considering the emails.
We do not consider the Judge made any error in the way he construed the statement of claim. The relevant allegation in the pleading was that in making the decision to process the application on a non-notified basis, the Council misdirected itself and was in breach of its obligations under s 95A of the RMA by treating the written approval received from Fish and Game as representing the interests and views of the angling community on the proposal and amounting to an approval by them in relation to the adverse effects on the recreational amenity of the anglers. That was the allegation that the Judge rejected on the basis that the Council had considered the potential effects of the proposal on actual river users. His reasoning was encapsulated in the following paragraph of judgment:
[60] Having identified trout anglers and jet boating events as the main existing users of the surface of the water, the Council then noted Fish and Game’s provision of its written approval (my emphasis). The Council then immediately proceeded to consider whether there were adverse effects on anglers, including by reference to the frequency and duration of interactions and distancing, the management commitments within the Proposal, and the potential for satisfactory co-existence of activities (such as rafting and fishing in particular). The consideration, through the lengthy section of the Decision in pages 6–10, is the antithesis of treating Fish and Game’s approval as representing the interests and views of the entire angling community.
(Footnote omitted, emphasis in original.)
We cannot fault this reasoning and we reject the second ground of appeal.
Third issue — relevant information not made available to the decision maker
The third error alleged is that the Commissioner did not have sufficient information as to the actual potential effects of the proposal because the email correspondence was not made available to him. This argument obviously overlaps to a considerable degree with the first and second alleged error. In this context it is said that the planning consultant who reported to the Council, Mr Buxton, had contributed to the error by not referring the emails to the Commissioner. If the emails had been provided to the Commissioner he could then have made a judgment as to the value of the material.
In support of this ground of appeal, Mr Walker referred to the judgment of the High Court in Videbeck v Auckland City Council.[26] In that case, there was criticism of a planning officer preparing an assessment of whether an application for resource consent should be publicly notified without providing to the decision maker correspondence received from a neighbour claiming to be adversely affected by the proposal and a supporting opinion provided by an arborist.
[26]Videbeck v Auckland City Council [2002] 3 NZLR 842 (HC).
However, on the facts of Videbeck the High Court was able to conclude that without provision of the letter received from the affected neighbour and a further letter from his lawyer, the report about notification had lacked balance.[27] The Judge held that a balanced report should alert the decision maker not only to the facts and view formed by the person reporting on the application, but also to contrary views known to the reporter which the decision maker could then consider.[28]
[27]At [65] and [68].
[28]At [60].
In this case however, we do not consider that the report prepared for the Commissioner’s consideration could be said to lack balance. We have already referred to Mr Walker’s submission that “balance” required that the Commissioner be informed of the subjective views of anglers about how their amenity might be affected by the proposal. For the reasons we have discussed, we do not accept that proposition.
The amenity of anglers wishing to fish on the Mataura River is a relevant issue because of the need to assess, both at the notification stage and in relation to the grant of consent, the potential adverse effects on the environment of the proposed activity. All applications for resource consent must provide the information set out in cl 2 of sch 4 of the RMA, including an assessment of the activity against the matters set out in pt 2 of that Act (including s 5, among other provisions). Avoiding, remedying and mitigating any adverse effects of activities on the environment is central to the concept of sustainable management set out in s 5(2). And applicants for resource consent must provide an assessment of environmental effects which addresses the actual or potential effects on the environment of the activity, in accordance with cl 6(1)(b) of sch 4.
The term “environment” is defined in s 2(1) of the RMA so as to embrace, amongst other things, “amenity values”, which is defined as meaning “those natural or physical qualities and characteristics of an area that contribute to people’s appreciation of its pleasantness, aesthetic coherence, and cultural and recreational attributes”. There is thus no difficulty in bringing within the ambit of the relevant matters that needed to be assessed in this case the natural and physical qualities of the Mataura River and its surroundings which contribute to, amongst other things, the appreciation by anglers of its pleasantness and recreational attributes.
But it is important to note that what is to be assessed is those qualities and characteristics which contribute to the appreciation of the recreational attributes, not the appreciation itself. Mr Walker’s submission that reference to the subjective views of the anglers was necessary to assess the effects of the application cannot therefore be sustained under the relevant statutory provisions.
What was necessary was that the Commissioner be informed about the characteristics of the area, and the effects of the proposed activity on those characteristics. On those issues, we consider there was sufficient information before him for the purposes of both the notification and consent decisions. He was aware of all the necessary facts, and able to draw inferences and apply his understanding of them in making his decision. The subjective views of anglers would not have added anything of value to his consideration of the application.
We therefore reject the third ground of appeal.
Result
For the reasons we have given the appeal is dismissed.
The appellant must pay the first respondent costs calculated for a standard appeal on a band A basis, together with usual disbursements. We certify for second counsel.
Solicitors:
Todd & Walker Law, Queenstown for Appellant
Anderson Lloyd, Dunedin for First Respondent
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