Petersen v K�piti Coast District Council
[2023] NZHC 2994
•26 October 2023
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2023-485-119
[2023] NZHC 2994
UNDER the Judicial Review Procedure Act 2016 and Part 30 of the High Court Rules IN THE MATTER
of an application for judicial review of a decision made by or on behalf of Kāpiti Coast District Council
BETWEEN
CONRAD HARALD CHRISTIAN PETERSEN
First Applicant
AND
HELEN ELIZABETH COOK
Second Applicant
GEOFFREY FRANCIS TWISS
Third Applicant
KĀPITI COAST DISTRICT COUNCIL
First Respondent
GRESHAM TRUSTEE LIMITED
Second Respondent
Hearing: 16 October 2023 Counsel:
C J Griggs and P C Kelly for Applicants
D Randal and V Brunton for First Respondent C Stevens for Second Respondent
Judgment:
26 October 2023
JUDGMENT OF ISAC J
[Application for judicial review]
PETERSEN & ORS v KĀPITI COAST DISTRICT COUNCIL & ANOR [2023] NZHC 2994 [26 October 2023]
Introduction
[1] In this proceeding the applicants seek judicial review of a decision of the Kāpiti Coast District Council not to publicly notify an application for a subdivision consent by the second respondent, Gresham Trustee Ltd. They also seek review of the Council’s associated decision to provide limited notification of the application to a group of affected parties that did not include the applicants. If successful in their challenges, the applicants seek an order setting aside the subsequent subdivision consent made in Gresham’s favour.
[2]Three issues require determination:
(a)First, whether the notification decision was effective and “perfected”.
(b)Second, whether the notification decision was lawfully made.
(c)Finally, if a reviewable error is identified, whether it is appropriate to grant relief.
Background
[3] Kāpiti Coast District Council has granted a resource consent to Gresham for the subdivision and residential development of approximately 1.9 ha of largely bare land situated at 240 Kāpiti Road, Paraparaumu. The development will comprise 135 dwellings and 165 car parks with associated earthworks involving 23,940 cubic metres to a maximum depth of 4.4 metres. The site is surrounded by relatively dense housing on three sides and Kāpiti Road on the other. Kāpiti Coast Airport is located directly across Kāpiti Road from the proposed subdivision. There are currently two small buildings on the site, but otherwise it is described by one of the applicants in her affidavit as a “horse paddock”.
[4] The three applicants live at varying distances from 240 Kāpiti Road. The closest are Mr and Mrs Twiss, who live on Regent Drive, approximately 85 metres from the closest boundary of the proposed subdivision. A private road will be
constructed within the site providing access to the subdivision from Halsey Grove, which is situated approximately two houses from Mr and Mrs Twiss’ house.
[5] Gresham’s application for resource consent was lodged with the Council on 8 March 2022. The Council was then required to consider, under s 95(1) of the Resource Management Act 1991 (RMA), whether to give public notification of the application and, if not, whether to provide limited notification to affected persons.
[6] On 25 July 2022 the Council’s team leader of resource consents adopted the notification recommendations made to her in a 30-page report by a Council planner. The recommendations, which form part of the decision, were:
9 PUBLIC NOTIFICATION RECOMMENDATION
I am of the opinion that the proposal need not be publicly notified for the following reasons:
· The applicant has not requested that the proposal be notified (s95A(3));
· Public notification is not required pursuant to section 95C;
· No exchange or recreation reserve is proposed;
· There are no special circumstances associated with the proposed development which could warrant the application being publicly notified. While the proposal is a non-complying activity, residential development in a residential area is not considered to be an unusual circumstance.
[7] The Council officer then considered whether limited notification should take place under ss 95B and 95E and, if so, its extent. The report’s recommendation was that the visual, character and amenity effects of the proposed buildings together with the associated subdivision and earthworks may potentially be “minor” and, for that reason, recommended limited notification on 16 nearby dwellings situated on Cedar Drive, Halsey Grove, Regent Drive and Langdale Avenue. These properties appear to be situated considerably closer to the proposed subdivision than the applicants’ homes and are essentially adjacent to the site.
[8] The Council’s team leader then accepted the report’s recommendation for limited notification on the identified affected parties. The effect of that decision was
to exclude the applicants from the class of landowners on whom notification would be made.
[9] Four days after the notification decision, the Council posted the application for subdivision consent and supporting documents to its public website. It did not, however, post the notification report. Ms Sarah Banks, a Council officer, has deposed that the Council’s standard practice is not to publish its notification decisions proactively. This is for two reasons. The first is that publishing a notification decision so that it is readily available to the public, including those who are not adversely affected by a proposal and have no ability to make a submission on a consent application, could cause confusion among those people and create a false impression of engagement by the Council with them when “they are unable to participate”. The second is that publication of notification decisions to people who are unable to participate would “create an administrative burden for no obvious public benefit”.
[10] A public hearing was held on 10 November 2022. Mrs Twiss and Ms Cook attended the meeting but were told that they were not permitted to address the Hearing Commissioner on the resource consent application.
[11] The subdivision consent was granted in a decision of 9 December 2022. The applicants subsequently obtained a copy of the notification report and decision from the Council on 23 February 2023, and commenced these proceedings on 13 March 2023.
First issue: was the notification decision effective and “perfected”?
The applicants’ challenge
[12] At the hearing Mr Griggs, who appeared as counsel for the applicants, submitted that the key question for the Court was this:
When a council makes a notification decision under s 95 of the RMA which has the effect of excluding participation by members of the public who have an interest (especially persons who have told the council they have an interest) is it lawful for the council to withhold notification of the decision when it could easily have been uploaded to the internet?
[13] Relying on the Court of Appeal’s decision in Goulding v Chief Executive, Ministry of Fisheries,1 the applicants argue that a valid administrative decision in the exercise of a statutory power which is the outcome of a “completed process”, but which has not been formally communicated to “interested parties”, has not been “perfected”. In Goulding the Court found that an administrative decision that has not yet been communicated to affected persons may be revoked and a fresh decision substituted at any time prior to communication.
[14] The applicants say that they were entitled to be advised of the notification decision in a timely way, and the failure of the Council to do so renders the notification decision unlawful in the sense that it has not been “perfected” by its communication to the applicants as persons affected by it. The Council subsequently acted on the notification decision as though it was lawful, by issuing the resource consent.
[15] The applicants argue that in light of the “Goulding principle” it was incumbent on the Council to communicate the notification decision to them as members of the public, because it was members of the public whose rights of participation in the consent process were brought to an end by the decision. Without communication, the applicants as members of the public were effectively denied their right guaranteed in s 27(2) of the New Zealand Bill of Rights Act 1990 to seek judicial review before the hearing of the resource consent application. Section 6 of the Bill of Rights requires s 95(1) of the RMA to be given a rights consistent interpretation. This in turn requires the “importation” of a communication requirement for the notification decision. These procedural obligations include a requirement to provide reasons to the applicants as to why they were not part of the class of property owner on whom limited notification occurred.2
[16] The applicants also argue that contrary to the Council officer’s opinion, making available the notification decision to the public generally would not involve any added administrative burden. The report and decision could have been made available on the internet simply by a “drag and drop”. The position is even stronger in relation to what
1 Goulding v Chief Executive, Ministry of Fisheries [2004] 3 NZLR 173 (CA) at [43].
2 Citing G D S Taylor Judicial Review: A New Zealand Perspective (4th ed, LexisNexis, Wellington, 2018) at [9.18]; and Lewis v Wilson and Horton Ltd [2000] 3 NZLR 546 (CA) at [80].
is said to be the “second reviewable decision”, namely the decision to provide for limited notification which excluded the applicants. The applicants say that there can be no doubt they were interested parties, in the sense that they were directly affected by the notification decision, and the Council was aware that both Mr Petersen and Mr Twiss consider themselves affected and wished to be advised of the result.
Consideration
[17]The applicants’ first ground of challenge fails for four reasons.
[18] First, they have not been denied any right to natural justice, whether under s 27 of the Bill of Rights or under the common law. This proceeding is itself the exercise of the right. Had the applicants been made aware of the notification decision earlier, their only recourse would have been judicial review. Their complaint then is at best temporal: that they ought to have received the notification decision, without request, before the resource consent was granted. Given in this proceeding they seek to have the resource consent set aside on the basis of an unlawful notification decision, there is no meaningful difference to their position caused by the alleged wrong. As the Council accepts, a consent authority must not grant a resource consent if the application should have been notified and was not.3
[19] Second, there is no legal obligation in the RMA, the Bill of Rights or the Court of Appeal’s decision in Goulding that requires a consent authority to bring home to all the world its limited notification decisions.4 There can be no credible suggestion in this case that the Council withheld the notification decision from the applicants in the face of a request. I agree with the submissions of Mr Randal for the Council that the obligations of the first respondent to provide information to constituents arises under s 35 of the RMA—relating to its duty to gather information and keep records—and under the Local Government Official Information and Meetings Act 1987. There is no suggestion that the Council failed to comply with those obligations here. And the Court of Appeal’s decision in Goulding is not relevant to the present case. There the Court
3 Resource Management Act 1991, s 104(3)(d).
4 Fullers Group Ltd v Auckland Regional Council HC Auckland M1077/98, 21 August 1998 at 14; and Poutama Kaitiaki Charitable Trust v Taranaki Regional Council [2020] NZHC 3159, (2020) 22 ELRNZ 202 at [251].
was concerned with the point in time at which a decision maker became functus officio before which it might revisit the decision and remake it.5 In this case, once the notification decision was communicated to the affected parties identified within it, the decision was perfected.
[20] Third, I do not accept that a perfectly lawful notification decision by a consent authority can be set aside in judicial review proceedings because it has not been provided to those who might be unhappy with its outcome. But that is the effect and implication of the applicants’ submission. Related to this difficulty is the fact that there is no limit on the class of persons upon whom Mr Griggs contended the Council had a duty to communicate its decision. When asked whether such a duty could be discharged by publication on the internet for persons who were blind or did not have an internet connection, Mr Griggs was driven to the utilitarian position that publication on the internet is all that could be expected. I cannot reconcile that limitation, however, with the breadth of the duty the applicants contend for. Goulding contemplates communication of a decision to those affected by it, not merely making it available to those who go looking for it.
[21] Finally, it cannot be the case that a community member can unilaterally impose obligations on a council in relation to the communication of notification decisions by simply advising the local authority of their interest in the outcome of the decision. The RMA itself defines who are affected persons with rights of participation in the consent process. It is those parties to whom a consent authority clearly owes an obligation to communicate notification decisions.
5 If the effect of Goulding is as the applicants argue to render the notification decision incomplete until communicated to the applicants, it would seem unlikely that there has been a decision in the present case that is amenable to judicial review. Mr Griggs’ response to this conundrum was to suggest that it was the Council’s decision to act on the notification as if it was valid that is the exercise of a public power capable of review. This contention is not pleaded and, in any case, would mean every limited notification decision could be set aside in judicial review by any person excluded from the class on whom limited notification has taken place and where the decision had not been communicated to that person.
Second issue: was the notification decision lawful?
RMA notification requirements
[22] At this point it is useful to begin with the general scheme of the notification provisions of the RMA.
[23] A consent authority must determine whether or not an application should be notified, and to whom, in accordance with ss 95 to 95G of the RMA. Those provisions set out a step-by-step decision-making process.
Public notification
[24] First, a consent authority must follow the steps in section 95A to determine whether to publicly notify a consent application.
[25] Of particular importance here is step 3. It requires the Council to publicly notify the application if, in accordance with s 95D, the proposed activity will have or is likely to have adverse effects on the environment that are more than minor.6 The key task for a consent authority is to identify relevant environmental effects and evaluate whether they are “more than minor”. In assessing the likely adverse effects on the environment, the consent authority must disregard any effects on persons who own or occupy adjacent land to the site of the proposed activity.7 The effects on such persons are addressed through the statutory regime for limited notification.
Limited notification
[26] If public notification is not required, the consent authority must decide whether to give limited notification to any affected person following the step-by-step process in s 95B. Step 3 of that process is also relevant: it requires notification where the consent authority determines a person to be an “affected person” in accordance with s 95E. Under that provision, a person is an affected person if “the consent authority decides that the activity’s adverse effects on the person are minor or more than minor (but are not less than minor)”.
6 “Environment” and “effect” are broadly defined in ss 2 and 3 respectively.
7 Resource Management Act, s 95D(a)(ii).
[27] The RMA thus sets adverse effects thresholds that must be reached or surpassed before notification is required. A proposal must adversely affect a person to a “minor or more than minor” extent in order for the person to be notified under s 95B. Whether an effect reaches this threshold involves an assessment of fact and degree informed by context.8 As the High Court observed in Speargrass Holdings Ltd v Queenstown Lakes District Council:9
Much of Speargrass’s argument is based on its own expert evidence tendered in the hearing which reached contrary conclusions as to whether the application generated less than minor, minor or more than minor adverse effects on Speargrass. However, simply because another qualified person might hold a different view does not render the Council’s decision erroneous and amenable to being set aside on review. While the Courts suggest that consent authorities should take care before deciding that a neighbour is not affected by an application, the RMA envisages that not every application will be amenable to notification, particularly when the effects are within the envelope of effects expected under the plan or can be appropriately managed on standard conditions.
[28] The term “less than minor” was considered by the High Court in Gabler v Queenstown Lakes District Council. There Davison J found:10
The nuanced qualitative assessment of effects was discussed in the High Court by Priestley J [citing Green v Auckland Council [2013] NZHC 2364 at [126]):
The statutory tests of ‘minor’, ‘more than minor’, and ‘less than minor’ can only be informed by context. One is dealing with degrees of smallness. Where the line might be drawn between the three categories might not be easily determined. ‘Less than minor’, however, is the only category which relieves a consent authority of its s 95E(1) obligation to notify.
The test used to be of “de minimis” effect. The use of the expression “less than minor” points in a similar direction. “Less than minor” in my judgment means that which is insignificant in its effect, in the overall context, that which is so limited that it is objectively acceptable and reasonable in the receiving environment and to potentially affected persons.
8 Speargrass Holdings Ltd v Queenstown Lakes District Council [2018] NZHC 1009, (2018) 20 ELRNZ 645 at [139]; and McMillan v Queenstown Lakes District Council [2017] NZHC 3148, [2019] NZRMA 256 at [12].
9 At [165] (footnote omitted).
10 Gabler v Queenstown Lakes District Council [2017] NZHC 2086, (2017) 20 ELRNZ 76 at [93] and [94]; cited with approval in Speargrass Holdings Ltd v Queenstown Lakes District Council, above n 9, at [139] and Lysaght v Whakatāne District Council [2021] NZHC 68, (2021) 22 ELRNZ 383 at [4].
[29] While a minor effect sits at the lower end of a scale that includes major and moderate effects, it must be something more than de minimis.11
The applicants’ challenge
[30] The applicants submit that even if a notification decision had been communicated to them, the decision was unlawful because it failed to comply with the requirements of ss 95B and 95E of the RMA. The illegality arises from what is said to be a material error of fact about the level of impact from increased traffic from the development on the applicants as well as other road users.
[31] Mr Griggs submits there is an internal inconsistency between the reasoning and the conclusion reached in the notification decision about the scale of those traffic effects. The planner’s report on which the notification decision is based concluded that “the proposal is considered to have less than minor adverse effects on transport which can further be reduced and mitigated by conditions on a granted consent”. However, Mr Griggs submits that there is no support for this conclusion in the traffic reports provided by Gresham to the Council on which the notification decision was based, or within the body of the notification report itself.
[32] In analysing the transport effects of the proposal, the Council is said to have relied on two reports on the impact of the development on traffic flows. The first was an integrated transport assessment provided by Stantec New Zealand. Mr Griggs brought my attention to a statement in the report that the likely traffic impacts at the Cedar Drive and Kāpiti Road intersection “are minor”. In counsel’s submission the use of the term “minor” in an expert traffic assessment cannot have been accidental. Effects that are minor meet the threshold needed to trigger limited notification, and Stantec’s opinion is therefore materially at odds with the Council planner’s conclusion in the notification report that the effects are “less than minor”.
[33] The second traffic report on which the Council relied in forming its decision contains the same problem, according to Mr Griggs. An independent peer review of the Stantec report was prepared by Tonkin+Taylor for the Council. The firm did not
11 King v Auckland City Council (1999) 6 ELRNZ 79 (HC) at [29(f)].
disagree with Stantec’s assessment, and concluded that the development would cause “minor increases in delay” at the Kāpiti Road and Cedar Drive intersection.
[34] These assessments were then confirmed by Stantec’s project manager, who provided a brief of evidence for the resource consent hearing in November 2022 in which he confirmed his view that “some drivers may experience longer delays” and that the “scale and effects of the added Site traffic will be minor”.
[35] Then, in the body of the notification report itself, the Council’s responsible officer, Ms Banks, concluded on the basis of the Stantec and Tonkin+Taylor reports that the traffic effects “will not adversely affect the adjoining properties or have an effect on the efficient and safe functioning of the local roading network that is more than minor” (counsel’s emphasis). Mr Griggs argues that, as a matter of logical construction, if an effect is “not more than minor” then it must at least be minor. If Ms Banks had intended to say that the traffic effects were less than minor, she would have said so. However, she could not have properly said so on the basis of the expert assessments, because Stantec assessed those effects to be minor, and Tonkin+Taylor agreed with that assessment.
[36] It is therefore impossible, according to Mr Griggs, to reconcile the evidence before the Council planner with Ms Banks’ conclusion in the notification report that:
The proposal is considered to have less than minor adverse effects on transport…
[37] Given the only evidence available to the Council indicated that the effects on traffic users, including the applicants, was minor or more than minor, Mr Griggs submits that the notification report’s conclusion that the effects were less than minor was not a conclusion that was open to it. The conclusion was therefore a fundamental error of fact.
Consideration
[38] The applicants’ challenge to the notification decision is limited to the consideration of traffic effects in terms of the relevant statutory threshold tests. The applicants have not provided any evidence that calls into doubt the expert views
contained within the relevant reports provided to the Council. Rather, their challenge is based on an interpretation of those reports and their treatment within the notification decision.
[39] Having considered the evidence available to the Council as well as the content of the notification decision itself, I do not consider there has been any error in the Council’s approach. It is clear that the relevant statements in the notification report and decision were directed to two different threshold tests. The first test the Council had to consider related to public notification. Section 95A of the RMA required the Council to publicly notify the application if the proposed activity was likely to have adverse environmental effects that were “more than minor”.
[40] The second threshold test the Council was obliged to consider related to limited notification under s 95B. The Council had to determine whether certain people were affected parties under s 95E, which in turn depended on whether the activity’s adverse effects on them were minor or more than minor (but not less than minor).
[41] Two important consequences follow. First, it is immediately evident that the two tests involve different thresholds. Public notification is triggered by adverse environmental effects that are “more than minor”. Limited notification is only triggered when the adverse effects on an identifiable person are “not less than minor”. When the evidence, reports and notification decision are considered in light of the different threshold questions the Council applied, the “internal inconsistency” between the analysis and conclusion in the notification report identified by Mr Griggs vanishes.
[42] Second, it is the Council that must make the evaluative assessment of the level of effects, not the applicants’ experts. It does not appear from the relevant traffic reports available to the Council that the experts were purporting to give an opinion on the notification thresholds the Council had to apply. Rather, they provided an overall assessment of the scale of the effects. What that assessment might mean for notification of the consent application itself would be for the Council to determine as the authority holding the statutory power of decision.
The expert traffic reports
[43] The Stantec report concluded that the additional development traffic on the operation of the Kāpiti Road and Cedar Drive intersection (the focus of traffic effects from the development) would at worst result in a change in motorist wait times of between three and six seconds. This led Stantec to conclude:
As shown, the added delays occurring at the intersection as a result of the proposed development Site trips are minor, with changes likely to be imperceptible to existing users on the network.
(emphasis added)
[44] Unsurprisingly, effects that are likely to be imperceptible might well be considered less than minor.
[45]Tonkin+Taylor reached the same view using similar language:
T+T consider the assessment undertaken [by Stantec] sufficient to demonstrate that the increased traffic movements should not result in a noticeable increase in congestion or unreasonable delays for road users.
(emphasis added)
[46] Similarly, the brief of evidence Mr Whittaker supplied to the Hearing Commissioner concluded that “the scale and effects of the added Site traffic will be minor”. This follows immediately after reference to the same table that appears in the Stantec report noting an increase in driver wait times of, at worst, three to six seconds. It is also clear that the witness was directing his comment to the overall scale of environmental effects, not effects on identifiable persons in terms of the limited notification test.12
The notification report and decision
[47] Consideration of the report beyond the narrow passages identified by the applicants also reveals that there is no inconsistency between its evaluation and conclusion, nor any error in the Council’s approach.
12 Beyond this, a fundamental problem with the applicant’s reliance on Mr Whittaker’s evidence is that it came into existence months after the notification decision had been made.
[48] The report was prepared by a principal resource consents planner for consideration by the team leader of resource consents. After a detailed description of the site and subdivision proposal, the 30-page document begins by identifying the relevant statutory provisions relating to both public and limited notification, including effects that must be disregarded in terms of the analysis of effects in accordance with s 95D. It then goes on to provide a detailed assessment of relevant effects, identifying the following matters as requiring consideration:
(a)design and layout effects;
(b)vehicle access and transport effects;
(c)construction effects;
(d)visual, character and amenity effects;
(e)natural hazard effects;
(f)effects relating to the provision of services; and
(g)positive effects.
[49] Under the heading “Vehicle access and transport effects”, the report summarises Stantec and Tonkin+Taylor’s assessments and concludes:
On the basis of the abovementioned expert assessments, I consider that the traffic effects of the proposal will be able to be mitigated provided that conditions on a granted consent address the abovementioned information and will not adversely affect the adjoining properties or have an effect on the efficient and safe functioning of the local roading network that is more than minor.
[50] Given the structure of the report and the language used, the report writer at this point was clearly addressing the public notification threshold, not the limited notification threshold central to the applicants’ challenge to the decision.
[51] The report then goes on to consider whether limited notification might be required. It concludes that visual, character and amenity effects on the owners of
16 dwellings “may potentially be minor”, and that limited notification is therefore required on those affected parties. It is also clear that the report writer did not consider there would be traffic effects reaching the threshold necessary to trigger limited notification on any party. That is consistent with the substance of the findings in the two detailed traffic reports available to the Council.
[52] The position of owners of properties on Regent and Cedar drives opposite the site and on the corner of Halsey Grove and Regent Drive was then considered.13 The report writer concluded that these property owners are not affected by the proposal:
These properties do not directly adjoin the application site and are separated by other adjoining properties or the public road. I consider that the effects of this proposal on these properties are largely similar to what could occur within a public road…
I consider the traffic movements on these properties and the surrounding streets to be less than minor as it would occur over a relatively short period of time. Other construction effects, such as trade vehicle associated with the construction of the units, will be typical of what could be expected for a residential development on a large vacant lot such as this one.
[53] The report then concludes with the decision of the team leader of resource consents that “the above recommendation be adopted”.
[54] For these reasons I am satisfied that the Council gave careful consideration to potential traffic impacts of the proposal, correctly addressed both of the relevant statutory tests, had appropriate regard to the expert evidence, and reached a conclusion that was plainly open to it. Accordingly, the second ground of review must also be dismissed.
Third issue: materiality and relief
The applicants’ case
[55] By way of affirmative defence, the Council pleads that even if the notification decision was made unlawfully, the outcome of that decision and on the resource consent itself would not have been any different.
13 This appears likely to have included at least one of the applicants, Mr Twiss.
[56] In response, Mr Griggs submitted that the applicants had put forward cogent evidence the development could harm indigenous lizards. The evidence came from two environmental scientists, Ms Tidwell and Mr Goldwater. In summary their evidence was to the effect that there was a high likelihood that northern grass skinks could be present on the site, with low and very low likelihoods of at risk indigenous species of gecko and skink being present. Mr Goldwater deposes that in his experience it would be common for a developer in the present case to obtain a “lizard survey” from which conditions might be imposed in relation to the protection and removal of lizards before development took place.
[57] Mr Griggs submits that given the ecological evidence, there is every reason to expect that the outcome of the resource consent application could have been different. Indeed, he pointed to Mr Randal’s apparent acceptance that might have been the case had ecological evidence been called as part of the consenting process. He also argued that the ecological evidence, and the failure of the Council to consider and address the impact of the development on indigenous species, confirmed a breach of natural justice, and that the resource consent decision is flawed and should be set aside.
[58] As to relief and the exercise of the discretion, the applicants argue that the subdivision is being marketed for sale but there is no expectation that the consented development will commence imminently. The breach of natural justice is serious because the withholding of the notification from the applicants was a deliberate decision, and better quality decisions, including in relation to the resource consent in issue, are made through the democratic process of RMA consenting decisions, including giving voice to those who are affected by an activity and have something to say of importance.
Consideration
[59] In relation to the applicants’ evidence relating to possible ecological effects, while it is not pleaded I am not persuaded that a desktop report prepared by Ms Tidwell would be a sound basis on which to consider there had been a reviewable error on the part of the Council in reaching both its notification decision and in granting the
consent.14 As Ms Banks notes in her evidence for the Council, the site comprises a paddock grazed by horses and also contains patches of pine trees, scrub and buildings. It is clearly not a location of any ecological significance and is not identified as such within the Kāpiti Coast District Plan. This was addressed in the assessment of environmental effects prepared by Cuttriss Consultants in support of Gresham’s resource consent application. Indeed, Ms Tidwell concludes her report by recording that much of the site is poor habitat for lizards, and that there is a low or very low chance of any at risk lizards being present. Northern grass skinks may be present in the pampas patches and bracken fern, in her assessment, but are a common non-threatened species.
[60] Mr Goldwater generally agrees with Ms Tidwell’s assessment. He concluded that the site is “of generally low ecological value, particularly in relation to the current vegetation values”.
[61] I am certainly not persuaded that the ecological evidence provides any basis to conclude that the outcome of the resource consent application would have been materially different in terms of the applicant’s interests. They oppose the transformation of a greenspace into an urban development, not the absence of consent conditions on the development protecting indigenous lizards. For these reasons, even if I had been satisfied that there was some error on the Council’s part in relation to the first and second grounds of review, I would not have granted the relief sought.
Conclusion and result
[62] The application for judicial review is dismissed. The respondents have been successful and are entitled to one measure of costs calculated on a 2B basis together with disbursements as fixed by the registrar. I would encourage the respondents to resolve any question of apportionment between themselves.
14 The report’s stated methodology was to search the Department of Conservation’s Bioweb Herpetofauna Database for all verified records of indigenous herpetofauna within 10 kms of Kāpiti Island (excluding the island itself, which is a predator-free sanctuary not representative of the mainland). A “site visit” was also conducted by which the property was viewed through binoculars from adjacent public roads. The report concludes that while there are no records of lizards at the property, five indigenous species are present within a 10 km radius of it.
Isac J
Solicitors:
The Law Connection, Raumati Beach for Applicants Buddle Findlay, Wellington for First Respondent Morrison Kent, Wellington for Second Respondent
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