Point Chevalier Social Enterprise Trust v Auckland Council
[2023] NZHC 1926
•21 July 2023
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2023-404-000274
[2023] NZHC 1926
UNDER the Judicial Review Procedure Act 2016 IN THE MATTER
of an application for Judicial Review
BETWEEN
POINT CHEVALIER SOCIAL ENTERPRISE TRUST
Applicant
AND
AUCKLAND COUNCIL
First Respondent
MARUTŪĀHU RŌPŪ/WAIOHUA- TĀMAKI RŌPŪ
Second Respondent
ATTORNEY-GENERAL on behalf of the Crown
Third Respondent
Hearing: 10 July 2023 Appearances:
S J Ryan for Applicant
S Quinn for First Respondent
P F Majurey and L Ford for Second Respondent E N C Lay for Third Respondent
Judgment:
21 July 2023
JUDGMENT OF VENNING J
This judgment was delivered by me on 21 July 2023 at 3.00 pm, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date……………
POINT CHEVALIER SOCIAL ENTERPRISE TRUST v AUCKLAND COUNCIL [2023] NZHC 1926 [21 July 2023]
Introduction
[1] Point Chevalier Social Enterprise Trust (Trust) challenges the decision of Auckland Council (Council) to process applications by Marutūāhu Rōpū and Waiohua-Tāmaki Rōpū, (Rōpū) on a non-notified basis. It also challenges the Council’s decision to grant the substantive resource consents.
Site
[2] The consents relate to a site popularly known as Carrington Hospital. The site includes the former Oakley Hospital Main Building (the Main Building). It also includes the Mason Clinic, other buildings and an internal road network. The Main Building was constructed in stages between 1864 and 1905. It is noted as a Category A Historic Heritage Place, in the Auckland Unitary Plan (operative in Part) (AUP). It is also listed as a Category 1 Historic Place by Heritage New Zealand Pouhere Taonga (HNZPT).
Parties
[3] The Trust is a registered charitable Trust. As described by its Chairman, Christopher Casey, it acts as a social activator for local projects and opportunities in and adjacent to the Point Chevalier community. It has a particular interest in adaptive re-use of the Main Building.
[4] The Council is the relevant unitary authority established under the Local Government (Auckland Council) Act 2009 responsible for considering and processing resource consents under the Resource Management Act 1991 (RMA) and in accordance with relevant plans including the AUP.
[5] The Rōpū represent 10 of the 13 iwi and hapū who are the rights holders under the Ngā Mana Whenua o Tāmaki Makaurau Collective Redress Deed 2012 (Deed) and the Ngā Mana Whenua o Tāmaki Makaurau Collective Redress Act 2014.
[6] The Attorney-General is sued as third respondent. The Crown through the Ministry of Housing and Urban Development (MHUD) is the land holder of the underlying land to which the consents in issue relate.
[7] The Rōpū have been progressing the development opportunity of the Carrington Hospital site with the MHUD since 2018. The vision for the Rōpū’s development of the overall site is:
“He hononga tika ki te hangai ngā hapori toitū me he tāone taioreore ma inga auahatanga me ngā ahurea taukiri o te hapori
A true partnership to establish inclusive, sustainable communities and world class city building through vibrant and innovative place-making.”
Background
[8] On 11 September 2021, the Rōpū, by their planning consultants, applied to the Council for land use and subdivision consents (together the Carrington Backbone Consents), relating to the proposed development of the Carrington Hospital site. The land use consent applied for was:
To construct four public roads, street landscaping, an urban open space, and install new and modify existing infrastructure requiring earthworks, partial demolition of an historic heritage building and tree removals.
The subdivision consent applied for was:
To undertake a subdivision around an approved land use consent for public roads to enable vesting of the roads with Auckland Council.
[9] The proposal had previously been discussed at a meeting of interested parties, including the Trust. The Albert-Eden Local Board was advised of the application on 17 September 2021 and requested the applications be publicly notified.
[10] The applications were also referred to HNZPT which, on 25 March 2022, advised that it supported the proposal, including the partial demolition of the Main Building.
[11] On 25 May 2022, Christopher Casey wrote on behalf of the Trust to the Council. He submitted that the community were deeply affected by the proposed application. Mr Casey also confirmed the Trust considered the proposal should be publicly notified.
[12] On 9 June 2022, Tracey Grant, acting under delegated authority from the Council, accepted the recommendation of Jennifer Valentine, consultant planner, that the applications for land use and subdivision consent be processed on a non-notified basis.
[13] On 29 June 2022, Ms Grant, again acting under delegated authority, granted the Carrington Backbone Consents for the land use and subdivision.
[14] The consents permit the partial demolition (approximately seven per cent) of two sections at the rear of the Main Building and the construction of infrastructure on the subject land, including the construction of an access road, known as the Gate 1 Road.
[15] On 12 September 2022, after learning of the non-notified grant of the consent, Mr Casey wrote on behalf of the Trust to the Rōpū’s solicitor. Mr Casey advised of community pushback regarding the partial demolition of Carrington Hospital’s south- east wings and advised that a peer review of the consent and plans had concluded that a road design that retained all of the Main Building and gave a full development footprint could be a simple and economic option. The Trust also spoke to senior Māori leaders and lobbied local and national politicians.
[16] On 1 November 2022, the Rōpū entered a construction contract to carry out the development works. The Gate 1 Road works commenced immediately and were due for completion in July 2023.
[17] On 8 February 2023, the Trust commenced these judicial review proceedings and sought interim orders preventing the demolition of the rear wings of the Main Building.
[18] Interim orders were not required as the parties reached an accommodation. The Rōpū agreed that, pending the outcome of these proceedings, the demolition work would not be carried out.
[19] The Trust then sought to join the Head Contractor, Ockham Group Limited (Ockham) and the expert consenting panel. In October 2022 a partnership between Ockham and the first-named second respondent had applied for further resource consents (RC1 and RC2) to undertake development work south of the land the subject of the Carrington Backbone Consents. The application for RC2 was for a mixed-use housing development comprising 266 residential apartments and six small retail premises on land immediately adjacent to the Gate 1 Road. Access to the development will be from the Gate 1 Road.
[20] In a decision delivered on 17 May 2023 Edwards J declined the Trust’s application to join Ockham and the Expert Consulting Panel.1
The notification decisions
[21] Jennifer Valentine, the planner employed by the Council, had recommended the applications for both the land use and subdivision resource consents proceed on a non-notified basis as she considered, having undertaken the s 95A RMA public notification tests:
·public notification was not mandatory;
·there was no rule or National Environmental Standard (NES) that specifically precluded notification of the activities and the applications were for activities other than those specified in s 95A(5)(b);
·public notification was not required as the applications were for activities that were not subject to a rule that required it, and it was considered that the activities would not have adverse effects that were more than minor; and
·there were no special circumstances requiring public notification.
1 Point Chevalier Social Enterprise Trust v Auckland Council [2023] NZHC 1174.
[22] Similarly, having undertaken the s 95B limited notification tests, Ms Valentine concluded:
·limited notification was not mandatory;
·there was no rule or NES that specifically precluded limited notification of the activities, and the applications were for activities other than that specified in s95B(6)(b);
·limited notification was not required as it was considered that the activities would not result in adversely affected persons; and
·there were no special circumstances that warranted the applications being limited notified to any other persons.
[23] Ms Grant accepted the recommendations in both cases on 9 June 2022 and directed the applications proceed on a non-notified basis.
The substantive decision
[24] In the substantive decision issued on 29 June 2022 in which she granted the land use consent, Ms Grant concluded:
(a)that the actual and potential effects of the proposal would be acceptable having regard to the assessment under ss 104(1)(a) and (ab) of the RMA;
(b)the proposal was consistent with relevant statutory documents insofar as they related to the matters over which discretion was restricted: s 104(1)(b). In particular the proposal was consistent with the National Policy Statement on Urban Development 2020, the National Policy Statement on Freshwater 2020, and the relevant objectives and policies of the AUP;
(c)no other matters were relevant under s 104(1)(c);
(d)a seven-year lapse period for the consent was appropriate due to the scale of the works and the need to cater for existing activities on the site as well as the timing of future development;
(e)in the context of the proposals for a discretionary activity land use consent, where the objectives and policies of the relevant statutory documents were prepared having regard to Part 2 of the RMA, they captured all relevant planning considerations and contained a coherent set of policies designed to achieve clear environmental outcomes. They also provided a clear framework for assessing all relevant potential effects and there was no need to go beyond those provisions and look to Part 2 of the RMA;
(f)overall, the proposal would have actual and potential effects that were acceptable, and it was consistent with the objectives and policies of the AUP. It was also consistent with Part 2 of the RMA.
[25]For those reasons the Land Use Consent was granted subject to conditions.
[26] In relation to the substantive decision issued on 29 June 2022 in which she granted the subdivision consent, Ms Grant concluded:
(a)in accordance with an assessment under ss 104(1)(a) and (ab) of the RMA, the actual and potential effects from the proposal would be acceptable;
(b)in accordance with an assessment under s 104(1)(b) of the RMA the proposal was consistent with the relevant statutory documents. In particular it was consistent with the objectives and policies of the relevant chapters of the AUP;
(c)in accordance with an assessment under s 104(1)(c) of the RMA no other matters were considered relevant;
(d)in terms of s 106 of the RMA the proposal was not considered to give rise to significant risk from natural hazards as the works had been designed to accommodate, and not exacerbate the existing flood plains on the site, nor would the works result in instability. Sufficient provision had been made for legal and physical access to the existing and newly created allotments due to the new roads vesting in the Council;
(e)in the context of the discretionary activity subdivision, the relevant statutory documents were prepared in regard to Part 2 of the RMA and captured all relevant planning considerations and contained a coherent set of policies designed to achieve clear environmental outcomes. They also provided a clear framework for assessing all relevant potential effects so there was no need to go beyond them and look to Part 2 of the RMA as that would not add anything to the evaluative exercise;
(f)overall, the proposal would have actual and potential effects that were acceptable, and it was consistent with the objectives and policies of the AUP. For the same reasons the proposal was also generally consistent with Part 2 of the RMA.
[27]For those reasons the subdivision consent was granted subject to conditions.
The Trust’s claim
[28] In its amended statement of claim filed on 7 June 2023 the Trust says the notification and substantive decisions were flawed in a number of respects (discussed in more detail below).
Relief
[29] The Trust seeks declarations that the notification and limited notification decisions are invalid. It then seeks orders quashing or severing the conditions of the substantive decisions which authorised the partial demolition and construction of the Gate 1 Road together with related orders. The Trust also seeks an order directing the
Council to reconsider whether the applications should be publicly or limited notified, and injunctive orders.
[30] In relation to the Attorney-General the Trust seeks a declaration of inconsistency.
Evidence
[31] The Trust’s case is supported by four affidavits from Christopher Casey, (although two of the affidavits relate more directly to the unsuccessful attempt to join Ockham). It is also supported by the affidavit evidence of Pamela Dziwulska, a heritage architect; Graeme Burgess, an architect; Martin Peake, a traffic engineer; and David Wren, a planner.
[32] The Council support the decisions and have filed affidavits by Jennifer Valentine, the planner; and Rebecca Fox, the Council’s heritage specialist, both of whom prepared reports which were relied on by Ms Grant when she exercised the delegated authority of the Council. The Rōpū also support the decisions and have filed affidavits by Daniel Harris, an engineer; and Ross Cooper, a planner. The Attorney-General has filed an affidavit by Hannah McGregor, a policy advisor.
The issues in this case
[33] The principal issue in this case is whether the Council erred in law in relation to its notification and substantive decisions.
[34] Counsel have filed the following agreed list which identify the errors alleged by the Trust:
a) Whether the adverse effects in relation to land use consent and subdivision consent overlapped as regards the Gate 1 Road, such that such adverse effects ought to have been assessed together for the purposes of the notification decisions. [Error 1].
b) Whether the respondent Council undertook an impermissible balancing exercise by taking into account positive effects, in its decisions to grant consent on a non-notified basis. [Error 2].
c) Whether the first respondent, in its decisions to grant consent on a non- notified basis, took into account factors which were ‘offsets’ and not ‘mitigation’. [Error 3].
d) Whether the report of the Team Leader – Built Heritage Implementation [was] contained errors that materially contributed to any error in the notification decision. [Error 4].
e) Whether the respondent Council had adequate information in making the decisions to grant resource consent on a non-notified basis. [Error 5].
f) Whether the respondent Council discounted adverse effects on the applicant and other persons on the basis that “qualified heritage bodies” had approved of the proposal and whether this amounts to an error of law in the Council’s limited notification decision. [Error 6].
g) Whether the respondent Council’s decision meets the threshold for irrationality/unreasonableness. [Error 7].
h) Whether special circumstances existed, for the purposes of public or limited notification. [Error 8].
i) If the notification decisions (public or limited notification) were made in error of law, whether the substantive decisions granting resource consent were also made in error of law.
j) If the answer to any of the above is in the affirmative, whether the Court should exercise its discretion in granting the relief sought, including relief that is declaratory or injunctive, or any other consequential relief.
k) Costs.
The approach to judicial review
[35] In Pring v Wanganui District Council the Court of Appeal confirmed the correct approach to an application for judicial review of a consent authority’s decision:2
… It is well established that in judicial review 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 material 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 have been some material capable of supporting the decision.
2 Pring v Wanganui District Council [1999] NZRMA 519 (CA) at [7].
[36] Further, in the context of a notification decision, the Court of Appeal recently restated the position in O’Keefe v New Plymouth District Council when it approved the approach of Whata J in Ennor v Auckland Council:3
[30] After setting out the background to the proceedings, the Judge referred to a number of recent authorities on the general approach of the Court to judicial review of decisions of this kind, including the recent decision of Whata J in Ennor v Auckland Council:
[30] It is necessary to reiterate that judicial review is not an opportunity to revisit the merits of a decision made by the Council to proceed on a non-notified basis or to grant a consent. As Harrison J stated in Auckland Regional Council:
The High Court does not exercise an appellate function on review. It is the decision-making process followed by the consent authority and its lawfulness, not the decision itself which is under consideration.
[31] Thus, an applicant on review must identify an error of law, failure to have regard to a relevant consideration, regard to an irrelevancy or procedural unfairness. I agree, however, with [counsel for the applicant] that there must be adequate information upon which to make those decisions. That is a basic requirement of reasonable and procedurally fair decision making.
Was the decision to consider the land use and subdivision consents separately an error? (Error 1)
[37] The Trust argue that the reporting planner (Ms Valentine) erred in concluding that the effects of the two resource consent types (the land use consent and subdivision consent) did not overlap and therefore proceeded to consider them separately for notification under s 95 and decision-making under s 104.
[38] Mr Ryan submitted that the consents did overlap, and where there is an overlap between consent activities the applications should be considered as a whole: Bayley v Manukau City Council.4 If the effects are not distinct, the proposal should be considered in the round. The RMA required an integrated assessment of the subdivision application.5 The subdivision and land use effects “spatially” overlapped
3 O’Keeffe v New Plymouth District Council [2021] NZCA 55, citing Ennor v Auckland Council [2018] NZHC 2598, [2019] NZRMA 150, which cited Auckland Regional Council v Rodney District Council HC Auckland CIV-2007-404-3464, 24 August 2007 at [44] (footnotes omitted).
4 Bayley v Manukau City Council [1999] 1 NZLR 568 at 580. See also Urban Auckland v Auckland Council [2015] NZHC 1382.
5 AUP (RPS) B5.2.1 and E38.3(4).
the Gate 1 Road. The subdivision was a discretionary activity which confirmed the placement of the road and required the demolition of the two wings of the Main Building.
[39]The proposition Mr Ryan relies on is stated in Bayley v Manukau City Council
the Court of Appeal as follows:6
The effects to be considered in relation to each application may be quite distinct. But it is more likely that the matters requiring consideration under multiple land use consent applications in respect of the same development will overlap. The consent authority should direct its mind to this question and, where there is overlap, should decline to dispense with notification of one application unless it is appropriate to do so with all of them. To do otherwise would be for the authority to fail to look at a proposal in the round, considering at the one time all the matters which it ought to consider, and instead to split it artificially into pieces.
In that case, the Council had failed to consider whether the consequential effects of permitting the use of yards in a non-complying way may have impacted the other consents applied for. In Urban Auckland, a condition that may have been imposed as to length of any wharf extension would have had an impact on other consents for stormwater discharge.7 The applications overlapped and should have been bundled together for notification and consent purposes.
[40] The position is, however, quite different in the present case. The principal effect in issue is the demolition of part of the two south-east wings at the rear of the Main Building to allow construction of the Gate 1 Road. The land use consent application directly identified that effect (the demolition of an historic heritage building) and addressed it. The application was supported by a Heritage Impact Assessment (HIA) report by Dave Pearson Architects and also by an Assessment of Environmental Effects (AEE) by Tattico Limited. In addition, Ms Fox provided a report for the purposes of the consent applications.
[41] As the effect of the demolition and construction of the four roads (including Gate 1 Road) was assessed in the application for the land use consent, and the subdivision simply gave effect by vesting the road in the Council, the rationale for a
6 Bayley v Manukau City Council, above n 4, at 580.
7 Urban Auckland v Auckland Council, above n 4.
holistic assessment was not present in this case. There was no requirement to assess both applications together.
[42] After identifying the relevant parts of the AUP applicable to both applications, Ms Valentine correctly noted:
In this instance, the applicant has proposed subdivision as a result of the proposed land use component. The land use needs to be granted and given effect to for the subdivision to be able to proceed.
The effects of the two resource consent types do not overlap. The land use consent could be given effect to without a subsequent subdivision. While the subdivision as applied for is reliant on the land use consent being granted, it is not a pre-requisite to apply for the two consents concurrently, and they could be applied for and considered separately.
[43] In any event, in this case, the outcome would have been the same if both applications had been considered together. The relevant effects were considered and addressed in full in the course of the consideration of the land use consent, having regard to the reports before the Council.
[44]As Ms Valentine noted in her affidavit:8
In regard to the separate notification assessments for the subdivision aspect of the application, as set out in the relevant sections 95A and 95B assessments I did not consider the act of subdivision resulted in more than minor adverse effects on heritage values. The road which the subdivision line would follow was accepted under the earlier assessed land use consent, and the demolition works to the building were also assessed under that land use consent. In my opinion I did not consider the subdivision itself had any specific effects on the heritage values of the building or any person.
[45] The decision to consider the land use and subdivision consents separately was not an error.
Was an impermissible balancing exercise carried out? (Error 2)
[46] Mr Ryan submitted that the decision maker had impermissibly balanced “good” and “bad” effects at the notification stage. He noted, for example, that Ms Valentine’s notification report expressly cited Ms Fox’s report and the following considerations:
8 At para 51 of Ms Valentine’s affidavit.
•the works subject of the overall application will enable a significant quantum of development that could not be achieved with the retention of these parts of the building;
•the new development will provide funding for the seismic upgrading and restoration of the building contributing to its ongoing survival; …
[47] Mr Ryan submitted that, while it would have been open for Ms Valentine to expressly exclude the positive effects identified by Ms Fox from the notification assessment, he submitted there was nothing to suggest that had occurred. Further, the error had been repeated in the subdivision assessment. Mr Ryan submitted that, as a result, an impermissible balancing exercise in contravention of Bayley v Manukau City Council, had been carried out.9
[48]In Bayley the Court of Appeal had said on this point:10
In this connection it is worth adding the comment that whilst a balancing exercise of good and bad effects is entirely appropriate when a consent authority comes to make its substantive decision, it is not to be undertaken when non-notification is being considered, save to the extent that the possibility of an adverse effect can be excluded because the presence of some countervailing factor eliminates any such concern, for example, extra noise being nullified by additional sound proofing.
[49]More recently, in Norman v Tūpuna Maunga o Tāmaki Makaurau Authority
the Court of Appeal developed the point in the following way:11
[252] … it would be wrong to proceed on the basis that in making the necessary assessment it is appropriate to consider only those aspects of the application that may be thought adverse in environmental terms, and leave out of account those which may be said to be positive in a relevant way. That is inherent in the Court’s reference in Bayley to countervailing factors. The example given was to noise generated but excluded by soundproofing. In the present case, the key countervailing consideration to the tree removal is the replacement planting inherent in the application, and for which resource consent was sought. There is a direct and sufficient linkage between the two that would make it artificial to leave the planting out of account in assessing whether the adverse effects on the environment would be more than minor. We do not think it matters that the proposed planting would not be in precisely the same location on the maunga as the trees to be removed and would consist of different kinds of plants.
[253] Putting this conclusion more simply, the statutory task under s 95A(8) of the RMA is to assess the adverse effects on the environment of
9 Bayley v Manukau City Council, above n 4.
10 At 580.
11 Norman v Tūpuna Maunga o Tāmaki Makaurau Authority [2022] NZCA 50.
implementing the consent. That cannot be done by ignoring some aspects of the proposal which will be highly relevant to the nature and quality of the adverse effects thought to arise. As Mr McNamara puts it, the contrary approach would ignore the reality of what the actual adverse effects of the activity would be.
[50] As a preliminary point, I note that Mr Ryan’s submission is based on Ms Valentine’s reliance on Ms Fox’s report. Two points arise. First, it is important to set out Ms Valentine’s report on this aspect in full. Ms Valentine said, referring to Ms Fox’s report:
[Ms Fox] considers that while the loss of historic fabric is not ideal the heritage values of the former hospital are maintained. In particular:
•the distinctive E-shaped plan and the Category A heritage values of the building will still be legible and appreciated;
•the works subject of the overall application will enable a significant quantum of development that could not be achieved with the retention of these parts of the building;
•the new development will provide funding for the seismic upgrading and restoration of the building contributing to its ongoing survival; and
•the mitigation proposed with the covenanting of the former pumphouse, the landscaping, as well as photographic recording, careful construction management and oversight by a qualified heritage specialist are considered appropriate and lessen the impact to an acceptable level.
[51] It is apparent from the above, that Ms Valentine expressly identified the relevant mitigation proposed as:
… the covenanting of the former pumphouse, the landscaping, as well as photographic recording, careful construction management and oversight by a qualified heritage specialist are considered appropriate and lessen the impact to an acceptable level.
[52] It was appropriate to consider those as matters of mitigation, (subject to the discussion below) and such an approach did not involve impermissible balancing as the concept was discussed in Bayley. The two matters referred to by Mr Ryan were not relied on as mitigation measures by Ms Valentine.
[53] Second, in her affidavit for this proceeding Ms Fox confirmed that she did not take into account the future development or seismic strengthening as mitigation measures:
35The mitigation package offered by the applicant was a key part of my assessment. Given that not all the adverse heritage effects could be entirely avoided, it was important that they are mitigated to the greatest degree possible. In this case, key mitigation measures that lessen the impact to an acceptable level include:
35.1Protection of the unscheduled Pump House, another important piece of the former hospital campus landscape, via restrictive covenant.
35.2Landscaping enhancement works at north end of building, within the extent of place, that would improve the setting of the building.
35.3Oversight of the works by a qualified heritage specialist to follow good conservation practice.
35.4Photographic recording to follow good conservation practice. Recording creates a permanent record of the building, and is an opportunity to gather information and preserve knowledge for the future.
35.5Careful construction management to avoid damage during the works.
[54]There was no impermissible balancing exercise.
Did the Council err by taking into account factors which were offsets as opposed to mitigation? (Error 3)
[55] Mr Ryan next submitted that the conditions imposing a covenant for the protection of the pumphouse and relandscaping of the area in the front of the Main Building were not mitigating factors, but rather were offsets providing new positive effects which cannot, in accordance with Bayley, be properly considered as mitigation.
[56] There is an element of confusion in the Trust’s approach to this issue. Although in his written submissions Mr Ryan referred to the error in the conditions as imposed on the substantive consents, in the statement of agreed issues the error is addressed in relation to the notification decision. In the event, not much may turn on that, as while they were formalised as conditions to the land use consent as granted, they were, as noted, also identified as mitigating factors in the notification decision. In Bayley, the
example given of additional sound proofing would also have lent itself to being added as a condition of the substantive consent.12
[57] On the substantive point, Mr Ryan submitted that the proposed conditions did not relate to the Main Building itself but rather were aimed at heritage values elsewhere on the general site. He referred to the decision of Royal Forest and Bird Protection Society of New Zealand Inc v Buller District Council,13 and submitted in that case Fogarty J had accepted the adverse effect of destroying the habitat of an important species of snail was not mitigated by enhancing the habitat of snails elsewhere in the environment.14
[58] Mr Ryan noted that the pumphouse, while generally located on the development site, was 470 metres away from the Main Building, and does not form part of the historic heritage feature extent of place. The covenant effectively offered a new positive effect as opposed to mitigation. Further, the landscaping condition related more to amenity values, which was a separate and discrete consideration under s 7(c) RMA, rather than mitigating historic heritage values protected by s 6(f) RMA. Accordingly, Mr Ryan submitted the conditions and the positive effects of them could not be considered by the Council. By taking them into account the decision maker had fallen into error.
[59] However, I agree with Mr Quinn’s submission for the Council (supported by Mr Majurey for the Rōpū) that the loss of heritage value from the demolition of parts of the rear of the Main Building is to the environment of the site, not solely to the building and restricted place. The restoration and reuse of the pumphouse provides benefit to the heritage values to that same environment. As Mr Majurey pointed out, the HIA and AEE reports establish that the pumphouse was a functional part of the historic Oakley lunatic asylum and demonstrate an element of the former workings of the precinct in its institutional context. As such, it is connected to the historic nature of the Main Building in an overall heritage context and will contribute to an understanding of the heritage values of the place. The retention and preservation of
12 Bayley v Manukau City Council, above n 4.
13 Royal Forest and Bird Protection Society of New Zealand Inc v Buller District Council [2013] NZHC 1346.
14 At [72].
the pumphouse by means of the covenant is properly regarded as mitigation of loss of the heritage fabric and values of the hospital precinct affected by the demolition.
[60] Mr Quinn accepted the landscaping may be less linked to the heritage loss and its benefit is more likely to be tied to the amenity value as was acknowledged in the HIA. However, notwithstanding that, again there is some force in his submission for the Council that incorporating remaining vestiges of earlier landscaping features into the redevelopment, particularly to the feature of the front of the Main Building will enhance the heritage status of the existing building.
[61] But in any event, even if the landscaping issue was put to one side, and it is not to be regarded as a mitigating factor, when the applications are considered in the context of all of the relevant information before the decision makers, it cannot be said that it would have made any difference to either the notification or substantive decisions if the proposed landscaping was excluded from consideration as a mitigating feature. Even absent whatever positive effects the landscaping may provide, both decisions were readily available to a reasonable decision maker on the basis of the information before it.
What is the effect of Ms Fox’s error (Error 4)?
[62] Mr Ryan submitted that in her report, Ms Fox fell into error. Ms Fox assessed the applications as being restricted discretionary activities, whereas both land use and subdivision consents were discretionary activities. Further, by accepting loss of the wings of the Main Building was necessary (to accommodate the new road) and that adverse effects could not be avoided, Ms Fox was wrong in law as the subdivision was fully discretionary under D17.4.1 (A17) of the AUP.
[63] Mr Ryan is correct, in that Ms Fox did incorrectly refer to the applications as restrictive discretionary activities. The reason for her mistake may be that given the demolition was less than 30 per cent of the Main Building, under the AUP, D17.4.1 (A9) the modification work (demolition) itself was a restricted discretionary activity.
[64] However, the short point is that nothing turns on the error(s) by Ms Fox, because both Ms Valentine, and Ms Grant as the ultimate decision maker, correctly
identified that the applications for the land use and subdivision consents were to be treated as applications for discretionary activities. While they referred to Ms Fox’s (and other specialist) assessments when considering the effects on the built heritage, they did not adopt her classification of the applications as restricted discretionary. Further, Ms Fox would have been aware that even as a restricted discretionary activity it would have been possible for consent to have been declined.
[65] The Trust fails to establish any materiality in relation to the error or errors in Ms Fox’s report. As noted, the decision maker did not adopt the error. There were no other relevant “errors” in the Council’s approach. The other “errors” which the Trust seek to rely on are a repetition of points dealt with elsewhere and separately identified as errors, (such as error 2, for example).
Did the Council have adequate information? (Error 5)
[66] The Trust says the Council did not have sufficient or adequate information before it to make the decisions in deciding the application. Specifically, it failed to obtain information on alternative road layouts that could go around the Main Building. There was no evidence that the Council had considered an alternative road alignment.
[67] Mr Ryan made the point that at the pre-application meeting there had been a discussion of alternative road alignments and the need to consider why they were not suitable. Mr Peake had provided an alternative road layout. Further, in his evidence Mr Wren had referred to and identified planning provisions in AUP D17, which required consideration of the functional need and practical alternatives.
[68] The test for the extent of information required at the notification stage was confirmed in Norman as:15
[261] … Discount Brands remained good law as to the requirement that a consent authority must be in possession of sufficient information at the notification stage to decide the issue of whether the adverse effects of a proposal will be more than minor. We consider any different approach in this case would be very difficult to sustain.
15 Norman v Tūpuna Maunga o Tāmaki Makaurau Authority, above n 11.
[69] The focus is on the information regarding the adverse effects of the proposal under consideration, rather than alternatives.
[70] Mr Wren referred to a number of policies criteria under AUP D17 which he identified as relevant to the potential effects of the subdivision. Chapter D17 applies to scheduled historic places such as the Main Building. Policy D17.3(23) requires “any adverse effects on [heritage values] are avoided to the greatest extent possible.” As noted above, the principal effect in the present case is the demolition of approximately seven per cent of the Main Building. The main architectural features are retained. Further, the effects are as a consequence of the land use consent rather than the subdivision itself.
[71] Mr Wren also refers to D17.3(25) and D17.3(26). D17.3(25) requires a functional need for the network utility (which includes a road), and that significant adverse effects are avoided, and other adverse effects are avoided, remedied or mitigated. While the notice was not expressly referred to in the decision, the proposed subdivision (and for that matter the land consent) meet those criteria. D17.3(26) is premised on the relocation, total or substantial demolition of features which is not the situation in the present case.
[72] I note that the Council had regard to the Policies under D17 generally, and concluded:
The proposed demolition being of the rear later part of the building, ensures the legibility of the historic place is retained and the heritage values are not lost and does not involve loss of the primary features of the building. Overall, despite the partial demolition, the proposal is considered to be appropriate development of this historic heritage place.
[73]Later, in the subdivision consent, the Council noted:
The proposed subdivision will not result in any additional or changed effects beyond that addressed as part of the approved land use consent.
[74] Further, in my judgment, reviewing the information before the Council, it had sufficient information to decide whether the actual proposals in the land use and subdivision consents would have more than minor adverse effects. There is no requirement on an applicant to provide alternatives. In that regard, the requirements
of s 104 RMA can be contrasted with the requirements of s 171(1)(b) of the RMA, which expressly requires particular regard to whether adequate consideration has been given to alternative sites, routes or methods of undertaking work.
[75] The Council’s task was to decide the application before it. If the adverse effects identified required notification, then that was the appropriate decision. However, it was not for the Council to consider alternative proposals as part of that exercise.
Did the Council wrongly rely on the approval of HNZPT? (Error 6)
[76] The Trust says the limited notification decisions were in error because they considered that acceptance by the qualified heritage bodies (such as HNZPT and the Council Heritage Team (Ms Fox)) discounted the possibility that there were other affected persons.
[77] Mr Ryan noted that in the limited notification report Ms Valentine had accepted as an additional point that:
As … both the Council Heritage Team and NZHPT, the qualified heritage bodies, are accepting of the extent of works proposed. Therefore while other persons may consider themselves affected by the proposal I do not consider there are adverse effects due to the overall small scale of the demolition works and the acceptance by the qualified heritage bodies regarding the works.
[78] Mr Ryan noted that, while HNZPT has an advocacy role, it is required by statute to recognise the interests of land owners.16 He submitted that the approach by Ms Valentine negated the possibility of any interested person obtaining independent qualified opinion as, for example, from Mr Burgess and Ms Dziwulska and Mr Peake in this case.
[79] A number of points can be made in response. The starting point is the statutory framework. Section 95E(1) confirms that:
… 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 not less than minor).
16 Heritage New Zealand Pouhere Taonga Act 2014, s 13(1)(c) and s 13(2).
[80] In the present case the AEE report suggested HNZPT was an affected person, but no other person was. In its decision the Council accepted that and confirmed that, while it recognised other persons such as the Trust were interested in the potential demolition of the building:
… the works are only a small part of the building and the newer portions of that building. … In addition, as addressed above both the Council Heritage Team and NZHPT, the qualified heritage bodies, are accepting of the extent of works proposed. Therefore while other persons may consider themselves affected by the proposal I do not consider there are adverse effects due to the overall small scale of the demolition works and the acceptance by the qualified heritage bodies regarding the works.
[81] As Mr Quinn submitted, the position is more nuanced than suggested by the applicant. The decision not to require limited notification to parties (including the Trust) was because there were no adverse environmental effects on the Trust or any other person. The opinion of the qualified person, NZHPT was relevant to that assessment of adverse effects. The decision maker was entitled to take comfort from the approval to the works by the appropriate body with a statutory role to consider the built heritage and archaeological interests. That is quite different to determining the limited notification was not required because only “qualified bodies” could be affected.
Was the decision irrational/unreasonable? (Error 7)
[82] The Trust next says the decision meets the criteria for unreasonableness. Mr Ryan submitted the Council’s notification decisions contained reasoning that was internally inconsistent. He repeated the above argument as an example of unreasonableness (Error 6). He also submitted that the assessment under s 95A took into account the housing supply benefit but when considering the subdivision application for s 95E purposes it deferred the effects of greater road use to consideration when the housing development consents were considered in the future.
[83] Next, Mr Ryan submitted that there were no conditions offered or imposed to support the long-term use and the viability of the Main Building contrary to claims in the notification assessment that the works would “enable a significant quantum of development that could not otherwise be achieved with the retention of those parts of the building”. Nor, indeed, were such conditions imposed in downstream consents.
[84] Finally, Mr Ryan repeated the submission about the need for consideration of alternate road layouts.
[85] There is a high threshold to establish unreasonableness as a ground of judicial review. In Wellington City Council v Woolworths New Zealand Ltd (No 2) the Court of Appeal confirmed where:17
[t]he council weighed all the relevant considerations, did not have regard to irrelevant considerations, consulted adequately, followed all the appropriate statutory procedures and processes, and made its rating determinations in good faith and in what it judged to be the best interests of the city and its ratepayers. For the ultimate decisions to be invalidated as "unreasonable", to repeat expressions used in the cases, they must be so "perverse", "absurd" or "outrageous in [their] defiance of logic" that Parliament could not have contemplated such decisions being made by an elected council.
[86] I agree with Mr Quinn’s submission for the Council that, when analysed, the decision-making does not rely on any conclusion as to enabling the long-term reuse and viability of the Main Building. While there were no conditions explicitly requiring the adaptive reuse of the building, the consent did include a condition the works were to be undertaken in accordance with the requirements of the HNZPT letter of 22 March 2022, which includes:
1. This application will be confined to the demolition of the rear portions of the eastern and southern wings shown on the attached diagram. These demolitions will return the building to the location of the previous external walls as shown on the plans below, sourced by Mr Dave Pearson from the original plans of the building.
2. The Rōpū will appoint a conservation architect, Dave Pearson of Dave Pearson Architects, to undertake the detailed design of the reinstatement of the wall and to provide heritage monitoring of the demolition and reinstatement works.
3. The Rōpū commit to the principle of reinstating the walls as close as possible to the original design, while also achieving necessary access and health and safety etc standards.
4. HUD/the Rōpū will retain a seismic engineer who has experience in the restoration of heritage buildings to form part of the professional team who will assist in identifying the appropriate reinstatement of these walls and the necessary seismic strengthening of this end of the building
17 Wellington City Council v Woolworths New Zealand Ltd (No 2) [1996] 2 NZLR 537 (CA) at 552.
Nothing further was required in relation to these particular consents. It is apparent from the application and the commitment of the Rōpū to the development of the site that it was intended to reuse the building. The Main Building remains a feature of the site and will be an important feature and consideration in the future development of the overall site.
[87] To the extent the argument of internal inconsistency relies on earlier points raised by the Trust, they have been addressed previously.
[88] The decisions were available on the information before the Court. They cannot be said to be irrational or unreasonable.
Did special circumstances exist? (Error 8)
[89] The Trust then says the Council was in error in concluding that special circumstances did not exist.
[90] Mr Ryan submitted the public interest factor and the consideration of the alternatives and adequacy of conditions to secure future long-term viable use should have been apparent. The local board had requested public notification. The applicant Trust had a special and particular interest given it had developed an adaptive reuse proposal for the Main Building for MHUD.
[91]In Mills v Far North District Council the Court confirmed that:18
… The question of special circumstances must require examination of all of the facts and circumstances of each specific case.
[92]In Urban Auckland v Auckland Council this Court noted that:19
Concern on the part of an interested party could not of itself be said to give rise to special circumstances because if that was so every application would have to be advertised where there was any concern expressed by the people claiming to be affected.
18 Mills v Far North District Council [2018] NZHC 2082 at [181].
19 Urban Auckland v Auckland Council, above n 4, at [137].
[93] In that case the public interest generated by the proposal was such that the Court was satisfied there was a:20
broad base of interest in the proposed extensions … outside the common run of interest shown in applications for commercial development.
[94] I accept in the present case that the Trust (whose position was specifically considered but rejected) has an interest in the proposed works. But that is not sufficient to qualify as special circumstances. The public interest in the effect of the development and wharf extension into the Waitemata Harbour was, for example, a clear matter of public interest to a wide body of people. The circumstances surrounding the development at the Carrington Hospital site is quite different. There is nothing exceptional or outside the common run of interest about it. There was no error in the finding that special circumstances did not exist.
Substantive decision
[95] As to the substantive decision, the Trust says in approving the Carrington Backbone Consents the Council erred in:
(a)making the decisions on the basis of non-notifiable applications;
(b)failing to evaluate the applications against the obligation to recognise and provide for the protection of historical heritage from an inappropriate subdivision use and development in accordance with s 6(f), RMA; and
(c)by not having sufficient information.
[96] As a result, the Trust says the substantive decisions were so unreasonable or irrational as to amount to an error of law.
[97] For the reasons given above, the Council was entitled to proceed to consider the applications on a non-notified basis. Further, the Council did appropriately provide for the historical heritage in its consideration of the land and subdivision consents. As
20 At [146].
the Court held in Lambton Quay Properties Nominee Ltd v Wellington City Council, the applicant has no onus to establish alternatives to demolition are “exhaustively and convincingly excluded”.21 Section 6(f) does not require that.
[98]The decisions made were reasonably open to the Council.
Relief
[99] In the circumstances it is unnecessary to directly consider the relief sought as against the Council and the Rōpū.
[100] However, even if I was wrong and there had been an error in one or more of the above ways as pleaded, for the reasons given I consider that any such errors are of such a minor and insignificant nature they would not support the ultimate relief of a direction quashing the decisions.
[101] Further, the Trust has been aware of the proposal for some time. It made its position known, and even though it was aware of the decisions by 12 September 2022, it did not issue the proceedings until 8 February 2023. In the meantime, the Rōpū had committed to the construction contract. While the lawyer initially instructed died, that does not excuse the lengthy period of delay before formally challenging the decision. That also would have counted against the exercise of discretion, if the grounds for relief had otherwise been made out.
The claim against the Crown
[102] The Trust seeks, as against the Attorney-General, a declaration that any construction or development work authorised by the Crown would be inconsistent with the Trust’s right to justice under s 27(1) of the Bill of Rights Act 1990 (NZBORA).
[103] The Trust’s claim against the Attorney-General must fail. While the land is owned by the Crown and administered by the MHUD, there is no basis for a declaration of inconsistency in the present case. There is no inconsistency in relation
21 Lambton Quay Properties Nominee Ltd v Wellington City Council [2014] NZHC 878.
to any relevant legislative provision. Further, the Trust’s separate plans for the adaptive reuse of the Main Building and its challenge to the decisions of the Council are not “rights, obligations and interests protected or recognised by law” that would engage the right to natural justice under s 27(1) of the NZBORA.
[104] A declaration of inconsistency is a remedy available but rarely granted by the Court where the Court considers a statutory provision may be inconsistent with s 5 of the NZBORA.22 The short point in the present case is that there is no legislative provision which can be said to be inconsistent with s 5 of the NZBORA.
[105] The suggestion that s 27(1) of the NZBORA is engaged is misconceived. There has been no determination by the Crown in respect of the Trust’s relevant rights, obligations or interests in this case. At most, the Crown, through MHUD has permitted the Rōpū to apply for consent from the Council to carry out the works in issue.
[106] Finally, as discussed with Mr Ryan, if the Trust had succeeded in its proceeding there would be no need for relief against the Crown. If, on the other hand, as it has, the Trust failed in these proceedings then the principal decisions, namely the decisions of the Council, will have been confirmed as valid.
Result
[107] The application to judicially review the Council’s decisions to non-notify and to grant the land use and subdivision consents is dismissed.
[108]The application for declarations against the Attorney-General is dismissed.
22 Attorney-General v Taylor [2018] NZSC 104.
Costs
[109] The applicant is to pay each of the respondents’ costs calculated on a 2B basis for a half day hearing and all costs associated with the proceedings, together with reasonable disbursements as fixed by the Registrar.
Venning J
Solicitors:DK Law, Auckland DLA Piper, Auckland
Atkins Holm Majurey, Auckland Crown Law, Wellington
Counsel: S J Ryan, Barrister, Auckland
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