Rochdale Precinct Society Incorporated v Christchurch City Council
[2018] NZHC 467
•20 March 2018
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CIV-2017-409-381
[2018] NZHC 467
UNDER the Judicial Review Procedure Act 2016 IN THE MATTER
of an application for review
BETWEEN
ROCHDALE PRECINCT SOCIETY INCORPORATED
Applicant
AND
CHRISTCHURCH CITY COUNCIL
First Respondent
BELL, LAMB & TROTTER (2014) LIMITED
Second Respondent
Hearing: 6 and 7 November 2017
Further submissions: 7 November 2017, 18 December 2017 and
19 January 2018Counsel:
P A Steven QC for Applicant
W J Palmer and C O Carranceja for First Respondent J M Appleyard and J R Cross for Second Respondent
Judgment:
20 March 2018
JUDGMENT OF THOMAS J
Table of contents
Introduction............................................................................................................. [1]
PART 1: BACKGROUND................................................................................... [10]
The Application...................................................................................................... [10]
Notification requirements under the Act............................................................. [24]
Notification Report................................................................................................ [29]
The Notification Decision...................................................................................... [37]
Substantive Report................................................................................................ [55]
ROCHDALE PRECINCT SOCIETY INCORPORATED v CHRISTCHURCH CITY COUNCIL [2018] NZHC 467 [20 March 2018]
Substantive Decision.............................................................................................. [60]
Principles of judicial review................................................................................. [67]
PART 2: NOTIFICATION DECISION.............................................................. [71]
First alleged error.................................................................................................. [72]What does the District Plan say?........................................................................ [77]
Were relevant considerations ignored?............................................................... [89]
Second alleged error.............................................................................................. [93]
Activity classification........................................................................................... [98]
Carparking dimensions..................................................................................... [127]
Other Chapter 7 non-compliances..................................................................... [132]
Did the Commissioner err?............................................................................... [140]
PART 3: SUBSTANTIVE DECISION.............................................................. [145]
Fourth alleged error............................................................................................ [146]
Did the Commissioner incorrectly apply the permitted baseline?.................... [150]
PART 4: DISCRETION...................................................................................... [157]
Result.................................................................................................................... [164]
Introduction
[1] Bell, Lamb & Trotter provides funeral directing services from its main premises on Ferry Road, Christchurch, catering for funerals with up to 350 mourners. The Ferry Road premises were damaged in the Canterbury earthquake sequence in 2010 and 2011. When considering alternative premises from which to provide funeral services, Andrew Bell, director of Bell, Lamb & Trotter, believed there was an opportunity to offer a venue for small scale private funerals from his own home. Such a business would be operated separately from Bell, Lamb & Trotter but not in competition with it. This was a return to the past practice of funerals being held at private residences. Mr Bell purchased a property at 1 Rochdale Street, Christchurch (the Property) and set about obtaining approval from Christchurch City Council (the Council) for use of the Property for the provision of private funeral services. He understood this could take place as a home occupation permitted under the then applicable Christchurch City District Plan.
[2] Mr Bell began operating aspects of the business from the Property and attempted to alleviate local community concerns. In 2016, the relevant part of the replacement Christchurch District Plan (the District Plan) was notified and there were new rules which applied to home occupations. These requirements, in particular the carparking provisions, resulted in the need for Mr Bell to apply for resource consent
pursuant to the Resource Management Act 1991 (the Act). Mr Bell decided to take the opportunity to increase the floor area of his house to be used for the business.
[3] After the Council raised some issues with an application lodged in August 2016, a new application (the Application) in the name of Bell, Lamb & Trotter (2014) Limited (the Company) was submitted to the Council around 22 December 2016. Mr Bell is the sole director and shareholder of the Company. The Property remains owned by Mr Bell.
[4] The Council appointed an independent Commissioner to determine whether the Application should be notified and to consider, determine and, if necessary, hear the Application.
[5] The Commissioner decided on 21 February 2017 (the Notification Decision) that the Application need not be notified and, by decision dated 12 April 2017 (the Substantive Decision), he granted the Application.
[6] Rochdale Precinct Society Incorporated (Rochdale) is an incorporated society comprising members who reside at properties in Rochdale Street, Christchurch. Rochdale members consider they are adversely affected by the Application and seek judicial review of the Notification and Substantive Decisions, alleging the Commissioner made errors in respect of both.
[7] The Council defends the allegation that it misdirected itself by treating the Application as being for a “home occupation” rather than a “commercial service”, the difference being whether the proposed activity was a restricted discretionary activity as opposed to a full discretionary activity. It otherwise abides the decision of the Court.
[8] The Company opposes the judicial review, denying there were any errors and says, in any event, the outcome of the Notification and Substantive Decisions would have been the same regardless of how the activity was classified.
[9] In Part 1 of this decision, I address the background to the case, including the Application, notification requirements under the Act, the Council officers’ reports for the purpose of the Notification and Substantive Decisions, the Decisions themselves and the principles of judicial review. In Part 2, I address the two alleged errors in the Notification Decision and in Part 3, the alleged errors in the Substantive Decision. Part 4 involves a consideration of the exercise of my discretion and result.
PART 1: BACKGROUND
The Application
[10] The Application sought approval for a home occupation to operate funeral home activities at the Property where arrangements, viewings and small services could be held in a tranquil and peaceful environment. The activity was to occupy the ground floor of the house, with no funeral home activities occurring outside of the house except the transportation of caskets to and from the house. Loading and unloading of caskets was to occur when no visitors were present and undertaken behind the security fence so the loading was screened from surrounding properties.
[11] The activity was to be principally managed by the full time equivalent staff member residing at the Property, Mr Bell. If there were to be a change in the staff member, for example for reasons of leave or illness, the Council was to be provided with the contact details of the new staff member managing the activities and residing at the Property. Two staff members were required when caskets were moved to and from the house.
[12]The business proposed to operate on an appointment only basis between
9.00 am and 8.00 pm Monday to Friday, and between 9.00 am and 7.00 pm Saturday to Sunday. In addition to general office and administrative tasks, the activity would include arrangements, being private appointments (with typically one or two people but up to six attendees) to discuss services and logistics, private viewings and services.
[13] The Application proposed a maximum of 26 arrangements per year with a maximum of two per week, lasting no more than two hours. A condition was offered to the effect services were not to be advertised and the maximum number of service
attendees was 10. Viewings, where family and friends spend time with the deceased, were expected to have the same level of attendance, again lasting no more than two hours a time. The deceased was not to be held on the Property overnight. Both arrangements and viewings would generally take place in the living room of the house which is not directly visible from adjoining properties. Services were explained as entailing small private services of no more than 10 people to be held in the living room, again subject to a maximum of 26 per year, with a maximum of two a week.
[14] The Company engaged the services of Abley Transportation Consultants (Abley) to produce a report on traffic matters associated with the activity, which involved:
·Four “carparking spaces”, two in an existing double garage and another two in tandem in front of the garage, utilising the existing vehicle crossing and access to Rochdale Street.
·Of the four carparking spaces, a single carpark within the garage allocated to the staff member residing onsite.
·No formal cycle parking but informal cycle parking accommodated within the garage.
·The area in front of the garage to be used by an unmarked hearse (a station wagon) to load and unload caskets. A plan showed the manoeuvring area which allowed for the gate to the Property to be closed when the hearse was onsite. The hearse was not to remain onsite during a viewing or service so the area would remain available for carparking. The hearse would be required to reverse onto the Property.
[15] The Abley report was included in the Application. It considered the Application required an assessment of two activities on the Property for the purpose of Chapter 7 of the District Plan, which deals with transport matters. The first was the residential component. The second was the funeral home for which Abley assessed “spiritual activity” to be the closest in definition under Chapter 7. It concluded the
Application complied with the carparking rules as no car parks were required for a spiritual activity and one for the residential activity.
[16] The Application was accompanied by an assessment of environmental effects (AEE). The AEE noted the Property was located within the residential suburban zone under the District Plan. Chapter 14 of the District Plan deals with residential matters. The AEE considered the Application was for a restricted discretionary activity, with the Council’s discretion limited to those matters relevant to the breached rules. The activity breached two activity specific standards contained in r 14.2.2.1(P13), what is now r 14.4.1.1(P13), regarding home occupations:1
a.The gross floor area of the building, plus the area used for outdoor storage area, occupied by the home occupation shall be less than 40m2;
…
e.Visitor or staff parking areas shall be outside the road boundary setback.
[17] The Application, having categorised the funeral home activities as a “spiritual activity”, identified the following Chapter 7 non-compliances:2
(a)Rule 7.4.2.2 – Minimum number of cycle parking facilities required;
(b)Rule 7.4.2.2 – Minimum number of loading spaces required; and
(c)Rule 7.4.3.4 – Manoeuvring for parking and loading areas.
[18] As a result of these Chapter 7 non-compliances, the Application was for a restricted discretionary activity under r 7.4.2.3,3 with the Council’s discretion limited to matters relevant to the breached rules.
1 Numbering in the District Plan has changed since the time the Application was made and the various decisions associated with it were taken. The substance of the rules remains the same. Unless otherwise stated, the numbering used in this decision is the numbering in the current District Plan.
2 Originally rr 7.2.3.2, 7.2.3.3, and 7.2.3.4 respectively.
3 Originally r 7.2.2.2.
[19] In addressing notification, the Application said that by rr 14.4.1.3(RD30(b)) and 7.4.3.4(c),4 any application arising from non-compliance with these requirements (relating to home occupation and manoeuvring areas respectively) would not require written approval and was not to be subject to public or limited notification pursuant to ss 95A and 95B of the Act (described in the District Plan as “publicly or limited notified”).
[20] The Application identified non-compliances with two rules where notification was not prohibited, saying:
4.25 To this end, it is considered that any affected parties to the application will be restricted to those adverse effects (if any) arising from the cycle parking and loading areas under Rule 7.2.3.2 [now r 7.4.2.2] and Rule 7.2.3.3 [now r 7.4.2.2] of the RCDP respectively.
[21] Before the Application was lodged on 22 December 2016, the Council obtained a legal opinion on whether the proposed activity fell within the definition of “home occupation” or whether it ought to be treated as a “commercial activity” to be undertaken on a residential property, thus triggering (full) discretionary activity status.
[22] After the Application was lodged, and before the Notification Decision, by its lawyers’ letter of 10 February 2017, the Company submitted an amended proposed condition to say:
The funeral home activities undertaken from the site shall only take place when a full time equivalent staff member Mr Andrew Bell is living on the site as his primary place of residence, and the funeral home activities on site shall be principally managed by that staff member. The name and contact details of the staff member residing at the site shall be provided to Council on an annual basis, or when there is any change in the staff member residing at the site.
[23] Members of Rochdale wrote to the Council claiming an interest in the Application for notification purposes, saying they would be adversely affected by the Proposal on grounds including:
·adverse effects on their residential character and amenity;
4 Originally rr 14.2.2.3 and 7.2.3.4 respectively.
·cultural sensitivity to the nature of the activity by some residents, including residents adjacent to the Property; and
·a range of transportation effects, including safety, lack of onsite parking, and undue demand for street parking.
Notification requirements under the Act
[24] Notification is governed by ss 95A–95D of the Act. These provisions have recently been amended but this decision deals with the provisions in force at the time of the Notification Decision, 21 February 2017. Section 95A governed when public notification was required and relevantly provided:
95A Public notification of consent application at consent authority’s discretion
(1)A consent authority may, in its discretion, decide whether to publicly notify an application for a resource consent for an activity.
(2)Despite subsection (1), a consent authority must publicly notify the application if—
(a)it decides (under section 95D) that the activity will have or is likely to have adverse effects on the environment that are more than minor; …
(3)Despite subsections (1) and (2)(a), a consent authority must not publicly notify the application if—
(a)a rule or national environmental standard precludes public notification of the application; …
(4)Despite subsection (3), a consent authority may publicly notify an application if it decides that special circumstances exist in relation to the application.
[25]Limited notification of an application was then dealt with in s 95B:
95B Limited notification of consent application
(1)If a consent authority does not publicly notify an application for a resource consent for an activity, it must decide (under sections 95E to 95G) whether there is any affected person, affected protected customary rights group, or affected customary marine title group in relation to the activity.
(2)The consent authority must give limited notification of the application to any affected person unless a rule or national environmental standard precludes limited notification of the application.
…
[26] Under s 95E, the consent authority must decide if a person is an affected person:
95E Consent authority decides if person is affected person
(1)A consent authority must decide that a person is an affected person, in relation to an activity, if the activity’s adverse effects on the person are minor or more than minor (but are not less than minor).
(2)The consent authority, in making its decision,—
(a)may disregard an adverse effect of the activity on the person if a rule or national environmental standard permits an activity with that effect; and
(b)in the case of a controlled or restricted discretionary activity, must disregard an adverse effect of the activity on the person that does not relate to a matter for which a rule or national environmental standard reserves control or restricts discretion; and
(c)must have regard to every relevant statutory acknowledgement made in accordance with an Act specified in Schedule 11.
(3)Despite anything else in this section, the consent authority must decide that a person is not an affected person if—
(a)the person has given written approval to the activity and has not withdrawn the approval in a written notice received by the authority before the authority has decided whether there are any affected persons; or
(b)it is unreasonable in the circumstances to seek the person’s written approval.
[27] There is therefore a different standard applying to public notification as against limited notification. Public notification is at a consent authority’s discretion but is required if the activity will have, or is likely to have, adverse effects on the environment which are more than minor, whereas limited notification to an affected person or group is required if the activity’s adverse effects on the person are minor or more than minor (with certain qualifications). Section 95D(c) provides that, when considering whether an activity will have or is likely to have adverse effects on the
environment which are more than minor, the consent authority must consider only adverse effects which relate to matters for which a rule or national environmental standard reserves control or restricts discretion. Even if such a rule or standard precludes public notification, a consent authority may publicly notify if it decides special circumstances exist in relation to the application.5
[28] If public notification is not required, the consent authority must address whether limited notification is required under s 95B. Limited notification of any affected person is required unless a rule or national environment standard precludes limited notification. When deciding whether or not someone is an affected person in the case of a restricted discretionary activity, the consent authority must disregard an adverse effect unless a rule or national environment standard reserves control or restricts discretion in relation to such a matter.
Notification Report
[29] Early in 2017, a Council planning officer prepared a report on the Application (the Notification Report) which addressed the notification considerations in ss 95A and 95E of the Act.6 Attached were legal opinions on the question of the activity’s status from the Council’s legal department, and Ms Steven QC and Ms Appleyard, lawyers for Rochdale and the Company respectively. A large number of letters from local residents stating their opposition to the Application was also attached.
[30] The Notification Report addressed the question of whether the Application ought to be treated as a commercial service activity rather than a home occupation, thus triggering full discretionary activity status, and concluded it should. It addressed potential adverse effects on residential amenity values, cultural effects and transportation effects.
[31] The Notification Report stated the transport rules applied whether the activity was a home occupation or non-residential. It identified Chapter 7 non-compliances: cycle parking, loading bay and manoeuvring. The Notification Report incorporated
5 Section 95A(4).
6 There is some debate about the exact date.
the views of Mr Gregory, a transportation planner with the Council. His opinion was that, from a transportation perspective, the proposal did not meet the requirements of a spiritual activity which he interpreted as being anticipated to include places of worship generating parking demands on Sundays and off-peak network periods. In his opinion, the proposed activity was more of a commercial activity. He expressed his opinion in respect of parking demand and concluded the effects on the parking network would be noticeable.
[32] The Notification Report concluded that effects on cultural values had the potential to be at least minor; visual amenity effects from neighbours’ observance of funeral home activities would be at least minor, and agreed with Mr Gregory’s conclusions in relation to the numbers of potential attendees at the Property and therefore that the effects on the parking and operation of the functioning of Rochdale Street (and therefore the residents of Rochdale Street) would be at least minor. The planning officer considered the parking and unloading would have potential adverse effects on the amenity of the surrounding area in terms of noise and disturbance of residents (and it would be difficult to identify exactly who those persons were). He recommended the Commissioner use his discretion under s 95A(1) of the Act and publicly notify the Application.
[33] The Notification Report then addressed whether there were special circumstances for the purposes of s 95A(4) of the Act and concluded that, if the Application was a home occupation (which the writer of the report did not consider it was), special circumstances existed which would warrant public notification. This was on the basis that a funeral home as a home occupation was not contemplated when the District Plan was formulated, the writer saying:
Certainly the potential adverse visual effects of the arrival and departure of hearses, the transportation of caskets into the dwelling, the regular presence of upset and grieving people were not contemplated. Potential cultural effects associated with the regular presence of deceased as a home occupation were also not contemplated. The structure of the plan is such that activities that would not be contemplated as home occupations would fall within the non- residential activity category – of commercial service. I consider it appropriate to publicly notify the application with a view to formally drawing out more comprehensive detail on resident views on these matters.
[34] The report writer also noted the high level of public interest in the Application and cited some authority to the effect that large public interest in an application could be a contributing factor in the decision making.7
[35] The recommendation of the report writer was that the Application should be publicly notified in accordance with s 95A of the Act.
[36] The Council appointed an independent Commissioner, who held a meeting on 16 February 2017. Rochdale maintains the purpose of the meeting was to consider whether or not the Application was for a home occupation or a commercial activity for notification purposes. The Company says the meeting was to consider the Notification Report and determine whether the Application should be notified. The Council says the purpose of the meeting was to obtain information relevant to the Notification Decision.
The Notification Decision
[37] The Commissioner began by describing the meeting held on 16 February 2017 as follows:
5.I heard this issue over the course of two and a half hours on 16 February 2017. I heard from counsel for the applicant, from the reporting officer Mr Blair then from Ms Steven QC and finally a brief reply from Ms Appleyard. The applicant’s representative (and sole director) Mr Bell and the applicant’s traffic engineer were also present. Mr Bell addressed a number of queries from me.
[38]The Commissioner then said:
6.In reaching my decision on this matter I have had regard to the application, Mr Blair’s report, various legal opinions and correspondence which he sent to me or attached to the report, Ms Appleyard’s written submissions, the oral submissions from Ms Steven QC, the relevant plan provisions and the other information provided orally at the meeting.
[39] The Commissioner described the Application, including the subsequent amendments and the amended condition proffered on 10 February 2017.8 He outlined
7 Murray v Whakatane District Council [1999] 3 NZLR 276 (HC).
8 See [22] above.
the key components of the proposed activity, saying its scale was defined by the frequency and duration of activities, and numbers of attendees. He referred to the Abley report and noted there was sufficient parking for four visitor vehicles onsite;9 the hearse would park in the yard; and off and on-loading would occur out of view of the street. Furthermore, he noted that, subsequent to the meeting, counsel for the Company indicated that, if the Commissioner decided a home occupation needed to be entirely within the buildings on the Property, then the Application would be amended to confine on and off-loading to within the garage.
[40] The Commissioner identified the primary issue was whether the proposed activity fell within the definition of a home occupation or whether it was a non-residential activity. If the former, the Application would be for a restricted discretionary activity where the rule associated with home occupation states the Application shall not be limited or publicly notified. Therefore, if the activity was a home occupation, it could only be publicly notified if there were special circumstances. If the Commissioner concluded the proposed activity was non-residential, the Application would be for a discretionary activity and there would be no provision precluding notification of the Application.
[41] The Commissioner recorded that the Notification Report writer considered the activity was not a home occupation and was therefore a discretionary activity; the likely adverse effects were more than minor and should be publicly notified; and that, if the Application was for a home occupation, then public notification should nevertheless occur because of special circumstances.
[42] The Notification Decision then addressed the question of whether the activity was a home occupation. The Commissioner considered the definition which provides it is any occupation, including a profession, undertaken within a residential unit by a person residing there permanently.
[43] The Commissioner noted the standard in the rule that the gross floor area of the building, plus the area used for outdoor storage area, occupied by the home occupation shall be less than 40 square metres and that the gross floor area in the
9 There were in fact three visitor spaces only; the fourth space was for Mr Bell/staff.
Application was 86 square meters. He also noted the relevant matters of discretion in the Chapter 14 rules which would apply to the Application related to scale of activities and that parking on the Property was within the road boundary setback. He quoted r 14.4.1.3(RD30),10 which states that any such application shall not be limited or publicly notified.
[44] The Commissioner summarised the Council planner’s opinion and the submissions of counsel for Rochdale.
[45] He referred to Policy 14.2.4.3,11 which seeks to “ensure home occupation activity is secondary in scale to the residential use of the property”, and that this was not part of the definition, rather a matter relevant to whether or not consent should be granted. He then concluded the scale of the proposed activity was secondary to the residential activities, noting the restriction on the number of activities per year and that, in terms of floor area, the activity would also be secondary. He observed the activity was not required to be ancillary to residential use, saying most home occupations would not be ancillary.
[46] The Commissioner then addressed the issue of whether the District Plan contemplated the activity of a funeral home as a home occupation. He observed that he had to interpret the definitions on their face and in the context of the District Plan as a whole. He had not been referred to anything in the District Plan panel’s decision to support the proposition that the activity was not contemplated as coming within the definition of a home occupation.
[47] He was also of the view there was nothing to indicate the hearing panel which heard the District Plan provisions considered the character of an activity should determine whether or not it was a home occupation, observing that to the contrary, the panel adopted an “effects-based” approach. That interpretation was supported, in his opinion, by the fact some specific activities with the potential for adverse effects were specifically addressed in the District Plan and thereby excluded from the home
10 Originally r 14.2.2.3(RD30).
11 Originally Policy 14.1.4.3.
occupation category. For example, commercial childcare facilities are dealt with separately.
[48] The Commissioner then considered whether the activity needed to be carried out entirely or predominantly inside buildings. This related particularly to the activity of loading and unloading the hearse within the Property but outside the garage and behind the fence. The Commissioner concluded the reference to “within” in context encompassed activities which occur within the area of the curtilage of the group of buildings. He observed that a contrary interpretation would mean many activities currently regarded as being home occupations would fail to qualify if ancillary activities such as deliveries could not occur inside a building.
[49] In any event, the Commissioner found the activity of loading and unloading the casket was a relatively minor, albeit essential, component of the overall activity and that the activity included arrangements, viewings and services which he considered to be the primary components of the activity. No amendment was required to limit loading and offloading to inside the garage.
[50] The Commissioner concluded the activity was a home occupation and there was no requirement or power for public or limited notification unless he concluded there were special circumstances which would warrant public notification. He considered the matters identified by the Council’s planner in the Notification Report but did not agree there were any special circumstances which would warrant public notification. He referred to Objective 3.3.2 of the District Plan which is aimed at certainty and reducing the costs of consents and to r 14.4.1.3(RD30) which made it clear applications for home occupations were not to be notified. Therefore, there would, in the Commissioner’s opinion, need to be very unusual circumstances to justify a departure from that clear policy direction.
[51] The Commissioner referred to case law supporting the proposition that special circumstances might include situations where further relevant information may be provided by the public if applications were notified. He was of the view in the circumstances it was unlikely that public notification would bring in additional relevant information. This was because in the current case the discretion was limited
to the matters listed in r 14.4.1.3(RD30), all of which referred to rules within Chapter 14: scale of activity; traffic generation and access safety; and non-residential hours of operation.
[52] The Commissioner concluded that public notification was unlikely to provide any relevant information which could not be adequately addressed by officer reports, noting that issues of cultural concerns or sensitivity regarding the presence of the dead were not within his discretion. The same applied to neighbours’ concerns regarding potential visibility of the unloading of caskets or seeing grieving people.
[53] The Commissioner considered Rochdale’s concerns primary related to the character of the activity and found the character was a permitted activity and, even apart from the limitation of his discretion, the permitted baseline would occur. The only concern he considered might be relevant and within his discretion related to hours of operation. However, he considered this something on which the planning officer could address him. He suggested the officer might speak with the immediate neighbours regarding relevant issues of concern.
[54] The Commissioner therefore concluded the activity was a home occupation. He concluded he was prohibited from notifying it unless he found special circumstances and he found none.
Substantive Report
[55] In March 2017, a different Council planning officer prepared a report for the purposes of the Substantive Decision (the Substantive Report). It proceeded on the basis of the Commissioner’s decision the activity was within the definition of home occupation. It included a discussion of the traffic rules breached by the activity and was accompanied by a memorandum from Mr Gregory addressing non-compliance with Chapter 7 transportation provisions identified in the Application, as well as Chapter 14 matters.12 The previously identified non-compliances with Chapter 7 rules were noted: cycle parking; loading spaces; and manoeuvring for parking and loading areas.
12 Mr Gregory did not appear to be aware the Company had indicated it would provide cycle parking.
[56] Mr Gregory was of the opinion the effects of the proposal would be chiefly associated with overspill parking, with propensity to have notable effects. He was not satisfied the proposed limit on numbers of attendees was satisfactory given what he considered to be the lack of ability to control those numbers. He said:13
The main effect will be the potential to reduce the accessibility of on street parking to existing activities, to an extent which would not be anticipated in a residential zone. (Policy 14.1.6.4, assuming that on street parking is considered to be an “amenity”.)
[57] Mr Gregory did not repeat his previous comment criticising the categorisation of the activity as spiritual for the purposes of the transport analysis. His memorandum concluded that adverse effects on the safe and efficient functioning of the road network would be minor and the effects relating to Chapter 7 non-compliances (carparking, manoeuvring and loading) would be insignificant.
[58] The Substantive Report identified relevant matters of discretion and discussed matters relating to the scale of the activity and impacts on residential character and amenity. The planning officer considered the additional parking demand would not in itself result in an impact on amenity which could be considered more than minor. She accepted that, if the requirements for carparking were assessed on the basis of a spiritual activity, the Application complied. She assessed the effect of the traffic non-compliances identified in the Application as insignificant. She tended to accept the comments made by neighbours who had raised concerns about the impact on their amenity of the proposal. She recommended a restriction on the hours of operation to normal business hours on weekdays only.
[59] The Substantive Report recommended the Application be declined, considering the adverse effects of a funeral home had the potential to be more than minor and unacceptable in the residential context.
13 The Policy referred to is the original numbering. It is not precisely clear what the correlating Policy number is in the present District Plan, but it is most likely to be Policy 14.2.4.1.
Substantive Decision
[60] The Commissioner began by referring to the Notification Decision, saying it should be read with the Substantive Decision and that he had not revisited his conclusion regarding whether the activity could be considered a home occupation.
[61] The Commissioner outlined the proposal and referred to the scale of the activity as defined in part by the frequency and duration in the proposed conditions, noting this was of considerable relevance.
[62] The Commissioner reminded himself of s 104C of the Act that, in the case of a restricted discretionary activity, only those matters over which the consent authority has restricted the exercise of its discretion in its plan must be considered. He made that observation with particular reference to the need for consistency with the objectives and policies of the District Plan. He also noted that, for a discretionary activity, there was no requirement the activity be consistent with the objectives and policies in the District Plan: they are to be considered but are not determinative.
[63] The Commissioner restricted his discretion to the matters listed in r 14.4.1.3(RD30), being scale of activity; traffic generation and access safety; and non-residential hours of operation. He said:
In summary, I do have discretion to decline consent but only on the basis of adverse effects relating to the matters in rules 14.13.5, 14.13.6 and 14.13.22 [now rr 14.15.5, 14.15.6 and 14.15.21].
[64] He also noted he had a discretion to disregard the effects which could occur as a result of permitted activities onsite, being activities in the nature of a small-scale funeral home. He said he was entitled to disregard the nature of the activity to the extent it could be carried out as a permitted activity.
[65] The Commissioner addressed the Substantive Report, noting specific areas where he disagreed with the comments or opinions proffered. In particular, he addressed the traffic report from Mr Gregory and agreed with his conclusion that the effects would be no more than minor. The Commissioner concluded by saying:
For the reasons outlined above, I have concluded that the scale of the operation, the non residential hours of operation, traffic and access components of the proposal, together do not result in adverse effects on the environment that are any more than minor. I have also concluded that the proposal is not inconsistent with the objectives or policies of the District Plan (noting that there is no statutory requirement that the proposal be fully consistent with objectives and policies).
[66] In a footnote, the Commissioner pointed out there was no requirement that adverse effects be more than minor but the policy direction was to avoid significant adverse effects.
Principles of judicial review
[67] Judicial review is the supervisory function of the Court which ensures public power is exercised according to the law.14 It is primarily concerned with examining procedural compliance, not the substance of the decision itself, when assessing whether a decision should be allowed to stand.15
[68] Rochdale submits the Notification and Substantive Decisions are reviewable for errors of law and failing to take into account relevant considerations. Failing to take into account required (or mandatory) relevant considerations is a ground of judicial review but the weight the decision maker places on a relevant consideration is a matter for the decision maker.16
[69] I am, therefore, broadly concerned not with the substance of the decisions but with whether the Council made the decisions according to the law, applying the correct legal tests and taking into account the correct considerations in applying those tests.
[70] Any error of law must be material, that is, “one which may well have altered the ultimate decision”.17 This can arise, for example, where a decision maker has applied a gloss to a statutory test, or asked him or herself the wrong question.18 Whether the error is material involves consideration of whether it gives rise to
14 Mercury Energy Ltd v Electricity Corp of New Zealand Ltd [1994] 2 NZLR 385 (PC).
15 Aorangi School Board of Trustees v Ministry of Education [2010] NZAR 132 (HC) at [8].
16 Berryman v Solicitor-General [2008] 2 NZLR 772 (HC) at [84].
17 Astrazeneca Ltd v Pharmaceutical Management Agency HC Wellington CIV-2011-485-2314, 22 December 2011.
18 Matthew Smith New Zealand Judicial Review Handbook (Brookers, Wellington, 2011) at 709.
prejudice.19 Remedies are ultimately discretionary but refusal to grant relief may be described as rare: if relief has practical value, it ought to be granted.20
PART 2: NOTIFICATION DECISION
[71] In its statement of claim, Rochdale alleged two errors in the Notification Decision.
First alleged error
[72]Rochdale summarised the first alleged error as follows:
71.In making its decision to process the Application on a non-notified basis, the Council misdirected itself by treating the Proposal as being for a “home occupation” activity rather than a “commercial service” activity operating at a residential address, in the result that:
71.1It wrongly categorised the activity as a restricted discretionary activity considered under s104 and s104C when it ought to have been categorised as a (full) discretionary activity considered under s104 and s104B of the Act;
71.2It did not consider all relevant potential adverse effects of the Proposal, including those raised on behalf of Rochdale.
[73] Rochdale’s challenge was on the basis the funeral home activities will be conducted by the Company, the applicant for resource consent and in whose name the consent has been issued, rather than Mr Bell in his personal capacity. Ms Steven appeared for Rochdale and, in her submission, the Company could not be a residential occupant or the “person” running the funeral home business activity.
[74] Ms Steven placed considerable reliance on the description of the activity as being a satellite branch of the existing business operated from Ferry Road, saying a home occupation cannot include a satellite office. She noted that a number of related support service activities will be undertaken at the main office, for example storage of the hearses, mortuary and embalming services. Furthermore, she criticised the
19 Ritchies Transport Holdings Ltd v Otago Regional Council CA152/91, 16 August 1991.
20 See Air Nelson Ltd v Minister of Transport [2008] NZCA 26, [2008] NZAR 139 at [60]; and Just One Life Ltd v Queenstown Lakes District Council [2004] 3 NZLR 226 (CA) at [39]. The principle was applied with differing results in McPherson v Napier City Council [2013] NZHC 2518, [2015] NZAR 342; and Wilson v Auckland City Council (No 2) [2007] NZAR 711 (HC).
condition which stipulated Mr Bell’s participation was in a managerial capacity. She suggested it was a contrivance and the activity was clearly a stand-alone commercial activity purporting to operate in a residential zone under the guise of it being a home occupation activity. Indeed, she said, the fact of the condition emphasised the situation
– in the ordinary course of events where a resident worked from home, such a condition would not be required.
[75] The respondents denied the error and said the activity was a home occupation. They reiterated the activity will be carried out by Mr Bell in his personal capacity as a sole trader. He owns the Property and will be the sole resident of it. The clear intent of the Application has always been that Mr Bell would reside there in a managerial capacity.
[76] It was this alleged error on which the Council defended the allegations. Mr Palmer, appearing for the Council, emphasised that district plans are interpreted by giving a plain, ordinary meaning to a plan provision, having regard to the immediate context. Other sections of the plan should be referred to in order to derive a purposive interpretation. On that approach, in his submission, the activity was a home occupation.
What does the District Plan say?
[77] Powell v Dunedin City Council contains guidance from the Court of Appeal on interpretation of district plans as follows:21
[35] In this case, the appellants argued that the Court should look to the plain meaning of the access rule and, having found that there is no ambiguity, interpret that rule without looking beyond the rule to the objectives, plans and methods referred to in the earlier parts of section 20 of the plan. While we accept it is appropriate to seek the plain meaning from the words themselves, it is not appropriate to undertake that exercise in a vacuum. As this Court made clear in Rattray, regard must be had to the immediate context (which in this case would include the objectives and policies and methods set out in section 20) and, where any obscurity or ambiguity arises, it may be necessary to refer to the sections of the plan and the objectives and policies of the plan itself. Interpreting a rule by a rigid adherence to the wording of the particular rule itself would not, in our view, be consistent with a judgment of this Court in Rattray or with the requirements of the Interpretation Act.
21 Powell v Dunedin City Council [2004] 3 NZLR 721 (CA).
[78] The District Plan contains a chapter on strategic directions which have primacy over other chapters in the District Plan, in particular, Objectives 3.3.1 and 3.3.2. Objective 3.3.1 is to enable recovery and facilitate the future enhancement of the district. Objective 3.3.2 is for the District Plan to have clarity of language and efficiency:
3.3.2 Objective – Clarity of language and efficiency
a.The District Plan, through its preparation, change, interpretation and implementation:
i.Minimises:
Atransaction costs and reliance on resource consent processes; and
Bthe number, extent, and prescriptiveness of development controls and design standards in the rules, in order to encourage innovation and choice; and
Cthe requirements for notification and written approval; and
ii.Sets objectives and policies that clearly state the outcomes intended; and
iii.Uses clear, concise language so that the District Plan is easy to understand and use.
[79] The District Plan contains a large number of definitions and provides, where phrases are not defined, the ordinary dictionary meaning should be taken.22
[80]Chapter 2 defines a “home occupation” as:
… any occupation, including a profession, undertaken within a residential unit by a person who resides permanently within that residential unit.
[81] The word “occupation” is not defined. The ordinary dictionary meaning of “occupation” is:23
What a person is (habitually) engaged in, esp. to earn a living; a job, a business, a profession; a pursuit; an activity.
22 District Plan, ch 2, third paragraph under the heading “Definitions List”.
23 The New Shorter Oxford English Dictionary (6th ed, Oxford University Press, 2007).
[82]Chapter 2 defines a “residential unit” as meaning:
… a self-contained building or unit (or group of buildings, including accessory buildings) used for a residential activity by one or more persons who form a single household. For the purposes of this definition:
a.a building used for emergency or refuge accommodation shall be deemed to be used by a single household;
b.where there is more than one kitchen on a site (other than a kitchen within a family flat or a kitchenette provided as part of a bed and breakfast or farm stay) there shall be deemed to be more than one residential unit;
c.a residential unit may include no more than one family flat as part of that residential unit;
d.a residential unit may be used as a holiday home provided it does not involve the sale of alcohol, food or other goods; and
e.a residential unit may be used as a bed and breakfast or farm stay.
[83] I agree with the Council that the Application was clearly for a home occupation because:
(a)Mr Bell is engaged in the occupation of providing funeral home services as a job, business or profession;
(b)the occupation will be undertaken within a residential unit; and
(c)the occupation will be undertaken by a person residing in that residential unit.
[84] I also agree that the issue of whether the proposal falls within the definition of commercial service is irrelevant to the question of whether the proposal is a home occupation. Indeed, most home occupations will also be a commercial service which, as defined, is a business providing personal, property, financial, household, private or business services to the general public with a list of specified inclusions. I note the rules of Chapter 14 providing for a home occupation do not impose any restriction on the occupation providing a commercial service. Indeed, the phrase “any occupation” in the definition of home occupation emphasises the breadth of the category.
[85] The issue is the activity and not the identity of the holder of the consent. The Application (including further information) made it clear the activity will principally be managed by Mr Bell who resides at the Property and the condition proffered to the Council on 10 February 2017 provides that the resource consent will apply only while Mr Bell continues to live at the Property and principally manages the activities.
[86] Furthermore, the home occupation provisions do not prohibit a person from undertaking an occupation simply because he or she may be an employee. Indeed, the person undertaking the home occupation can be one of several employees pursuant to the District Plan whereby up to two employees can reside permanently elsewhere. Any more than two employees would require assessment of the Application as a restricted discretionary activity.
[87] Section 134 of the Act provides that a land use consent runs with the land and therefore may be enjoyed by the owners or occupiers unless the consent provides otherwise. Mr Bell as current owner and occupier is entitled to enjoy the consent.
[88] As I say, it is the activity which needs to be considered. There is nothing to prevent a home occupation from being undertaken as a satellite of a larger business or operation. For example, an accountant might operate from home but be employed by a larger business located elsewhere.
Were relevant considerations ignored?
[89] Ms Steven submitted the Commissioner failed to consider other relevant matters such as the layout of the house, the extent to which it will be used for residential activity, and the reasons for the resident being at the house. I agree with Mr Palmer that these factors are not relevant for ascertaining whether the activity falls within the definition of home occupation, although the two former matters could be relevant when considering whether to grant resource consent for a home occupation, for example because it exceeds 40 square metres.
[90] Policy 14.2.4.3 might seek to ensure the home occupation is secondary in scale to the residential use of the Property but it does not form part of the definition so as to override or qualify it. Mr Palmer referred to other relevant rules to ensure home
occupations are secondary in scale, such as those limiting the gross floor area of the home occupation and number of employees. The scale of the activity is a consideration as a restricted matter of discretion.
[91]Considering this aspect alone, therefore, the assessment entails:
(a)asking whether it is a home occupation;
(b)if so, asking whether it is permitted; and
(c)if not, considering the matters within the limited discretion.
[92] The Commissioner properly addressed the issue and there was no error in this regard.
Second alleged error
[93]Rochdale summarised the second alleged error as follows:
72Irrespective of the First Error, the Council failed to take into account relevant considerations, namely that the Proposal breached a number of rules in Chapter 7, including:
72.17.4.2.1 Minimum number and dimensions of car parking spaces;
72.2Appendix 7.1 Rules a iii, b, c, d and e relating to parking space requirements;
72.3Rule 7.4.2.2 in relation to the minimum number of cycle parking facilities required; and
72.4Rule 7.4.2.3 in relation to minimum number of loading spaces required;
73Having identified that only Chapter 14 rules were breached by the Proposal, and by not considering Chapter 7 non-compliances, the Council misdirected itself by:
73.1Incorrectly proceeding on the basis that the District Plan rules breached by the Proposal all prohibited notification when that was not correct; and
73.2Failing to apply the statutory tests in ss 95A–95E of the RMA to determine whether public or limited notification was justified.
74The decision not to notify the Application was wrong in law and therefore invalid.
[94] In summary, Ms Steven referred to alleged breaches of transport requirements in Chapter 7 of the District Plan in relation to carparking, cycle parking and loading spaces in respect of which notification was not precluded. Therefore, the statutory test for notification should have been applied, in her submission. Furthermore, the other transport rules breached where notification was precluded should at least have been addressed by the Commissioner.
[95] After the Notification Decision, Rochdale engaged the services of a transport consultant, Mr Penny. His opinion was that, had the District Plan non-compliances in terms of off-site effects, particularly in relation to carparking and manoeuvring, been identified and properly evaluated, it was likely to have swayed the planning officer’s “marginal” conclusion that the proposal was inappropriate. That in turn may have led the Commissioner to decide the Application should be declined.
[96] In its statement of defence, the Council accepted the Notification Decision did not refer expressly to breaches of those rules identified in the Application. However, both respondents said the Commissioner was aware of all the relevant Chapter 7 non-compliances and took them into account. In the alternative, they said the Application was still a restricted discretionary activity.
[97] The first issue for determination is how a home occupation is to be treated under the Chapter 7 assessment and is the real nub of the case. That then determines what transport rules are breached and to what extent, as well as whether any breached rules precluded notification or not. Those matters form a critical benchmark against which to assess whether the Decisions were in error.
Activity classification
[98] It is acknowledged the Commissioner failed explicitly to refer to Chapter 7 breaches in the Notification Decision. The Commissioner appeared to reach his conclusion as to whether the activity could be a home occupation and stop. This is perhaps unsurprising, given the focus of the debate was this issue. However, the
inquiry does not stop there because any home occupation must nevertheless comply with other requirements of the District Plan, Chapter 7 on transport being relevant in this case. Chapter 14 makes that clear in r 14.3(k), which states the activity status tables and standards in certain specified Chapters, including Chapter 7, apply to activities within the residential zone.
[99] The Commissioner had before him competing contentions, that is the Abley approach and Mr Gregory’s opinion. The only discussion in the Notification Decision of the character of the activity was in the context of whether or not it was a home occupation. The issue of character, however, was also relevant to Chapter 7 considerations, namely carparking, cycle parking, loading spaces and manoeuvring. Under Chapter 7, notification was precluded only in the case of manoeuvring. It does not appear this aspect was highlighted to the Commissioner.
[100] Chapter 7 does not expressly specify the parking requirements for a home occupation because it is not a specified category within the Chapter. The relevant provision for carparking is Appendix 7.5.1:
Appendix 7.5.1 Parking space requirements
(a)The minimum number of car parking spaces provided shall be in accordance with Table 7.5.1.1 and Table 7.5.1.2.
iThe car parking space requirements listed in Table 7.5.1.1 are categorised by activity. When calculating the overall parking space requirements for an activity the separation of areas into different activities will be required where the GFA of an activity (or PFA or other such measurement that the standards for the relevant activity is based upon) exceeds 10 per cent of the total GFA of the activity. The total parking space requirement for any activity will be the sum of the parking space requirements for each area.
iiWhere the calculation of the required parking spaces results in a fractional space, any fraction that is less than one-half will be disregarded and any fraction of one-half or more will be counted as one space. The parking requirements for different types of carparks (i.e. staff, visitors etc) shall be calculated and rounded separately.
iiiWhere an activity falls under the definition of more than one activity in Table 7.5.1.1, then the higher parking space requirement shall apply.
ivWhere an activity does not fall within a particular category, the activity which is closest in definition shall apply.
[101] The rules in Appendices 7.5.2 and 7.5.3, regarding the required number of cycle parks and loading spaces respectively, are of similar effect.
[102]The competing categories are defined in the District Plan as follows:24
Commercial Services
means a business providing personal, property, financial, household, private or business services to the general public. It includes:
a.authorised betting shops;
b.copy and quick print services;
c.financial and banking facilities;
d.postal services;
e.counter insurance services;
f.dry-cleaning and laundrette services;
g.electrical goods repair services;
h.footwear and leather goods repair services;
i.hairdressing, beauty salons and barbers;
j.internet and computer services;
k.key cutting services;
l.real estate agents and valuers;
m.travel agency, airline and entertainment booking services;
n.optometrists;
o.movie and game hire; and
p. animal welfare and/or grooming services. It excludes gymnasiums.
…
Residential activity
means the use of land and/or buildings for the purpose of living accommodation. It includes:
a.a residential unit, boarding house, student hostel or a family flat (including accessory buildings);
b.emergency and refuge accommodation; and
c. sheltered housing; but excludes:
24 Chapter 2.
d.guest accommodation;
e.the use of land and/or buildings for custodial and/or supervised living accommodation where the residents are detained on the site; and
f.accommodation associated with a fire station.
…
Spiritual activity
means the use of land and/or buildings primarily for worship and spiritual meditation and deliberation purposes. It includes:
a.ancillary social and community support services associated with the spiritual activity;
b.ancillary hire/use of church buildings for community groups and activities.
[103] There was no dispute that for the purposes of Chapter 7 traffic requirements, where an activity falls under the definition of more than one activity, then the higher parking space requirements apply. There was also no dispute that where an activity is mixed use, the number of carparks required is the sum of those required for each use.
[104] The minimum number of facilities required for the proposal are calculated by category in Tables 7.5.1.1 (parking space requirements), 7.5.2.1 (cycle parking facilities) and 7.5.3.1 (loading areas), as follows:
·As a commercial service, five onsite parking spaces for visitors and staff, one of which must be a mobility parking space, cycle parking and a heavy vehicle loading bay.
·As a spiritual activity, there is no onsite parking requirements for staff or visitors as the proposal is less than 300 square metres. Cycle parking and a vehicle loading space are required.
·As a residential activity, one parking space if the gross floor area for residential activities is less than 150 square metres, otherwise two, are required. For single dwellings, no cycle parking or vehicle loading spaces are required.
[105] If there is a breach of the requirements outlined above, the argument that the Notification Decision was in error in failing explicitly to assess Chapter 7
non-compliance may have merit. If there is no relevant breach, those arguments largely fall away.
[106] At the judicial review hearing, submissions focused on the relative merits of assessing the home occupation as a “spiritual activity” versus a “commercial service” for the purposes of Chapter 7. Ms Steven argued for the latter. She said a funeral home is not used primarily for worship and spiritual meditation and deliberation and, in contrast to a church, a funeral home is a business. While funeral services would clearly have a spiritual component, the activity was for the business of the provision of funeral services.
[107] The Company’s response was to say the activity was not a commercial service because such categorisation would result in absurdly onerous parking requirements for home occupations. Ms Appleyard submitted the rules were not to be construed in a vacuum but rather should be considered in the context of the activity closest in terms of parking demand.25 She suggested, where competing interpretations of a plan are available, an interpretation which avoids absurdity or anomalies is likely to be consistent with the expectation of property owners. An interpretation which is practical in terms of administration should be preferred.26
[108] In Ms Appleyard’s submission, when determining the most analogous activity, the logical starting point would be to consider the transport effects of permitted activities in a similar category, being other permitted activities in residential zones including, for example, preschools and healthcare facilities. Spiritual activities are permitted in residential zones and therefore, she said, the parking effects associated with them, including funerals conducted in churches without limit on numbers of attendees, are considered acceptable. In contrast, she suggested commercial services and other activity such as retail with which it is expressly grouped for the purposes of the parking rule, are not permitted activities in residential zones because their effects are not considered to be suitable for inclusion as a permitted activity in residential zones.
25 Powell v Dunedin City Council, above n 21, at [35].
26 Nanden v Wellington City Council [2000] NZRMA 562 at [48].
[109] Ms Appleyard referred to the definition of commercial services and submitted the list of examples aids in interpretation, giving colour to what is meant by the words “to the general public”. She said those words are not intended to cover activities which occur by invitation through prior appointment to a private property which is primarily a residential dwelling and unable to be accessed by the general public.
[110] Ms Steven’s response was that the District Plan did indeed intend to require that level of carparking because its focus is on amenity and, if the requirement cannot be complied with, then an application for resource consent is required. She did not accept this approach would defeat the objects of the District Plan, saying the alternative is that people could carry on business without providing any carparking other than for the residential component of use.
[111] During the hearing, the issue arose as to whether home occupation ought to be treated as a residential activity for the purposes of the Chapter 7 assessment. Following the hearing, I requested the parties, particularly the Council, file further submissions on that issue.
[112] In supplementary submissions, Ms Steven emphasised a home occupation by definition involves the use of a dwelling for two separate activities: a residential activity and a profession or occupation carried out by a resident. That, she said, has relevance for all plan provisions, including Chapter 7. If there is no requirement that a home occupation be secondary in scale to the residential activity, and if it is a residential activity for Chapter 7 purposes, home occupations of large scale would not be required to include additional carparking spaces, she contended.
[113] She also pointed to policies, objectives and rules in Chapter 7 which indicate home occupation is distinct from residential activity. For instance, Chapter 7 contains provisions for reducing carparking requirements, including a possible five per cent reduction where a development contains a mix of both residential activities and activities where people are employed at the site. She concluded by stating that various provisions in both the previous Christchurch City Plan and the current District Plan support Rochdale’s position that Chapter 14 cannot be read in isolation and the
Chapter 7 requirements for a home occupation must be separate from those for residential activities.
[114] The Council’s supplementary submissions included an affidavit of Mr Falconer, a senior transport planner who led the drafting of Chapter 7 and was involved in drafting Chapter 14. Mr Falconer suggested a Chapter 7 assessment of a home occupation would only take place if it were not a permitted activity under Chapter 14. He said Chapter 7 treats a home occupation as a residential activity only if does not exceed 10 per cent of the floor area but as a mixed use activity if it does. In terms of Chapter 14, he said a home occupation would be treated differently in terms of traffic assessments based on whether it complied with the activity specific rules. If, for instance, it were less than 40 square metres, resource consent was not required and traffic assessments need not take place because the effects would be marginal. If it were more than 40 square metres, it should require resource consent and a traffic assessment as per r 14.4.1.3(RD30), as well as under Chapter 7.
[115] Ms Appleyard submitted that, while home occupations might be secondary to a residential activity and may be commercial in nature, they are not necessarily to be considered commercial services under Chapter 7. She suggested the way in which home occupations are included in the District Plan indicates they should not be unduly constrained. She argued it would impose constraints which cannot reasonably be met if the majority of home occupations were required to provide a minimum of five carparks by virtue of being categorised as commercial services. If a residential carparking requirement is imposed for Chapter 7, that does not mean the Council cannot require more if necessary. In Ms Appleyard’s submission, if a proposed home occupation did not comply with the activity specific standards and parking was a concern, the matters to which the Council may turn in a discretionary restricted application under Chapter 14 provide the avenue to impose appropriate conditions, including extra parking. In conclusion, she submitted classifying home occupations as residential activities accords with the policies and objectives of the District Plan.
[116] Given judicial review is more focused on procedural propriety, I make no finding on the correct categorisation for the home occupation under Chapter 7. The Council did not address this aspect in its submissions and, in the absence of being
properly informed of the Council’s position and reasons for it, it would not be proper for me to make a definitive finding. Some observations on the competing contentions can, however, be made and are outlined in the following paragraphs.
[117] Mr Gregory was of the opinion that the parking requirements for a spiritual activity begin with the heaviest usage, which is for attendance at Sunday church services, hence there being no requirement for parking provision if the facility is under 300 square metres.27 In this case, the spiritual activity categorisation was based on the funeral aspect of the proposed activity but that does not address other aspects, such as viewings, meetings, and the business operation as a satellite office of Bell, Lamb & Trotter, all of which are commercial in character.
[118] I am not convinced as to the proposition the commercial services category would not otherwise apply because visits are not open to “the general public” but will rather be by appointment. It is difficult to see how it is any different from “private or business services” which form part of the definition of commercial services and which are often carried out by appointment.
[119] Ms Appleyard made a number of alternative submissions contending that, if the activity was a commercial service, the relevant carparking requirements would not apply. These included a technical argument that the Application had no gross leasable floor area which was intended to be tenanted. It therefore had no floor area with which to make the relevant calculations, nullifying the Chapter 7 requirements for commercial services. Taking that approach to its logical conclusion, it would mean any business (whatever its legal personality) which is owner-occupied would never be caught by the provision because there would be no tenancy. Another suggestion was that, where an activity was secondary to a dominant use, the dominant use ought to be applied for the traffic assessment. She suggested this meant only the residential component of the Application ought to be assessed under Chapter 7. This proposition is also problematic. If, as proposed, there will be occasions when up to 10 attendees might be at the Property, it would be surprising if the carparking requirement were limited to the residential use aspect. This reinforces the need specifically to address
27 This could be considered a somewhat Christian-centric view of spiritual activity.
and categorise the actual requirements of the activity and decide on the category which is most analogous.
[120] However, I agree with Ms Appleyard that Rochdale’s argument taken to its logical conclusion would mean there would be very few home occupations which did not fall within the definition of a commercial service. I have some sympathy with the submission that it is inconceivable the writers of the District Plan would expressly permit home occupations in the residential zone but impose conditions which would effectively undermine those provisions because of the parking and other traffic related requirements. Resource consent for an application which did not meet the standards could still be granted but the application would be for a restricted discretionary activity and notification would not be precluded.
[121] This issue requires input from the Council and a proper consideration. The commercial activities requirements might be considered excessive, although it would not always be the case. It depends upon the actual activity proposed.
[122] The Council contended that a home occupation is assessed against traffic matters under Chapter 7 only if it exceeds the 40 square metre standard in r 14.4.1.1(P13). That was on the basis the anticipated traffic effects of a home occupation of that size would be acceptable, which had been the approach adopted in the previous Plan. It is not apparent that the previous Plan had that effect. In any event, it is not the effect of the current District Plan. Chapter 14 expressly states activities under that chapter are required also to comply with Chapter 7. Its position is that, under Chapter 7, a home occupation is to be assessed as a residential activity if it is less than 10 per cent of the gross floor area, but as a mixed use activity if greater than 10 per cent. This refers to the Chapter 7 appendices discussed above at [100]-[101]. However, this means that, in order to benefit from notification preclusion, a 40 square metre home occupation requires a house of 400 square metres. If it were in an average-sized home of around 180 square metres,28 even a 20 square
28 The average floor area of homes approved for building consent for the year ending August 2016 was 182 square metres. Older homes are smaller. See “We’re building bigger 40 years on” (5 October 2016) Stats NZ < home occupation would lose the benefit of the notification preclusion, because it exceeds the 10 per cent limit relevant to Chapter 7.
[123] There is no express rule which indicates home occupations are excluded from the general applicability of that provision. Council planners may have intended such an outcome but it is simply not what was drafted.
[124] I see no reason why, if the Council’s argument applies to home occupations, it would not equally apply to other permitted activities with activity specific standards that place limits on size. The natural extension of its argument is, therefore, that a Chapter 7 assessment does not take place where an activity is permitted under Chapter 14 on the basis of its scale. That would lead to various activities being assessed as permitted if they are under the relevant size limit but did not provide parking. For example, health care and educational facilities, which potentially create significant parking demand, would be permitted without any Chapter 7 assessment. That cannot be correct.
[125] More generally, I note with some concern the difficulty of interpreting the District Plan. This was exacerbated in the present case by a lack of argument from the Council defending the Decisions, leading me to require further submissions. My difficulties with the District Plan are as follows. There is an inbuilt redundancy and unnecessary complexity in having Chapter 7 apply in instances where Chapter 14 carefully addresses traffic issues via the restricted discretionary matters under rr 14.15.5, 14.15.6, and 14.15.21. The ability conferred by those rules to protect residential amenity by assessing the effects of and imposing conditions on home occupations is comprehensive. Chapter 7 is superfluous in that context. It merely serves to make redundant the notification preclusion applying to home occupations within Chapter 14, which is in conflict with the accommodating attitude to home occupations those preclusions indicate. As Ms Appleyard pointed out, many home occupations may fall under commercial services. An accountant working from home would be required to provide four correctly dimensioned onsite carparks (one of which must be a mobility park) plus one or two for residents, a heavy vehicle bay, and two cycle parks (one for visitors and one for staff). That invokes the possibility of perverse results, namely that complying with the Chapter 7 requirements could result in
adversely affecting the surrounding area’s residential character and amenity. For instance, an applicant seeking to avoid notification processes might provide upwards of five carparks and a heavy vehicle bay, with significant space unnecessarily given over to parking where it could be grass or vegetation.
[126] In addition, with respect to home occupation, the District Plan as it stands does not meet is overriding Objective 3.3.2 regarding clarity and efficiency. The difficulties in the present case of attempting and failing to address Chapter 7, and the competing assertions as to the correct categorisation, demonstrate the lack of clarity. The fact that Chapter 7 renders the notification preclusion in Chapter 14 effectively redundant does not make the District Plan easy to understand and use, does not minimise costs, and does not minimise prescriptiveness in order to encourage innovation and choice.
Carparking dimensions
[127] Additional matters were raised at the judicial review hearing, including carpark dimensions. Mr Penny considered the dimensions of two of the four carparks would not comply with r 7.4.2.1(P1) (due to a breach of r 7.4.3.1) and this non-compliance triggered notification. He said this was not made apparent to the Commissioner. In Mr Penny’s opinion, this reinforced the planning officer’s comment that spillover effects on on-street parking would be a noticeable adverse effect on residential amenity.
[128] In an affidavit, Abley’s traffic engineer said that no onsite carparking would be provided such that the District Plan standards apply. The argument was that the carpark dimensions in the rules apply to carparking spaces available to the general public and are not required for areas of parking volunteered by an applicant who is seeking to mitigate any effects of on-street parking.
[129] In Ms Appleyard’s submission, if there is an error, it is not material. The Commissioner had the information available to him showing the carparking area in front of the garage and the Abley report which addressed the safety and practicality of motorists using the area. The Council officer raised no concerns in the Notification and Substantive Reports as to the ability of up to four cars to park on the Property.
The alternative, Ms Appleyard noted, is for the volunteered carparking not to be provided and visitors required to park on the street.
[130] The position taken by Abley is somewhat disingenuous, particularly given the lack of transparency on this issue in their report. The Council and Commissioner assumed compliant carparking would be provided. If onsite parking is to be provided but does not comply with required dimensions, the Council must be made aware of this so it can consider the Application properly.
[131] For notification, it then becomes a question, like all other breaches, of the extent of adverse effects vis-a-vis the relevant permitted baseline under s 95E(2)(a).
Other Chapter 7 non-compliances
[132] Ms Steven then referred to other Chapter 7 non-compliances which in her submission were ignored, in particular the loading space and manoeuvring assessments. Mr Penny had raised concerns about whether the hearse could safely back onto the Property.
[133] The Application identified three Chapter 7 rules which were breached, being the non-provision of cycle parking, the requirement for a loading space and the manoeuvring rule.
[134] There is no real debate about the cycle parking. Notwithstanding the general opinion that the adverse effects of the lack of a formal cycle parking facility would be insignificant, by letter dated 10 February 2017 the Company volunteered to provide such a parking facility. That volunteered position was not referred to in the Substantive Report which nevertheless concluded the effect of non-compliance with cycle parking was insignificant. The Commissioner agreed.
[135] Whether a loading space was required or not was subject to some debate because it depends upon the correct activity categorisation. If the correct category was residential, none was required. If the correct category was commercial, then a heavy vehicle bay was required and if it were spiritual, a simple loading space was required.
[136] Depending on the categorisation, non-compliance might arise because the loading space provided would not be permanently marked and set aside as a loading space. Given the conditions associated with this and restriction on the number of activities, the Application concluded any adverse effect of not providing a compliant loading space was negligible. The Application identified that non-compliance with this rule did not preclude notification and this was reiterated in the letter dated 10 February 2017 from the Company’s lawyers.
[137] The Notification Report identified the non-compliance with the loading rule and concluded the breach effects were negligible. The breach itself was not addressed in the Notification Decision although the loading of caskets was discussed in the context of whether it would occur inside or outside the garage. In the Substantive Decision, the Commissioner agreed that the effects of loading would be insignificant.
[138] The Application identified non-compliance with the manoeuvring rule and assessed the effects of the breach as less than minor. Irrespective of whether this is in breach, notification stemming from this rule is precluded. I therefore set it aside.
[139] In summary, Chapter 7 does not preclude notification for breaches of carparking, cycle parking or loading requirements. This was not addressed in the Notification Decision. Following categorisation of the activity for Chapter 7 purposes, any breaches of these requirements needed to be assessed for notification purposes in terms of ss 95A and 95B.
Did the Commissioner err?
[140] In Ms Steven’s submission, the Commissioner’s failure to identify non-compliance with Chapter 7 led to a failure to assess the effects of the proposal as required pursuant to the District Plan. She cited as analogous the case of Sutton v Canterbury Regional Council,29 where the applicant successfully sought judicial review of a council decision not to notify an application and the substantive decision. The non-notified consent related to a water take permit where the council had relied on calculations as to water availability which contained a significant error. The
29 Sutton v Canterbury Regional Council [2015] NZHC 313, [2015] NZRMA 93.
council then failed to identify and consider the application as a non-complying activity.
Gendall J considered this a significant mistake of law and relief was granted.30
[141] The Commissioner had before him a comprehensive application which included a traffic assessment by Abley, the Notification Report which incorporated comments from the Council’s traffic engineer, the further information provided at the notification meeting, and the Company’s lawyers’ letter of February 2017 which specifically referred to Chapter 7 breaches. The Commissioner acknowledged he had considered all of those matters. Ms Appleyard suggested the situation was analogous to Urban Auckland v Auckland City Council,31 where the failure complained of was that the notification decision made no specific reference to the New Zealand Coastal Policy Statement and the Hauraki Gulf Marine Park Act 2000, despite the importance of those documents. In his decision, Venning J noted the documents before the Commissioners referred to the Act and the policy statement, and the decisions recorded the Commissioners had read and taken into account all the relevant documents. Venning J then concluded it could not be said they had not taken those documents into account in making the notification decisions.32
[142] The Notification Decision needs to be able to stand on its face. An objective reading of it suggests the Commissioner did not address Chapter 7 matters or did not address them properly. The carparking requirements of the proposal and the competing contentions of Abley and the Council engineer as to the categorisation of the proposed activity for transport purposes were not referred to at all. The only discussion as to categories of activity was in the context of whether the proposed activity was a home occupation. Although the proposed activity remained a restricted discretionary activity, whichever activity was considered most analogous for traffic purposes, non-compliance with traffic requirements did not necessarily preclude notification. The comments in the Notification Decision described at [40], [43] and
[50] above indicate the Commissioner misunderstood the extent of matters he was
30 Citing Matukituki Trust v Queenstown Lakes District Council HC Christchurch CIV-2006-412-733, 19 December 2006 where the High Court ordered the rehearing of a consent application where the analysis and decision-maker had wrongly assessed the status of the application.
31 Urban Auckland v Auckland City Council [2015] NZHC 1382, [2015] NZRMA 235.
32 At [103].
required to address in assessing whether notification should occur. It appears he was operating under the understandable but mistaken assumption that notification was governed by Chapter 14, and for that reason he did not consider Chapter 7 breaches and their impact on the notification assessment. The Notification Decision should nevertheless have addressed those matters.
[143] In the Substantive Decision (discussed in more detail below), the Commissioner noted that even the Council’s traffic officer concluded the loading and manoeuvring effects would be insignificant and the parking impacts of the proposal were minor. The Commissioner agreed and concluded such effects would be no more than minor. This then raises the question whether the Application should have at least been subject to limited notification pursuant to s 95E of the Act. Given the imperfect way in which matters were dealt with, it is difficult to assess how the effects would have been assessed by the Commissioner in the Notification Decision. It may be that the outcome would have been the same. The point, however, is that the relevant category, and thus the relevant rules to establish a permitted baseline, was not even considered.
[144] Urban Auckland may be distinguished from the present case because it related to high level planning documents important in the overall context. The present case concerned the specifics of compliance with a rule in the District Plan and should have been addressed, particularly where notification might not have been precluded in the case of non-compliance.
PART 3: SUBSTANTIVE DECISION
[145] In its statement of claim, Rochdale alleged four errors in the Substantive Decision. The first was not pursued at the hearing. The second and third alleged errors referred to whether the Application was for a home occupation and the failure to consider Chapter 7 non-compliances, both of which I have already addressed above.
Fourth alleged error
[146]Rochdale summarised the remaining fourth alleged error as follows:
75.6Irrespective of First and Second Errors, the Council erred in applying the permitted baseline in s104(2) of the RMA so as to justify its conclusions that:
(a)The adverse effects of the Proposal are very similar to the effects of permitted health care facilities and/or pre-schools; when such conclusion was reached without any evidence that such activities could establish on the site as of right;
(b)The adverse effects of the Proposal are very similar to the effects of the funeral home activity that was previously carried out on the site “within the 40m2 constraint albeit presumably with less attendees at services”, when such conclusion was reached without any evidence that such had occurred.
[147]Section 104(2) of the Act provides:
(2) When forming an opinion for the purposes of subsection (1)(a), a consent authority may disregard an adverse effect of the activity on the environment if a national environmental standard or the plan permits an activity with that effect.
[148] In Ms Steven’s submission, the Commissioner’s treatment of the statutory permitted baseline analysis was fundamentally in error and was then relied upon to support his ultimate conclusion that all the effects associated with traffic would be no more than minor. In her submission, no reference was made as to whether any permitted activities could meet traffic related rules on the Property and the only rule referred to by the Commissioner was the 40 square metre scale of activity rule which she said is not the correct basis for a permitted baseline analysis. She said the District Plan carparking, manoeuvring and loading provisions would always be problematic in the context of the Property and for that reason it is doubtful a permitted baseline would ever be applicable to justify setting aside all adverse effects of the proposal.
[149] Ms Steven also suggested the Commissioner was under the wrong impression that, prior to the Application being made, the activity had commenced onsite within the 40 square metres’ permissible constraint. It was clarified at the judicial review hearing that Mr Bell had begun some of the activities but a funeral service had not been held at the Property. In any event, in Ms Steven’s submission, there was no evidential basis for a conclusion the activity had once operated on a complying basis and, more importantly, a funeral home could never operate wholly as a permitted activity on the Property because the Chapter 7 non-compliances cannot be overcome.
Did the Commissioner incorrectly apply the permitted baseline?
[150] The Commissioner approached the Substantive Decision by interpolating his comments on matters put in issue in the Substantive Report. Specifically, he agreed with the officer’s statement that:
I accept that the permitted home occupation activity is directly relevant to this current proposal and the Commissioner may choose to disregard the baseline effects of a home occupation activity of less than 40 m² in area.
[151] The Commissioner simply stated the general proposition that comparison may be made with other activities of a different nature if permitted to establish on the Property. He then noted that the proposed activity at a smaller scale could occur on the Property. Those statements are correct (the latter in the hypothetical sense).
[152] Moreover, the Commissioner did not then go on to base his assessment of adverse effects on the baseline of effects stemming from permitted activities of a different nature. For example, his finding regarding traffic was based on the Substantive Report assessment, which did not apply that baseline. The Commissioner agreed with the Substantive Report’s assessment of the parking effects as “minor” and the loading and manoeuvring effects as “insignificant”, and concluded they were cumulatively “no more than minor”.
[153] The Substantive Report did itself not assess those matters against, for instance, health care facilities. In respect of manoeuvring, it relied on the assessment of Mr Gregory, who addressed the impacts independently of such a baseline. The Substantive Report noted that Mr Gregory assessed the infrequent non-complying reverse manoeuvre of the hearse as being unable to cause adverse effects to efficiency or safety of transport users. In his memorandum, appended to the Substantive Report, Mr Gregory pointed out the “irrefutable” argument that the hearse could drive in and reverse out without triggering compliance issues. From this I infer Mr Gregory undertook an assessment against the permitted baseline of effects from residential activity which occurs regularly in the residential zone. In those circumstances, it cannot be said an inappropriate baseline was applied to discount the adverse effects of the reverse manoeuvre. The effects were assessed as insignificant in an appropriate manner by the Council officer and Mr Gregory, with whom the Commissioner agreed.
[154] In respect of parking impacts, the Substantive Report considered the maximum parking load would occur only 78 times per year and would not, in itself, give rise to effects on amenity which were anything more than minor. Mr Gregory’s assessment was different because he considered conditions as to numbers of attendees would not be complied with. The Council officer found that to be a compliance concern, rather than one appropriately considered in the consent process. There is no indication in either the Substantive Report or Mr Gregory’s analysis that those effects were assessed on the basis of a permitted baseline of anything other than residential activity. Even if the Commissioner’s assessment of the baseline could be said to be inappropriate, it cannot be said he relied on it in the Decision because he expressly made the Decision having read and agreeing with the Substantive Report.
[155] The Commissioner may have made an error of fact when he stated the funeral home had already operated within the 40 square metre requirement. That statement was a fleeting comment to illustrate his disagreement with the suggestion in the Substantive Report that it was difficult if not impossible to entertain the possibility that a funeral home could operate as a permitted activity within 40 square metres. It is not referred to regarding effects in the remainder of his Decision. In any event, I find the potential error immaterial to the Decision.
[156] Finally, the Commissioner expressly clarified that “scale” did not merely refer to floor area but also to frequency and duration of events and their effects. He expressly referred to “other permitted activity standards” when assessing whether the scale of the activity was appropriate in the context of the area’s residential character. The Commissioner did not err in this regard.
PART 4: DISCRETION
[157] I have found the Commissioner failed expressly to consider Chapter 7 matters in the Notification Decision. The question then is whether any relief would have a practical value. If an error is identified, the gravity of that error must be assessed and an evaluation undertaken as to whether, if the decision is set aside, the outcome will
inevitably be no different. If that is the case, then there is no value in setting the decision aside.33
[158] Ms Appleyard submitted that, even if the Commissioner failed to consider Chapter 7 matters in the Notification Decision, that needs to be viewed in context. This includes the material available to the Commissioner and the relevant findings in the later Substantive Decision. The Commissioner had access to assessments of traffic effects in the various reports and, in the Substantive Decision, he assessed the effect of those breaches and made findings of fact as to the level of severity of the effects associated with the identified breaches.
[159] Ms Appleyard suggested it was simply not credible that, in the situation where one or two times a year one or two cars only would park on Rochdale Street, effects would reach the level of severity to warrant notification of the Application in terms of the statutory test for public or limited notification. In any event, the status of the Application is restricted discretionary. The assessment matters the Commissioner could take into account in considering notification were limited.
[160] Finally, Ms Appleyard pointed out that if there were factually incorrect or incomplete material before the Commissioner, then Rochdale had a remedy under s 132 of the Act which allows a consent authority to cancel a resource consent in certain circumstances.
[161] 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.34 This means that if, in a judicial review, the Court determines there has been an error in a decision not to notify, it will be an unusual case where relief is not granted.
[162] In this case, there has been no decision as to the correct analysis of the carparking and other traffic requirements of the proposed activity. That needs to be done so any non-compliance is properly assessed, which will then indicate whether there are any affected parties and whether notification is required. If the adverse
33 See above n 20, and the cases cited therein.
34 Discount Brands Ltd v Westfield (New Zealand) Ltd [2005] NZSC 17, [2005] 2 NZLR 597 at [116].
effects are minor or more than minor, then affected persons are entitled to contribute to the application process and they were prejudiced if not notified.
[163] Section 95B makes limited notification to any affected parties mandatory. It may be that notification would not add to the information before the Commissioner and the final outcome may well be the same regardless. Nevertheless, notification brings with it certain rights for affected parties which cannot be disregarded.
Result
[164] For the reasons given, the application for judicial review succeeds. The Notification and Substantive Decisions are quashed. The Council must commence the process afresh.
[165] There may well be an interesting debate as to costs given my observations on the District Plan. If costs cannot be agreed, submissions are required within 28 days, with any response on behalf of Rochdale 14 days thereafter. Costs will be dealt with on the papers.
Thomas J
Solicitors:
White Fox and Jones, Christchurch for Applicant Buddle Findlay, Christchurch for First Respondent
Chapman Tripp, Christchurch for Second Respondent
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