Scope Resources Limited v Queenstown Lakes District Council
[2024] NZHC 881
•19 April 2024
IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY
I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE
CIV-2023-425-000017
[2024] NZHC 881
UNDER Judicial Review Procedure Act 2026 and part 3 of the High Court Rules IN THE MATTER
of an application for review of the Queenstown Lakes District Council to grant a land use consent under the Resource Management Act
BETWEEN
SCOPE RESOURCES LIMITED
Applicant
AND
QUEENSTOWN LAKES DISTRICT COUNCIL
First Respondent
AND
THE CARDRONA CATTLE COMPANY LIMITED
Second Respondent
Hearing: 12 December 2023 Appearances:
D Anderson and J E Macdonald for the Applicant L C R Burkhardt for the Second Respondent
Judgment:
19 April 2024
JUDGMENT OF PRESTON J
This judgment was delivered by me on 19 April 2024 at 4.00 pm, pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Date……………
SCOPE RESOURCES LIMITED v QUEENSTOWN LAKES DISTRICT COUNCIL [2024] NZHC 881 [19
April 2024]
Introduction
[1] Scope Resources Limited (Scope) seeks judicial review of a decision granting the Cardrona Cattle Company Limited (CCCL) a resource consent to develop a self- storage facility next to land on which Scope operates a large landfill.
[2] The storage facility proposal did not include any residential component. For this reason, Scope was contractually obliged to and did give its written approval to the application.
[3] After public notification and the close of submissions CCCL filed an amended application, adding a manager’s residence. The consent authority, Queenstown Lakes District Council (the Council), accepted the addition.
[4] The proposed manager’s residence raised the issue of reverse sensitivity as an adverse effect on the operation of Scope’s landfill. Due to the significant adverse effects the council planner in her written report for the independent commissioners did not support the residential component of the amended application.
[5] Belatedly and very shortly prior to the scheduled hearing CCCL told Scope of the addition of the manager’s residence. CCCL asked Scope whether it would consent. It did not do so.
[6] Scope was not present or represented at the hearing, having not submitted as a result of its earlier affected person’s approval (APA).
[7] While the Commissioners were made aware that Scope’s APA had been given before notification (and CCCL’s subsequent amendment), without hearing from or on behalf of Scope they granted the consent notwithstanding the reverse sensitivity effects as the Commission considered these could be adequately mitigated.
[8]Scope says the Commission erred in its decision.
[9] It says the decision resulted from a flawed process brought about by the addition of the manager’s residence after it had provided its written approval to the original consent application. Due to this it was wrongly excluded from the debate. Further, the addition of the manager’s residence post-notification was impermissible as outside scope of the original application and the consent is ultra vires to that extent, accordingly. It seeks an order setting aside that part of the consent permitting the manager’s residence.
[10] CCCL says Scope was put on notice before the hearing and therefore cannot complain about being omitted from the debate, and no error occurred as the Commissioners considered the issue of reverse sensitivity in any event. The addition of the residence was not an impermissible amendment or outside scope and, CCCL argues, even if the Court finds the process went awry it should not grant relief as there was jurisdiction to grant the consent for the manager’s residence on an alternative basis.
Approach – judicial review
[11] Pursuant to ss 104 and 104D of the Resource Management Act 1991 (RMA), Council granted consent for the application subject to conditions. The Council’s decision (through its commissioners) involved the exercise of a statutory power and is amenable to review.
[12] Judicial review is not an opportunity to revisit the merits of a decision; the High Court does not exercise an appellate function on review. It is the decision- making process followed by the consent authority and its lawfulness, not the decision itself, which is under consideration.1 The applicant must identify an error of law, failure to have regard to a relevant consideration, regard to an irrelevancy or procedural unfairness.
[13] An error of law must be a material one or one which may well have altered the ultimate decision made by the statutory body.2
1 Auckland Regional Council v Rodney District Council [2007] NZRMA 535 at [44].
2 Astrazeneca Ltd v Pharmaceutical Management Agency HC Wellington CIV-2011-485-2314, 22 December 2011.
Issues
[14]The parties agree the issues for determination by the Court are as follows:
(a)Did the consent authority err in failing to seek input from Scope prior to making its decision?
(b)Did the Council have jurisdiction to grant consent to the manager’s unit in circumstances where the manager’s residence was added after the application was publicly notified?
(c)Should the Court exercise its discretion and quash that part of the resource consent authorising the manager’s residence?
Background and chronology of key events
[15] The sequence of events prior to and the events that unfolded at the hearing are central to the Court’s determination.
[16] The following outline is drawn from the parties’ chronology and statement of agreed facts, the evidence of Mr Phil Dunstan, one of the two directors of Scope, Mr David Henderson, CCCL director and Mr Brent Giddens, CCCL’s planning expert, and the common bundle.
A landfill, a proposed storage facility and a covenant about proposed land use
[17] Scope occupies and operates a landfill at Victoria Flats in the Gibbston Valley, near Queenstown, under a contract with the Council It has done so since 1999. The landfill accepts domestic, transfer station and commercial waste. Unsurprisingly, it generates odours. It is required to operate in accordance with conditions of a designation contained in the Queenstown Lakes Proposed District Plan (PDP), and a discharge permit issued by the Otago Regional Council.3
3 Designation 76 of the QLDC Proposed District Plan; Conditions 3 and 4, Otago Regional Council Resource Consent 97164.V2.
[18] CCCL’s land borders land owned by Scope which is designated as Landfill Buffer in the Queenstown Lakes PDP. The Landfill Buffer surrounds the Landfill. Scope recently acquired its land comprising the Landfill Buffer from CCCL. Pursuant to the purchase agreement, Scope is obligated to provide an APA to any land use application on CCCL’s land, provided such activity does not involve any residential component. The covenant also expressly provides that Scope shall never be required to provide approval for any proposed residential use on CCCL’s land.
Discussions and an application for consent
[19] In April 2022, Mr David Henderson for CCCL discussed its plans to develop a self-storage facility, which included a manager’s flat with Mr Phil Dunstan.
[20] There are differing accounts as between Mr Dunstan and Mr Henderson about this early conversation. Mr Dunstan says Mr Henderson approached him to say CCCL either had, or was about to, apply for the land use consent to build the facility on part of the land it was to retain under the sale and purchase agreement. Further, that Mr Henderson said he wanted to add a manager’s residence to the application and asked if Scope would sign an affected person’s approval on that basis. However, after discussing it with his business partner, they decided they did not wish to provide an APA for a manager’s residence and Mr Dunstan says that he later so informed Mr Henderson.
[21] Mr Henderson’s recollection is that he was not informed by Mr Dunstan that Scope did not consent, and he notes that Scope later did provide its APA. He says that in the initial discussion in April 2022 he made clear to Mr Dunstan the need for an onsite manager in residence, which possibly could be from an existing three- bedroomed residence on CCCL’s land but that “it would be more ideal” if an apartment was created above the new storage office facility. Further, that he indicated that he was “up for” substituting the existing residence for the proposed manager’s unit, with no outdoor space.
[22] On 29 April, CCCL by its expert planner Mr Giddens lodged a land use resource consent application with the Council for a self-storage facility occupying some 7.8 ha of CCCL’s land. The application included a set of architectural plans, dated September 2021 and showing a Gatehouse Office building, the first floor of which has two office areas.
[23]The application did not include any residential component.
[24] Mr Dunstan spoke again to Mr Henderson on or about 9 May. He says that in this conversation Mr Henderson said that CCCL had recently applied for land use consent to construct a storage facility and other buildings on an area of land close to the landfill boundary. Further, that Mr Henderson said that the consent application did not include any residential use and that the covenant in the agreement meant that Scope had to provide an affected persons approval.
[25] Mr Henderson does not address this second conversation in his affidavit. Mr Dunstan says that shortly after that conversation ended, he received a copy of the blank APA from Mr Henderson by email at 9.39 am on 9 May:
Morning, Phil.
Could you please turn this around asap for me. Thanks
Dave
[26] Mr Dunstan says Scope’s directors requested a copy of the application itself so that they could “understand exactly what consent was being applied for” and check with their property lawyer whether they were obliged to give it. On 17 May he sent an email to Mr Henderson – in reply to Mr Henderson’s 9 May email. Mr Dunstan requested a copy of the application so they would “know what we are signing off on”. Scope then sought legal advice.
[27] On the same day Mr Dunstan enquired for a copy of the application, 17 May 2022, QLDC acknowledged receipt of CCCL’s resource consent application.
[28] Scope subsequently received advice from its legal advisor that there was no ability to refuse the APA given there was no residential component in the information they had been provided. It then provided its APA, on 23 May.
[29] Mr Henderson’s evidence is that the APA was “given on an incorrect basis” without the manager’s residence, which he mistakenly thought had been identified on the plans he sent to Mr Dunstan in May 2022. I return to this below.
Notification – 26 May 2022
[30] On 26 May the application was publicly notified, and a copy was served on Scope. The notification described the proposal:
Land use consent to construct buildings and operate a 298 unit storage facility, with associated water storage tanks, earthworks, landscaping, access and 251 parking spaces, services staff office and facilities, club room and café.
[31] After notification CCCL amended its application to include a manager’s residence.
[32]Mr Henderson refers to this in his affidavit:
It was my understanding that the provisions of this accommodation above the office had been identified on our plans which I sent through to Mr Dunstan on 9 May 2022. It was sometime later that it came to my attention that it wasn’t in fact identified.
I was embarrassed by that error and immediately contacted Mr Dunstan. I rang him on 18 October 2022 and apologised to him about this matter. I reiterated to him that we would be up for simply swapping the existing house consent for the managers/caretaker’s flat.
[33] On 10 June 2022 the planner Ms Clowes raised the issue of a manager’s residence with Mr Henderson, in an email with request for information.4 The email set out a range of queries including as follows:
During the site visit, ‘a manger’s residence’ [sic] was referred to. The plans provided show a ‘Gatehouse Office’ with ‘Manager’s Yard’. Please confirm whether any residential use is proposed within this building.
4 Resource Management Act 1991, s 92(1).
[34]On 15 June 2022, Mr Henderson replied:
Yes, we have a residential house on site now. In time we intend to remove that and seek to shift that residential consent to an apartment for a live-in caretaker.
[35] At some time before or by 23 June, Ms Clowes sent a further enquiry in response, to Mr Henderson: “To confirm, no residential use is proposed at present? Where would a future ‘apartment for a live-in caretaker’ be? The Gatehouse office?”
Submissions close: 24 June 2022
[36] On 24 June submissions closed. Scope did not make a submission as it had provided its APA. Having done so, its right to be heard under Part 6 of the RMA ended. As Mr Dunstan puts it, Scope “left the matter to take its course”.
13 July 2022: A manager’s residence is now proposed
[37] No further reply from Mr Henderson to Ms Clowes’ further enquiry at [35] above was adduced in evidence but, as Mr Giddens notes in his affidavit, on 13 July CCCL notified the QLDC engineer (and the planner) that a manager’s residence was now proposed. In an email from CCCL’s traffic engineer Mr Edwards, he answered a QLDC question as follows:
[QLDC]: Is there a manger’s house [sic] now included with the current proposal, and if so, what are the traffic generation implications of this?
[Mr Edwards]: Dave has advised that this is now proposed.
[38] On 5 August Mr Edwards sent a further email with an updated transport assessment “v10”. He noted as among the “key changes” of the proposed storage facility: “including a managers house in the proposal”.
[39] A further set of the architectural drawings was prepared dated 16 August 2022. The first floor of the gatehouse office building depicted in the original application was re-drawn as the ‘Gatehouse managers accommodation’, with two bedrooms, kitchen/living and dining and bathroom.
[40] The amended application was uploaded to the QLDC eDocs filing system on 16 September 2022.
Section 42A report – recommendation against the manager’s residence
[41] On 6 October 2002 Ms Clowes provided her report under s 42A. It identified that the addition of the manager’s residence triggered a requirement for resource consent as a discretionary activity pursuant to Rule 23.4.8 of the PDP, being a consent for a residential unit. It recommended that, subject to new or additional evidence being presented at the hearing, the application for the storage facility be granted pursuant to s 104 of the RMA, but noted that:
Notwithstanding the above [recommendation in favour of storage facility proposal], the proposed manager’s residence has a significantly adverse reserve sensitivity effect with regard to the nearby landfill, and this specific aspect of the proposal [residential activity] is not supported.
[42] At section 4 of the report Ms Clowes noted Scope as a person who had provided their written approval, “and as such, adverse effects on these parties have been disregarded”.
[43] The planner also addressed “Reserve Sensitivity Effects”, concluding with her opinion that:
In summary, whilst there will likely be reverse sensitivity effects related to odour, given the aforementioned consent obligations (to avoid more than minor adverse odour effects), and in the context of the temporary nature of visits to the site, reverse sensitivity effects are not considered to be more than minor.
Further to the above assessment, since lodgement of the application, the Applicant has proposed to include a ‘Manager’s Residence’ above the ‘Gatehouse Administration Building’. This component of the proposal is not supported, nor is the potential future residential use of any of the buildings on site. Given the proximity of the landfill, its important to the District and region (it also services Central Otago District Council), and the sensitive and permanent nature of residential occupation, residential activity within the site is considered likely to result in future complaints that may constrain future operations of the landfill. In this setting, potential adverse effects related to reverse sensitivity are considered to be significant.
[44]Under the heading “Summary of effects” Ms Clowes observed that:
In terms of reverse sensitivity, potential adverse effects are significant (with specific regard to the Proposed Manager’s Residence), but not more than minor with regard to the remainder of the proposal (the storage and office activities).
…
On balance, and putting to one side the significant reverse sensitivity effects resulting from the proposed residential use of the manager’s residence, I consider overall potential adverse effects resulting from the proposal are not more than minor, …
[45] Mr Giddens gave expert planning evidence for CCCL in favour of the proposal, filed on 14 October. His report addressed the topic of reverse sensitivity:
To evaluate reverse sensitivity effects arising from the location of the landfill, I have considered the constraints that the landfill must operate under in terms of odour discharges through to 2034 (being the term of the landfill consents and Scope’s lease tenure). This is a fundamental issue in my opinion; without evaluating the constraints on the activity, it could be construed that the landfill is unfettered in terms of its odour effects on the environment, which is far from the case.
Condition 4 (g) (iv) of Designation 76 states that, as an ongoing requirement, effects of odour, dust, vermin and litter are to be mitigated to ensure that any adverse effects associated within the site are minor.
Resource Consent 97164.V2 relates specifically to the nature of air discharges in association with the landfill and condition 3 of that discharge consent requires that the effects of any odour emission that is offensive or objectionable is limited to the boundary of the Council site, which notably excludes the buffer zone land.
In my opinion, when the landfill is operated in accordance with the designation and consents, the effects of odour would not give rise to an undue risk of complaints from the CCCL storage facility that would hinder landfill operations.
[46] Mr Giddens says that while he did not specifically mention the manager’s residence in this passage of his evidence to the Commission, he did have it in mind.
18 October 2022 - a conversation and an email
[47] On 18 October Mr Henderson rang Mr Dunstan to alert him to the addition of the manager’s residence. Mr Dunstan does not recall the detail of that conversation as he was unwell after returning from an overseas trip. Scope does not dispute
Mr Henderson’s evidence that, having apologised to Mr Dunstan “about this matter [and] reiterated to him that we would be up for simply swapping the existing house consent for the manager’s caretaker’s flat” Mr Dunstan expressed no concern or frustration that the detail of the flat was not on the original plans Mr Henderson had sent him, nor any concern about the concept, but asked that Mr Henderson email him formally so he could raise it with his fellow director.
[48]After the call, Mr Henderson sent Mr Dunstan an email:
Phil
Thanks for your time on the phone. As discussed, since I sent you the plans relating to the our [sic] storage application for you to complete an APA, we have advised QLDC that we now want to include a simple caretaker’s flat.
That it is the only variation we are now seeking. What we are proposing to the QLDC is that we give up the existing residential property there – the house over towards the tunnel, and replace that with a simple flat above the gatehouse at the proposed storage.
You are always protected by the reserve sensitivity/no objection covenants on all titles we create there.
I’ve discussed this with the QLDC planner. I advised her that I would raise it with you to be absolutely clear.
Are you and Grant ok with this? The alternative is that we just keep the existing house and put a caretaker in there. We do get a lot of poachers and other odd folk coming through here at night. It is in everyone’s interest to be able to deter them as solidly as possible.
If you could please come back to me on this asap that would be much appreciated. If there is any issue we will simply promote the concept but advise the hearing that we do not have your approval.
Thanks Dave
[49] Mr Dunstan promptly forwarded the email to his business partner. Scope did not, ultimately, provide any consent as requested or take any other step in relation to the hearing that was to take place on 28 October.
Minute 3 – 26 October 2022
[50] Two days before the hearing, on 26 October 2022 the Commissioners issued a minute. They noted that the only outstanding submitter had withdrawn their submission and provided written approval to the application. The minute recorded that the applicant CCCL and Council had agreed that a hearing should still proceed but given there were no submitters remaining the Commission would be holding a “focussed hearing”, traversing a number of matters.
[51]The first of those matters was identified as:
(a)Whether there is an issue of reverse sensitivity with the proposed manager’s residence, given Scope Resources have provided written approval.
[52] Another matter noted in the minute reflected CCCL’s undertaking to rescind the consent which was in place for an existing residential unit on CCCL’s land (but not within the footprint of the proposed storage facility) in exchange for the consent sought for the manager’s residence now proposed in its amended application. The Commissioners posed the question:
(n) How much weight can be ascribed to an applicant’s undertaking to rescind resource consents, and how can this be assured through this consent process, if it is a pre-requisite for approval?
Mr Henderson’s evidence for the Commission hearing: 27 October 2022
[53] On 27 October, Mr Henderson filed a statement of evidence for CCCL. In it he observed that:
The property has two very important virtues:
1.It has no domestic neighbours. In fact, none in the whole catchment area.
2.No visibility from neighbouring properties or the SH 6.
3.Those two factors make the property very important for Queenstown. It is arguably the only piece of land between Frankton and Cromwell/Wanaka that would be suitable for the type of activity we proposed – storage facilities.
4.This is further borne out by zero interest by any party in submitting against this proposal after it was publicly notified.
…
(emphasis added)
No updated APA is provided
[54] It is common ground that (by its 18 October 2022 email), CCCL having sought an updated APA from Scope for the manager’s residence in the amended application, no updated APA was provided. Scope did not revoke its written approval, lodge a submission with a waiver of time, or otherwise put its position to the Commissioners hearing the application.
Debate at the hearing
[55] At the hearing, CCCL advised the independent Commissioners appointed to hear and determine the amended application that Scope had not provided an updated APA, and that the addition of the manager’s residence occurred after the original application was publicly notified. The topic of the APA, the reverse sensitivity issues that arose from the addition of the manager’s residence, and CCCL’s offer of an Augier condition – to rescind the consent for the existing residential unit if the Commissioner’s would grant consent to the proposed manager’s residence - were discussed.5 It is necessary to set out the relevant passages in full:
Chair (to reporting planner): So where are you sitting at the moment in terms of that managers unit? You were very concerned about it and before today.
Reporting planner: Yeah, so it was more raised in the context of Scope Resources limited providing an APA, but that APA is given for the original proposal which did not include the manager's residence. So I just want to flag that it may very well be that Scope isn't aware of the manager's residence being introduced into the proposal, and I have raised this with the applicant, and I understand the applicant was endeavouring to update the APA, and obviously they've got to in that regard. So it's really raised
5 Mr Giddens in his affidavit set out a transcript he had prepared of the relevant parts of the discussion at the hearing. Scope raised no issue with the transcription.
more in that context. And then my position, as I've outlined in my 42A report, is that notwithstanding that the manager's residence is outside the buffer designation, because during site visits, Chris and I have both identified odour issues, I do think there is a sensitivity component that's there that may have an impact back on the landfill. And just in that context of Scope, maybe not realizing that that manager's residence is there. Want to raise it like that. But certainly if the manager's residence was removed from the application, and I understand that, if a possibility, and then the reverse sensitivity component it goes away.
Chair: That's really helpful. So this change with the manager's unit came ... uh, post notification. Post notification. What do you have to say? [to applicant]
Mr Henderson: That is fully accepted, and I've taken it to Scope and identified that for them. And there are two directors of scope, one who I enjoy a great relationship with and one who I don't enjoy quite a great relationship with. And so the former was very enthusiastic and quite comfortable with the proposition that was simply trading out one existing residential consent for another. But I haven't heard back from them finally. If it comes to a crunch, then the existing residence could be used. Albeit it's a slightly more impractical proposition. The odour issue that Hannah raises. Odour is experienced and it's experienced outside the buffer zone. The condition of the consent for the landfill is that there can be no odour beyond the boundary. The boundary is well within the buffer zone. So they are in breach of their consents. That's the fundamental problem. We're not making an issue of that, because we've had to come to grips with the fact that these effects are going to continue to play plague the site forever. And so but we don't see it as an issue in terms of swapping one residential consent for another, albeit 200 yards, 200m, away.
Chair: So we have included a question about that because it was offered that the that residential unit consent would be rescinded. But so we had the question, how can how could we be assured that through this process?
Mr Gardner-Hopkins: ... So from a technical perspective, I would say it is entirely possible to have a condition that requires surrender prior to implementation of a new consent, and particularly if it's offered up by the applicant on the so-called Augier basis. And so, as I understand it, that's something that Dave [Mr Henderson] is offering up. It is, if you like, conditional on, if a new manager's residence is approved through this application, then he is prepared to accept a condition requiring the removal of the existing dwelling, and it would be on that basis. And so if for these other Scope issues, perhaps if you were concerned about the inclusion of the manager's residence, the absence of Scope, even given the Augier condition or for whatever reason, then it [the new manager's residence] simply wouldn't be consented, but that would be independent of that part of the application being approved. There would be no surrender or requirement to cease the existing residential use.
Chair: I understand that. Yeah. So, is the position that the existing APA is not valid because it is not for the application that. I don't think it would be valid for the manager's residence.
Mr Henderson: If I can help you change the scope of contractually obliged to provide us with an APA for any activity other than residential. Right. So there's a contractual obligation on their part to do so and that's what they've done. And albeit in this bit it's my oversight of screw up that it didn't relate to that swapping of the of the residential units if you like, or the residential consents.
Chair: No, I understand.
Chair: I guess I'm just trying to work out. So for us, to assess this application. What is ... What is your understanding of how relevant the reverse sensitivity effects are given that the Scope APA is not valid for that?
Mr Giddens: ... The effect is "the effect" that at the point on their boundary. How this happens in reality, I don't know. But the minor effect must be on the site boundary. So was minor there [pointing to a plan showing the site boundary]. Should be less than minor at the at the [manager's] residence [which is further away from the site boundary] and less than minor at the existing residence [which is further away again]. If you follow that line of thought, as I say, that's not in reality -
Chair: It is another way of saying that -
Mr Giddens: There shouldn't be any reverse sensitivity effects if they're meeting the requirements of their consent.
….
Chair: So basically. You can't object. Are you allowed to complain?
Mr Henderson: Just so. No, in fact, I've been chastised for even raising it in forums like this, so I do so very cautiously. No, no, we can't complain. However, there is a provision there. It doesn't prevent someone from complaining if they [Scope] are breaching the terms of their consent. And it was just outlining those. The realities are that at the boundary that there has to be less than minor. So. One of the ...
Chair: ... Covenants I think there was some discussion about? The commission decision as well.
Mr Henderson: Well, they would need to be bound. They would. They would also have to be bound by these terms of occupation. Right.
... Yeah. There would be explicitly I mean, they would anyone occupying any storage there is going to be bound by a, by a similar occupational agreement. And that will provide explicit ...
Chair: ... Hannah [the reporting planner], what's your thoughts in terms of this issue?
Reporting Planner: I think the condition that's being offered about inability of the storage occupiers to complain is a good one and it should be included. I still have reservations about the difference between the experience of someone residing permanently in their area versus. Visiting the area infrequently for short periods of time ...
If they accept the situation by taking a position for a company where the environment is ... and if they could be held to the same restrictions in terms of not objecting that would address it. Not sure.
Mr Henderson: Find an olfactorily challenged security person. That condition is not an issue. It's the realities of the site. I can tell you we, we, have to accept the realities of the site, which is that there is a landfill. And despite the best of attempts by everyone, there are effects that arise and it's a matter, it's a matter that Scope as the operator and ourselves agree. We have to figure out a way to work together, which I believe we have to a very satisfactory degree. So. And the other overriding factor is both the Council and Scope have spent a ridiculous amount of money out of their at the landfill trying to mitigate odour, in particular by virtue of their mining the landfill gas that comes off there, which is the source of the odour. And they are working very hard to make sure that is effective having made that commitment. We trust that in the future that the odour issues are somewhat ameliorated.
Chair: I think the position is, if it's acceptable to have that residential use there in the context of a no complaints covenant and the requirements of the consent for the landfill, then I don't think there's a need for a condition to rescind the existing residential unit.
Subject to those other things? No, I don't see that either. Either there is a reverse sensitivity issue with the residential activity or there isn't. So if the position is that there isn't, I don't see any benefit in offering that condition to rescind the existing consent for the residential house. Just, just as a comment
...
Chair: And we've traversed the manager's unit already because you had concerns here about significant effects. So has your view changed there?
Reporting planner: I still have concerns about that. But if you're, if the consensus is, that it can be addressed by way of a condition in terms of covenants on titles that prevent complaints being made, then, then I'm comfortable with that being appropriately addressed.
Chair: So we need your view in terms of it doesn't matter about if other people think that. And certainly we haven't formed a view.
Reporting planner: If that can be conditioned then that would address reverse sensitivity.
(emphasis added)
Decision
[56]The Commissioners gave their decision on 15 November 2022.6
[57] The Commission determined that any reverse sensitivity effects on Scope’s landfill could be appropriately managed. In relation to Scope (and others’) affected
6 Decision of the Queenstown Lakes District Council, 15 November 2022.
party approvals, the Commissioners noted that the approvals were provided with the application, prior to the introduction of the manager's residence, and that they “approach[ed] the affected parties' approvals on that basis”.7 They also noted that the planner had amended her verbal advice at the hearing in relation to the manager’s residence:8
… This decision therefore needs to be read alongside Ms Clowes' s42A report, as amended by her verbal advice at the hearing with respect to cumulative effects on the landscape and the manager's residence.
[58] At [81] – [88] the Commissioner’s addressed the manager’s residence and related issues:
Reverse sensitivity and the manager's residence; rescinding consent for existing residential dwelling
We considered the issue of potential reverse sensitivity effects on the landfill site, and other surrounding sites, carefully. As we noted earlier, the affected party approvals had been obtained prior to the manager's residence being included in the application, but prior to notification. While no parties submitted against the manager's residence, we must still consider the potential effects arising. Mr Henderson advised us that Scope Resources, who operate the landfill, are contractually obliged to provide written approval for anything other than residential activity on the site. We had no evidence presented to confirm this.
Mr Gardner-Hopkins reinforced that the Applicant had offered an Augier condition for the rescinding of the consent and removal of the exiting residential unit. That offer was conditional on the manager's residence being approved. He considered that there would largely be a substitution of effects. We asked Mr Gardner-Hopkins if it would be a substitution, given the manager's residence would be located closer to the landfill than the existing residence. His view was there would be little difference, but we had no expert evidence on this.
Mr Giddens advised that both the Oxbow and Gun Club consents have "no- complaints" conditions on their consents. In his evidence and at the hearing, Mr Giddens talked through the relatively prescriptive and restrictive conditions imposed on the landfill operation through both Designation 76 and Resource Consent 97164.V2. Between them, these require that the effects of odour, dust, vermin and litter are to be mitigated so that any adverse effects associated with the site are minor, and that the effects of any odour emission that is offensive or objectionable is limited to the boundary of the Council site, excluding the buffer zoned land.
7 At [27].
8 At [36].
Ms Clowes had expressed significant concerns about reverse sensitivity effects arising from the manager's residence in her s42A report. She was particularly concerned given the proximity of the landfill and its district and regional importance, and the sensitive and permanent nature that residential occupation and activity may bring, including future complaints.
During discussion, the planners agreed that “no complaints" conditions could be imposed on the consent to address potential reverse sensitivity effects. Ms Clowes also advised that she did not see a need to rescind the existing residential unit resource consent should consent be granted, including “no complaints" conditions.
The planners' recommended conditions included two recommended conditions requiring a site management plan that would address how the potential for complaints from anyone on the site about the operation of the landfill. They also included a condition for rescinding the existing residential unit consent if we considered it necessary.
Having considered the planners' evidence and hearing their advice, we find that any reverse sensitivity effects on the landfill could be appropriately managed through the site management plan conditions, as well as the conditions that already apply to operation of the landfill. In our view, this proposal differs from a standard residential development, in that there is only one manager's residence involved, and whoever that manager is will be well aware of any conditions on the resource consent. Users of the facility will generally not be on the site for any long periods of time, and the conditions would also ensure that they are aware of the landfill and the effects that it generates.
However, we have amended the conditions slightly, so that the reference is not just to adverse odour effects, but rather adverse effects, including odour.
With these conditions in place, we agree with Ms Clowes that there is no need to require that the existing residential unit be removed and its consent rescinded.
[59]The application was granted including the manager’s residence.
[60]Against that background I turn to the issues to be determined.
Was Scope wrongly excluded from the debate and decision-making process?
[61] Scope argues it was erroneously excluded from the debate at the hearing and the decision resulted from a flawed process, as a result of CCCL’s late addition of the manager’s residence.
[62] Scope had provided its written approval, as required, to the original consent application which had no residential component. Consistent with its APA and as there was no residential component to object to, Scope made no submission, and its right to be heard in relation to adverse effects under Part 6 of the RMA ended. The late addition of the manager’s residence required discretionary use consent and rendered Scope vulnerable to reverse sensitivity adverse effects. The QLDC, having accepted the amended application, at the hearing identified the reverse sensitivity effects and was on notice that the APA did not extend to the new proposed use. Scope says the Council, in those circumstances, breached its obligation to ensure the approval was ‘yoked’ to the amended application: Troughton v Western Bay of Plenty Council.9 In those circumstances there was a breach of natural justice and the council’s duty to act fairly as Scope was not afforded the opportunity to be heard on the issue of reverse sensitivity.
[63] Further, Scope says the decision failed to take into account a relevant consideration – a neighbour’s views as to reverse sensitivity effects on its landfill operation – and/or was unreasonable in the Wednesbury sense.10 Scope says it was for CCCL, having made the late amendment to include a residential component, to get all its “jurisdictional ducks in a row”. It notes the eleventh hour approach was couched in prospective terms and sought an updated consent. Scope was not obliged to consent and did not do so. It was not for it to try to “cobble together” its case and evidence at very late notice to make a meaningful entry into a process in which it had no statutory right to participate, having foregone that opportunity at close of submissions. It was entitled, in those circumstances, to rely on the Council to exercise its decision making lawfully and within jurisdiction. The APA was invalid and no positive consent had been provided as sought; the Commissioners, on notice of that, should have refused consent for the manager’s residence for want of jurisdiction.
[64] CCCL relies on Mr Henderson’s evidence that he had always intended to accommodate a manager overnight (whether in the existing residence or in the proposed storage facility buildings) and notes that Scope has not challenged
9 Troughton v Western Bay of Plenty District Council HC Tauranga CIV-2003-470-238, 18 February 2004.
10 The argument as to Wednesbury unreasonableness was not developed in submission and is not further addressed in these reasons.
Mr Henderson on the basis he deliberately misled Mr Dunstan. CCCL submits it is not necessary for the Court to determine the difference in accounts as any procedural error was proactively corrected by CCCL’s “direct and unambiguous notice” of the inclusion of the manager’s flat in Mr Henderson’s 18 October email to Mr Dunstan. In those circumstances, CCCL says Scope could have withdrawn its APA and/or sought a waiver of time to file a submission seeking to be heard. It did neither, and it was not therefore excluded from the process. It should not now, as a matter of fairness, be heard to complain about its failure to take action and participate in the process as was their right.
[65] Ms Burkhardt argues the matter is much more fine-grained here than in Troughton, where this Court quashed decisions permitting an operation of a nature and scale far beyond what had been consented to by affected persons, without providing opportunity to be heard. CCCL emphasises Scope’s obligation to minimise or obviate odour discharges from the landfill and says any “technical error” did not infect the process as the Commissioners set aside the APA and went on to carefully and thoroughly consider reverse sensitivity effects in any event. Having done so the Commissioners in substance effected a no complaints covenant by approving a no complaints-based condition in the site management plan.
[66] This Court’s enquiry is to review and correct any procedural irregularity if it has resulted in error.
[67] I am satisfied the process went awry, and Scope was wrongly excluded from the debate. While unnecessary to determine different accounts of the early exchange between Messrs Henderson and Dunstan, the procedural effect of the events must be considered in context. In April 2022 CCCL sought, and in May 2022 Scope gave its APA on the basis of an application with no residential component. The application was substantial and professionally prepared and submitted on behalf of CCCL. The manager’s residence was not simply not depicted in the architectural plans of the “Gatehouse Office”; there was no reference to it at all in the application which ran to 209 pages. I accept Mr Dunstan’s evidence that Scope would not have consented to any residential use in the storage facility, as consistent with the tenor of its legal advice before providing its APA to the original application.
[68] On 13 July CCCL (by Mr Edwards) first notified the council’s planner and engineer that Mr Henderson now proposed to include a manager’s residence in the consent proposal. That was three weeks after close of submissions but still more than three months before the hearing. CCCL amended the plans by 16 August. They were submitted to council a month later. It is common ground that no step was taken to alert Scope at any of those procedural touch points to the addition of the manager’s residence and the significance of the change on their APA.
[69] As Mr Giddens records, the Council’s officers did not raise any jurisdictional issue when CCCL filed its amended application including a manager’s residence. Neither, however, did CCCL expressly raise with the Council that Scope’s APA was not valid for the amendment, as having been given to an application without any residential component. Nor did it identify that Scope was not in law required to give consent to any residential use of a proposed development as was now being sought. Instead, in due course the Council’s s 42A report recorded the provision of Scope’s APA and that, therefore, adverse effects had been disregarded.
[70] The incorrect impression that Scope had a subjugated interest was then reinforced by Mr Giddens’ evidence on 14 October. His expert evidence on reverse sensitivity effects was silent as to the new manager’s residence, although Mr Giddens says he had it in mind when drafting his evidence. His opinion, concluding that when operated lawfully odour effects from the landfill would not give rise to an undue risk of complaints from the CCCL storage facility, ended with one further paragraph not cited in his affidavit in this Court:
I note in any case that both Scope Resource Limited and the Council have provided affected persons approval to the application and effects on both parties must be disregarded.
[71] This point was further reinforced two paragraphs later in his evidence under the heading “Affected Persons”:
Again, Ms Clowes has comprehensively set out the parties who submitted and have provided their affected persons approval within her s 42A report. I agree with Ms Clowes’ assessment and confirm that I share her view that Bungy NZ Limited is not adversely affected to a more than minor degree.
[72] Against that background came Mr Henderson’s 18 October telephone call and email. Mr Dunstan does not recall (but does not dispute) the conversation which preceded it. In any event the advice arrived only seven working days before the hearing, and more than four months after close of submissions. I accept, as Scope submits, the email was couched even then in prospective terms which conveyed that the addition of a manager’s residence was what CCCL was proposing, rather than what it had already done. Mr Henderson did not notify the council on 18 October or at any time before the hearing of the issue he had just realised. Had this occurred, while it is unknown what the Commissioners’ response would have been they would at least have been provided with an opportunity to consider the significance of the issue arising due to the late addition of the manager’s residence.
[73] Nor am I persuaded the email of 18 October is the panacea which CCCL contends. It is neither the start nor the end of the enquiry whether Scope was wrongly excluded. After it was sent, the procedure continued unsatisfactorily. Mr Giddens opines that at the latest, the Commissioners were aware of the reverse sensitivity issue and the relevance of Scope’s APA by two days before the hearing, when they issued their Minute 3. To the contrary I consider the evidence viewed as a whole suggests the Commissioners, prior to the hearing and up to the point in the debate when it was clarified, likely were operating under the misapprehension that Scope’s APA extended to the addition of the manager’s residence. The issue raised in Minute 3 is telling: flagging the apparent contradiction between the reverse sensitivity effects the Council’s planner had raised and the APA requiring the Commissioners to disregard any adverse effects on Scope.
[74] Following the Minute, in his evidence filed on the eve of the hearing Mr Henderson did not identify his 18 October advice to Scope or that he had sought an updated APA (without success). His evidence noted that there had been “zero interest” by any party in submitting after public notification. In that regard it could only have reinforced the Commissioner’s lack of appreciation that there was a problem with the earlier APA.
[75] Against that background, when the position was confirmed at the hearing and Ms Clowes sounded her concern there was in my view a clear red flag: that a party affected by the amended application had provided its APA before notification and, worse, before the addition of the residential use giving rise to adverse effects.
[76] There were two more red flags. First, within Ms Clowes’ initial response when she identified that it was for the applicant, CCCL, to update the APA, commenting “obviously they’ve got to in that regard”. Effectively, Ms Clowes identified for the Commissioners the very issue now being litigated. From the transcript it appears it was only then that the Commissioners registered the significance of the late amendment to include the manager’s unit after notification.
[77] The Chair promptly asked Mr Henderson what he had to say. His response, and that of CCCL’s project manager Mr Gardner-Hopkins shortly following, together provided the third red flag. Mr Henderson, without saying when, advised he had “taken it” (presumably the amended application) to Scope and “identified that for them”. But from the Commissioner’s perspective it should have been apparent that Mr Henderson’s answer posed more questions than it addressed. He noted what he described as a positive response from only one of the two directors, while noting that he did not enjoy a great relationship with the other, that the proposition he had put was simply trading out one residential consent for another but that he hadn’t heard back from Scope’s directors, in any event.
[78] It appears Mr Gardner-Hopkins was alive to the failure of process and the issue that arose in Scope’s absence. His submissions reiterated CCCL’s position, as conveyed by Mr Henderson at the outset to Mr Dunstan and latterly in the 18 October email, that if no new manager’s residence was consented (as sought on the amended plans) CCCL would be in position to operate the storage facility using the existing residential use of the house on site:
And so if for these other Scope issues, perhaps if you were concerned about the inclusion of the manager’s residence, the absence of Scope, even given the Augier condition or whatever reason, then it [the new manager’s residence] simply wouldn’t be consented, but that would be independent of that part of the application being approved. There would be no surrender or requirement to cease the existing residential use.
[79] Based on the transcript I am also unable to accept, as CCCL contends, that the position was identified in an “clear and unambiguous” way. There was no reference in the discussion to when Mr Henderson’s discussion had occurred with Scope. The Commissioners were, only during the hearing, made aware that Scope had not given consent to what was a material change giving rise to adverse effects of a greater scale and intensity than the original application. Even then, the position was clarified in stages of the exchange. There was no pause in proceedings and the Commissioners did not receive or consider legal submissions about the procedural error and its significance. I accept the Commissioners did go on to give careful consideration to the issue of reverse sensitivity, however that did not cure the defect in process. Rather, what then occurred was a partisan debate to persuade that any reverse sensitivity effects should be non-existent or could be mitigated.
[80] Indeed, the Commissioner’s conclusion that there shouldn’t be any reverse sensitivity effects if Scope is meeting the requirements of their consent reflects the submission made by both Mr Giddens and Mr Henderson in the debate, without any counter arguments. As Ms Burkhardt notes, Scope are lawfully bound to create no more than minor odour effects at their boundary. However, there was no evidence before the Commissioners from anyone but CCCL on this aspect as a result of the late amendment. At the hearing the only evidence was supposition and suggestion on behalf of the applicant as to effects upon the proposed manager’s residence which is within approximately 200 m of the boundary, and the existing residence approximately 200 m further distant again.11 For example, Mr Giddens, discussing a minor effect at the boundary submitted there “should be less than minor [odour effects]” at the proposed manager’s residence and less than minor at the existing residence. While it is clear from his next comment that Mr Giddens was simply airing or developing an argument: “If you follow that line of thought, as I say, …”, this was followed immediately by his opinion, on the critical issue, that there shouldn’t be any reverse sensitivity effects if Scope were meeting the requirements of their consent.
11 According to the plan tendered by counsel for the respondent.
[81] As the debate itself reveals, the reverse sensitivity issue was plainly contestable and CCCL’s representatives or witnesses advocated to persuade the Commissioners that any reverse sensitivity concerns Scope might have were adequately met by conditions. That discussion alone, in my view, should have signalled to the Commissioners the breach of natural justice in proceeding in Scope’s absence after learning that the APA was defective. CCCL was naturally partisan. Even had it been neutral, an affected party who had not given its written approval to the proposed residential use giving rise to a significant potential for future complaints was not at the table.
[82] Further, the Council planner continued voicing doubts and concerns throughout that part of the debate, until finally conceding a conditional view: that if there could be suitable no complaint conditions, that would address reverse sensitivity. Ms Clowes’ eventual change of position provides no comfort. Rather, it reinforces Scope’s lost opportunity to submit, before the Commissioners made their determination, to provide evidence if it chose and to advocate against the planner’s change in position. It is striking that Ms Clowes ultimately referred to the “consensus” (that adverse effects could be ameliorated by conditions) when expressing her view that she might be persuaded away from her previously noted concerns. There may have been a consensus, but only among those in the room. Worse, from Scope’s point of view, the Commissioners went beyond that consensus in any event, declining to require recission of the existing residential use consent as CCCL had offered.
[83] In those circumstances and as the planner herself had advised the Commissioners, it was for CCCL to obtain an (updated) APA. Without it the Commissioners’ decision to proceed with a one-sided debate, receive and act on the planner’s eventual change of position at the hearing in Scope’s absence wrongly excluded Scope from the debate. As Keane J observed in Troughton, debate is usually an indispensable solvent and those who suffer adverse decisions, without having been heard, can be predicted to suffer under an abiding sense of injustice.12
12 Troughton v Western Bay of Plenty District Council, above n 9, at [44], citing John v Rees [1970] Ch 354, 402.
Was the addition of the manager’s residence a permissible amendment?
[84] An application defines the scope of a decision-maker’s jurisdiction to grant consent and an amendment following notification is permissible only if within scope of the original application.13 The question is one of fact and degree in any particular case and the question is whether the amendment is reasonably and fairly within ambit of the original application.14
[85] Scope submits the manager’s residence went well beyond the scope of the application as notified. The amendment was not merely ancillary but a wholly new component which triggered a further requirement for resource consent and engaged additional adverse effects of reverse sensitivity.
[86] CCCL responds, relying on Centrepoint and related authorities,15 that the amendment was permissible as adding only an incidental or ancillary activity that could have been lawfully included through the resource consent process: as a residential unit ancillary to the storage facility. Alternatively, it says the change was only minor in context of the original application both physically and functionally, and only created reverse sensitivity adverse effects in a setting where Scope was bound to mitigate any odour effects to no more than minor at the site of the storage facility.
[87] This issue is also informed by the analysis of the process under the first issue, above, and can be more briefly addressed.
[88] I am not persuaded the amendment was permissible as within scope. I do not accept, as CCCL submitted, the addition of the manager’s residence was merely “updating” the office building plans or, as Mr Giddens put it in his affidavit, a “modification” to them. As the s 42A report and the debate at the hearing shows, the residential use was a material and significant change carrying a heightened risk of complaint due to the sensitive and permanent nature of residential occupation in close proximity to the landfill. This was to be contrasted with the experience of persons
13 Waitakere City Council v Estate Homes Limited [2006] NZSC 112
14 At [30], citing Shell Oil New Zealand Ltd v Porirua City Council [2001] 1 NZLR 340 (CA).
15 Centrepoint Community Growth Trust v Takapuna City Council [1985] 1 NZLR 702 (CA); Burdle v Secretary of State for the Environment [1972] 1 WLR 1207, [1972] 3 All ER 240 (QB); Te Rūnanga o Ngāti Awa v Bay of Plenty Regional Council [2023] NZCA 598.
visiting the storage facility infrequently for short periods of time, which was the only activity implicit in the original application. CCCL did not advance the amendment on the basis it now contends for, nor did it challenge Ms Clowes’ view in the s 42A report that the proposed residential use was a discretionary activity requiring separate consent.
[89] It is at least arguable that two residences entail a greater intensity and scale of adverse effects. Notably, CCCL only ever sought a singular residential use associated with the storage unit: Mr Henderson’s proposal was to substitute the existing residential use consent for the house on site, if the manager’s residence in the new gatehouse building was permitted. He reiterated this at the hearing. Mr Henderson’s evidence in this Court is that a “swap” of the consent for the existing family home on the site would, in his view, “clearly be of an advantage to Scope as it would have reduced the nature of any residential accommodation on our property”. Standing back, it is difficult to understand CCCL’s position as other than acknowledgement that the additional residential component was material and significant. But even if that is not so, the question is whether the amendment was fairly and reasonably within scope of what was notified and for the reasons outlined it was not.
[90] It follows that the consent authority granted an amendment in terms outside jurisdiction.
Relief: materiality
[91] Where a reviewable error is found the starting point is that a court will grant relief. Where there has been a fundamental error by a decision maker concerning an applicant’s legal status, for which the decision maker is responsible, relief will usually be granted by ordering reconsideration on the correct basis.16 However, this is not
16 Ririnui v Landcorp Farming Limited [2016] NZSC 62, [2016] 1 NZLR 1056 at [112]; reaffirmed in Auckland Council v Wendco (NZ) Ltd [2017] NZSC 113, [2017] 1 NZLR 1008 at [96].
invariably so. The Court may not exercise its discretion if relief would be futile or the respondent is prejudiced by delay.17
[92] CCCL says even if the Court finds the process was unlawful, by a “technical error” or otherwise, there was no error in substance as the manager’s residence is a permitted activity under the underlying Gibbston Character Zone (GCZ) as ancillary to the storage facility or to the existing manager’s flat.18 Alternatively, a consent could be achieved by other “relatively straightforward consenting means”. Mr Giddens deposes that a winery or farm building is a “Controlled Activity” under the GCZ and as such attracts automatic consent. He asserts that “[s]uch a building could be sought close to the storage units or to Scope’s boundary, to facilitate residual farming activities or winery activities, on the site, and that a Residential Flat in terms of the relevant rule would be permitted in any such building. CCCL further objects to Scope’s late challenge to the lawfulness of the existing unit. It says, even if (which is denied) the existing residential is not lawful, Scope has not identified a material difference which would flow in that case given the Commissioners’ findings proceeded from a cumulative assessment of reverse sensitivity in any event.
[93] Ms Macdonald for Scope says there is no inevitability of outcome if the matter is remitted and identifies several issues as extant: the consent status of the existing residential unit on site (for which Scope in 2013 as then owner of the land obtained resource consent); what is the relevant “existing environment” and the adequacy of conditions imposed to mitigate adverse effects.
[94]I am not persuaded that relief would be futile.
[95] Scope did not plead the issue of lawfulness of the existing house consent, it is true. However, it arises within one of the alternative pathways to consent which Mr Giddens’ opines were available and, he contends, inevitable. The lawfulness, or not, of the existing house is not for this Court to decide. Accepting, which I do for
17 Murray v Whakatane District Council [1999] 3 NZLR 276 (HC).
18 R 23.4.7: as a self-contained flat, ancillary to the existing residential dwelling on site and having a floor area no greater than 70m2 with only one kitchen and being held under the same site and ownership as the existing dwelling and the only residential “flat” related to the residential unit; Affidavit of Brett James Giddens sworn 5 December 2023.
present purposes, the lawfulness of the existing unit the fact remains that the effect of the Commissioners’ decision is that there may now be two residences within the vicinity of the landfill, where CCCL was only ever seeking one.
[96] It is no answer that there are now proposed alternative pathways by which the consent could have been granted, including as a residential flat ancillary to the existing residence on site. Scope contests the availability of the alternative pathways. Whether such a use is permissible (either because the effects may be mitigated or, as CCCL now submits, through an alternative consent pathway) is for the Council, not this Court, to determine.
[97] CCCL’s argument is also inconsistent with the manner in which it advanced its application before the Commissioners. I accept, as Scope contends, the argument flies in the face of s 42A report and the Commissioners’ decision, which both identified the requirement for a separate consent as a discretionary activity for use of the manager’s residence for residential activity. CCCL’s alternative argument involves a fresh process on a different consent pathway of a residual activity such as farming or winery activities.
[98] In other words, CCCL’s alternative propositions either beg the question at issue in this case or raise an entirely different proposal.
[99] There was some limited delay before proceedings issued, but that is put in context by the correspondence which Mr Henderson adduced, showing early but ultimately unsuccessful negotiations initiated by CCCL in response to the decision which had the effect of permitting two potential residential uses on the site. In that setting the delay does not militate against relief.
Conclusion
[100] Ultimately, the consent authority is responsible to ensure the integrity of the process leading to the decision. The Council’s decision to grant consent to the manager’s residence was infected by error due to the addition of the residential component after Scope’s written approval.
[101] Scope was wrongly excluded from the debate. That was a regrettable, if not inevitable, consequence of the late amendment and the omission to identify the significance of that until the hearing. The procedural problem was then compounded when the Commissioners were not assisted by a pause, or submissions addressing the failure of process. Instead, a one-sided debate occurred which informed the decision.
[102] The manager’s residence was also out of scope of the original application as significantly different in nature and ambit and in that regard the Commission’s decision was without jurisdiction.
[103] Relief is appropriate, to afford Scope the opportunity to participate in the process. As the argument in this Court demonstrates, it is not necessarily the case as CCCL contends that the manager’s residence would inevitably be consented, or if it was, that identical conditions would be imposed to mitigate the reverse sensitivity effects on Scope.
Result
[104] The decision granting a discretionary consent for the manager’s residence, including conditions associated, is quashed and the matter is remitted to the Council for reconsideration of that part of the resource consent application.
Costs
[105] Costs are reserved. My initial impression is that costs should follow the event on a 2B basis along with disbursements as fixed by the Registrar. The first respondent, the Council, did not oppose the application for judicial review but was given leave to make submissions as to costs. The most appropriate sequence appears as follows, and I so direct:
(a)all costs memoranda are limited to not more than four pages;
(b)Scope is to file memorandum within five working days of this Judgment;
(c)CCCL is to file memorandum within a further five working days;
(d)the Council is to file memorandum, within a further five working days;
(e)any (strictly) reply memorandum to the Council’s memorandum is to be filed within a further five working days.
………………………………………
Preston J
Solicitors/Counsel:
Mactodd Lawyers, Queenstown for the Applicant
Queenstown Lakes District Council for the First Respondent Canterbury Legal, Christchurch for the Second Respondent
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