Seafield Farm (HB) Limited v Hastings District Council
[2018] NZHC 1980
•6 August 2018
IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY
I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE
CIV-2017-441-108
[2018] NZHC 1980
UNDER the Judicial Review Procedure Act 2018 IN THE MATTER OF
an application for judicial review
BETWEEN
SEAFIELD FARM (HB) LIMITED and TARANUI COMPANY LIMITED
Applicants
AND
HASTINGS DISTRICT COUNCIL
First Respondent
PATTISON RURAL HOLDINGS LIMITED
Second Respondent
Hearing: 11 July 2018 Counsel:
M B Lawson for applicants
M E Casey QC for first respondent H R Verry for second respondent
Judgment:
6 August 2018
RESERVED JUDGMENT OF DOBSON J
[1] This application for judicial review challenges the decision by the first respondent (the Council) not to require limited notification of an application for resource consent lodged by the second respondent (Pattison Holdings) to effect a subdivision of some 9.3 hectares of land in a rural residential zone within the Council’s territorial area.
[2] The applicants for judicial review (Seafield and Taranui respectively, or jointly referred to as the applicants) are the owners of adjoining blocks of land. Seafield’s
SEAFIELD FARM (HB) LTD v HASTINGS DISTRICT COUNCIL [2018] NZHC 1980 [6 August 2018]
land adjoins the eastern boundary of the Pattison Holdings land. Taranui’s land sits to the north of both the Pattison Holdings and Seafield properties, sharing a right of way with both of them for access.
[3]The grounds for challenging the absence of limited notification are:
· First, that the Council did not make a valid notification decision. The Council had delegated assessment of the resource consent application to Mr Andrew Sowersby, an independent contractor, who allegedly made the notification decision without authority to do so.
· Second, if a decision on notification was made by the Council, then in adopting Mr Sowersby’s analysis the decision contained material errors because it considered the effects on the environment rather than the effects on affected persons. The latter consideration should have acknowledged that the applicants would suffer adverse effects that were minor or more than minor.
· Third, any non-notification decision was affected by bias and/or pre- determination. Mr Sowersby treated his assignment from the Council as requiring a report on a non-notified application, the Council failed to undertake any proper assessment of whether notification ought to occur, and the Council proceeded to a substantive decision on the resource consent application without a separate and necessarily prior decision as to whether limited notification should occur.
· Fourth, the Council’s conduct was unreasonable in the administrative law Wednesbury sense. A reasonable decision-maker would necessarily have found the applicants to be affected parties in the relevant sense, whereas the Council failed to take into account adverse effects on the applicants and instead took into account irrelevant considerations as to the adverse effects on the environment.
Factual background
[4] I annex to this judgment an aerial photograph showing the properties in issue in the proceedings with their respective boundaries marked by coloured lines. Relevantly, immediately to the north of Avery Road on the western part of the area in issue is the land owned by Pattison Holdings to which the resource consent application related. Its boundaries are marked in orange. The shareholders and controllers of Pattison Holdings are Mr Hilton Verry and his wife for themselves and members of their family. To the north of that block (demarcated in black) is a block owned by J & B Holdings Limited (J & B Holdings). The shareholders of J & B Holdings are Mr and Mrs Verry’s son and daughter-in-law.
[5] To the east of the Pattison Holdings and J & B Holdings properties is a block (demarcated in blue) owned by Seafield. To the north of the J & B Holdings and Seafield properties is a block owned by Taranui (demarcated in pink).
[6] Existing access arrangements involve a right of way running north from Avery Road to the southern-most point of the Taranui property. The right of way is comprised of two strips of land, one owned by Taranui and one by Seafield, as servient tenements. Each has granted access rights to the other as dominant tenements. Additional grants of access were also made to the Pattison Holdings and J & B Holdings properties.
[7] In 2016, Mr Bruce Jans, the alter ego of Seafield, initiated discussions between the affected land owners with a view to co-ordinating relevant features of future subdivision of their respective properties so as not to compromise prospects for any of the others. The Verrys were not persuaded of the desirability of such arrangements.
[8] In August 2016, Pattison Holdings lodged an application for resource consent to subdivide its property. The proposal was to create eight new lots. Two of those were strips of land intended for possible subsequent addition to existing rights of way. The remaining six lots were between 0.91 and 1.97 hectares, intended for single dwelling rural residential sites. Three of these new lots were to be serviced off the existing right of way, which would add to the three existing users of that right of way, namely J & B Holdings, Seafield and Taranui. The remaining three proposed new lots would have direct access off Avery Road. The only aspects of non-compliance with
the Proposed Hastings District Plan (the District Plan) were that compliant 30 metre square stable building platforms were not shown on three of the lots, and the location of the building platform for one lot did not comply with the yard set-back requirements for the rural residential zone.
[9] The proposed subdivision constituted a restricted discretionary activity under the District Plan, for which there is no provision confirming that applications are to proceed on a non-notified basis. Accordingly, the Council was required to assess whether the application required public notification under s 95A of the Resource Management Act 1991 (RMA) and, if not, to decide whether limited notification of the application was required under ss 95B and 95E.
[10] Seafield and Taranui became aware of the application shortly after it was lodged. On 31 August 2016, a registered surveyor acting on their behalf wrote to the Council setting out relevant concerns about the potential effects of the proposed subdivision. The letter specified that Seafield and Taranui considered themselves affected by the proposal. It recorded their expectation that the Council would ensure they were included in the notification process, which the surveyor treated as necessarily undertaken as part of processing the application. The letter ended with a request that the opposition of Seafield and Taranui be carefully considered in the Council’s notification assessment.
[11] The Council instructed Mr Sowersby of Opus International Consultants Limited to process the application. On 9 September 2016, Mr Sowersby wrote on behalf of the Council requesting further information from the surveyor responsible for the resource consent application. That request was made pursuant to s 92 of the RMA.
[12] In October 2016, the environmental consents manager for the Council advised registered surveyors acting respectively for Seafield and Taranui that the Council would defer a decision on who was adversely affected until further information requested from Pattison Holdings had been received. In December 2016, the surveyor for Seafield advised the Council that further meetings between the four parties to the shared access, namely Pattison Holdings, J & B Holdings, Seafield and Taranui, were
on-going, but also asked the Council to continue treating Seafield and Taranui as affected persons in respect of the application.
[13] Analysis of the technical issues involved in the subdivision took some time. On 27 March 2017, Mr Sowersby provided a single report to the Council addressing notification considerations and the granting of consent, including conditions that he recommended be imposed.
[14] On 5 May 2017, the Council decided not to notify the application and to approve it subject to the conditions recommended by Mr Sowersby.
[15] Despite their earlier involvement, Seafield and Taranui claim to be surprised when they were advised directly by Pattison Holdings in June 2017 that the resource consent application had been granted.
[16] Issues perceived by Mr Jans as being of mutual interest included the District Plan requirements for accessways to subdivided lots. The District Plan provided that rights of way accessing subdivisions of up to six lots needed a minimum access width of six metres, but a formed one-way movement lane of three metres. Subdivisions serving seven to 20 household units required a nine metre access width and two formed movement lanes of 2.75 metres each. With three lots in the Pattison Holdings subdivision using the existing right of way it shared with Taranui, J & B Holdings and Seafield, this subdivision would therefore “use up” the extent to which the existing right of way was adequate to service newly subdivided lots.
[17] To “future proof” against the contingency of further subdivision of at least the Pattison Holdings and J & B Holdings properties, the present subdivisional scheme included an eight metre strip up the eastern boundary of the Pattison Holdings land, running from Avery Road to its northern boundary, on the western edge of the existing right of way. Reservation of this strip would facilitate the expansion of the existing right of way sufficiently to provide for a double rather than single carriageway.
Notification decision
[18] Mr Sowersby’s report is not itself dated, but there is no issue that it was made available to the Council on or about 27 March 2017. His report begins on the first page with what appear to be standard details of the application. Above the box of text containing those details is a smaller box with a heading:
[19] After describing the site and surrounding area and explaining the reasons for the consent and activity status, in Part 4 of the report Mr Sowersby undertook an analysis under s 95 of the RMA as to whether notification should occur. Mr Sowersby listed what he considered might be relevant effects in the assessment of the application by reference to provisions in the District Plan, and addressed the issue of whether the adverse effects were more than minor. Having reviewed four identified effects, he concluded that the application was not required to be publicly notified as the adverse effects on the environment would be less than minor.
[20] He then undertook an assessment of what he perceived to be the relevant considerations on whether limited notification should occur. This focused on the prospect of adversely affected persons, applying s 95E of the RMA. In considering adverse effects on visual amenity and character as those might affect adjacent owners and occupiers, Mr Sowersby cross-referred back to his comments on those considerations in his earlier public notification assessment. In the earlier assessment, visual changes to the landscape were treated as being as anticipated by the District Plan so that adverse effects on visual amenity and rural residential character were considered to be less than minor.
[21] Mr Sowersby’s analysis then considered the effects from “reverse sensitivity”, that is, the impact on adjoining occupiers of more intensive activity in the subdivided area. He concluded that noisy or intensive rural activities were unlikely to occur and accordingly any adverse effects from reverse sensitivity should be less than minor. On the basis of this analysis, he considered that no parties were adversely affected so that the application was not required to be notified on a limited basis.
[22] This analysis did not address any of the concerns identified for Seafield and Taranui in the correspondence on their behalf with the Council, such as the difficulty in rationalising efficient right of way arrangements for an increased number of subdivided sections on the adjoining properties, or the size and engineering of the right of way access given Taranui’s need in the future to harvest a sizeable crop of pine trees. Nor did Mr Sowersby’s report acknowledge the correspondence on behalf of the applicants recording their expectation that they would be treated as affected persons for the purposes of limited notification.
[23] The Council’s decision was made under delegated authority by Mr Simon Hill, senior planner, adopting Mr Sowersby’s recommendation. The decision document starts with the decision that the application be granted, followed by 33 paragraphs specifying a wide range of conditions on the grant. Thereafter, in four relatively short paragraphs, the document records the reasons for the decision. The first of those was:
No persons are considered to [be] ‘affected persons’ and the adverse effects on the environment will be less than minor. As such notification is not required pursuant to Section 95 of the [RMA].
[24] A second paragraph cited four points as to why the adverse effects of the proposal on the environment were seen as minor. These traversed the absence of adverse effects on the safe and efficient use of the road, with the density of use being consistent with that envisaged under the District Plan. Conditions imposed on the consent would ensure that adverse effects from stormwater and land stability would be appropriately avoided and other matters of potential concern were adequately provided for.
[25] Solicitors for Seafield and Taranui raised concerns about the consent with Pattison Holdings and the Council at the end of June 2017, but it was not until November 2017 that these proceedings were commenced.
Who made the decision on non-notification?
[26] For Seafield and Taranui, Mr Lawson characterised the limited notification assessment as involving a decision on that matter by Mr Sowersby, with that decision then being simply endorsed on behalf of the Council by Mr Hill. Arguably, the limited
acknowledgement of the considerations on notification in the Council’s endorsement were no more than an after-thought to the decision which had already been made by Mr Sowersby. Mr Lawson disputed that the single paragraph in the reasons for the Council’s decision on granting the consent (quoted at [23] above) could constitute a decision at all on the discrete matter of whether the application should be the subject of limited notification.
[27] Section 95 of the RMA requires the consent authority to decide whether to give public or limited notification within 20 working days of a resource consent application. Although time periods for dealing with that and other aspects of resource consent applications are subject to extensions where further information is sought, the same time period applies when the authority is to consider whether to grant the application if no notification is required.1 Additional time periods are afforded in circumstances where notification is required.2 Although taking the notification and substantive decisions together is not prohibited, the statutory scheme accordingly contemplates a sequence in which the obligation to either publicly notify, or notify on a limited basis, is intended to be dealt with prior to the substantive decision.
[28] For the Council, Mr Casey QC submitted that any requirement for staged decisions, with the decision on notification to be taken first, was not determinative of whether the requisite notification decisions had been made. He invited me to take judicial notice of the widespread practice in which the prospect of notification and the substantive merits of an application for resource consent are progressed together, particularly where, as here, the Council considered it required more information to deal adequately with the application. In those circumstances, it might arguably be inefficient, or possibly lead to error, for the Council to make a decision on notification at an early stage, and without access to all information that might be relevant to the decision on notification.
[29] For other reasons that I traverse below, it is less than ideal for the Council to leave all aspects of the application to Mr Sowersby until he reported finally on all of
1 Resource Management Act 1991, s 115(3).
2 Section 115(2) and (4).
it. However, this concern does not assist in making out the applicants’ first proposition, namely that the Council did not make a notification decision at all.
[30] Mr Casey invited analogy with another recent decision challenging a Council’s decision not to notify a resource consent application. In Millar v Ashburton District Council,3 the local authority also commissioned an independent planner to prepare a report on a resource consent application. The report included two recommendations: first, that the application be processed on a non-notified basis; and secondly, that it be granted subject to conditions. The Council’s district planning manager suggested to the report writer that it would be preferable to separate the combined report into two, dealing first with the issue of notification and secondly the substantive decision. That was duly done. The substance of the content on both aspects remained materially the same.
[31] An independent hearings commissioner was then given delegated authority by the Council to make a decision on notification, hear submissions if required, and to make a substantive decision on the application for resource consent. After reviewing the separate reports as they had been recast by the independent planner, the hearings commissioner signed the report recommending the grant of consent on conditions and that became the Council’s decision. She did not sign the separate report containing the recommendation on notification.
[32] The absence of a sign-off on the separate report recommending non- notification was argued as evidence of the absence of a decision on notification. However, on an analysis of the report that had been signed off and the relationship between it and the separate report on notification, Dunningham J was satisfied that the commissioner’s involvement included a decision on notification. Her Honour attributed relevance to a specific acknowledgement in the report, which recommended a grant of the consent, that s 104(3)(d) of the RMA prohibited any grant being made where an application should have been notified and was not.
[33] I am satisfied on the terms of the recommendations in Mr Sowersby’s report, and then the terms of the Council’s decision, that the decision not to notify was one
3 Millar v Ashburton District Council [2016] NZHC 3015.
made by Mr Hill exercising the delegated authority from the Council. As a matter of form, it would have been preferable for Mr Hill to review the reasons for Mr Sowersby’s recommendation on non-notification at the outset, but that concern cannot be determinative of the substantive effect of the action taken by Mr Hill. It is reasonably implicit that the decision has been made by Mr Hill for the Council in reliance on Mr Sowersby’s analysis, but the terms of Mr Hill’s reasons make it clear that he appreciates he had to make the decision on non-notification. He did so, in summary terms so far as the applicants are concerned, with the finding that no persons were considered to be affected persons.
[34] I agree with Mr Casey that the Millar decision is an illustration of the relatively low threshold required for a local authority to provide evidence of the separate notification decision having been made. The evidence is possibly stronger for the Council in this case in that, although located under the heading of “Reasons” rather than “Decisions”, the delegated decision-maker has recorded the terms on which he turned his mind to the separate decision on notification.
Notification decision involved material errors
[35] The corollary to the analysis recognising that there was a decision made by the Council on notification is that the brevity with which it was addressed requires the Council to defend its notification decision on the analysis undertaken by Mr Sowersby in his recommendation about it.
[36] The applicants submit that in assessing the prospect of adverse effects on affected persons, the Council had to have regard to the prospect of the subdivisional activity that was the subject of the resource consent application by reference to relevant components in the District Plan. They argued that the Council had failed to have regard to certain provisions including the following:
30.1.8(3)(vi) How the proposed subdivision may be related to the resubdivision or development of adjoining land and the ability for optimum development for all the land concerned to be realised.
[37] This consideration was a matter over which the Council could exercise control and therefore impose conditions. Arguably, it therefore became a relevant mandatory
consideration for the Council in assessing the existence of adverse effects on owners of adjoining land that would be affected by the terms on which the proposed subdivision proceeded.
[38] Mr Sowersby’s analysis made no reference to this matter so the Council’s notification decision was made, prima facie, without regard to a relevant consideration.
[39] Mr Lawson emphasised the practical importance of resolving co-ordinated access to potential subdivided lots in each of the blocks owned by Seafield and Taranui, and possibly J & B Holdings.4 Unless the Council facilitated a co-ordinated approach, the prospect arose of duplicated and very inefficient provision of separate rights of way. There is a prospect that three, and potentially four, strips of land would comprise an accessway, some of which would be used by Pattison Holdings and J & B Holdings (the separate strip provided for on the eastern boundary of the Pattison Holdings lot as part of the proposed subdivision) but not by Seafield and Taranui. There would then be the strip owned by Taranui, which would be able to be used by all four present owners. Next would be the strip owned by Seafield, again able to be used by all four. Then there potentially would be another piece of land, which Seafield would need to provide for on the western boundary of its block, to enable a sufficiently wide accessway to more than six lots, in the absence of being able to obtain rights to use Pattison Holdings’ newly created strip on the western-most part of these accessways.
[40] Mr Lawson characterised the avoidance of such inefficient outcomes from unco-ordinated subdivisional activity as an important component of the Council’s assessment of applications for resource consent for subdivisions, as reflected in cl 30.1.8(3)(vi) of the District Plan. Given its relevance in that context, he submitted that the applicants necessarily had to be recognised as affected persons.
[41] The Council denied that the applicants were affected persons in the relevant sense. It denied that it had to take into account the prospect of future potential
4 The owners of that land have stated they are against any greater level of subdivision but that attitude may not persist.
subdivisions in the area when assessing whether to consent to the present application as filed. Pattison Holdings was entitled to have its application considered on its merits without regard to how that might impact on later applications for further subdivisions in the area. It therefore could not have regard to the future inefficiency concerns as described by Mr Lawson. To the extent that the applicants claim the prospect of detriment to their existing uses of the accessway, the Council denied that such detriment arose as a matter of fact.
[42] Arguably, the real gravamen of the applicants’ complaints was the lack of property law rights to require Pattison Holdings to co-operate in providing for a wider right of way than presently exists. It would be beyond the jurisdiction of the Council to impose either financial conditions on the grant of consent, or to require the dedication of lands to facilitate a wider right of way than was needed for the present development. Any interests of that sort claimed by the applicants did not make them adversely affected persons in any relevant sense. The Council did not have jurisdiction to influence commercial negotiations between adjoining owners whose interests were in optimising the subdivisional potential of their properties. Nor did the provisions of the District Plan, including cl 30.1.8(3)(vi), extend to a power to impose conditions designed to optimise the economic return on land.
[43] I accept the Council’s stance that it should not have regard to the prospect of subsequent applications, or consider their impact, when assessing an existing application for resource consent. Competing applications are to be determined on a first come, first served basis.5 Accordingly, at least in the Council’s assessment of the substantive issues on whether to grant the consent sought, it was not appropriate for the Council to have regard to the impact that such consented activities might have on subsequent initiatives by Seafield and Taranui to carry out subdivisions on their blocks.
[44] However, Mr Lawson’s rejoinder to this point was that this constraint on relevant considerations pertains only when assessing adverse environmental effects for the purpose of public notification under s 95A(2)(a). Mr Lawson emphasised that
5 Fleetwing Farms Ltd v Marlborough District Council [1997] 3 NZLR 257 (CA); and Central Plains Water Trust v Synlait Ltd [2009] NZCA 609, [2010] 2 NZLR 363.
the same limit on relevant considerations did not apply in the separate test for adverse effects on affected persons for the purpose of limited notification under ss 95B and 95E. Where the separate test for limited notification is being considered, the range of adverse effects on affected persons arguably should not be confined to adverse environmental effects.
[45] At least in the present context, I am not persuaded that the distinction drawn by Mr Lawson has any practical impact. Matters arising under cl 30.1.8(3)(iv) are relevant to the limited notification assessment, given the provision is one for which the Council has reserved control and therefore cannot be disregarded under s 95E(2)(b). However, despite the lack of express reference to the “environmental” effects in s 95E, the RMA is generally concerned with regulating environmental effects only.6 Moreover, to be relevant, adverse effects that would trigger a requirement to provide limited notification would have to arise in contexts in which the Council had jurisdiction to influence the manner in which a consented activity was carried out. The relevant range of adverse effects is not simply at large. For example, if the occupant of an adjoining property had a clinically recognised aversion to a particular colour, and the application was for consent to build a structure of that colour, the adverse effect of that feature of the proposed development would not of itself qualify the occupant of the adjoining property as an affected person.7
[46] The analysis of effects relevant under s 95E of the RMA is therefore confined to the range of potential adverse environmental effects on Seafield and Taranui arising on matters over which the Council has jurisdiction in determining the application for resource consent.
[47] One potential claimed adverse effect is that the existing right of way includes strips owned respectively by Seafield and Taranui and over which Pattison Holdings has a right of way. I took Mr Lawson to suggest that an anticipated material increase in the volume of traffic over the right of way that includes strips of Seafield and Taranui’s land gives rise to an adverse effect. That is compounded because, without
6 Westfield (New Zealand) Ltd v Northshore City Council [2005] NZSC 17, [2005] 2 NZLR 597 at [109].
7 There may be exceptions to this such as where there are heritage overlays, but none that are relevant here.
any change of use on the Seafield and Taranui properties, there is a present expectation of a substantial increase in the volume of use of the right of way by logging trucks when Taranui harvests its pine trees.
[48] If Mr Lawson went that far, then neither of those concerns represents a matter that the Council has jurisdiction to address. It could not do so either by relying on those concerns as a ground for declining consent, or granting consent subject to additional conditions to address them.
[49] The consequence of Pattison Holdings obtaining consent first is that it will be free to use up the additional lots that can legitimately be serviced by the existing accessway before the requirement for a wider accessway arises. The need for wider access for future subdivisions is not a future contingency about which the Council can be concerned. Although the application of the Fleetwing principles in some circumstances including the present may appear harsh, it is well-settled law, soundly based as a matter of statutory interpretation. The possible adverse financial consequences for the adjoining properties, or limits on the ability to subdivide, therefore are not matters that qualify the owners of those adjoining properties as affected persons.
[50] Mr Casey also submitted that cl 30.1.8(3)(vi) was not a mandatory matter for the purposes of notification because, rather than setting mandatory considerations, s 95E(2)(b) requires only that the Council disregard effects from matters for which a rule has not reserved control or restricted discretion. Moreover, he suggested that Mr Sowersby had in fact implicitly considered such matters when addressing the “effects on the safe and efficient use of the road and private access”. In this case, the accessway complied fully with the access rules in the District Plan, so that adverse effects from its use could legitimately be disregarded. This point was considered in Mr Sowersby’s report, which confirmed that the proposal complied with the District Plan requirements for vehicle access and sight lines. Arguably, the fact that the accessway complied with the relevant rules explains why Mr Sowersby did not include a detailed discussion of the property rights access criteria in cl 30.1.8(3)(vi). He concluded (in relation to public notification):
Provided that conditions are included in relation to the construction of the existing right of way, proposed vehicle crossings and sight line protection, the adverse effects on the safe and efficient use of the private accessway and road will be less than minor.
[51] Although s 95E(2)(b) does not impose mandatory considerations, the consenting authority is required to identify affected persons and relevant considerations giving rise to such status. However, a consenting authority is not required expressly to refer to all relevant considerations in a notification decision, a burden this Court has previously described as “impossible” and “absurd”.8 It is reasonably apparent that Mr Sowersby was alive to the relevant matters in relation to the accessway. While he did not expressly refer to cl 30.1.8(3)(vi), he referred to the relevant assessment criteria as including cl 3.1.8 and said his assessment of adverse effects had used that criteria as guidance. He concluded, in the context of his public notification assessment, that the relevant adverse effects would be less than minor. He cross-referred to that conclusion in his assessment on limited notification. I am therefore not persuaded that the limited notification assessment failed to consider a relevant consideration. The applicants have not made out an error in this regard.
Pre-determination or bias
[52] The third ground of challenge was that the Council’s decision not to provide limited notification was pre-determined, effectively by Mr Sowersby, or was subject to bias against a requirement for limited notification.
[53] Mr Lawson argued that the labelling at the start of Mr Sowersby’s report as a non-notified application demonstrated a closed mind or pre-determination of this separate issue. Consideration of the report then showed that notification considerations were dealt with cursorily and were buried in the body of the report after Mr Sowersby had addressed many of the issues arising on the substantive application. It was no more than a “once over lightly” and failed adequately to draw the distinction between the range of considerations applying when public notification was being
8 Fair Investments Ltd v Palmerston North City Council HC Palmerston North CIV-2010-454-653, 15 December 2010 at [47]; and see Duggan v Auckland Council [2017] NZHC 1540, [2017] NZRMA 317 at [79].
considered, and the different range of considerations when limited notification required any affected persons to be identified.
[54] Mr Hill completed an affidavit in which he rejected the inferences that the applicants sought to draw from the form in which Mr Sowersby’s report was presented. Mr Hill deposed that the Council’s generic template uses the heading “Non-Notified Application” in recognition of the fact that the majority of applications are dealt with on a non-notified basis. He deposed that, if a recommendation is that a particular application be processed with either limited or public notification, the heading of the default template is changed to reflect that status. He denied that use of the default template exerted any influence on him when he came to consider the notification decision.
[55] Making every allowance for practices adopted by councils, including consultants retained by them, I consider the structure of Mr Sowersby’s assessments as reflected in the form of his report to be regrettable. I appreciate that the way such assessments are done is likely to be influenced by the pressure of processing substantial volumes of such applications in a timely way. However, the statute contemplates that the process will involve an initial decision on whether there is to be public notification, limited notification, or none at all, followed by a consideration of the substantive issues raised by the resource consent application. I have accepted reasons in this case for the time lines on the two decisions becoming blurred, but that risks creating a situation in which the notification decision is subsumed within the analysis of the merits of the resource consent application.
[56] If a consultant in Mr Sowersby’s position is instructed to report on a resource consent application on terms that do not require a separate prior report to a consenting authority regarding notification, then the consultant would commit potentially extensive resources to doing the whole job presumptively on the basis that it is not one where any notification will be required. If the consultant only settles a view on the notification decision towards the end of a substantially larger assignment, then there may be at least subconscious pressure against recommending either form of notification. Adoption of that recommendation would render the rest of the
consultant’s work substantially less valuable if it had to be redone in light of submissions received in response to notification.
[57] Similarly, for officers with delegated authority in Mr Hill’s position, having commissioned more extensive work than would discretely be required on the notification recommendation, there may be subconscious pressure against rejecting a non-notification recommendation where the substantive analysis of the resource consent application has been completed. Rejection of the recommendation not to notify would, at the very least, reduce the value of the remainder of the work undertaken by the consultant. Depending on the outcome of notification, substantial parts of the assessment of the application may be required to be done again.
[58] In the present case, I am satisfied that the Council’s decision not to notify was the appropriate one so these more insidious forms of potential prejudice to the quality of the Council’s notification decision do not arise. It is nonetheless an aspect of the practice being adopted by local authorities that may warrant more careful consideration in other circumstances.
[59] On the basis of the pleaded criticisms, I am satisfied that there is no evidence of pre-determination or bias affecting the notification decision.
Wednesbury unreasonableness
[60] The final ground of challenge is that the non-notification decision was one that no reasonable council, properly directed on the law, could have come to. The essence of Mr Lawson’s argument on this ground was that the range of adverse effects that could be relevant in recognising a person as an affected person was wrongly narrowed by adopting the same constraints as applied when assessing the effects of a proposed development on the environment. If the Council recognised that the range of concerns Seafield and Taranui had aired could qualify them as affected persons, then arguably the only reasonable decision the Council could have arrived at was that they were affected persons, thereby triggering the obligation for limited notification.
[61] However, my reasoning in dealing with the second ground of challenge accepted the Council’s position. First, adverse effects on persons must still be
environmental effects. Secondly, whilst conceptually different considerations might arise, in practical terms at least in the present context, the range of matters on which status as an affected person might be recognised cannot go beyond matters on which the Council has some jurisdiction when considering the resource consent application.
[62] That being so, the concerns held by Seafield and Taranui related to matters beyond the Council’s jurisdiction when considering the resource consent application, and were therefore matters that could not claim relevance in giving them status as affected persons.
[63] Mr Lawson submitted that the compelling need for all the owners interested in efficient access to subdivisions of each of their properties created an imperative for the Council to intervene on that topic. Because of that, arguably no reasonable council could deny affected person status to Seafield and Taranui so as to give them standing to participate. However compelling the commercial sense of their involvement may have seemed from Mr Jans’ perspective, it depended on an expectation that the Council could impose conditions on Pattison Holdings in relation to property law matters that are beyond the legitimate scope of resource management considerations.
[64] Accordingly, I am not satisfied there is any element of administrative law unreasonableness.
Outcome
[65] I am not satisfied that any of the grounds for judicial review have been made out. The issue of the form of any relief that would be appropriate therefore does not arise.
[66] Mr Verry made an extensive submission that, irrespective of the legal arguments between the applicants and the Council, I ought to summarily confirm on the day of hearing that there had been no disentitling conduct by Pattison Holdings, and that the extended disruption to its subdivision, including prejudice to concluded contractual arrangements with third parties, justified an order that Pattison Holdings could proceed with the remaining steps of the subdivision.
[67] In May 2018, Pattison Holdings forestalled an application for interim relief by the applicants by undertaking not to take further steps in reliance on the terms of the consent granted to it, pending the outcome of the judicial review.
[68] Eventually Mr Verry appeared to accept that there was no basis on which I could make orders effectively affirming the lawfulness of all aspects of the resource consent as granted by the Council whilst issues remained unresolved that it may have been granted unlawfully. Section 104(3)(d) of the RMA prohibits authorities from granting resource consents if the application should have been notified and it was not.
[69] Mr Verry’s argument, and affidavits in support of the matters he raised, may well have been relevant to the form of relief if unlawfulness of the notification decision had been made out.
Costs
[70] The Council is entitled to costs on a 2B basis. No costs are to be awarded in favour of or against Pattison Holdings, which took the initiative to have itself joined as a respondent some months after the proceedings were commenced against the Council.
Dobson J
Solicitors:
Lawson Robinson, Napier for applicants
Bannister & von Dadelszen, Hastings for first respondent Langley Twigg, Napier for second respondent
Annexure
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