Williams v Auckland Council
[2025] NZHC 2313
•14 August 2025
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2024-404-389
[2025] NZHC 2313
UNDER The Judicial Review Procedure Act 2016 IN THE MATTER
Of an application for review of resource consent decisions under the Resource Management Act 1991 (RMA)
BETWEEN
ANDREW KEITH WILLIAMS, ADELINE WONG, and TRYPHENA TRUSTEES
LIMITED as trustees of the WILLIAMS WONG FAMILY TRUST
PlaintiffsAND
AUCKLAND COUNCIL
First Defendant
AND
JIN DU and RIGHTEOUS LAW TRUSTEE LIMITED
Second Defendants
Hearing: 5 August 2024 Appearances:
R Enright for the Plaintiffs
K Littlejohn for the Second Defendants
Judgment:
14 August 2025
JUDGMENT OF ROBINSON J
This judgment was delivered by me on 14 August 2025 at 4:00 pm pursuant to Rule 11.5 of the High Court Rules
…………………………………………………………………… Registrar/Deputy Registrar
Solicitors/Counsel:
Hornabrook Macdonald, Auckland | K Littlejohn, Auckland Ewart & Ewart Solicitors, Auckland | R Enright, Auckland DLA Piper, Auckland | S Quinn, Wellington
WILLIAMS & ORS v AUCKLAND COUNCIL & ORS [2025] NZHC 2313 [14 August 2025]
Introduction
[1] The plaintiffs and Ms Du, one of the second defendants, are neighbours in Epsom, Auckland. On 18 August 2023, Auckland Council granted Ms Du’s application to vary a resource consent permitting her to build a dwelling that is higher and closer to her boundary with the plaintiffs’ property than previously consented, infringing the height in relation to boundary (HIRB) control (Resource Consent LUC60374494-B) (variation consent). The Council granted the variation consent without public notification or limited notification to the plaintiffs.
[2] The plaintiffs seek judicial review of the Council’s decisions to grant the variation consent and to do so without limited notification to them. The plaintiffs say these decisions are unlawful because, amongst other things, the Council did not consider an earlier resource consent it had granted to the plaintiffs in June 2020. That consent permits the plaintiffs to carry out various works, including converting their garage into a pool house and constructing a swimming pool and a spa area up to one metre away from their boundary with Ms Du’s property. Some of these works had already been carried out and others were due to commence when the Council granted Ms Du’s variation on 18 August 2023.
[3] Ms Du says any errors by the Council are immaterial and do not render its decisions unlawful. She says that, in any event, the Court should exercise its discretion not to grant relief because they are entirely innocent and have made reasonable attempts to resolve matters.
[4]The Council abides.
Background
The properties
[5] The plaintiffs’ property is at 24 Epsom Avenue, Epsom (24 Epsom). It is owned by the plaintiffs as trustees of a family trust. Two trustees, Mr Williams and Ms Wong. Mr Williams and Ms Wong live at 24 Epsom with their family. It is zoned Residential–Single House Zone (SHZ). It includes a Historic Heritage and Special
Character: Special Character Areas Overlay Residential and Business–Residential Isthmus B (Special Character Overlay).
[6] The defendants’ property is at 1/26 Epsom Avenue (1/26 Epsom). It is part of a redevelopment and subdivision of property at 26 Epsom Avenue and 87–89 Ranfurly Road, known as Epsom Gardens. The defendants’ property, Lot 19, is on the north-eastern corner of the development and is zoned Residential–Mixed Housing Urban Zone (MHUZ). There is a standalone two-storey dwelling on the property.
[7] There is a common boundary between Lot 19 to the north and 24 Epsom to the south.
The plaintiffs’ 2020 consent
[8] On 2 June 2020, the Council granted the plaintiffs a resource consent to carry out substantial alterations at 24 Epsom. These included: demolition; additions and alterations to the existing dwelling; replacing an existing sunroom with a double garage; converting the existing garage into a pool house; and constructing a new swimming pool and spa area to within one metre of the common boundary with what was to become 1/26 Epsom.
[9] The plaintiffs carried out the house renovations and constructed the pool house between October 2020 and January 2022. On 5 April 2022, practical completion was issued. The pool and spa pool were constructed and installed between September 2023 and February 2024.
The parent consent
[10] The first consent (the parent consent) for the Epsom Gardens development was granted in September 2021. It approved the original plans for the entire development, including Lot 19. The approved designs consisted of a number of different design typologies, with Lot 19 having a “type-D” design. The type-D design of Lot 19 comprised a two-storey dwelling. The second storey was “set back” from the footprint of the first storey and the common boundary Lot 19 shares with 24 Epsom.
[11]There is no issue with the parent consent.
The variation consent and the supporting assessment of environment effects
[12] In July 2023, Ms Du applied pursuant to s 127 of the Resource Management Act 1991 (RMA) to vary the design of the consented type-D unit. She proposed to extend the second storey so as to align vertically with the ground floor’s footprint. The variation would extend the second story towards the common boundary with 24 Epsom.
[13] In support of her application to vary the consent Ms Du commissioned an assessment of environmental effects (AEE). The AEE identifies 24 Epsom and the property at 85 Ranfurly Road (85 Ranfurly) as being adjacent land that is “particularly relevant” to Lot 19. The author of the AEE records that the proposed changes generate “additional non-compliances” with the Auckland Unitary Plan (AUP) as follows:
Auckland Unitary Plan (Operative in part)
1. Rule C.1.9(2) – The revised proposal generates additional non- compliance to the following core standards beyond the [parent consent]:
a. Standard H5.6.5 (Height in relation to boundary)-
i.The northern building façade infringes the 2.5m + 45- degree recession plane as it relates to the sites northern boundary (adjacent Single House zoning) by a maximum vertical distance of 2.6m reducing to 2.5m over a horizontal distance of 5.3m.
ii.The eastern building façade infringes the 3m + 45 recession plane as it relates to the site’s northern boundary (adjacent MHU zoning) by a maximum vertical distance of 479mm at Point E, 991mm at Point D reducing to 841mm at Point C over a horizontal distance of 6.1m.
[14]The AEE describes 24 Epsom as follows:
24 Epsom Avenue
This is a rectangular residential front site with a north to south orientation. Two thirds of the site's southern boundary adjoin the subject site, and the land at the southern end of this site accommodates some shrub like vegetation and lawn. There is a garage building constructed in the site's south-eastern corner. The boundary treatment consists of a timber fence approximately 1.8 m high. A generously sized two storey dwelling is positioned within the northern half
of the property, approximately 20m from the southern boundary, shared with the subject site.
[15] The AEE sets out an assessment of actual and potential environmental effects of the variation, for the purposes of s 104(1)(a) of the RMA.1 The AEE includes the author’s assessment of the dominance, character and amenity effects on 24 Epsom as follows:
Assessment
Dominance/Character/Amenity Effects
Where the upper floor for the Type D unit on the subject site (lot 19) extends beyond the original consented footprint, I make the following comments specific to adjacent properties at 24 Epsom Avenue and 85 Ranfurly Road:
Dominance effects
·The extent of the proposed upper storey addition continues to fall within the footprint of the ground level storey and hence no additional building coverage is generated from the proposed extension.
·Where the northern upper floor extension now protrudes through the recession plane as it applies to the northern boundary, shared with 24 Epsom Avenue, I am satisfied that any potential dominance effects will be less than minor. This is because the façade width is only 5.2 m compared to a 20 m boundary width for 24 Epsom Avenue, the eave depth has been reduced to 150 mm and the roof design extends back into the subject site at an angle of 15 degrees, therefore minimising any additional effects usually generated by a wider eave and steeper roof pitch. Moreover, the adjacent land within 24 Epsom Avenue comprises lawn and garden area with the dwelling and principal outdoor living areas located at least 20m from the southern boundary. Furthermore, the entire northern façade will now be finished in dark recessive cladding materials, which is considered to further reduce potential dominance effects towards the northern neighbouring site.
…
Amenity Effects
·No new adverse amenity effects are considered to arise from the extension where the unit's overlooks remain as per the consented design. In regards to the northern and eastern wall extensions, the windows within the extended façade are either high sill (to the north) or narrow secondary windows (to the east) and hence any potential new privacy effects are considered to be less than minor.
1 Resource Management Act 1991, ss 104(1)(a) and 127(3).
·With regards to potential shading effects, only the eastern adjacent site at 85 Ranfurly Road is expected to receive a change in approved shading effects, as the property at 24 Epsom Road is to the north of the subject site.
…
Therefore, given the above comments, I consider that the proposed variation to Condition 1 of the parent consent…will give rise to negligible dominance, character and amenity effects on the surrounding environment. There are no other adverse effects beyond those discussed above expected to arise from the proposed amendments.
(emphasis added)
[16] The AEE concluded that “any actual and potential adverse effects generated by the revised development will be less than minor in terms of the surrounding environment”.
[17] Unbeknown to the plaintiffs at the time, the Council granted the variation consent on 18 August 2023. It did so without limited notification to the plaintiffs. The Council’s decisions and the reasons for them are set out in more detail at [23]–[29] below.
Further construction
[18] On 22 May 2023 the plaintiffs applied for a building consent to construct their (previously consented) swimming pool. The Council granted that building consent on 11 October 2023. The installation of the swimming pool and spa area was completed in February 2024.
[19] On 12 October 2024, Ms Du applied for an amended building consent to reflect the consented changes to the upper floor. On 27 November 2024 the Council approved the amended building consent. Ms Du’s evidence is that construction started once she received the amended building consent.
The proceedings
[20] Mr Williams says that on 7 February 2024, he noticed that the construction of Ms Du’s second storey appeared inconsistent with the parent consent, and outside the
expectations of the Auckland Unity Plan (AUP). He visited the property and informed the owner and their building contractors that the building was outside the scope of their resource consent. They disagreed. Mr Williams contacted the Council and was told by its consenting team that it had granted Ms Du variation consent. Mr Williams says this was when he first became aware of the variation consent.
[21] Between 8 and 23 February 2024, the plaintiffs’ solicitors corresponded with the Council and the defendants. On 28 February 2024, the plaintiffs issued these proceedings and sought an interim injunction restraining the second defendants from continuing to build the upper floor in accordance with the variation consent.
[22] On 6 March 2024, the plaintiffs’ application for interim relief resolved. Essentially, the second defendants undertook that, in the event the Court declares that the Council acted unlawfully in granting the variation consent without limited notification to the plaintiffs, and orders that the non-notification decision and therefore the variation consent be set aside, they would deconstruct that part of the second storey that infringes the HIRB at the common boundary with 24 Epsom (other than to the extent the infringement was permitted in the parent consent) (the undertaking).
The Council’s decisions
[23] Like the author of the AEE report, the Council considered that Ms Du’s proposed changes would “generate non-compliances to the HIRB standard within the Mixed Housing Urban Zone”. It recorded the infringements as follows:
I.The northern building façade infringes the 2.5m + 45 recession plane relative to the northern boundary by a maximum height of 2535mm for a length of 5383mm.
II.The eastern building façade infringes the 3m + 45 recession plane relative to the eastern boundary by a maximum height of 479mm for a length of 6172mm.
[24]Nevertheless, the Council:
(a)processed the application on a non-notified basis, (referring to ss 95A and 95C to 95D, 95B and 95E to 95G and s 127(4) of the RMA); and
(b)granted a resource consent for the variation (referring to ss 104, 104B, 127, and Part 2 of the RMA).
Notification
[25] The Council assessed, under ss 95B(8) and 95E(1) of the RMA, that limited notification was not required because “there will be no adversely affected persons as a result of the proposed variation”. The Council determined that the proposed variation would have “less than minor adverse effects on persons at 24 Epsom Avenue and 85 Ranfurly Road. The Council expressly adopted the AEE in making the decision.
[26] In assessing the dominance effects of the proposed variation, the Council found that:
With regard to 24 Epsom Road, where the building protrudes through the recession plane relative to the northern boundary, the façade width is only 5.2m compared to the 20m width of the boundary. The eave depth has been reduced to 150mm and the roof design extends back into the subject site at an angle of 15 degrees, thereby minimising the building’s dominance. [The author of the AEE report] notes the adjacent land within 24 Epsom Avenue comprises lawn and garden areas with the dwelling and principal outdoor living areas located at least 20m from the southern boundary. Additionally, the entire northern façade will now be finished in dark recessive cladding materials to further reduce dominance effects.
(emphasis added)
[27] In its assessment of the amenity effects, the Council expressly adopted the language and reasoning of the AEE report set out at [16] above.
The variation
[28]In terms of the substantive variation, the Council determined that:
In accordance with an assessment under s 104(1)(a) and 104(1)(ab) and 127(3) of the RMA the actual and potential effects from the variation will be acceptable as:
·There are no effects on the environment, with all adverse effects limited to the subject site and the adjoining properties.
·Effects on persons at adjoining properties are negligible and are satisfactorily mitigated by the design and layout of the upper level of
the building, the treatment of the facades, and the separation distance of the proposal from the dwellings on the adjoining properties.
·In terms of positive effects, the proposal provides increased living space for the occupant of the dwelling, thereby enhancing the overall liveability and amenity of the dwelling.
[29] The Council also determined that, in accordance with an assessment under ss 104(1)(b) and 127(3) of the RMA, the variation was consistent with the relevant statutory documents, being the (partly operative) Auckland Unitary Plan (AUP). In particular:
…
·The proposal maintains reasonable levels of sunlight access and privacy to adjacent properties while avoiding dominance effects.
·The proposed modifications to the approved building design do not compromise the approved outlook and outdoor living space amenities for residents.
5. In the context of this variation application, where the objectives and policies capture all relevant planning considerations and provide a clear framework for assessing all relevant potential effects, there is no need to go beyond the relevant provisions of the planning documents and look to Part 2 in making this decision.
6. Overall the proposed variation will have acceptable effects on the environment and it is not consistent [sic] with the relevant objectives and policies of the [AUP].
The application for review
[30] The plaintiffs allege that by its decision to approve Ms Du’s variation, without limited notification to them, the Council acted unlawfully, failed to consider relevant matters and considered irrelevant ones, or applied the wrong legal test.
[31] In particular, the plaintiffs allege (amongst other things) that in making its decisions the Council did not consider the plaintiffs’ 2020 consent and consequently failed to consider the consented and receiving environment at 24 Epsom as a mandatory relevant consideration. To the extent that the Council did consider the consented and receiving environment at 24 Epsom Avenue, the plaintiffs allege that it did so on a factually erroneous and demonstrably false basis.
[32] The plaintiffs say the adverse effects on their property are “more than minor” for the purposes of s 95E of the RMA, and therefore s 95B(7) – (9) of the RMA required the Council to give them limited notification of Ms Du’s variation application. The Council’s unlawful failure to do so meant it had no jurisdiction to grant the variation consent under ss 104, 104B and 127 of the RMA.
[33] By way of remedy the plaintiffs seek: a declaration that the Council acted unlawfully in granting the variation consent without limited notification to the plaintiffs; orders setting aside the non-notification decision and the variation consent; orders prohibiting the Council from further processing Ms Du’s application without limited notification to the plaintiffs, or an order directing the Council to reconsider the decision to grant the variation without limited notification; and an injunction requiring the second defendants to deconstruct and remove that part of the second floor that breaches the HIRB standard applicable at the common boundary with the 24 Epsom.
[34] Mr Enright for the plaintiffs submits that the Council made four reviewable errors. He says that each error rendered invalid the Council’s decisions to proceed without limited notification to the plaintiffs and to grant Ms Du’s variation consent.
[35] First, the Council did not properly assess the receiving environment because it failed to have regard to a mandatory consideration when it determined, under ss 95B(8) and 95E(1) of the RMA, that the proposed variation would have less than minor effects on the plaintiffs and that there were no adversely affected persons as a result of the variation. Mr Enright refers to the Court of Appeal’s decisions in Queenstown Lakes District Council v Hawthorn,2 Far North District Council v Te Runanga-a-Iwi o Ngati Kahu,3 and Lysaght v Whakatāne District Council.4
[36] Secondly, and relatedly, Mr Enright submits the Council relied on materially inaccurate information which it adopted from the AEE. He refers to McMillan v
2 Queenstown Lakes District Council v Hawthorn (2006) 12 ELRNZ 29.
3 Far North District Council v Te Runanga-a-Iwi o Ngati Kahu [2013] NZCA 221, [2013] ELHNZ 211.
4 Lysaght v Whakatāne District Council [2022] NZCA 423, [2022] ELHNZ 248.
Queenstown Lakes District Council,5 Tasti Products Ltd v Auckland Council,6 and
Coro Mainstreet (Inc) v Thames-Coromandel District Council.7
[37] Thirdly, Mr Enright submits the Council failed to consider relevant objectives and policies in the AUP. Mr Enright says that both assessments identified the SHZ and the Special Character overlays as relevant, but did not follow through with an assessment of the relevant objectives and policies arising out of these. He submits that Chapter C of the AUP confirms that the Council will consider these provisions, but it did not. The Council’s decision states that the proposed variations are “not consistent” with the relevant objectives and policies of the AUP. While that might be an obvious error, no further analysis is provided.
[38] Finally, Mr Enright submits that both decisions were unreasonable, based as they were on factually incorrect and incomplete information. The plaintiffs say that if the Council had properly considered the receiving environment contemplated by the 2020 consent, the only conclusion reasonably available was that the variation would have adverse effects on the plaintiffs that were more than minor, and that the effects on the environment were not “merely negligible”.
Ms Du’s response
[39] Ms Du accepts that the Council did not take into account the plaintiffs’ 2020 consent when it decided to grant her the variation consent without limited notification to the plaintiffs.
[40] However, Mr Littlejohn for Ms Du submits that there was no “receiving environment” error in the Council’s decision not to notify the plaintiffs. He submits that the “affected person” test under s 95E(1) as it applies to the limited notification threshold in s 95B(8) is fundamentally different from the substantive assessment required under s 104(1)(a) of any “actual and potential effects on the environment” of the proposed activity. Mr Littlejohn submits it is only the latter assessment that
5 McMillan v Queenstown Lakes District Council [2017] NZHC 3148, [2019] NZRMA 256.
6 Tasti Products Ltd v Auckland Council [2016] NZHC 1673, [2017] NZRMA 22.
7 Coro Mainstreet (Inc) v Thames-Coromandel District Council [2013] NZCA 665, [2013] NZRMA 73.
requires the Council to consider the environment as it might be modified by the implementation of an existing resource consent (the future receiving environment assessment). He submits that the plaintiffs’ 2020 resource consent was not relevant to the Council’s assessment of the effects on persons under ss 95B(8) and 95E(1). So, the Council’s decision to proceed without limited notification to the plaintiffs was properly and reasonably made.
[41] In terms of the s 104(1)(a) assessment, Mr Littlejohn submits that any error was immaterial. He says this is because the plaintiffs have used their backyard area for outdoor recreation both before and after the plaintiffs’ 2020 consent was issued and implemented. He says it is irrelevant for present purposes precisely whether the plaintiffs were using their residential backyard as a lawn and garden, as a children’s playground, for growing vegetables or for swimming in a swimming pool.
[42] Mr Littlejohn submits that a swimming pool is an accepted use in residential outdoor living spaces in residential zones. He says that the plaintiffs required consent for their new pool only because the size of the pool (in excess of 25,000 L) bought it within the definition of a building, and new buildings on sites subject to the Special Character Areas Overlay like 24 Epsom require consent.8 Accordingly, he says that an assessment of the plaintiffs’ future receiving environment in August 2023 would not have led to a different conclusion about the actual and potential effects of the variation.
The evidence
[43] Both parties filed expert evidence about the extent and the effects of any Council error.
[44] The plaintiffs’ architect, Stephen Jones, considers that the HIRB infringement permitted by the variation consent is “exceptionally large” and results in an unreasonable bulk and dominance effect in relation to 24 Epsom. He calculates that the variation increases the volume of Ms Du’s second storey by 63.4 m3, of which
8 Citing the AUP, Chapter J1 (Definitions) and Chapter D18 Special Character Areas Overlay– Residential and Business (Table D18.4.1, activity (A5)).
21.56 m3 infringes the HIRB controls. Mr Jones considers that the effects of the varied second storey are “intrusive, dominant and substantially adverse” to the plaintiffs’ enjoyment of their property. He says there are material errors and inaccuracies in the plan drawings tendered in support of the variation application (and approved by the Council), which make the infringement appear smaller.
[45] For reasons he sets out in some detail, Mr Jones “strongly” disagrees with the Council (and the author of the AEE) that the effects of the variation are “less than minor” and “negligible”. Amongst other things, he says the principal outdoor living areas are not located at least 20 metres from the boundary, but are across the entire rear yard. He considers that the approved infringements are detrimental to the special character and amenity values of the SHZ, do not provide quality on-site residential amenity for 24 Epsom, and fail to minimise the visual dominance of the dwelling to be built on Lot 19. He says these shortcomings are all contrary to the relevant provisions of the AUP. In his view, the actual effects of bulk and dominance, with the resulting loss of daylight and privacy, are “exceedingly more than minor”.
[46] The plaintiffs’ planning expert, Gary Deeney, agrees with Mr Jones that the infringement of the HIRB control on the common boundary with 24 Epsom has been misrepresented. He also considers that the maximum height of infringement on the eastern boundary is new, and double that stated in the Council’s decision.
[47] Mr Deeney says the variation gives rise to three development standard infringements under the AUP:
(a)on the eastern boundary, H5.6.5 concerning HIRB;
(b)on the common boundary with 24 Epsom, H5.6.7 concerning HIRB adjoining lower intensity zones; and
(c)H5.6.10, which provides that the maximum building coverage must not exceed 45 per cent of the net site area.
[48] Mr Deeney says that the Council should have assessed these infringements in accordance with C.1.9(3) of the AUP, which states as follows:
When considering an application for a resource consent for a restricted discretionary activity for an infringement of a standard under Rule C1.9(2), the Council will restrict its discretion to all of the following relevant matters:
a. any objective or policy which is relevant to the standard;
b. the purpose (if stated) of the standard and whether that purpose will still be achieved if consent is granted;
c. any specific matter identified in the relevant rule or any relevant matter of discretion or assessment criterion associated with that rule;
d. any special or unusual characteristic of the site which is relevant to the standard;
e. the effects of the infringement of the standard; and
f. where more than one standard will be infringed, the effects of all infringements considered together.
[49] Mr Deeney says the Council was wrong to conclude that no additional building coverage was generated by the proposal and failed to apply C1.9.3(f) by considering the cumulative effects of the three infringements. Mr Deeney says that the Council also failed to consider the difference in ground level between Lot 19 and 24 Epsom, which he considers is a “special or unusual characteristic of the site” for the purposes of C1.9.3(d). He further says that the Council failed to take into account the “zone interface” between the two sites. He asserts that despite 24 Epsom being in a SHZ with a Special Character Overlay, there is no consideration of SHZ objectives or policies.
[50] Overall, Mr Deeney’s evidence is that the Council incorrectly assessed the adverse impacts of the proposal on 24 Epsom. In his view, the HIRB infringements and the increased bulk of the upper storey give rise to “substantial” visual dominance and amenity effects on 24 Epsom. He says this is precisely the type of infringement in relation to which the Council should have required limited notification to the plaintiffs as affected persons on adjoining land.
[51] An expert resource management planner, Daniel Kinnoch, gave evidence for Ms Du. Mr Kinnoch accepts that the approved HIRB infringement has the potential
to generate some “isolated effects” on persons residing at 24 Epsom. He says these effects relate mainly to the perceived bulk and dominance of the proposed dwelling and the potential loss of privacy around the neighbouring swimming pool and outdoor living area. However, Mr Kinnoch considers that the adverse privacy effects are less than minor compared to those arising under the parent consent, because the window on the wall at the boundary has a sill height that requires a person to stand directly at the window to see into 24 Epsom’s rear yard.
[52] Further, Mr Kinnoch expects any effects of the perceived bulk and dominance to be confined largely to the summer period. In Mr Kinnoch’s opinion, the cladding proposed for the dwelling assists in mitigating these dominance effects.
[53] Mr Kinnoch points out that H5.3(4) of the AUP requires the height, bulk and location of development to maintain a “reasonable standard” of sunlight access and privacy to adjoining sites and to “minimise” visual dominance effects. He explains that mitigation measures such as planting are frequently used to ensure this policy is met. Mr Kinnoch refers to an offer by Ms Du to screen the window, not to build anymore windows on the wall at the boundary, and to plant a hedge on the boundary. Ms Du has also offered to secure these obligations by granting restrictive covenants in favour of 24 Epsom. In Mr Kinnoch’s opinion, this mitigation is the type of outcome that would likely result from a limited notification process. He says this would provide the plaintiffs with a better long-term outcome than they would have enjoyed under the parent consent.
[54] In reply, Mr Jones disagrees with Mr Kinnoch that the dominance and bulk effects will be limited to those enjoying the pool and limited to the summer months. He says the outdoor living area comprises the entire rear yard, which was designed to be enjoyed all year around. He “fundamentally” disagrees with Mr Kinnock that Ms Du’s offer to provide window screening and plant a boundary hedge will provide the plaintiffs with a better long-term outcome.
Legal principles
Judicial review principles
[55] It is well established that it is not the function of the Court on an application for review to substitute its own decision for that of the Council.9 Nor will the Court assess the merits of the notification decision or the substantive application. Instead:10
The inquiry the Court undertakes on an application for review is confined to whether or not the consent authority exceeded its limited jurisdiction conferred by the Act. In practice the Court generally restricts its review to whether the Council as decision maker followed proper procedures, whether all relevant and no irrelevant considerations were taken into account, and whether the decision was manifestly reasonable. The Court has a discretion whether or not to grant relief even if it is persuaded that there is a reviewable error.
Notification
[56] A consent authority must not grant a resource consent if the application should have been notified and was not.11 Any such consent will be invalid and unlawful.
[57] Because applications under s 127 to change the conditions of a consent are treated as applications for discretionary activities, ss 95B and 95E apply for notification purposes. Section 95B relevantly provides:
95B Limited notification of consent applications
(1) A consent authority must follow the steps set out in this section, in the order given, to determine whether to give limited notification of an application for a resource consent, if the application is not publicly notified under section 95A.
…
Step 3: if not precluded by step 2, certain other affected persons must be notified
(7)In the case of a boundary activity, determine in accordance with section 95E whether an owner of an allotment with an infringed boundary is an affected person.
9 Coro Mainstreet (Inc) v Thames-Coromandel District Council, above n x, at [40].
10 At [40]. See also Pring v Wanganui District Council (1999) ELRNZ 464 (CA) at [7] which notes (inter alia) that “Unless the statute otherwise directs, the weight to be given to particular relevant matters is one for the consent authority, not for the Court, to determine, but of course, there must have been some material capable of supporting the decision”.
11 Resource Management Act, s 104(3)(d).
(8)In the case of any other activity, determine whether a person is an affected person in accordance with s 98E.
(9)Notify each affected person identified under subsections (7) and (8) of the application.
…
[58]Section 95E provides:
95E Consent authority decides if person is affected person
(1) For the purpose of giving limited notification of an application for a resource consent for an activity to a person under section 95B(4) and
(9) (as applicable), a person is an affected person if the consent authority decides that the activity’s adverse effects on the person are minor or more than minor (but are not less than minor).
(emphasis added)
[59] Section 95E sets a “minor or more than minor” threshold for limited notification. Whether an effect meets this threshold is a question of fact and degree and informed by the context of any particular case.12
[60] As to the meaning of “less than minor”, Davison J in Gabler v Queenstown Lakes District Council interpreted the term to mean:13
… that which is insignificant in its effect, in the overall context, that which is so limited that it is objectively acceptable and reasonable in the receiving environment and to potentially affected persons.
Statutory framework for the substantive decision to grant the variation
[61] Sections 88 to 121 of the RMA apply to applications to change resource consent conditions (with all necessary modifications).14
[62]Section 104 relevantly provides:
104 Consideration of applications
12 Speargrass Holdings Ltd v Queenstown Lakes District Council [2018] NZHC 1009, (2018) 20 ELRNZ 645 at [139]; and McMillan v Queenstown Lakes District Council [2017] NZHC 3148, [2019] NZRMA 256 at [12].
13 Gabler v Queenstown Lakes District Council [2017] NZHC 2086, (2017) 20 ELRNZ 76 at [94].
14 Resource Management Act, s 127.
(1)When considering an application for a resource consent and any submissions received, the consent authority must, have regard to–
(a)any actual and potential effects on the environment of allowing the activity; and
(ab) any measure proposed or agreed to by the applicant for the purpose of ensuring positive effects on the environment to offset or compensate for any adverse effects on the environment that will or may result from allowing the activity; and
(b)any relevant provisions of—
(i)a national environmental standard:
(ii)other regulations:
(iii)a national policy statement:
(iv)a New Zealand coastal policy statement:
(v)a regional policy statement or proposed regional policy statement:
(vi)a plan or proposed plan; and
The RMA defines the environment to include:
(a)ecosystems and their constituent parts, including people and communities; and
(b)all natural and physical resources; and
(c)amenity values; and
(d)the social, economic, aesthetic, and cultural conditions which affect the matters stated in paragraphs (a) to (c) or which are affected by those matters.
[64] In Queenstown Lakes District Council v Hawthorn Estate Ltd the Court of Appeal found that the word “environment” embraces the future state of the environment as it might be modified by the utilisation of rights to carry out permitted activity under a district plan. It also includes the environment as it might be modified by the implementation of resource consents which have been granted at the time a
particular application is considered, where it appears likely that those resource consents will be implemented.15
Analysis
[65] There is no dispute that when the Council decided not to notify the plaintiffs, and to grant Ms Du’s variation application, the Council did not take into account the plaintiffs’ 2020 resource consent; nor the work the plaintiffs had undertaken (and were likely to undertake) in order to implement that consent. It did not take into account that the garage had become a pool house and the plaintiffs had consent to build a swimming pool and spa area to one metre of the boundary. I consider these were reviewable errors.
[66] I accept Mr Enright’s submission that the Council erred by failing to consider the plaintiffs’ 2020 resource consent when it decided to process Ms Du’s application without limited notification to them. Sections 95B(8) and 95E(1) required the Council to assess whether the effects on the plaintiffs would be minor or more than minor (but not less than minor). The Council adopted the AEE assessment of effects, but this incorrectly described the plaintiffs’ property and overlooked the plaintiffs’ (then) partly implemented 2020 resource consent. The Council did not assess whether implementation of the 2020 consent would heighten the adverse effects on the plaintiffs to such an extent that the adverse effects on them were minor or more than minor (but not less than minor).
[67] I am not persuaded by Mr Littlejohn’s submission that an assessment of adverse effects on the plaintiffs as “persons” under ss 95E(1) did not require the Council to consider the effects on their environment, including as that environment might be modified by implementation of the plaintiffs’ 2020 resource consent. For the purposes of determining whether limited notification is required, “persons” might well be adversely affected by the effects of a proposed activity on their environment (actual or receiving). That is particularly so in the context of a mixed-zone residential development.
15 Queenstown Lakes District Council v Hawthorn Estate Ltd, above n 2, at [84].
[68] I also accept Mr Enright’s submission that in order to properly assess the actual and potential effects on the environment of Ms Du’s proposed variations under s 104(1)(a), the Council was required to take into account the environment as it would be modified by implementation of the plaintiffs’ 2020 resource consent. By failing to do so the Council proceeded on an erroneous basis. The errors, transposed from the AEE, directly informed the Council’s assessment under s 104(1)(a) that the actual and potential effects of the variations are negligible and would be satisfactorily mitigated by the design and layout of the second storey of Lot 19.
[69] I do not accept Mr Littlejohn’s submission that the plaintiffs’ 2020 consent was immaterial and the Council’s errors were “technical”. Essentially, Mr Littlejohn says it makes no difference whether the plaintiffs’ backyard area comprises lawn, garden and a garage; or a pool house, swimming pool and spa area built to one metre of the boundary. As noted above, the parties’ experts have firm but conflicting views about this. For present purposes I accept in principle that the extent to which a neighbouring environment is adversely affected by an infringement of height to boundary controls may well depend, at least in part, on the way in which the neighbouring property is used. In the present case, the plaintiffs’ 2020 consent is a relevant factor that the Council should have taken into account.
Discretion
[70] The Court has a discretion to refuse relief.16 Mr Littlejohn submits refusal is appropriate in this case.
[71] Although the plaintiffs’ evidence refers to the pool house as a sleepout, and one of their experts describes it as a “second dwelling”, Mr Littlejohn submits there is nothing on the Council records to indicate it would be used for anything other than the storage of pool equipment and possibly daytime recreational use. He also emphasises that Ms Du is an innocent party. She responsibly accepted she could not build her apartment without a variation to the resource consent and she relied on professionals to help her with that. She has entered into building contracts in reliance on the
16 Judicial Review Procedure Act 2016, s 18.
Council’s decision. Ms Du says she has invested her life savings on 24 Epsom and she will be prejudiced if she is unable to complete her renovations.
[72] As noted, Ms Du has also offered to mitigate the plaintiffs’ concerns, including by retaining a small high sill and semi-opaque window facing the plaintiffs’ backyard, and installing a hedge along the boundary. She has offered to entrench these mitigating features but granting covenants that bind future owners of Lot 19 and entitle future owners of 24 Epsom. Ms Du’s expert says this will provide the plaintiffs with a better outcome than a properly considered Council decision, although the plaintiffs’ experts strongly dispute that.
[73] However, it is not unusual in judicial review proceedings of this sort for defendants to have benefitted from errors made by others, and to have relied on the erroneous decisions that followed. That does not necessarily preclude relief. Nor does the fact that the second defendants may have tried to resolve matters.
Remedy
[74] In my view the appropriate remedy is to direct the Council to reconsider Ms Du’s application, taking into account its earlier decision to issue the plaintiffs’ 2020 consent. I do not consider it is appropriate at this stage to grant injunctive relief and/or to make directions in relation to the undertaking provided by the second defendants to resolve the plaintiffs’ application for interim relief. The parties have leave to apply further if that remains an issue.
Result
[75] The Resource Consent LUC60374494-B dated 18 August 2023 granted by the first defendant to the second defendants is set aside.
[76] The first defendant is to reconsider its decision to grant the Resource Consent LUC60374494-B, including its decision to proceed without limited notification to the plaintiffs.
[77] If costs cannot be agreed the plaintiffs should file a memorandum of not more than five pages (excluding any attachments) within 20 working days. The defendants should file memoranda of similar length within a further 10 working days.
Robinson J
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