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WESTFIELD (NEW ZEALAND) LIMITED & Another v NORTH SHORE CITY COUNCIL & Another [2005] NZSC 17 (19 April 2005)
Last Updated: 20 April 2005
IN THE SUPREME COURT OF NEW ZEALAND
SC CIV
4/2004
[2005] NZSC 17
BETWEEN WESTFIELD (NEW ZEALAND) LIMITED
First
Appellant
AND NORTHCOTE MAINSTREET
INCORPORATED
Second Appellant
AND NORTH SHORE CITY
COUNCIL
First Respondent
AND DISCOUNT BRANDS
LIMITED
Second Respondent
Hearing: 6, 7 and 8 December
2004
Court: Elias CJ, Keith, Blanchard, Tipping and
Richardson JJ
Counsel: J A Farmer QC and C N Whata for First
Appellant
T C Gould and V J C Rive for Second
Appellant
W S Loutit and B S Carruthers for First
Respondent
A R Galbraith QC and I M Gault for
Second Respondent
Judgment: 19 April 2005
A. The appeal is allowed.
B. The order of the High Court is restored.
C. The decisions made by the North Shore City Council (a) on 25 July 2003 not
to require notification of the second respondent’s
resource consent
application and (b) on 21 August 2003 granting that application are set
aside.
D. Costs in favour of the appellants are to be fixed by the Court following
receipt of written submissions.
REASONS
Para No
Elias CJ [1]
Keith J [42]
Blanchard J [58]
Tipping J [142]
Richardson J [178]
ELIAS CJ
| [1] | The
appeal concerns the lawfulness of a decision of the North Shore City Council not
to notify an application by Discount Brands Ltd
for resource consent. The
resource consent was sought to enable Discount Brands Ltd to establish a retail
outlet with a floor area
of 4,050 square metres comprising some 56 shops selling
discounted goods. The site of the development (a disused former garden centre)
was within the Business 9 zone established by the North Shore City District Plan
but was outside the retail centres identified by
the plan. The proposed
development, as a high traffic generating activity with a gross floor area
exceeding 2,500 square metres,
was a discretionary activity in terms of the
district plan. [1] Under ss 93 and 94
of the Resource Management Act 1991 as they were at the relevant
time[2] the application for resource
consent required notification unless the Council, as the relevant consent
authority, was "satisfied
that the adverse effect on the environment of the
activity for which consent is sought will be minor" (as required by s 94(2)(a)),
and unless written approval had been obtained "from every person whom the
Council is satisfied may be adversely affected" by the
granting of the resource
consent (as required by s 94(2)(b)). The decision not to notify and the
subsequent resource consent were
set aside by the High
Court[3] but reinstated by the Court
of Appeal.[4] The present appeal is
brought by leave from the decision of the Court of
Appeal. |
| [2] | The decision of 25 July 2003 to
proceed without notifying the application was made on the grounds that the
Council was satisfied that
the adverse effect on the environment of granting the
resource consent would be minor (the precondition established by s
94(2)(a)): |
The applicant has provided economic and retail information that demonstrated
that the proposal will not generate social or economic
effects on existing or
proposed retail centres as the unique nature of the discount outlet centre will
offer goods in a different
economic market [than] those presently available.
For this reason the discount outlet shopping centre will [complement] rather
than
undermine other centres (having no regard to trade competition).
Furthermore as the discount outlet shopping centre will have a
large primary
catchment any potential effect on existing or proposed centres would be
dispersed throughout the catchment to a level
where it would be less than minor.
The character, heritage and amenity of existing centres will be maintained as
well as their accessibility
and the social function they
fulfil.
| [3] | Written
approval had been obtained from an adjoining landowner, McDonald’s. No
such approval had been sought from Northcote
Mainstreet Inc, a body set up to
protect and enhance the Northcote shopping centre located some 1.5 kilometres
from the Discount
Brands site. Nor had approval been sought from Westfield (New
Zealand) Ltd, the owner of the nearby Glenfield and Takapuna shopping
centres.
The decision of 25 July records, with respect to s 94(2)(b), "it is
considered that there are no other parties who
may be affected by the proposal
due to the site’s location and the unique nature of the land use
activity". The reference
to the "unique nature of the land use activity"
indicates further reliance on the view that the outlet would complement existing
retail centres because it was "operating in a different economic
market". |
| [4] | The resource consent was granted
on 21 August 2003. It was subject to a condition limiting the retail activity
on the site to the
sale of goods at a discount of 35% or more off normal retail
price. The condition seems to have been imposed in apparent assessment
that if
the retail activity on the Discount Brands site were not restricted to discount
sales the outlet would not operate in a "different
economic market" and could
have an adverse impact upon the amenity value of other shopping
centres. |
| [5] | Two principal questions of general
importance arise on the appeal: the correct approach in determining the
qualifying condition for
non-notification under s 94(2)(a) that any adverse
effect on the environment will be minor; and whether a society set up to
enhance
the amenity values of an existing shopping centre may be a person who is
adversely affected within the meaning of s 94(2)(b)
by the granting of resource
consent for a new shopping centre. Both questions turn on the meaning of the
legislation and its application
in context. I do not consider that answers are
helpfully advanced by consideration of the scope and intensity of the High
Court’s
supervisory jurisdiction to ensure reasonableness in substantive
result in the exercise of statutory powers. With the other members
of the Court
(whose judgments I have had the advantage of reading in draft), I have come to
the conclusion that the decision of the
Council must be set aside for error of
law. In concluding on the material then available to it that any effects on the
environment
were minor, I am of the view that the Council failed to address the
right question under s 94(2)(a): whether it could be so satisfied
without
notification. It also failed properly to address a corresponding question under
s 94(2)(b): whether it could be satisfied
that all persons who could be
adversely affected by the consent had given written approval for the
application. It is common ground
that, if the decision on non-notification is
set aside, the Council’s subsequent decision granting resource consent on
a non-notified
basis is invalid. That accords with s 105(5) of the Act which
provides that a consent authority "shall not grant a consent if the
application
was made without notice and the application should have been made with
notice". |
| [6] | The facts and the background to
the appeal are fully described in the reasons given by Blanchard J, and do not
need to be repeated
here. In particular, I gratefully adopt his description of
the history of the resource consent application before the North Shore
City
Council and the reasons of the High Court and Court of Appeal. On the "minor
effects" limb of s 94(2), I reach the same conclusion
as other members of the
court without relying directly on s 93(1). Section 93(1), which required a
consent authority to be
"satisfied" it had "adequate information" before giving
notice of an application under s 93, is part of the statutory context
but I
consider that an error in approach was made in application of s 94(2). I agree
with other members of the court that Northcote
Mainstreet is a "person" within
the meaning of the legislation and I agree with Keith J, Blanchard J and
Richardson J that a person
must be directly affected to fall within s 94(2)(b).
But I am unable to accept the conclusion reached by other members of the court
that only those affected as land-owners or occupiers are capable of being
adversely affected. I consider that Northcote Mainstreet
may be a person
adversely affected (although whether it is so affected is not a matter that can
be finally resolved on the appeal).
In my conclusions I am influenced by the
text and scheme of the Act and the district plan. It is therefore necessary for
me to
refer to both in some detail. |
The statutory
context, the provisions of the district plan, and the role of Northcote
Mainstreet
| [7] | The Discount Brands Ltd
proposal required resource consent under s 105 of the
Act[5] because it was for an activity
identified as "discretionary" under the North Shore City District Plan. Under
the Act, provision
can be made in plans for a range of controls over activities.
No resource consents are required for activities identified as permitted.
None
can be granted for activities prohibited by the plan. Between those two
extremes various degrees of control are provided by
s 105. The consent
authority (here, the Council) must grant consent for activities identified in a
district plan as "controlled",
but may impose conditions in respect of matters
identified in the plan as ones for which it has reserved such control. Where an
activity is "discretionary", but the consent authority’s ability to reject
the activity is limited by the plan to identified
standards and controls, the
scope of the discretion is limited to those identified standards and controls.
Where a "discretionary
activity" is not subject to such limits in the plan, the
consent authority is not so circumscribed in its consideration and under
s
105(1)(b) it "may grant or refuse the consent", and impose conditions. Where an
activity is "non-complying", the consent authority
can only grant consent if
"satisfied that the adverse effects on the environment will be minor" or that
granting the consent will
not be contrary to the objectives and policies of the
plan or proposed plan. "Effect" is widely defined by s 3 to include
potential
as well as actual effect and includes "potential effect of high
probability"[6] and "potential effect
of low probability which has a high potential
impact".[7] |
| [8] | In
the present case, the district plan did not restrict the consent authority in
the exercise of its discretion to grant consent for
the activity. If it had
done so, the consent authority’s role would have been limited under s 105
to any considerations and
standards identified in the plan. Because the
discretion was not so limited, the question of consent had to be considered more
broadly.
While under s 104(8) the effect of trade competition was irrelevant,
other wide-ranging matters were required to be taken into account
under s
104(1). They included |
(a) Any actual and potential effects on the environment of allowing the
activity; and
...
(d) Any relevant objectives, policies, rules, or other provisions of a plan or
proposed
plan.
| [9] | These
criteria had to be applied in the context of the wider Act. Section 5 provides
that the purpose of the Act includes enabling
"people and communities to provide
for their social, economic, and cultural well being", while sustaining resources
and protecting
the environment. All persons exercising functions and powers
under the Act are required by s 7 to have "particular regard", among
other
things, to "the maintenance and enhancement of amenity
values"[8] and the "maintenance and
enhancement of the quality of the
environment".[9] "Amenity values" are
defined by s 2 as "those natural or physical qualities and characteristics of an
area that contribute to people’s
appreciation of its pleasantness,
aesthetic coherence, and cultural and recreational attributes". "Environment"
is defined by s
2 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) of
this definition
or which are affected by those
matters: |
| [10] | The district plan is key to the
Act’s purpose of enabling "people and communities to provide for their
social, economic, and
cultural well being". It is arrived at through a
participatory process, including through appeal to the Environment Court. The
plan has legislative status. People and communities can order their lives under
it with some assurance. A local authority is required
by s 84 of the Act to
observe and enforce the observance of the policy statement or plan adopted by
it. A district plan is a frame
within which resource consent has to be
assessed. |
| [11] | The North Shore District Plan
came into effect after appeal to the Environment Court and after that court had
expressly approved the
"centres-based" strategy for business activities adopted
by it.[10] The Statement of Issues
and Goals in the plan identifies its general strategies. It identifies one of
the "major issues" for the
plan as being "to ensure that business activities do
not degrade the environment or the amenity of surrounding
areas":[11] |
A centres-based approach is an effective mechanism for preventing potential
adverse effects of business activities. By grouping
together activities which
have high traffic generation rates, a centres-based approach can reduce vehicle
trip lengths, congestion
and vehicle emissions, and improve road safety. It
enables cost-effective controls to be developed which reflect the
characteristics
of different areas. A centres-based approach also recognises
that the established centres in North Shore City are significant physical
resources.
...
The city already has a reasonably well located hierarchy of shopping centres.
Among the features of North Shore City identified
in the Residential
Preferences Survey as being highly valued were the shopping and
entertainment facilities. However, new facilities will be required if new
residential
areas in the north of the city continue to be developed. A major
issue in relation to retail development is the extent to which
the location of
retail activities should be restricted and controlled. To assist in assessing
this issue, the Council commissioned
a study, North Shore City: Evaluation
of Retail Options 1993 by McDermott Fairgray. This study evaluated three
options, namely a centres-based strategy, an open door strategy and a controlled
liberalisation strategy. These were evaluated on the basis of outcomes and
implications for stakeholders (the Council, residents/consumers,
investors/developers and large retailers). The study concluded that a
centres-based strategy had the most advantages for the majority
of
stakeholders.
| [12] | The
policies for urban growth adopted in the plan look to a full range of retail
facilities in the city "primarily in existing and
proposed business
centres".[12] Housing strategy
identified in the plan provides for higher density based around commercial
centres to "optimise the range of shopping
and related business and community
activities within walking distance of the population" and to "strengthen the
role of these centres
as community focal points, and the identity of the
districts which these centres
serve."[13] Business centres are
acknowledged in the plan to serve "broader functions than those of simply
providing goods and services":
[14] |
They act as focal points for the community, centres of entertainment and social
services, and they represent a substantial physical
and community resource.
...
It is also relevant to consider the potential adverse effects of new business
activity locating away from established centres. These
effects include the
effects of traffic generation on road capacity and effects on transportation
patterns and systems, and the overall
availability and accessibility of
commercial and community services. Competition arising from new business
activity is not, in resource
management terms, an adverse effect on existing
businesses. However, it is relevant to ensure that other adverse environmental,
social economic and amenity effects resulting from new developments are avoided,
remedied or mitigated, or offset by positive effects
arising from the new
development.
| [13] | The
"Business Objectives and Policies" identified in Section 15.3 of the plan
contain the policy of ensuring that "amenity values
in existing centres" are
maintained and that:
[15] |
new business development does not result in adverse social and economic effects
by causing a decline in amenity in existing centres
or the positive contribution
made by existing shopping centres to the social and economic well-being of
people and communities in
the
city.
| [14] | The
objective for retail activities described in Section 15.3.3
is |
To enable a wide range of retail activities in business centres, and in
locations where they meet the needs and preferences of the
community; avoid,
remedy or mitigate adverse environmental effects; and enhance community
accessibility to a range of facilities.
With that intent, the
plan adopts the following policies which are relevant to the present case:
(1) By encouraging retail activities to locate in the existing and proposed
business centres in the city, which
include:
| a. | Sub-regional
centres at Takapuna and Albany; |
| b. | Suburban
centres, ranging from Browns Bay, Glenfield and Highbury, to Devonport, Milford
and Northcote, and to Albany Village, Greville
Road, Mairangi Bay, Sunnynook and
Unsworth Drive; |
| c. | Local centres distributed
throughout the city; |
...
(4) By recognising the potential demand for some retail activity to establish
in business zones outside the existing and proposed
business centres and
requiring this development, (in the Sub-regional 6, Business Park 7, Business
Special 8, General 9 and General
10 zones) unless otherwise exempted, to be
subject to a thorough evaluation, particularly in terms of the effects of the
activity
on:
| • | the
roading network in which the activity is located;
and |
| • | the amenity values of nearby
residential areas; and |
| • | the character,
heritage and amenity values of the centres;
and |
• the overall accessibility to the range of business and community
facilities in the city; and
| • | the
pedestrian amenity in the vicinity of the proposed retail
activity. |
(5) By the Council involving the local community, private investors and
business people in consultation aimed at producing agreed
Centre Plans which
identify and build on the essential qualities of individual centres, including
heritage aspects, renewal and diversification
within those centres.
(6) By progressively adopting Centre Plans, when they are agreed by relevant
parties, and by introducing changes to the District
Plan, where regulatory
changes are required to implement such plans.
...
| [15] | The plan
explains that policies 1-4, 6 and 8 of Section 15.3.3 "will be implemented by
rules". Policy 5 is to be implemented by "Council
initiatives in the form of
advice, co-ordinating initiatives and advocacy". It appears as though Northcote
Mainstreet may have been
set up, with Council support, in partial fulfilment of
Policy 5. Mr Wilson, the town centre manager of the Northcote Shopping Centre,
explained how Northcote Mainstreet came to be set
up: |
Northcote Mainstreet Incorporated ("Northcote Mainstreet") was established in
1993, following a North Shore City Council report which
recommended that a
self-help group be established to assist the revitalisation of the Northcote
Shopping Centre. The term Mainstreet
is a generic name used to describe a
holistic process that involves developing, implementing and evaluating
strategies to enhance
and revitalise a town centre.
...
Northcote Mainstreet’s principal objective is the enhancement of the
Northcote Shopping Centre. Northcote Mainstreet is governed
by a steering
committee made up of representatives of the centre’s four key vested
groups – business owners and tenants;
property owners; the North Shore
City Council; and the local community.
Mr Wilson describes a
range of community activities and initiatives fostered by Northcote Mainstreet
to re-establish Northcote as
a "vibrant community focal point".
| [16] | Discretionary activities
identified in Rule 15.6.1.3 (high traffic generating activities which are
discretionary activities in the
Business 6,7,9 or 10 zones) are required by Rule
15.7.3.5 to be assessed to determine the extent of any adverse social and
economic
effects including: |
| (a) | The extent to
which the new activities would result in a significant adverse effect on the
commercial and community services and facilities
of any existing or proposed
business centre as a whole. |
| (b) | The extent to
which the overall availability and accessibility of commercial and community
services and facilities will be maintained
in any existing business
centre. |
| (c) | The extent to which the new
activities would result in a significant adverse effect on the character,
heritage and amenity values
of any existing or proposed
centre. |
| (d) | The extent to which the benefits of
a new development are able to directly or indirectly mitigate any adverse
effects in (a), (b),
or (c) above. |
...
| [17] | In context, therefore, the
application in the present case had to be assessed against any adverse impact it
might have on the amenity
values of existing shopping centres, and the policies
identified in the district plan to confine business activities generally to
centres within North Shore City identified by the plan. It required the
"thorough evaluation" provided for by policy 4, designed
in particular to
consider the impact upon the amenity values of the existing centres. And in
policy 5 it looked to the "advocacy"
of community-based groupings in the
identification and promotion of "the essential qualities of individual
centres". |
Notification
| [18] | Once the Council was
satisfied under s 93(1) that it had received "adequate" information about an
application for resource consent
(a requirement no longer explicitly imposed
after the amendments to the Act made in 2003), it was required by s 93 to give
public
notice of the application and to serve it on any person "likely to be
directly affected" including owners and occupiers of adjacent
land. To this
general requirement of notification s 94 provided exceptions. Subdivisions, if
controlled activities, did not need
to be notified. Nor did other controlled
activities if the plan provided that the consent of those affected need not be
obtained
or, in other cases, if written approval had been obtained from those
who might be adversely affected. In relation to discretionary
or non-complying
activities s 94(2) provided that the application need not be notified if
|
(a) The consent authority is satisfied that the adverse effect on the
environment of the activity for which the consent is sought
will be minor;
and
(b) Written approval has been obtained from every person whom the consent
authority is satisfied may be adversely affected by the
granting of the resource
consent unless the authority considers it is unreasonable in the circumstances
to require the obtaining
of every such
approval.
| [19] | Although
the legislation was substantially amended in 2003, the central requirement
remains constant. An application for resource
consent for a discretionary or
non-complying activity must still be notified unless the consent authority is
"satisfied that the
adverse effects of the activity on the environment will be
minor".[16] Even if an application
is not publicly notified, the current legislation requires notice of it to be
given to all those adversely
affected unless all persons who may be adversely
affected have given their written
approval.[17] |
| [20] | The
requirements for notification are more relaxed for discretionary activities for
which Council has limited its discretion in the
plan. Before the 2003
amendments an application in respect of which the consent authority had
restricted the exercise of its discretion
did not have to be notified if the
plan "expressly permits consideration of the application without the need to
obtain the written
approval of affected
persons".[18] No such limitation
had been adopted in respect of the discretion to grant resource consent in the
circumstances of the Discount
Brands
proposal. |
| [21] | A decision not to notify has
significant consequences. It deprives others of the right to participate in the
determination of the
resource consent application. It also precludes any person
other than the applicant from appealing or participating in the hearing
of an
appeal to the Environment Court from the grant or refusal of resource consent.
The Environment Court is a specialist tribunal
which on appeal conducts a full
rehearing of the application and is able to substitute its judgment for that of
the consent authority.
Non-notification precludes the opportunity for anyone
other than the applicant to seek such reassessment and from further appeal
on a
point of law to the High
Court. |
| [22] | Non-complying and discretionary
activities are subject to the same test for non-notification: the consent
authority must be "satisfied"
that the adverse effects on the environment are
minor and must obtain written approval from every person whom the consent
authority
is satisfied may be adversely affected (unless obtaining such consent
in the circumstances is unreasonable). These requirements
are to be compared
with those provided for controlled and limited discretionary activities. In the
case of controlled and limited
discretionary activities the express provisions
of the plan have established the scope of what is acceptable after a public
process,
subject to appeal opportunities. By contrast, applications for
discretionary activities where the discretion is not a restricted
one and
non-complying activities have to be discretely weighed against the general
policies and standards of the plan. They have
the potential to undermine
expectations based on it. |
| [23] | The requirement
that the consent authority must be "satisfied" that adverse effects on the
environment are minor before it decides
not to notify a resource consent
application for a discretionary activity is a significant obligation. By
contrast, when a substantive
decision is made on the application for resource
consent for a discretionary activity under s 105, the consent authority is
simply
empowered to decide whether or not to grant the consent and on what
conditions, after taking into account the considerations identified
by the Act
and in the context of the plan. Such decisions may be finely judged. That is
not the approach required of the decision-maker
by s 94(2). The requirement
that the consent authority be "satisfied" that adverse effects on the
environment are minor is a pointer
to additional conviction and the need for
some caution. |
| [24] | That is borne out by the
scheme of the Act. The statute requires a consent authority to be "satisfied"
in cases where there is some
departure from a general approach. Thus, powers to
extend time limits for existing use
rights,[19] to depart from usual
principles of natural justice[20] or
to permit contamination[21] are all
decisions that require the consent authority to be "satisfied" that the course
is appropriate in the circumstances or that
the adverse effects will not
eventuate or will be minor. |
Did the Council act
according to law in determining that the effects on the environment were minor
for the purposes of s 94(2)(a)?
| [25] | The assessment that the
effects on the environment of the proposal were minor was not one the Council
was called upon to make in a
vacuum. It had to be considered in the context of
the legislation and the district plan. It was a determination of participation,
rather than a judgment on the merits of the
|
application made after hearing all those
interested. I agree with Keith J that such determination touched on the scope
of the right
to be accorded natural justice. The decision not to notify an
application is an exception to the general policy of the Act that
better
substantive decision-making results from public participation. The requirement
that the consent authority must be "satisfied"
that effects are minor before
deciding not to notify a resource consent application to undertake a
discretionary or non-complying
activity is a requirement of caution. The
consent authority must be clear that notification would not elicit information
or perspective
which would cause it to view the effects of the activity on the
environment as more than minor.
| [26] | It was not sufficient for
the consent authority to have before it "some material of probative value", as
is suggested at paragraphs
[63] and [64] of the judgment of the Court of Appeal.
Nor do I consider that the Court of Appeal was correct in the view expressed
at
paragraph [66] that the consent authority had to decide "on the information then
available to them, whether any impact on existing
centres would be so
substantial as to threaten their viability". The consent authority had to
decide whether it could be satisfied
without notification that the adverse
effects on the environment were minor. It could not confine its consideration
to the material
before it, because that would be to avoid the question. The
effects on the environment in issue were adverse effects on the amenities
provided by the existing centres. There is no basis in the plan for suggesting
that any such adverse effect, which could be social
as well as economic, must
threaten the viability of the existing centres in order to be more than
minor. |
| [27] | The exceptions provided by s 94 to
the general policy of notification of resource consents are important in
streamlining consents
where the consent authority can be confident it does not
need any additional information which notification may provide; such
streamlining
is itself an important policy of the Act. But the consent
authority must consider whether it is able to have such confidence. Many
of the
principles of natural justice are based on the hard experience that assumptions
that cases are open and shut are often disappointed
when opposing views are
heard. |
Additional care is required in the
circumstances of the Resource Management Act itself with its policies of public
participation and principles of open decision-making, opportunity for
reconsideration of the merits
of a decision by the Environment Court
(effectively excluded by a decision not to notify), and the specific requirement
of s 94(2)(a)
that the consent authority be carried to the point of
satisfaction.
| [28] | There is nothing in its
decision to indicate that the consent authority appreciated the true nature of
the question it had to address
under s 94(2). It proceeded as though it were
considering the substantive determination of a resource consent for a
non-complying
activity under s 105 (which would have required a conclusion that
the effects on the environment were minor) and on the basis of
material put
before it by the applicant and generated from the Council’s own resources.
The question it should have considered
was whether it could be satisfied without
notification that any adverse effects on the environment of the activity
proposed were
minor. If not, it was required to notify the
application. |
| [29] | I am unable to accept that
the decision made is one the Council could have come to if it had addressed
itself to that preliminary
question. The substantial criticisms made of the
information supplied by Discount Brands Ltd by the Council’s own officers,
and the absence of any reasons in the decision for rejecting their advice,
demonstrate that the material relied on was highly contestable,
even on its own
terms. As Randerson J in the High Court and Blanchard J in this Court have
pointed out, the conclusion (critical
to the Council’s decision on both s
94(2) (a) and (b)) that the proposed activity was complementary with existing
centres because
not competing in the same market was based on questionable
methodology in a deficient report. The imposition of a condition designed
to
maintain that market distinction suggests that, in its absence, more than minor
adverse impact upon the amenity values provided
by the existing centres could
not be excluded. The proposal was of a scale which impacted upon prominent
policies in the district
plan. As such, it required the "thorough evaluation"
promised by the plan for its impact upon the amenities, including the community
focal points, provided by the existing centres. Against this background, and in
the absence of any reasons given by the Council
for not accepting the criticisms
of the application by its officers, it cannot be assumed that the Council would
have reached the
conclusion not to notify if it had addressed the proper
question. I am of the view that the Council’s consideration of the
notification determination miscarried and that its decision cannot
stand. |
Was Northcote a person whose written
approval was required under s94(2)(b)?
| [30] | I agree with Blanchard J
that, whether or not Northcote Mainstreet was registered as an incorporated
society at the time of the resource
consent application, it was a "person"
within the meaning of s 2 of the Resource Management Act. The Court of Appeal
was wrong to conclude otherwise. The question remains whether Northcote
Mainstreet was a person whose written
approval should have been obtained before
the matter could proceed on a non-notified
basis. |
| [31] | Randerson J in the High Court
commented that Northcote Mainstreet had not sufficiently pleaded its status as a
person "adversely affected"
whose written approval was required under s 94(2)
before the application could proceed on a non-notified basis. He nevertheless
dealt with a submission to that effect shortly,
saying:[22] |
Northcote is an organisation representing the retailers at that shopping centre
and is not itself subject to effects contemplated
by the
section.
The Court of Appeal, having concluded that Northcote
Mainstreet did not exist as a legal entity at the relevant time and was not a
"person", did not need to go further. It simply commented that the point that
Northcote Mainstreet was a person adversely affected
had not been pleaded as a
ground of review.
| [32] | The statement of claim on
behalf of Northcote Mainstreet and Westfield pleaded that Northcote
Mainstreet’s members "include
businesses in the Northcote shopping centre,
their owners and operators, and community representatives". They claimed, in a
pleading
denied by the Council, that the Northcote, Birkenhead, Takapuna and
Glenfield shopping centres were among those "within the area
of the
proposal’s potential adverse social and economic effects". The statement
of claim contained a cause of action that
the non-notification decision was
invalid on the grounds that "written approval had not been obtained from every
person who might
be adversely affected to more than a de minimis extent
by the granting of the resource consent". Denying this pleading, the Council
affirmed that it had obtained written approval
from the only person adversely
affected and that it had "correctly decided that no additional persons were
adversely affected by
the application".
|
| [33] | The pleading could well have been more
explicit on Northcote Mainstreet’s claim to have been affected within the
meaning of
s 94(2)(b). But, the matter having been dealt with by Randerson J,
it may be thought somewhat technical not to have entertained
on appeal the
question whether he was correct in holding that Northcote Mainstreet was not a
person adversely affected. Mr Galbraith
did not press the technical point and
it is unnecessary in those circumstances to grant Northcote Mainstreet leave to
amend its pleadings
as was sought before this Court. But the fact remains that
on the question whether a society representing community and retail interest
in
an existing amenity can be a person adversely affected within the meaning of s
94(2), a question of some difficulty, we have not
had the advantage of the view
of the Court of Appeal. We are disadvantaged also in the fact that the material
before us on the appeal
is sparse on the history and operation of Northcote
Mainstreet. Counsel apparently did not think it necessary to put before us the
constitution of the society and we have few details of its membership beyond
those referred to in paragraph [15] above. In those
circumstances, I prefer to
express no concluded view on the question whether Northcote Mainstreet was in
fact adversely affected.
The Court is concerned with the preliminary
determination that notification was not
required. |
| [34] | I think it necessary however to
indicate disagreement with Randerson J’s conclusion that Northcote
Mainstreet was not a person
capable of being adversely affected within the
meaning of s 94(2)(b). It should be noted that the Council, in its
determination,
did not act on a similar basis. It took the view that no one
else was affected because of the "unique nature of the land use activity",
in
apparent reference to its conclusion that the Discount Brands centre would
operate in a different market from existing centres
and would be "complementary"
with them. That view, as already indicated in respect of the s 94(2)(a)
inquiry, was reached through
flawed process. But since Randerson J held that
Northcote Mainstreet was "not itself subject to effects contemplated by the
section",
and because the matter is likely to arise in the proceedings now
before the High Court or on further application for resource consent,
I indicate
briefly why I am of the view that Northcote Mainstreet is capable of being a
person adversely affected within the meaning
of s 94(2).
|
| [35] | Sections 93 and 94 must be read together.
Section 93 sets up the general rule for notification. Section 94 provides
exceptions to
it. Under s 93(1)(e) an application for resource consent must be
served on persons "likely", in the opinion of the consent authority,
to be
"directly affected by the application". Under s 94 those whose written approval
is required if a consent application is not
to be notified are those whom the
consent authority is satisfied "may be adversely affected". Although the word
"directly" is not
carried over from s 93(1)(e) to s 94(2), the two provisions
must be congruent. It makes no sense for the general rule to require
service on
someone "directly" affected and for the exception to be solicitous of those
"adversely" affected if the effect is either
direct or indirect. A purposive
reading of the provisions in context suggests that they are both concerned with
direct effect.
The general rule requires service on any person directly
affected. Non-notification is permitted (where the effects on the environment
of a discretionary activity are minor) only if the written approval is obtained
of anyone directly affected in a way assessed as
adverse. |
| [36] | Both limbs of the test must be
taken seriously. They will overlap because of the wide definition of
"environment" (which includes
as described in paragraph [9] people, amenity
values, and social, economic, aesthetic and cultural conditions which affect
people
and communities and amenity values). That overlap is explicitly
acknowledged by s 94(4), which directs a consent authority to take
no account
for the purpose of s 94(2)(a) of the effect on any person who has given written
notice of approval under s 94(2)(b).
But there is no clash in purpose between
the two limbs. An adverse effect on the environment of an activity may be minor
(because
assessed in a broader context) but still adverse for a person directly
affected. That is consistent with the purpose of the legislation
described in s
5 to enable people as well as wider communities to provide for their "social,
economic, and cultural well being".
The requirements of s 94(2) are concerned
with both the wider public interest and the interests of those persons directly
affected.
If the number of persons directly and adversely affected is a
significant portion of those affected as part of the general community,
then it
is open to the consent authority under s 94(2) to decide that it is unreasonable
to require the written approval of everyone
adversely affected. Such cases will
be further along a spectrum where direct effects upon persons merge with effects
upon the community
as a whole which are more than
minor. |
| [37] | I am unable to discern any basis in
the Act for the view that a person can be adversely affected only in relation to
property interests.
Section 93(1) includes "adjacent owners and occupiers of
land, where appropriate" as those who are likely to be directly affected,
but
does not confine those who may be directly affected to owners or occupiers of
land. An interpretation which confines the way
in which people can be affected
to adverse effects on their property is inconsistent with the wide definition of
environment and
the policies of the legislation described in ss 5 and 7. It is
contrary to the statutory recognition of a general interest in the
observance of
the district plan and it is inconsistent with the wide definition of "person"
which includes "a body of persons, whether
corporate or
unincorporate". |
| [38] | I do not therefore accept
that Northcote Mainstreet, a person for the purposes of the legislation, needs
to be adversely affected
as an occupier or proprietor of land to be a person
whose written approval is required before a decision not to notify a resource
consent application. The district plan envisages a role for community
organisations in advocating for the amenity values represented
by existing
centres. It emphasises the importance of the existing centres as focal points
for their communities. It stresses the
cultural and social importance of the
centres. A society which is set up to protect the amenity values of one of the
centres identified
in the district plan is, I think, a person capable of being
directly affected by a proposal to set up a new shopping outlet outside
the
existing centres. It should be noted that the evidence of Mr Wilson described
at paragraph [15] indicates that Randerson J was
mistaken in his description of
Northcote Mainstreet as "an organisation representing the retailers at that
shopping centre". As
a community organisation set up to promote the amenity
values of the centre (an advocacy role apparently envisaged by the district
plan), it was capable of being adversely affected by any loss of the
centre’s amenity values. Trade competition is not a relevant
consideration, but adverse impact upon amenity values
is. |
| [39] | In the present case the decision of
the Council makes it clear that, apart from McDonald’s, it considered that
no other person
was adversely affected by the proposal because of the
"site’s location" and "the unique nature of the land use activity".
The
reference to the "unique nature of the land use activity" is clearly another
reference to the Council’s acceptance that
the Discount Brands complex
would be "complementary" to and would operate in a different market to other
shopping centres. |
| [40] | As was the case with its
assessment under s 94(2)(a), I am of the view that the Council failed to address
the right question in deciding
that no person other than McDonald’s, an
adjacent landowner, was adversely affected by the application. The question for
it
was whether it could be confident that no one else was adversely affected
without notification. Section 94(2)(b) is not expressed
in quite those terms;
it requires the consent authority to require the written approval of "every
person whom the consent authority
is satisfied may be adversely affected". But
in context I am of the view that the meaning is that the consent authority must
be
satisfied that it has the written approval of every person who may be
adversely affected. Such interpretation is consistent with
s 94(2)(a). It
imposes, appropriately, a higher standard of care in respect of discretionary
and non-complying activities than is
required for controlled activities under s
94(1) and consents under s 94(3), where written authority must be obtained from
those
who may be adversely affected "in the opinion of the consent
authority". |
Conclusion
| [41] | For these reasons, I would
allow the appeals of Westfield and Northcote Mainstreet and restore the decision
of the High Court setting
aside the Council’s decisions of 25 July and 21
August 2003. I agree with Blanchard J that the discount stipulation is not
invalid. I, too, consider that there is no occasion to decline relief in the
exercise of a residual discretion. |
KEITH J
| [42] | I
gratefully accept Blanchard J’s statement of the facts and the background
to this appeal. I am, as a result, able to go directly
to the main issue in the
case which arises from the decision by the Council not to notify the application
for resource consent made
by Discount Brands. My purpose in writing separately
is to emphasise the different steps (particularly the first) in the
decisionmaking
process and the legislative wording, purpose and context. I
begin with the legislation as in force at the relevant
time. |
| [43] | This appeal concerns the requirement
in s 93 of the Resource Management Act that applications for resource
consent be notified and the exceptions to that requirement stated in s 94.
Section 93(1)
of the Act (in the form it took at the relevant
time)[23] required that once the
consent authority is "satisfied" that it has received "adequate information" the
application is to be served
on |
| • | the
owner or occupier of the land to which the application
related |
| • | persons likely to be directly
affected, including adjacent owners and occupiers of land, where
appropriate |
| • | local authorities, iwi
authorities and other persons or authorities as appropriate,
and |
| • | relevant Ministers and the Historic
Places Trust in certain cases. |
| [44] | The
application is also to be publicly notified through newspapers and to be affixed
in a conspicuous place at the site unless that
is impracticable or unreasonable.
The notice, if served, is to contain sufficient information to enable those
receiving it, without
more, to understand the general nature of the application
and whether it will affect them. The newspaper and site notices are to
describe
the application; to state that any person could make written submissions, the
closing date for them and the
|
need to serve them; and to advise where the
application and accompanying information can be viewed and addresses for service
(s 93(2)).
| [45] | The giving of those notices
and their detail facilitates the participation by those interested in the
consent authority’s decision-making
process. Their interest might be
direct and personal or it might be more general. The Resource Management Act
and its predecessors have long recognised that members of the general public may
be able to participate in a planning process in
certain circumstances. Under
Part 6 of the Act that process includes a hearing if, among other things, anyone
who made a submission asks to be heard. If a hearing is
requested, others
making submissions also have the right to be heard and, once a decision has been
made, they have the right to appeal
with a full rehearing to the specialist
Environment Court and on a point of law to the High Court and
beyond. |
| [46] | The purposes of those public
participatory processes are twofold – first, to recognise and protect as
appropriate the particular
rights and interests of those affected and more
general public interests and, second, to enhance the quality of the
decisionmaking.
|
| [47] | Sections 93 and 94 make
it plain that that obligation of notification with those important consequences
and purposes is not absolute.
The obligation under s 93(1) applies "unless
the application does not need to be notified in terms of section 94".
|
| [48] | As Blanchard J shows (paras [102]-[104]),
s 94 builds carefully on the different kinds of activities subject to the
Act, ranging
from permitted to prohibited. Where the process of the preparation
of the plan has resulted in activities being identified as controlled
or
restricted discretionary, notification is not in general required. But for
discretionary activities, non-complying activities
and where there is no
relevant or proposed plan, the consent authority must notify
unless |
(a) [It] is satisfied that the adverse effect
on the environment of the activity for which consent is sought will be minor;
and
(b) Written approval has been obtained from every person whom the consent
authority is satisfied may be adversely affected by the
granting of the resource
consent unless the authority considers it is unreasonable in the circumstances
to require the obtaining
of every such approval.
| [49] | Even if those grounds for
non-notification are made out, the consent authority may still require
notification if it considers that
special circumstances exist in relation to the
application (s 94(5)). |
| [50] | To repeat, the
assessments under s 94 are to be made only when the consent authority is
"satisfied that it [has] received adequate
information" (s 93(1)). The Act
makes it plain that the consent authority is not dependent only on the initial
application
for that information. It also has the power under s 92 to
require the applicant to provide further information and under that
provision
and s 42A to commission a report on relevant matters. Further, the members
and officers, with their experience, records
and archives, would have and would
be able to draw on extensive relevant knowledge, given the authority’s
ongoing responsibilities
for the sustainable management of the natural and
physical resources in its area. |
| [51] | As the
Court of Appeal said in Bayley v Manukau City
Council[24], the policy evident
upon a reading of Part 6 of the Act dealing with the grant of resource consents
is that the process is to be
public and participatory and that s 94 "spells
out exceptions which are carefully described circumstances in which a consent
authority may dispense with notification". Before being "satisfied" that those
circumstances did exist the consent authority must
be "satisfied" that it has
"adequate information" to be able to make a decision about participation,
bearing in mind the significant
consequences of non-notification, the statutory
policy of facilitating participation of those affected by or interested in the
processes
before the consent authority, the Environment Court and beyond, and
the importance of the authority being adequately informed for
the quality of its
resource consent decision. The importance of the notice requirement is further
emphasised by s 105(5) of
the Act which requires the consent authority not
to grant a consent if the application is made without notice when it should have
been made with notice. |
| [52] | Significant in
the basic requirements stated in ss 93(1) and 94(2) are the
double emphasis on "satisfied", the strongest decisional verb used in the
Act,[25] the etymology of "satisfy"
(to do enough), and a standard meaning relevant in this context – to
furnish with sufficient proof
or information; to assure or set free from doubt
or uncertainty; and to convince; or to solve a doubt,
difficulty.[26] |
| [53] | The
word must of course be read in context, in particular in the context of the
power in question. It is a power preliminary, first,
to the power to decide on
the procedure to be followed and, second, to the power to decide on the merits
and to grant or not a resource
consent. The authority’s exercise of the
power is a step on its way to determining whether someone who would claim that
there
should be a hearing both to protect and recognise that person’s
rights and interests (direct or general) and to facilitate
the making of a
better quality substantive decision may initiate that process. The Court of
Appeal decided that the standard for
review of what it saw as a discretionary
decision was Wednesbury unreasonableness and, to the extent that the
review was of the sufficiency of evidence, all it was concerned with was whether
there
was some material of probative
value.[27] |
| [54] | With
respect, I do not agree. The power to review a gatekeeping decision such as
that in issue in this case is an aspect of determining
the scope of the right to
be accorded natural justice affirmed in s 27 of the Bill of Rights, a power
which the courts have,
traditionally, directly and fully exercised. It was not
enough for the public body to show that its procedural direction was reasonable
or that it was based on some material of probative value. We are not here
concerned with the review of a substantive decision taken
by the body authorised
by statute, where the reviewing court will not in general be in a position to
substitute its assessment for
that of the body by making, for instance, a de
novo decision. But the cases on which the Court of Appeal principally relies
for
its essentially deferential position do concern such substantive decisions
taken by public bodies with relevant expertise, democratic
accountability or
both.[28] In some of the cases
moreover there had been a hearing before the substantive decision was made and
in others the decision in question
involved the allocation of scarce
resources. |
| [55] | I do not get beyond that
preliminary obligation of the Council committee to assess the adequacy of
the information which they were to bring to bear on the procedural decision and
their
satisfaction about that, about which, as I have said they were to be
satisfied before being satisfied about the effects identified
in s 94(2)(a)
and (b). The record does not show how the members of the committee in making
the decision not to notify addressed
their minds to their being satisfied that
the information they had was adequate. That is so although they were clearly
advised on
more than one occasion that the Council officers did not think there
was adequate information and had sought further information.
There is no
evidence at all about the members’ response to the officers’ opinion
that the information was inadequate.
They do not for instance claim to act on
the basis of their general experience or background knowledge of the issues.
The resolution on notification they adopted moves directly to the assessment
of the effects – the subject matter of s 94(2).
While the members
may say that it was implicit that they were satisfied that they had adequate
information in terms of s 93(1),
they do not say that and they give no
reasons for reaching that conclusion with its important consequences,
although they had been plainly put on notice on that matter.
|
| [56] | Against that background, the importance
of the decision not to notify and the growing recognition of the obligation on
public authorities
to give
reasons,[29] this failure for me is
fatal to the validity of the decision not to notify. Committee members, I
infer, did not, as s 93(1)
required, satisfy themselves that they had
adequate information to enter into the procedural
decision.[30] |
| [57] | I
accordingly agree that the appeal succeeds. On the failure to notify I also
agree with the reasoning of Blanchard J based on the
lack of comprehensive and
reliable information on the matters set out in s 94(2). I agree as well
with his rulings on the other
issues identified in para [66] of his
reasons. |
BLANCHARD J
| [58] | Discount
Brands Ltd applied to the North Shore City Council under s 88 of the Resource
Management Act 1991 for a resource consent to enable it to operate a "discount
outlet shopping centre" in Akoranga Drive, Northcote. It was to be a
comparatively large enterprise with 56 retail or other premises and a floor area
of 4050m2. The application stated that the proposed retailing
activity could |
...readily be differentiated from the more traditional retailing in the existing
shopping centres which in the area about the application
site are the local
centre situated along Sunnybrae Road, the Northcote Shopping Centre and the
Glenfield Shopping
Mall.
| [59] | This
was said to be because |
...the concept of outlet shops is that they offer product at less (approximately
one third less) cost than the full recommended retail
price.
It
was also said that
...the nature of the outlet shops is such that they would not result in any
significant adverse effect on the commercial and community
services and
facilities of any of the existing business centres in the wider area about the
application site. Essentially, these
outlet shops would not be replicating or
directly competing with any of those business centres but rather providing a
different form
of retail facility for the
public.
| [60] | Section
93 of the Act, as it stood at the time of the application in May
2003,[31] required that once a
consent authority was satisfied that it had received "adequate information", it
was to ensure that notice of
the application was given as prescribed by s 93
unless the application did not need to be notified in terms of s 94. Various
aspects
of the resource consent sought by Discount Brands related to controlled,
discretionary and non-complying activities, as detailed
in para [19] of
Randerson J’s judgment in the High
Court.[32] The portion of s 94
relevant to the application read at that
time: |
94 Applications not requiring notification
...
(2) An application for a resource consent need not be notified in accordance
with section 93, if the application relates to a discretionary
activity or a
non-complying activity and--
(a) The consent authority is satisfied that the adverse effect on the
environment of the activity for which consent is sought will
be minor; and
b) Written approval has been obtained from every person whom the consent
authority is satisfied may be adversely affected by the
granting of the resource
consent unless the authority considers it is unreasonable in the circumstances
to require the obtaining
of every such
approval.
In applying ss 93 and 94 it was necessary for the consent authority to bear
in mind that it was required by s 104(8) not to have regard
to trade competition
when considering the substance of the application.
| [61] | Discount Brands asked for
its application to be processed without notification under s 93. It said that
the adverse effects of the
proposed activity on the environment would be minor.
It later supplied a written approval from an adjacent land owner,
McDonald’s,
said to be the only person who might be adversely
affected. |
| [62] | The Regulatory and Hearings
Committee of the Council decided on 25 July 2003 that the application could be
processed on a non-notified
basis and on 21 August 2003 seven councillors,
acting as Hearing Commissioners, granted a resource consent for a discount
outlet
shopping centre with certain specified features
including: |
Retailing of personal and household goods (within the ANSIC classification Group
52) such as footwear, clothing, jewellery and music
at a minimum of 35% less
than their regular retail
price.
| [63] | The
first appellant, Westfield (New Zealand) Ltd, is the owner of the Glenfield
Shopping Mall. Northcote Mainstreet Inc, the second
appellant, has as its
principal functions the promotion of the Northcote Shopping Centre, the
organisation and promotion of that
centre, which is about 1.5km from the
Discount Brands property, and acting as its representative. It owns no property
in the centre.
It was originally incorporated in 1994 under the Incorporated
Societies Act 1908. Its members include business owners and tenants in the
centre, together with local community representatives, including the Council
which has an appointee on the steering committee. By reason of an oversight,
Northcote Mainstreet was removed from the register
of incorporated societies in
2000. This lapse in Northcote Mainstreet’s incorporated status was not
discovered until after
Discount Brands received its resource consent, whereupon
arrangements were made for restoration to the register. That was not achieved
until 26 September 2003. Therefore, at all times relevant to this case,
Northcote Mainstreet was not an incorporated body.
|
| [64] | Westfield and Northcote Mainstreet
brought a judicial review proceeding naming the Council and Discount Brands as
respondents and
seeking a declaration that the non-notification decision was
invalid and an order under s 4(2) of the Judicature Amendment Act 1972 setting
it aside. It has been common ground that if that decision were set aside the
resource consent would consequentially have
been
invalid. |
| [65] | In a decision delivered in the
High Court at Auckland on 5 February 2004 Randerson J made the declaration
sought and set aside both
the non-notification decision of 25 July 2003 and the
resource consent of 21 August 2003. Discount Brands appealed against that
decision and on 14 June 2004 the Court of Appeal (Hammond, William Young and
O’Regan JJ) allowed the
appeal[33] and the Council’s
decisions were reinstated. The Court of Appeal dismissed a cross-appeal by
Northcote Mainstreet, holding
that it was not a legal entity at the relevant
time and had not been a person who might be adversely affected by the consent.
The
Court also rejected an argument that what can neutrally be called the
description of permitted retailing relating to discount trading
rendered the
consent invalid because it was not allowed by the Act or was void for
uncertainty. |
| [66] | Both Westfield and Northcote
Mainstreet have successfully sought leave to appeal to this Court. As the
approved grounds of appeal
have been refined in the written and oral submission
of counsel, this Court is called upon to address the following
issues: |
(a) Whether the way in which the Council went about the process of making its
non-notification decision complied with the requirements
of ss 93 and 94 of the
Act.
(b) Whether Northcote Mainstreet was at the relevant time (when it was not an
incorporated body) "a person" for the purposes of s
94(2)(b) of the Act.
(c) If Northcote Mainstreet was a person, whether it was a person who might be
"adversely affected" in terms of s 94(2)(b).
(d) Whether the reference in the resource consent to the manner of trading (the
35% minimum discount from regular retail price) was
permitted by the Act or was
void for uncertainty.
(e) If the non-notification decision was invalid, whether the High Court should
nonetheless in the exercise of its discretion have
declined to set the two
decisions aside.
The North Shore District
Plan
| [67] | The North Shore District
Plan is constructed on what it calls a centres-based approach or strategy. In a
statement of major issues,
section 5 (para 8) of the plan
states: |
A centres-based approach is an effective mechanism for preventing potential
adverse effects of business activities. By grouping
together activities which
have high traffic generation rates, a centres-based approach can reduce vehicle
trip lengths, congestion
and vehicle emissions, and improve road safety. It
enables cost-effective controls to be developed which reflect the
characteristics
of different areas. A centres-based approach also recognises
that the established centres in North Shore City are significant physical
resources.
| [68] | In a
section concerned with significant business issues which need to be addressed in
the objectives and policies of the plan, the
statement is made that business
centres serve broader functions than those of simply providing goods and
services. "They act as
focal points for the community, centres of entertainment
and social services, and they represent a substantial, physical and community
resource."[34] In the same section
of the plan the following passage is
found: |
It is also relevant to consider the potential adverse effects of new business
activity locating away from established centres. These
effects include the
effects of traffic generation on road capacity and effects on transportation
patterns and systems, and the overall
availability and accessibility of
commercial and community services. Competition arising from new business
activity is not, in resource
management terms, an adverse effect on existing
businesses. However, it is relevant to ensure that other adverse environmental,
social, economic and amenity effects resulting from new developments are
avoided, remedied or mitigated, or offset by positive effects
arising from the
new
development.
| [69] | In
the Business Objectives and Policies, the policies
include:[35] |
By adopting a generally non-restrictive approach to the location of particular
business activities within business areas, provided
that adverse effects are
avoided, remedied or mitigated.
...
By ensuring that new business development does not result in adverse social and
economic effects by causing a decline in amenity
in existing centres or the
positive contribution made by existing shopping centres to the social and
economic well-being of people
and communities in the
city.
| [70] | There is
also a policy directed to retail activities in the following
terms:[36] |
By recognising the potential demand for some retail activity to establish in
business zones outside the existing and proposed business
centres and requiring
this development, (in the Sub-regional 6, Business Park 7, Business Special 8,
General 9 and General 10 zones)
unless otherwise exempted, to be subject to a
thorough evaluation, particularly in terms of the effects of the activity
on:
| • | the
roading network in which the activity is located; and
|
| • | the amenity values of nearby
residential areas; and |
| • | the character,
heritage, and amenity values of the centres;
and |
• the overall accessibility to the range of business and community
facilities in the city; and
• the pedestrian amenity in the vicinity of the proposed retail
activity.
| [71] | The
Environment Court considered the plan in its proposed form in St Lukes Group
Ltd v North Shore City
Council.[37] It
commented:[38] |
The plan recognises the value and importance of the commercial centres that
exist in the various suburbs and larger sectors of the
city by incorporating a
strategy of encouraging the centers’ (sic) continued viability and upkeep.
That is intended in the
interests of people of the district who look to such
centres as community focal points, or, in a suburban community sense, reside
within catchments that the centres serve. The plan’s centres-based
strategy as we conceive it is not aimed at protecting vested
interests as such,
but at recognising the value to the district’s people and communities of
the City’s centres, and the
"enabling" benefits stemming from such centres
now and for the
future.
| [72] | The
Environment Court went on[39] to
approve an observation of Dr D J M Fairgray, a market analyst who also gave
evidence for Westfield in the present case. Dr Fairgray
had
said: |
The functional roles of centres affect frequency of usage, so that functional
and social roles are causally linked. Both functional
and social amenity are
influenced by the range and nature of retail and service activity in a centre,
as well as by other features
of the urban
environment.
| [73] | The
Court
stated:[40] |
Encouragement of viable centres within the City is considered relevant to help
ensure that the "focal and availability" factor as
above is commensurate with
contemporary living standards and expectations of the City’s inhabitants,
hence enabling them to
provide for their
wellbeing.
| [74] | The
Court also approved the conclusion of a planning witness, Mr A O Parton,
that:
[41] |
...retailing activities should not be looked at in isolation but rather in terms
of the wider role that the uses are likely to play
in helping shape the urban
form (as future nodes for population intensification) and in transportation
planning (in helping reduce
private vehicle usage, and encouraging greater use
of public transport). In a nutshell what is called for is an overall integrated
management approach rather than an ad hoc approach.
The
process followed by the Council
| [75] | It follows from the terms
of the plan that if it were proposed to develop a new retailing enterprise
outside one of the North Shore’s
existing commercial centres, the
compatibility of that development with such of the existing centres as might be
affected (other
than merely by competition) had to be given what Section 15.3.3
para 4 of the plan refers to as "a thorough evaluation". Whether
that could be
achieved by a process involving an application which was not to be notified was
something needing consideration by
those entrusted with the evaluation and
determination of resource consent
applications. |
| [76] | The application was
accompanied by a brief (ten page) Retail Assessment Report prepared by Hames
Sharley International Ltd. It stated
that it would provide an overview of the
outlet centre’s "trade catchment and the role it will play in the Auckland
retail
market" and an overview of similar retail developments in New Zealand and
their relationship with existing centres. It described
what were called the
primary and secondary trade areas of the centre (the primary area encompassing
most of the North Shore and the
Auckland Central Business District and the
secondary area taking in the inner city suburbs and some western suburbs as well
as Orewa
and the Whangaparaoa Peninsula), giving population and growth rate
estimates and figures for average household incomes along with
employment,
ethnicity and educational statistics. It outlined the role of outlet centres,
primarily by reference to three businesses
operated by Dressmart in Onehunga,
Tawa (Wellington) and Hornby (Christchurch). Then followed a section headed
"Market Assessment"
which gave figures for average annual household expenditure
and the total expenditure "pool" in the two trade catchment areas for
household
items, clothing and footwear, books, jewellery, cafes and music. The writer of
the report suggested that the proposed
development would, in order to be
commercially viable, need to generate annual sales of $15-21 million and,
adopting the figure of
$18 million, calculated that it would capture around 3.7%
of the total retail expenditure pool from the primary trade catchment area.
(This reduced to 2.2% if the secondary area was included.) It was suggested
that Discount Brands would "recapture" retail expenditure
which was presently
leaking out of the North Shore, thereby increasing retail spending in the area,
and attracting shoppers from
beyond the North Shore who would not normally visit
for shopping purposes. |
| [77] | The report
concluded that Discount Brands would fill a gap in the existing retail offering
on the North Shore and would be complementary,
not competitive with existing
centres. "As Discount Brands only needs to capture a tiny share of the market
to be viable any negative
effect, before taking into [sic] the positive
benefits would be negligible." The comment was also made that experience in
other centres had shown
that the introduction of an outlet centre had led to
better occupancy in existing centres nearby. The report did not provide any
evidence for this statement, nor, indeed, did it further address the impact of
the proposed centre on existing North Shore shopping
centres. |
| [78] | The Council’s Senior
Environmental Policy Adviser, Mr Patience, in a memorandum dated 27 June 2003,
expressed the view that: |
...the application must be processed on a notified basis in the absence of a
more comprehensive assessment of the impact of the proposed
retailing on the
shops and services offered at other potentially affected commercial
‘centres.’
He saw as being of significance, potentially, the extent to which the goods
to be retailed would in fact be different or distinguishable
from those
elsewhere:
...and if they are not clearly distinguishable, then the extent to which the
activity would compete with the same retail services
elsewhere, particularly in
nearby centres (Sunnybrae Road, Northcote, Takapuna and Glenfield centres in
particular). Where this
impact is potentially more than ‘de
minimus’ [sic], then an assessment is required of the likely impacts on
any ‘centre’
in which competing retailing exists. This assessment
has not been
done.
| [79] | Mr
Patience expressed doubt over whether the nature of the goods to be retailed
would have any marked difference from those on offer
elsewhere in the City. He
commented that the Hames Sharley assessment contained no evaluation of the
significance of the share of
retail expenditure the proposed development would
capture from the potentially affected centres. He said that for the application
to be processed as non-notified a "thorough evaluation" under policy 4, r 15.3.3
of the impact of potential or cumulative effects
on the amenity or character of
those other centres would be required. On the other hand, the lack of the
further assessments would
not stand in the way of notifying the
application. |
| [80] | A meeting of the Regulatory
and Hearings Committee, whose members were styled by the Council as
"Commissioners", was convened for
9 July. Ms Rebecca Welch, the
Council’s Planner-Major Projects, sent Ms Josephine Grierson of
Discount Brands a
copy of a report which she had prepared that would be before
the committee at the meeting. Attached to it was the memorandum from
Mr
Patience. Ms Welch made the following observation in her
report: |
The most serious social or economic potential effect of the proposed discount
outlet shopping centre is its impact on existing and
proposed centres in North
Shore City. While effects of trade competition cannot be contemplated as these
are specifically excluded
by the Act, there may be social and economic effects
on people and communities as a result of impacts on existing retailing centres.
Should existing retailing centres have difficulty retaining tenants and
attracting new ones resulting in vacancies, it would be
seen that a serious
effect would have occurred, especially if it can be seen that communities and
their well being may be affected
as a consequence.
Ms Welch also
observed in relation to the Hames Sharley report that it had assessed the market
share that the Discount Shopping Centre
would require to be commercially viable,
but that this was not an assessment of a market share that the centre would
necessarily
capture:
No assessment of this kind has been undertaken. Consequently impacts on
existing North Shore retailing centres cannot be evaluated.
She concurred with Mr Patience’s comments in relation to the lack of
analysis provided:
There is insufficient information to determine the social and economic impacts
of the proposed discount shopping
centre.
| [81] | Section
92 of the Act authorised the Council to require an applicant for a resource
consent to provide further information necessary
to enable the consent authority
to better understand the nature of the proposed activity, the effect on the
environment or the ways
in which any adverse effects might be mitigated. On 7
July Ms Welch sent Discount Brands a detailed request for further information.
Of present relevance were the following
questions/comments: |
9. The Hames Sharley report (author unknown) states that the proposed discount
outlet shopping centre will complement rather than
compete with existing retail
centres and uses the Onehunga Dressmart operation as an example of this
occurring. Do you have any
data that supports the assertion that cross shopping
occurs between the different types of retailing, and that shoppers make
multi-purpose
trips? I note that the current proposal for a discount outlet
shopping centre is not immediately adjacent to an existing centre,
such as the
relationship between Dressmart and the Onehunga Mall, and the subject site is
almost midway between a regional shopping
centre and a suburban shopping centre.
Is there data to support the assertion above when a discount outlet is distant
from an existing
centre?
10. The Hames Sharley report (author unknown) attributes the revitalisation of
the Onehunga Mall solely to the establishment and
operation of Dressmart. No
reference is made to the main street programme and Onehunga centre plan which
may be significant factors
to economic activity in Onehunga. This undermines
the integrity of the information. Please comment as to whether you believe that
Dressmart has been the sole catalyst for this change as inferred by this
report.
11. The Hames Sharley report (author unknown) provides a feasibility assessment
of the proposal however there is no causal link between
the return required for
the discount outlet to be commercially viable and the market share that outlet
is anticipated to capture.
While 4.9% of the primary trade area expenditure
pool and 2.9% of the primary and secondary expenditure pools combined is
required
for the proposal to be viable (based on a GLA of 4050m2)
that share of the market is not necessarily the same as what share would be
commanded, nor does it relate to how this would be taken
from existing
centres.
12. There is insufficient information regarding the social and economic effects
of the proposal. How are the goods sufficiently
different from what is
available at existing retail centres for the proposal to be complementary rather
than competitive when there
is a limited spending pool for personal and
household goods? To what extent would the proposal compete with existing
centres and
[what] would be the likely impacts? For example, will the effects
on existing centres within the primary and secondary catchments
be evenly
dispersed, or concentrated on existing centres closest to the proposed
activity?
13. Notwithstanding the additional economic activity generated by population
growth, would any capture of retail spending presently
‘leaking’
from North Shore City merely be displacing existing retail spending and
potentially affecting other
centres?
| [82] | Ms
Welch noted that the timing of the request provided little opportunity for
Discount Brands to provide the required information
before the 9 July meeting,
but she said it was not expected that the information would be provided by that
time: |
It is difficult to report on an application without all the necessary
information and I note that this meeting normally would not
have occurred but
has been specially arranged at your request. I trust that the opportunity to
speak to the Committee outweighs
the inconvenience of this late identification
of issues.
| [83] | The
meeting on 9 July was addressed on behalf of Discount Brands by Mr Nathan
Male of a specialist retail leasing agency, Retail
Edge, and by
Ms Grierson. The tenor of Mr Male’s brief presentation was that the
proposed development would have a positive
rather than a negative impact on
other centres. He described it as being competitive with Victoria Park Market
and with Dressmart
outlets in Onehunga or Silverdale, all of these being outside
North Shore City. He remarked that Victoria Park Market, despite being
less
than 3/4 km from both Ponsonby and Queen Street, had not been detrimental to
either of those retail centres. |
| [84] | Ms
Grierson read a two page statement. In it she said that she was a consulting
economist by profession but, as a director of the
applicant company, naturally
did not expect the committee to take her views as unbiased. That is why she had
engaged Hames Sharley
to provide a report. She nevertheless expressed the
opinion that goods sold in the development would not be in the same market as
those sold in existing retail centres on the North Shore. This was because the
leases of the Discount Brands centre would require
that prices at all times be
set at a minimum of 35% below normal retail for similar goods and because all
goods would be end of line
or manufacturer’s seconds. Their quality would
be openly acknowledged to be inferior to "high street" retail goods. Ms
Grierson
said customers were not prepared to pay the same prices for such goods
as they pay for the latest fashion and normal or top quality
goods. The prices
did not converge. That was an indication that they were not close enough
substitutes to be said to be in competition
with each other or in the same
market. Therefore the outlet centre would not be competing to any meaningful
degree with retail centres
on the North
Shore. |
| [85] | On the basis of these opinions and
the other material before it, and after adjourning for discussion, the committee
notified the applicant
that it was satisfied regarding the potential social and
economic effects of the development. The committee did, however, require
a
response from Discount Brands concerning other matters raised in the s 92 letter
from Ms Welch, including traffic, landscaping
and operational matters. The
meeting was adjourned to allow time for this
response. |
| [86] | When the response on these other
matters was received Ms Welch circulated a supplementary report in which she
said it was still her
opinion |
...that there is insufficient information to determine the social and economic
impacts of the proposed discount shopping centre and
in the absence of this
information it is not assumed that these effects would be
minor.
| [87] | The
meeting of the committee reconvened on 25 July 2003. The committee took the
view that the other matters had been satisfactorily
addressed and that, as
Ms Welch put it in her affidavit, "the applicant had already demonstrated
that the proposal would not
generate adverse social or economic effects". The
committee resolved that the application be processed on a non-notified basis as
it satisfied the tests in s 94(2) relating to non-complying activities. The
resolution set out the reasons why the adverse effects
on the environment would
be "less than minor". These included
that: |
The applicant has provided economic and retail information that demonstrated
that the proposal will not generate social or economic
effects on existing or
proposed retail centres as the unique nature of the discount outlet centre will
offer goods in a different
economic market that [sic] those presently available.
For this reason the discount outlet shopping centre will compliment [sic] rather
than undermine other centres (having no regard to trade competition).
Furthermore as the discount outlet shopping centre will have
a large primary
catchment any potential effect on existing or proposed centres would be
dispersed throughout the catchment to a level
where it would be less than minor.
The character, heritage and amenity of existing centres will be maintained as
well as their accessibility
and the social function they
fulfil.
| [88] | The
application was heard in substance at a meeting on 21 August and, despite a
further report from Ms Welch renewing her criticisms
and recommending that the
application be declined, resource consent was granted. No further reasons for
non-notification were given. |
The lower court
judgments on the Council’s process
| [89] | In his judgment in the High
Court Randerson J observed that there was a statutory policy that the Act was
not to be used as a means
of licensing or regulating
competition.[42] Section 104(8)
precluded a consent authority from having regard to the effects of trade
competition on trade competitors when considering
an application for a resource
consent. But broader economic and social impacts might flow if a proposal were
to result in the decline
of an existing shopping centre to the extent that it
would no longer be viable as a centre, with consequent adverse effects on the
community as a whole or at least a substantial section of
it:[43] |
Such effects might include the loss of investment in roading and other
infrastructure as well as the loss of amenity which could
result from the
closure or serious decline in the attractiveness or viability of the centre as a
whole. Loss of employment opportunities
on a significant scale might also
qualify as adverse effects for these purposes. So too the possibility that
important community
services associated with shopping centres might cease to be
appropriately located to serve persons attracted to the shopping
centre.
| [90] | The
Judge said that the broader economic and social effects might be taken into
account under s 94(2)(a), although the Environment
Court had made it clear that
adverse social or economic effects must be significant before they could
properly be regarded as going
beyond the effects ordinarily associated with
trade competition on trade competitors, citing Imrie Family Trust v Whangarei
District
Council.[44] |
| [91] | Randerson
J was of the view that the Council’s Hearing Commissioners failed to
sufficiently inform themselves on the potential
adverse effects on other
shopping centres on the North Shore before making the decision that the
application need not be
notified.[45] The proposed discount
shopping outlet was substantial and in reasonably close proximity to the
Northcote shopping centre. The district
plan itself called for a "thorough
evaluation" of such proposals, including the effects on the shopping centres
identified and recognised
in the plan. The Hames Sharley analysis could only be
described as superficial. The Judge had earlier accepted criticisms made
by Dr
Fairgray in an affidavit filed on behalf of the present
appellants.[46] Dr Fairgray
had pointed out that the consent covered a wide range of non-food items but the
Hames Sharley assessment was limited
to footwear, clothing, jewellery and music.
Its assertions about the operation of discount outlets were unsupported by
empirical
data. The expenditure pool nominated by Hames Sharley was
characteristic of a generalised centre rather than a specialist discount
apparel
centre, thereby on Dr Fairgray’s calculations understating the likely
impacts of the centre by at least 50%. The Council’s
own officers had
recognised the deficiencies. While the Commissioners were not obliged to accept
their views, it was incumbent on
the Commissioners to have a sound basis for
rejecting them. The additional material provided in response to the s 92
request did
not overcome the deficiencies. There was still no assessment made
of potential impacts on existing centres and no solid data to
support the
applicant’s key assertions. |
| [92] | The
Judge, who is very experienced in resource management, said that the prediction
of shopping patterns and customer preferences
was notoriously difficult and
readily susceptible to differing views. So too was an assessment of whether
potentially competing
products were in the same market for retailing purposes.
Earlier, Randerson J had accepted as having substance the view of
Dr Fairgray
that the goods would be in the same market and that there would
be an overlap between sales at the subject site and sales at Takapuna,
Glenfield
and, to a lesser extent at
Northcote. |
| [93] | Randerson J held that the
decision that the application need not be notified was invalid. He set aside
both that decision and the
resource
consent. |
| [94] | The judgment of the Court of
Appeal allowing Discount Brands’ appeal from that decision was delivered
by Hammond J. In traversing
the High Court judgment, the Court said that it was
significant that the present appellants had not established that there were
significant
effects on existing North Shore shopping centres going beyond trade
competition. Their expert witnesses had said only that there
was inadequate
information to enable them to form a view. Later in the judgment the Court said
that in this case all the consent
authority had to be satisfied on was that the
adverse effects on the environment of the activity would be minor, given that
there
was no lis as to the (lack of) effect on other shopping centres and the
only party considered to be adversely affected by the proposal
(McDonald’s) had given its written approval for the purposes of s
94(2)(b).[47]
|
| [95] | The Court of Appeal made two points about
the obligation of the Council. It was wrong in principle to impugn its decision
by later
generated material which was never before the Council at the time the
non-notification decision was
made.[48] And, as to the quantum of
information available to the Council, there was no "separate, stand-alone
threshold of information" which
must be available before the Council could even
begin to turn its mind to the issue of
notification:[49] |
The question is whether the consent authority could reasonably have come to the
view it did come to and the assessment of the reasonableness
of the
authority’s decision incorporates a consideration of the evidential base
for it. It is not a separate exercise. Of
course a consent authority should
not accept blindly what is placed in front of it. Plainly as part of its
general legal obligation
it must ask itself whether it has in front of it
– in its opinion – sufficient information to enable it to make the
statutory
determination.
| [96] | In
the context of a notification decision the Court of Appeal could see no
appropriate basis for a standard of review departing from
"Wednesbury
unreasonableness". The test was that there must have been some material
capable of supporting the
decision.[50] The Court was of the
view that there had been evidence before the Council Committee on the basis of
which it could have reached
the conclusion it in fact reached. The
Commissioners were not restricted just to the totality of the information in
front of them;
they were also entitled to draw their own inferences and to
employ their own understanding of their own communities. There was evidence
on
which it was open to them to reach a view that the proposal was not directed
towards head-to-head retail competition with existing
centres, and that it would
complement the existing retail offering and reduce the leakage of retail
expenditure from the total North
Shore catchment. It had to be born in mind
that there would only be a relevant environmental impact which was more than
minor if
there was "a major commercial and economic impact on existing
centres".[51] The Commissioners had
taken the view that any consequential public and community effects would be no
more than minor and the Court
did not believe it was appropriate to interfere in
that decision by way of judicial review. In the absence of directly affected
parties, the decision that the effects were not more than minor involved a
finding that the impact on other shopping centres in the
area would not be
"ruinous" and that no other significant adverse effect (for example, on urban
form objectives or transport strategies)
would result. In the view of the
Court, a reasonable consent authority could have reached that conclusion on the
basis of the information
before the Commissioners, particularly having regard to
their knowledge of the local
environment.[52] |
| [97] | The
Court of Appeal accepted the submission that the High Court Judge had taken a
more vigilant approach to judicial review than was
appropriate in this case. It
was satisfied that the decision not to notify was one that a reasonable consent
authority could reach
on the basis of the information before the Commissioners.
The appeal of Discount Brands was therefore allowed and the Council’s
decisions restored. |
The requirements of ss 93 and
94
| [98] | An application for a
resource consent is made under s 88 which, at the relevant time, required the
application to include an assessment
of any actual or potential effects that the
activity might have on the environment and the ways in which any adverse effects
might
be mitigated.[53] "Effect"
and "environment" are given very wide definitions in the
Act: |
3 Meaning of "effect"
In this Act, unless the context otherwise requires, the term effect
includes--
(a) Any positive or adverse effect; and
(b) Any temporary or permanent effect; and
(c) Any past, present, or future effect; and
(d) Any cumulative effect which arises over time or in combination with other
effects--
regardless of the scale, intensity, duration, or frequency of the effect, and
also includes--
(e) Any potential effect of high probability; and
(f) Any potential effect of low probability which has a high potential
impact.
2(1) environment includes--
(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) of this definition
or which are affected
by those matters:
"Amenity values" is also a widely defined term. It means
those natural or physical qualities and characteristics of an area that
contribute to people’s appreciation of its pleasantness,
aesthetic
coherence, and cultural and recreational
attributes.
| [99] | There
can be no question that, in light of these definitions and of the policies of
the North Shore City Council’s District
Plan, an adverse effect, actual or
potential, on the amenity values of existing shopping centres on the North Shore
required an assessment
in the application by Discount Brands and that the
Council was entitled to seek further information on this question under s 92.
Indeed, Discount Brands does not suggest
otherwise. |
| [100] | The focus of the case is on
the Council’s obligations under ss 93(1) and
94(2): |
93 Notification of applications - (1) Once a consent authority is
satisfied that it has received adequate information, it shall ensure that notice
of every application
for a resource consent made to it in accordance with this
Act is--
(a) Served on every person (other than the applicant)
who is known by the authority to be an owner or occupier of any land to which
the application relates; and
(b) Served on the Minister of Conservation if the application relates to land
which adjoins any coastal marine area; and
(c) Served on the New Zealand Historic Places Trust if the
application--
(i) Relates to land that is subject to a heritage
order or a requirement for a heritage order or is otherwise identified in the
plan
as having heritage value; or
(ii) Affects any historic place, historic area, wahi tapu, or wahi tapu area
registered under the Historic Places Act 1993; and
(d) Served on the Minister of Fisheries if the application relates to marine
farming within the meaning of the Marine Farming Act
1971, or the Fisheries Act
1983, or to a fish farm within the meaning of the Freshwater Fish Farming
Regulations 1983; and
(e) Served on such persons who are, in its opinion, likely to be directly
affected by the application, including adjacent owners and
occupiers of land,
where appropriate; and
(f) Served on such local authorities, iwi authorities, and other persons or
authorities as it considers appropriate; and
(g) Publicly notified; and
(h) Affixed in a conspicuous place on
or adjacent to the site to which the application relates, unless it is
impracticable or unreasonable
to do so; and
(i) Given in such other manner as it considers appropriate--unless the
application does not need to be notified in terms of section
94.
| 94 | Applications not
requiring notification – |
...
(2) An application for a resource consent need not be
notified in accordance with section 93, if the application relates to a
discretionary
activity or a non-complying activity and--
(a) The consent authority is satisfied that the adverse effect on the
environment of the activity for which consent is sought will
be minor; and
(b) Written approval has been obtained from every person whom the consent
authority is satisfied may be adversely affected by the
granting of the resource
consent unless the authority considers it is unreasonable in the circumstances
to require the obtaining
of every such approval.
...
(4) In determining whether or not the adverse effect on the environment of any
activity will be minor for the purposes of subsection
(2)(a)...a consent
authority shall take no account of the effect of the activity on any person
whose written approval has been obtained
in accordance with subsection (2)(b)...
.
(5) Notwithstanding subsections (1) to (3), if a consent authority considers
special circumstances exist in relation to any such
application, it may require
the application to be notified in accordance with section 93, even if a relevant
plan expressly provides
that it need not be so
notified.
| [101] | There
is a sequence of process in the two sections. It is immediately seen in the
opening words of s 93. The consent authority is
to ensure that notice of the
application is publicly notified and affixed on the site and is also served on
the persons specified
in paras (a) to (f). But this is not to be done until the
consent authority is satisfied that it has received "adequate information".
It
is only when the authority is satisfied about the adequacy of the information
concerning the application that notification can
proceed. Section 93(2)(a)
requires that the notice contain "sufficient information to enable a recipient,
without reference to other
information, to understand the general nature of the
application and whether it will affect him or her." Notification is only to
be
dispensed with if "the application does not need to be notified in terms of
section 94", to quote again the closing words of s 93(1).
Section 93 is
concerned with the process of notification, but if the authority must first have
adequate information before proceeding
to notify under s 93 it must surely have
at least that level of information before deciding whether notification can be
dispensed
with under s 94. Indeed, as recognised in his memorandum by
Mr Patience, there is reason to think that a lesser amount of information
may be sufficient on which to base a decision to notify an application than
would be the case if the decision were that the application
could proceed
without notification. |
| [102] | Following the
pattern established by the Act, s 94 distinguishes between different kinds of
activities. Under the Act, activities
may be (1) permitted, (2) controlled, (3)
discretionary over which the consent authority has restricted the exercise of
its discretion,
(4) discretionary, (5) non-complying, (6) in contravention of
the statutory restrictions (if a resource consent were not granted),
and (7)
prohibited. No resource consent is required for activities in the first
category and none can be granted in respect of those
in the
last. |
| [103] | Section 94 is concerned with
the other five categories of activities and distinguishes between (2)-(3) on the
one side and (4)-(6)
on the other. For "controlled" activities (category (2))
– those for which consent must in general be granted – notice
does
not have to be given: (1) of subdivision applications; (2) if the plan
expressly permits consideration without the written
approval of affected
persons; or (3) if those who may be adversely affected have given written
approval, unless obtaining that approval
would be
unreasonable.[54] Next,
applications in respect of discretionary activities do not have to be notified
if the consent authority has restricted its
discretion (category (3)) and the
plan expressly permits consideration without the need to obtain the written
approval of affected
persons.[55]
The consent authority can make non-notification decisions in those four
situations in a relatively straightforward way, by reference
to the express
terms of the plan (which in the course of its preparation has already gone
through a public participatory process
and in this case an appeal to the
Environment Court as well) and, in the third situation, the fact of consent.
|
| [104] | By contrast, where, as here, the
proposed activities (or some of them) are discretionary or non-complying
(categories (4) and (5)),
then, under s 94(2), the consent authority has to
make a judgment. It does not have to require notification of the application
if
satisfied in terms of both limbs of s 94(2). Section 94(3) sets the same
requirements for non-notification where there is
no relevant plan or proposed
plan (category (6)). |
| [105] | The leading case in
the Court of Appeal on s 94 is Bayley v Manukau City
Council[56], whose general
approach was not challenged by any party to this appeal. In Bayley the
Court said that there is a policy evident upon a reading of Part VI of the Act,
dealing with the grant of resource consents,
that the process is to be public
and participatory and that s 94 "spells out exceptions which are carefully
described circumstances
in which a consent authority may dispense with
notification".[57] In order to
determine whether those circumstances exist in relation to a proposed activity,
a consent authority must have before
it sufficient information to be able to
assess the circumstances, bearing in mind especially the following observation
from Bayley:
[58] |
In the exercise of the dispensing power and in the interpretation of the
section, however, the general policy must be observed. Care
should be taken by
consent authorities before they remove a participatory right of persons who may
by reason of proximity or otherwise
assert an interest in the effects of the
activity proposed by an applicant on the environment generally or on themselves
in particular.
The point being made is that if an application proceeds on a non-notified
basis those who might have objected to it are deprived not
only of the
opportunity to put their views to the consent authority but also of any right to
challenge its substantive decision by
means of an appeal to the specialist
Environment Court.
| [106] | The information which the
consent authority must have in order properly to determine whether notification
of an application can be
dispensed with is that which is adequate in the
particular circumstances for it to be "satisfied" as required by s 94. In
relation
to s 94(2), the Court of Appeal in Bayley had this to
say:[59] |
Before s 94 authorises the processing of an application for a resource consent
on a non-notified basis the consent authority must
satisfy itself, first, that
the activity for which consent is sought will not have any adverse effect on the
environment which is
more than a minor effect. The appropriate comparison of the
activity for which the consent is sought is with what either is being
lawfully
done on the land or could be done there as of right. ...Then, at the second
stage of its consideration, the authority must
consider whether there is
any adverse effect, including any minor effect, which may affect
any person. It can disregard only such adverse effects as will certainly be de
minimis...and those whose occurrence is merely
a remote possibility. With no
more than that very limited tolerance, the consent authority must require the
applicant to produce
a written consent from every person who may be adversely
affected.
The Court also said that it is important in considering
effects to identify the scope of the activity for which consent is sought.
To
that can be added the observation of the Court in Pring v Wanganui District
Council[60], in the different
context of a decision under s 139 but relevant under ss 93 and 94, that before a
consent authority can properly
be satisfied it must have sufficient information
in order to be able to make a thorough comparison of the proposal with the
applicable
rules of the district plan.
| [107] | The information before the
authority can be supplied by the applicant, gathered by the authority itself or
derived from the general
experience and specialist knowledge of its officers and
decision-makers concerning the district and the plan. But in aggregate the
information must be adequate both for the decision about notification and, if
the application is not to be notified, for the substantive
decision which
follows to be taken properly – for the decisions to be informed, and
therefore of better quality. |
| [108] | The
information which the consent authority must have, in order that it can properly
be "satisfied", must be adequate for it to make two determinations under
s 94(2). The first, under para (a), is whether the adverse effect
of the proposed activity on the environment is more than minor. If the
authority judges
that it will be, then the authority goes no further under s 94.
The application must be notified under s 93. If, on the other hand,
the
authority concludes that the adverse effect of the activity will be, at most,
minor, it must make a second determination, under
s 94(2)(b), about whether
any person nevertheless may suffer some adverse effect going beyond the effect
on the environment
generally - not being de minimis or merely a remote
possibility.[61]
|
| [109] | Written approval under para (b) is
required from "every person whom the consent authority is satisfied may be
adversely affected".
At first sight, that casts a net with a very fine mesh
indeed. But s 94(2)(b) must be read in its statutory context. It is intended
to operate only when the consent authority is already satisfied that the
proposed activity will have, at most, a minor effect on
the environment. And,
although there is no express reference to the environment in the paragraph, the
adverse effects on a particular
person with which it is concerned must be
environmental effects, for the Act simply does not regulate activities
generating only
non-environmental
effects. |
| [110] | Therefore s 94(2)(b) requires
written approval from persons who may suffer adverse environmental effects which
are no more than minor.[62] It does
so because Parliament has recognised that an activity which has only a minor
effect on the environment generally may have
a special significance for persons
who may be directly affected by it. The position of such persons is taken into
account in the
notification requirements of s 93(1), where para (e) requires
service on persons who are, in the opinion of the consent authority,
directly
affected by the application, including adjacent owners and occupiers of land.
It is true that the word "directly" does
not appear again in s 94(2)(b), but I
can attribute no significance to its absence. It seems to me that it is only
those who are
directly affected by an activity which is generally of minor
environmental concern who must give their consent if an application
is to
proceed without notification. |
| [111] | Section
94(2)(b) should not be read in a way which is likely to frustrate the operation
of para (a) in circumstances where the environmental
effect is minor. It seems
to have been intended to protect land owners and occupiers who might
particularly suffer from the proposed
activity. For example, a proposed
building might be non-complying only because it would cast a shadow on part of
an adjacent property.
There would, at most, be a minor effect on the
environment generally but there might be a direct adverse effect on the
neighbour.
It is just such persons who are singled out for notification in s
93(1)(e), although I would not restrict the category of s 94(2)(b)
affected
persons to those whose property interests are "adjacent". It may be that the
wording of s 93(1)(e), which includes adjacent owners and occupiers
amongst persons likely to be directly affected, was chosen because of the
inherent uncertainty in the
concept of adjacency; for instance, whether it
applies to near neighbours, such as those on the other side of a road or an
entrance
strip. |
| [112] | This interpretation may
be said to read down the language of s 94(2)(b). But to give that paragraph a
literal interpretation and
extend "every person" beyond landowners and occupiers
who may suffer direct (minor) environmental effects would present applicants
and
consent authorities with very real difficulties in identifying those who might
possibly be adversely affected. It could lead
to a major increase in the number
of applications which would require notification without any corresponding
social benefit, for
it is hard to imagine an environmental effect on a person
other than in his or her land owning or occupying capacity which would
not also
be an effect which was more than minor, so that processing of the application on
a non-notified basis would already be prevented
by s
94(2)(a). |
| [113] | In each case where someone may
be adversely affected in terms of s 94(2)(b), the application must
be notified under s 93 unless that person gives a written approval or the
authority
considers it unreasonable in the circumstances to require the
obtaining of an approval. The information before the authority when
it makes
its decision on notifications must therefore be adequate to determine whether
anyone may be adversely affected and whether
it would be unreasonable to require
an approval. |
| [114] | So, in summary to this
point, the information in the possession of the consent authority must be
adequate for it (a) to understand
the nature and scope of the proposed activity
as it relates to the district plan; (b) to assess the magnitude of any adverse
effect
on the environment; and (c) to identify the persons who may be more
directly affected. The statutory requirement is that the information
before the
consent authority be adequate. It is not required to be all-embracing but it
must be sufficiently comprehensive to enable
the consent authority to consider
these matters on an informed basis. |
| [115] | The
statutory requirement addresses more than the scope of the information. The
consent authority must necessarily be satisfied as
well that the information is
reliable, especially so where an expert opinion is tendered. The authority will
need to consider whether
the author of the opinion is both appropriately
qualified to speak on the subject and sufficiently independent of the applicant
so
as to be seen as giving expert advice rather than acting as an advocate for
the applicant. |
| [116] | Because the consequence of
a decision not to notify an application is to shut out from participation in the
process those who might
have sought to oppose it, the court will upon a judicial
review application carefully scrutinise the material on which the consent
authority’s non-notification decision was based in order to determine
whether the authority could reasonably have been satisfied
that in the
circumstances the information was adequate in the various respects discussed
above. |
| [117] | In the present case this Court of
Appeal seems, with respect, to have misled itself concerning the test to be
applied in assessing
the adequacy of the information before the Council. It
referred to a passage in Pring which was directed to the proper approach
a court should take when examining whether a decision of the consent authority
was properly
made on the basis of the information before it. That passage
assumed that the decision had been made after adequate information
had been
gathered. It was not directed to the earlier question which arises in the
present case. In fact, in Pring, the judgment did move on to consider
the adequacy of the material before the
authority.[63] The Court said that
before the authority could properly be satisfied (that a compliance certificate
could be issued) "it must have
had sufficient information in order to be able to
make a thorough comparison with the applicable
rules",[64] which is very much what
was required of the authority in this case. The Court in Pring concluded
that from the information supplied, from the history of an earlier resource
application and from its own general knowledge,
the authority had sufficient
material upon which to base its
decision.[65] |
| [118] | The
Court of Appeal in this case erred in thinking that the references in
Pring to making a decision "upon the basis of the material available" to
the decision-maker, to the need for "some material capable of supporting
the decision" and to considering "whether the decision was one open to the
consent authority on the
material before it" provided guidance in the present
case.[66] They do not, because, as
has just been pointed out, they are related to a subsequent stage in the
process, after the requisite information
has been
obtained. |
The Council’s failure to inform
itself
| [119] | An important matter which
the Council’s Regulatory and Hearings Committee needed to inform itself
upon was the effect which
the activity proposed by Discount Brands might have on
the amenity values of the existing centres - on the natural or physical
qualities
and characteristics of those areas that contributed to people’s
appreciation of their pleasantness, aesthetic coherence, and
cultural and
recreational attributes.[67] The
committee was required to disregard the effects of trade competition from the
Discount Brands centre, since competition effects
would have to be disregarded
upon the substantive hearing of the resource consent
application.[68] But, as Randerson
J said, significant economic and social effects did have to be taken into
account. Such effects on amenity values
would be those wh |
