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IN THE HIGH COURT OF NEW ZEALAND

AUCKLAND REGISTRY
CIV-2014-404-001832
[2014] NZHC 3405
UNDER

the Judicature Amendment Act 1972

IN THE MATTER

of a decision made pursuant to section


95A of the Resource Management Act
1991

BETWEEN

THE ASSOCIATED CHURCHES OF


CHRIST CHURCH EXTENSION AND
PROPERTY TRUST BOARD
Plaintiff

AND

AUCKLAND COUNCIL
Defendant

Hearing:

17 November 2014

Appearances:

HA Atkins and P Mason for Plaintiff


NMH Wittington for Defendant

Judgment:

22 December 2014

JUDGMENT OF TOOGOOD J

This judgment was delivered by me on 22 December 2014 at 2:30 pm


Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

THE ASSOCIATED CHURCHES OF CHRIST CHURCH EXTENSION AND PROPERTY TRUST BOARD v
AUCKLAND COUNCIL [2014] NZHC 3405 [22 December 2014]

Table of Contents
Introduction and result
Result
The factual background

Paragraph
Number
[1]
[3]
[6]

The origins and history of the Old Homestead

[6]

Assessments of the buildings historical significance

[8]

The physical state of the building

[9]

The Parishs plans for the building

[11]

The events leading up to the present application for


resource consent for removal

[13]

Steps taken to remove the building after resource


consent granted

[20]

The resource consent application for permanent


removal the material before the Hearings Committee

[24]

The Bollard Report

[28]

The advice of the Councils officers

[35]

The policies and process for the decision about notification

[37]

The decision of the Hearings Committee

[41]

The grounds for the plaintiffs challenge to the decision to


require notification

[43]

The plaintiffs case for unreasonableness

[44]

The defendants position

[46]

The applicable principles for judicial review of a


notification decision under s 95A

[51]

The nature of the review

[51]

Decision required to be made in accordance with


statutory purpose

[54]

Analysis of the Committees reasons for its decision to


require notification

[57]

Was the Committee entitled to conclude s 95A(2)(a)


applies?

[58]

Was there a reasonable basis to require notification


under s 95(1)?

[67]

Table of Contents

Paragraph
Number

Does notification in this case meet the RMAs objective


of efficiency in the consent process?

[69]

Conclusion that decision to require notification was


unreasonable

[70]

The other grounds for the plaintiffs application

[71]

The nature of the relief to be granted

[73]

Orders

[76]

Costs

[77]

Introduction and result


[1]

The Old Homestead at 92 Point Chevalier Road is a late-Victorian villa said

to be one of only two houses remaining in Point Chevalier which were constructed
before 1900. Its owner, the Associated Churches of Christ Church Extension and
Property Trust Board (the Trust Board), has decided that it is so badly run down
that it is no longer fit for its intended use and that renovation is not an economic
prospect. The Trust Board wants to remove the building from its site and replace it
with a new building having the same footprint and exterior appearance. It has
applied to Auckland Council for resource consent to do so and says its consultants
and the Councils advisers agree that the application should be considered on a nonnotified basis.
[2]

The Hearings Committee of elected councillors, however, decided by a

majority that the resource consent application should be publicly notified because the
building would have a more than minor adverse effect on the environment. In this
judicial review proceeding, the Trust Board challenges that decision and asks that it
be set aside.
Result
[3]

I have decided, for the reasons given below, that the Councils decision to

require public notification was unreasonable and that it should be set aside on the
grounds that:
(a)

There was no reasonable basis on which the Council could have


concluded that removal of the building would have a more than minor
adverse effect on the environment, so as to engage s 95A(2)(a) of the
Resource Management Act 1991 (the RMA) and require
notification.

(b)

There is no evidence the Committee asked itself the essential question


under s 95A(1) of the RMA, whether notification would be likely to
result in the Council receiving further information relevant to the

issues for determination on the substantive application to remove the


building.
(c)

Public notification of the application is unlikely to produce any


significant additional material on the issue of the age and heritage
status of the building, or on any of the other issues relevant to the
resource consent decision.

(d)

The Committees decision to require notification is contrary to one of


the purposes of 2009 amendments to the notification regime which
was to increase efficiency in the consent process.

[4]

I have decided also that the decision should not be referred back to the

Committee for further consideration. In my view, reconsideration by the Committee


on a proper basis would inevitably result in a decision that notification should not be
required.
[5]

Accordingly, in the orders made at the conclusion of this judgment, I set aside

decision of the Hearings Committee (Resolution number HEA/2014/53) dated


11 June 2014. I direct the Council to process the plaintiffs application for resource
consent for permanent removal of the Old Homestead at 92 Point Chevalier Road,
Point Chevalier forthwith on the basis that it is not required to be publicly notified.
The factual background
The origins and history of the Old Homestead
[6]

According to research done in conjunction with the resource consent

application, the Old Homestead was built in the 1880s on what was then farmland,
probably as two cottages which were subsequently amalgamated into one dwelling.
It was owned by the Hankin family for around 80 years until 1980, when the land
(comprising two lots) and the building were purchased by the Trust Board which
now holds it in trust for the benefit of the Point Chevalier Co-operating Parish (the

Parish).1 For the five years prior to the purchase, the Trust Board leased the
property from the Public Trustee; so, for nearly 40 years, the Parish has operated the
Old Homestead as a church and community centre.
[7]

The dwelling underwent alteration during the Hankins ownership, with lean-

tos and outbuildings being added. A 200-seat auditorium or community lounge was
added at the rear of the building shortly after the purchase by the Trust Board, and
other alterations were undertaken.
Assessments of the buildings historical significance
[8]

Although it is over 125 years old, the building has no heritage listing under

the Historic Places Act 1993. In 2007, Council officers assessed it as not meeting
the threshold for scheduling as a heritage building under the Auckland Isthmus
Operative District Plan 1999; it rated only 27 points out of a total of 100 points
available in the evaluation, being described, among other things, as [s]omewhat
familiar but not a landmark. It is not listed as a building worthy of heritage
protection in the Proposed Auckland Unitary Plan which came into effect on
30 September 2013. Two old and imposing magnolia trees situated immediately
adjacent to the front verandah, however, are listed in the Schedule of Notable Trees
in the Operative District Plan and the Proposed Unitary Plan.
The physical state of the building
[9]

In 2010, the Parish commissioned a building survey which confirmed that the

Old Homestead was no longer fit for purpose: among other things, it was shown to
be borer-ridden and decaying, with inadequate electrical and other services; it was
suspected that damaged asbestos was present in the deteriorating roof; the building
lacked insulation; the front verandah was considered unsafe; and the foundations
were found to be unstable.

In this judgment, the Trust Board is most properly used to identify the owner of the building
and the Parish to identify the occupier and manager of the building, and the operator of
activities conducted within it. There is no practical distinction between the two entities.

[10]

Furthermore, the evidence includes a letter, a copy of which was provided to

the Hearings Committee, from a retired building contractor, Mr Ross Hasselberg,


who was evidently familiar with the building. Mr Hasselbergs view is that the
building is in very poor condition, having been altered occasionally to suit the
community needs over time. He observes that, apart from the verandah, the building
was not in a very original state. He refers to the exterior comprising a mismatch of
weatherboard profiles, of which many were showing signs of decay. He refers also
to the exterior joinery, the verandah, and interior of the building as showing
mismatches of styles and timber profiles, and different joinery resulting from
extensive alterations.
The Parishs plans for the building
[11]

During 2011, the Parish considered its options for the building and decided it

would renovate it, notwithstanding that restoration would require re-piling, repairs to
the verandah, and the complete replacement of all interior walls, ceilings and
floorboards. In February 2012, the Parish notified the local community of over
2,000 homes of its intention to re-build the entire building, retaining the outside
appearance and recycling materials where possible.

The proposed restoration

received publicity in local newspapers during March 2012.


[12]

After further consideration, however, the Parish decided that the restoration

option would not be cost-effective. A decision was made in September 2012 to


remove the Old Homestead and replace it with a new building which would retain
the existing profile and would have similar external features (weatherboards,
balustrades, fretwork, posts, and windows) and colour scheme to maintain the
character and look of the old building.
The events leading up to the present application for resource consent for removal
[13]

Under the Operative District Plan, the building could be demolished or

removed from the site without the need for Council consent. A contract was entered
into in March 2013 to sell the Old Homestead to a building removals company. The
Parish then consulted with Council officials to obtain advice about what process it

should follow to remove the building and construct its replacement. It is apparent
from the minutes of a pre-lodgement meeting between the Presbyterian minister for
the Parish, the Reverend Sandra Warner; an architect engaged by the Parish; and
Council officials, that the principal concern about the project was to protect the two
historic magnolia trees. It was accepted that a resource consent application for the
erection of a new building under the drip line of the scheduled trees would be
required, and that application was filed on 5 September 2013.
[14]

Although the application was made on a non-notified basis, the Parish

circulated further information about the revised plan to remove the Old Homestead
and replace it with a new building. It invited public attendance at an information
meeting which was publicised through the Point Chevalier community email, a
notice to users of the community facilities placed on the notice board at the Old
Homestead, and a mailbox drop to immediate neighbours. The three members of the
public who attended the meeting expressed their support for the project.
[15]

On 15 October 2013, the resource consent application was granted on a non-

notified basis, authorising the removal and rebuilding work within the drip line of
the protected magnolias, subject to conditions related solely to the protection of the
trees.
[16]

The Parish was not aware, however, that restrictions in the Proposed

Auckland Unitary Plan on the demolition of buildings which existed prior to 1944
had come into effect on 30 September 2013. Under the new controls, the Trust
Board was obliged to apply for resource consent for the removal and/or demolition
of the pre-1944 building. Although the new provisions had been in the public arena
as part of the draft Unitary Plan since March 2013, Reverend Warner was not told of
this potential requirement at the pre-lodgement meeting she held with Council
officers in June 2013.
[17]

Significantly, the consent document provided by the Council om 15 October

2013 informed the Trust Board, among other things, that the reasons for the consent
were that:

(a)

the works would have a less than minor adverse effect on the visual
amenity of the local area;

(b)

any actual or potential environmental effects of the proposed activity


would be less than minor provided the conditions of the consent
were adhered to; and

(c)

the granting of a consent would not be contrary to the relevant


objectives and policies of the Operative District Plan 1999, the
proposed Auckland Unitary Plan or the Resource Management Acts
focus of sustainable management of physical and natural resources.

[18]

The resource consent also included a statement under the heading Relevant

Plan Provisions that [t]here are no new relevant matters that require consideration
under the proposed Auckland Unitary Plan.
[19]

The consent decision noted, however, that the consent was solely in respect

of tree works and that it conferred no rights or expectations in respect of any


building or construction works. It was reasonable for the Trust Board to infer,
however, that the removal of the old building had been approved by the Council, and
that there was nothing in the Proposed Auckland Unitary Plan to prevent it.
Steps taken to remove the building after resource consent granted
[20]

Preparatory steps were taken for the removal of the building, including

demolishing a lean-to at the back of the building, the toilets, the kitchen and two
chimneys.

The roof was collapsed down for transport and the house was

disconnected from its piles. On 6 November 2013, however, the Reverend Warner
was informed by a senior compliance investigator with the Auckland Council that
the Parish had to stop work on the site because it did not have the proper consent to
remove the building.

An abatement notice requiring the Parish to cease all

activities immediately was served on 7 November 2013.

[21]

Later that day, the building was inspected by Mr Richard Bollard, a senior

heritage consultant for the Council.

By the time of the inspection, the Old

Homestead was off its piles, with the chimneys removed, sitting on the back of the
removal companys trailer. Mr Bollard inspected it to perform a heritage assessment.
[22]

On 12 November 2013, although she had been told by Council staff that

Mr Bollards heritage report was not available, Reverend Warner was contacted by a
journalist from the New Zealand Herald, Mr Bernard Orsman, who said that an
Auckland councillor had provided him with a copy of the draft report and that an
article would be published about it the following day. Mr Orsmans article of
13 November 2013 recorded that despite the protection afforded the building by the
new heritage control, a council spokesman said the [Parish] had arranged to move
the building without consulting the council and the old villa was sitting on a
removal trailer. He reported that Mr Bollard had written a draft assessment saying
that the building was of considerable local significance warranting scheduling as [a]
Category B heritage building.
[23]

The immediate solution to the dilemma imposed by the partial removal of the

dwelling was that the abatement notice was cancelled and the Council granted
temporary removal consent, pending a decision on a resource consent application for
permanent removal. The building was taken to the removal companys yard where it
remains in storage.
The resource consent application for permanent removal the material before the
Hearings Committee
[24]

A resource consent application for the permanent removal of the building

from the site was filed on behalf of the Trust Board, by a consultant planner
Mr Childs, on 11 November 2013.

The application included an assessment of

environmental effects which corresponded with the scale and significance of the
effects the proposed activity could have on the environment. The assessment related
both to the question of whether the application should be notified and to the merits of
the application.

Mr Childs provided further information to the Council on

18 February 2014, and again on 5 May 2014.

[25]

The application was placed on the agenda for the Councils Hearings

Committee on Wednesday 11 June 2014. The documents provided to the members


of the Hearings Committee comprised 434 pages, including what Reverend Warner
summarised as nearly 400 supporting signatures from the public, 14 letters of
support from community organisations, two letters of support from individuals, as
well as a letter of support from the Albert-Eden Local Board which is the Local
Board for the Point Chevalier area.
[26]

The letter from the Local Board was highly critical of the delays and what it

considered to be the unfair manner in which the Councils officers had dealt with the
Parishs application for resource consent.

The letter included criticism of the

requirement that the Parish should comply with the pre-1944 demolition controls in
circumstances where the Parish had consulted Council officials prior to and during
September 2013 without any Council officer referring them to the imposition of the
controls with effect from 30 September 2013.
[27]

The material which was provided to the Hearings Committee included the

comprehensive plans prepared by the Parishs architectural consultant for the


construction of the replica building. So far as it is possible to tell from the drawings,
the intention is to replicate the external appearance of the original building within the
existing footprint and respecting the need for protection of the historic magnolia
trees adjacent to the front verandah.
The Bollard Report
[28]

After inspecting the building while it was sitting on the back of the removal

trailer, Mr Bollard concluded that it warrants Category B scheduling under the


Historic Heritage provisions of the Proposed Auckland Unitary Plan. He assessed
the building as being of considerable local historical value as a tangible reminder
of the early development of Point Chevalier.

He said that the dwelling was

extremely rare if not unique in the area and that it was an example of a locally
rare and endangered building.

[29]

Nevertheless, he noted that the architect/designer of the building was

unknown and that the building had no early associations with any important persons
or events. Moreover, Mr Bollards assessment of the historical significance of the
building relied in part on the fact that in recent times the Parish had served the local
community by making its buildings and facilities available.

As to the social

significance of the building, Mr Bollard noted that it was the leasing and ownership
of the building by the Parish since 1974 which had increased the profile of the Old
Homestead to the congregation and local community. He acknowledged that the
attachment and community identification with the Old Homestead did not appear to
relate to the building itself, and that extensive canvassing of community opinion
around the removal of the original and its replacement seemed to have produced no
significant objections.

My examination of the material before the Committee

satisfies me that, in fact, there was no evidence of any person having objected to the
removal.
[30]

Mr Bollard observed that the Herald article of 13 November 2013 on the

future of the Old Homestead did not appear to have stimulated any debate or
discussion, or letters to the editor. Mr Bollard assessed the physical attributes of the
building as being a good representative example of the late Victorian vernacular
cottage style. He said its method of construction, craftsmanship and use of materials
was representative of the period. He referred to the overall design, the elaborate
chimneys (removed by the time of the report), the Chicago windows, the decorated
front door gable, and extensive use of rusticated weatherboards as setting the place
above the more ordinary examples of the style.
[31]

Mr Bollards comments about the design may be contrasted by those

expressed in Mr Hasselbergs letter.2


[32]

Mr Bollard considered that the aesthetic and contextual values had been of

high significance until the demolition of the chimneys and the removal of the
building onto the removal trailer. Of the eight significance criteria set out in the
table included in his report, Mr Bollard rated the historical value as considerable
but, as I have observed, as much for the Parishs contribution to the community
2

Referred to above, at [9].

through the use of the Old Homestead over 40 years as for its age and rarity. Under
six of the significance criteria (social, knowledge, technological, physical attributes,
aesthetic and context), the building was regarded as having only moderate value.
The significance to mana whenua was not assessed, there being no evidence of any
engagement with the property by local Mori.
[33]

Mr Bollards lone opinion may be summarised, therefore, as arguing that

what he considered to be the considerable historical significance of the building was


related to its age, its rarity as an example of late-Victorian architecture, and the
widespread community use to which the building had been put by local residents
since the mid-1970s.
[34]

Mr Bollard was not qualified to express a view about the effect of the

removal on the environment in terms of the RMA or the need for notification of the
resource consent application, and did not do so.
The advice of the Councils officers
[35]

Significantly, however, the Councils consultant planner, Mr Craig Magee,

agreed with Mr Childs that the application should be dealt with on a non-notified
basis because it would have no more than a minor adverse effect on the wider
environment and a less than minor effect on persons located on adjacent sites. Mr
Magees advice to the Hearings Committee was based on a consideration of all
material factors, including Mr Bollards assessment.

The advice noted that,

externally, the replacement building would be a replica of the building to be removed


but with an improved internal layout that better provides for the established Church
activities.
[36]

It appears from the material provided to the Hearings Committee that of all of

the people, including professional advisers, who provided evidence or information to


the Committee, Mr Bollard was the only one expressing a view which might
arguably support public notification of the removal application.

The policies and process for the decision about notification


[37]

The Councils hearings policy includes provision for the allocation of

decision-making

responsibility

between

elected

members,

independent

commissioners and staff. This includes procedural decisions about whether to notify
resource consent applications publicly. The policy requires that, in deciding who is
the most appropriate decision-maker, the Hearings Committee would take into
account recommendations from staff, the significance of a particular matter, and
whether it is contentious.
[38]

One of the officers reports before the Hearings Committee indicated that the

application by the Parish fell into the definition of a contentious application due to
different perspectives between elected officials and the buildings previous media
coverage.

No evidence of the perspectives of elected officials was provided.

Moreover, the previous media coverage merely reported the events without
editorial comment as to the merits of the removal and, as Mr Bollard observed, it
generated no public discussion.
[39]

Nevertheless, the view that the application was contentious meant only that

the Hearings Committee should determine in accordance with its policy whether the
application should be notified or the substantive decision on the resource consent
application should be delegated to an independent commissioner or commissioners.
[40]

The recommendations to the Hearings Committee included an observation:


(a)

that the application was supported by the Albert/Eden Local Board


Planning chairperson on behalf of a Local Board;

(b)

that there were no adversely affected parties;

(c)

that extensive informal public consultation had been undertaken and


that a petition signed by persons from the local community and letters
of support from local groups and residences supported the application.

The decision of the Hearings Committee


[41]

Nevertheless, in Resolution number HEA/2014/53 dated 11 June 2014, the

Hearings Committee decided by a majority that the application to remove the Old
Homestead and construct a replacement building should be publicly notified
pursuant to s 95A of the RMA because:
(a)

The building had considerable heritage and historic significance


within its local context.

(b)

The removal of the building had the potential to destroy the historic
connection between the heritage building and the local area and result
in more than minor adverse effects on the local Point Chevalier and
wider Auckland environment.

[42]

The Hearings Committee appointed three people to hear submissions and to

make a decision on the application under s 104 of the RMA, and appointed one of
those people to determine the application if no hearing is required.
The grounds for the plaintiffs challenge to the decision to require notification
[43]

It is against that background that the Trust Board challenges the Hearings

Committees decision (which must for all purposes be regarded as a decision of the
defendant Council) as having been made:
(a)

for an improper purpose;

(b)

for an unlawful purpose;

(c)

irrationally;

(d)

unreasonably; and

(e)

in breach of the Parishs legitimate expectation.

The plaintiffs case for unreasonableness


[44]

The plaintiff argues that there is a wide gap between the evidence provided

to the Hearings Committee and the Committees decision. It says that the reasons for
the decision did not address the gap, leading to the conclusion that there were no
reasons which could reasonably support the decision to require notification.
[45]

Essentially, the plaintiffs position is that the Councils decision was

unreasonable in that:
(a)

it was not based on the available evidence;

(b)

it departed from the recommendations of those advising the Council;


and

(c)

it failed to provide reasons for not following those recommendations.

The defendants position


[46]

Responding to the criticism by Ms Atkins, counsel for the plaintiff, that it is

not clear from the Committees decision whether it was based on an application of
s 95A RMA, the Council argues that it is clear that the provision was and is the only
relevant provision of the legislation.
[47]

Section 95A provides:


Public notification of consent application at consent authority's
discretion
(1) A consent authority may, in its discretion, decide whether to publicly
notify an application for a resource consent for an activity.
(2) Despite subsection (1), a consent authority must publicly notify the
application if
(a) it decides (under section 95D) that the activity will have or is
likely to have adverse effects on the environment that are more than
minor; or
(b) the plaintiff requests public notification of the application; or

(c) a rule or national environmental standard requires public


notification of the application.
(3) Despite subsections (1) and (2)(a), a consent authority must not publicly
notify the application if
(a) a rule or national environmental standard precludes public
notification of the application; and
(b) subsection (2)(b) does not apply.
(4) Despite subsection (3), a consent authority may publicly notify an
application if it decides that special circumstances exist in relation to the
application.

[48]

The plaintiff does not claim that public notification was precluded by the

application of s 95A(3). The Councils position, therefore, is that the decision to


require notification was made under s 95A(2) on the ground that the activity will
have or is likely to have adverse effects on the environment that are more than minor.
Alternatively, it is argued that the Council was entitled to require notification in the
exercise of its general discretion under s 95A(1).
[49]

The Council submits that there was evidence on which the Hearings

Committee could reasonably decide that the adverse effects of the removal and
replacement of the original building were more than minor. It contends that the
potential adverse effects relating to heritage and historic significance were matters
upon which the publicly elected members of the Committee were well placed to
determine in the context of the notification decision.
[50]

The Council also argues that:


(a)

there is no basis for what it describes as a nonsensical allegation


that the decision was made for an unlawful purpose;

(b)

the decision by the Council to not follow the recommendation of its


advisers about notification does not make the decision irrational or
unreasonable; and

(c)

the Council applied s 95A of the RMA in good faith, based on an


assessment of

relevant

facts

and taking

into account

the

recommendations of its advisers.


The applicable principles for judicial review of a notification decision under
s 95A
The nature of the review
[51]

Counsel engaged in a preliminary debate about the appropriate degree of

intensity of the Courts review of a decision under s 95A RMA to require notification
of a resource consent application. The argument focused on whether the judgment of
the Supreme Court in Discount Brands Ltd v Westfield (NZ) Ltd3 remains good law
for the application of notification provisions under the RMA, having regard to
subsequent legislative changes, and to the effect of the obiter observations of
ORegan P in in Coro Mainstreet (Inc) v Thames-Coromandel District Council.4 I
note that the discussion in Coro Mainstreet was related to the intensity of review
required for Council decisions not to notify applications. It is arguable that where a
non-notification decision has been made, considerations of natural justice and the
right of members of the public to be heard on decisions arguably affecting them
might require greater scrutiny than where the decision is for notification. I express
no view on that point, however.
[52]

I do not need to address these issues in the present context. In my view, the

principles to be applied to the plaintiffs contention that the Councils decision in this
case was unreasonable are well settled and follow the Wednesbury test.5

The

Councils decision may be set aside if the decision was so irrational that no decision
maker, acting reasonably, could have arrived at that decision.6

3
4

Discount Brands Ltd v Westfield (NZ) Ltd [2005] NZSC 17, [2005] 2 NZLR 597.
Coro Mainstreet (Inc) v Thames-Coromandel District Council [2013] NZCA 665, [2013]
NZRMA 73 at [41].
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223; [1947] 2
All ER 680 (CA).
See the discussion of Wednesbury unreasonableness in Wellington City Council v Woolworths
New Zealand Ltd [1996] 2 NZLR 537 (CA); Videbeck v Auckland City Council [2002] 3 NZLR
842 (HC) at [29], [32].

[53]

While judicial review of the Councils decision does not require or permit the

Court to determine the merits of the decision, an assessment of the merits will be
called for if there is a tenable argument that the decision was one no reasonable
Council could have made. The merits must also be assessed, if it is determined that
the Council has erred and the decision should be set aside, in considering the remedy.
Here the plaintiff seeks an order directing the Council to process the application on
the basis that notification is not required because there are no grounds upon which
the Council could reasonably conclude otherwise.
Decision required to be made in accordance with statutory purpose
[54]

The Proposed Auckland Unitary Plan provides, in r J.3.6.2, that an

application for the total demolition, substantial demolition or removal of a building


constructed prior to 1944 will be subject to the normal test for notification under the
relevant section of the RMA. That means that the considerations to be taken into
account are those described in s 95A which, themselves, must be applied in light of
the general purposes of the RMA.
[55]

The rationale for the notification provisions of the RMA must be understood

with reference to the overarching purpose of the Act itself, which is the sustainable
management of natural and physical resources.7 Section 5(2) of the RMA defines
sustainable management as:
(2)

Managing the use, development, and protection of natural and


physical resources in a way, or at a rate, which enables people and
communities to provide for their social, economic, and cultural wellbeing and for their health and safety while
(a)

sustaining the potential of natural and physical resources


(excluding minerals) to meet the reasonably foreseeable
needs of future generations;

(b)

safeguarding the life-supporting capacity of air, water, soil,


and ecosystems; and

(c)

avoiding, remedying, or mitigating any adverse effects of


activities on the environment.

RMA, s 5(1).

[56]

The process of notification is tied to this purpose in that it allows the consent

authority, so far as possible, to have access to all relevant information in order to


make a determination as to the environmental impact of a proposed action. Public
notification allows the authority to gather information from people who are likely to
be affected by the proposed action, and gives those people a right to be heard. 8 In
general terms, where a consent authority exercises a discretion to decide whether to
publicly notify an application for a resource consent for an activity, notification
should be made where it will assist the objective of sustainable management.
Analysis of the Committees reasons for its decision to require notification
[57]

It is helpful to repeat that the Hearings Committee decided that the

application to remove the Old Homestead and construct a replacement building


should be publicly notified for the reasons that:
(a)

The building has considerable heritage and historic significance


within its local context.

(b)

The removal of the building has the potential to destroy the historic
connection between the heritage building and the local area and result
in more than minor adverse effects on the local Point Chevalier and
wider Auckland environment.

Was the Committee entitled to conclude s 95A(2)(a) applies?


[58]

Although they are not written conjunctively, I do not understand the two

paragraphs as stating separate grounds for the decision. It is clear that they are
intended to be read together as addressing the criterion under s 95A(2)(a) of whether
the application would have a more than minor adverse effect on the environment.
[59]

The reference to considerable heritage and historic significance within its

local context in relation to the building was taken directly from Mr Bollards report.
Mr Bollards conclusion to that effect was based on two propositions: first, that the
8

See the general discussion about the purposes of public participation by Keith J in Discount
Brands Ltd, above n 3, at [46].

building was only one of two in the Point Chevalier locality built before 1900 and,
second, the use to which the building had been put by the Parish over the past
40 years.
[60]

The removal of the original building with a view to replacing it with a very

close, if not exact, replica at which the activities of the Church would continue to
serve the community will result in the continuation of what what Mr Bollard
accepted was an historic use of a building providing an example of late-Victorian
architecture. Consideration of that aspect of the heritage and historic significance
attached to the building by Mr Bollard could not reasonably result in a conclusion
that the adverse environmental effect was more than minor since the removal of the
original building would not affect it.
[61]

It follows that the basis for the Committees decision must have been that

removing from the site a building erected in 1880 had the potential to result in a
more than minor adverse effect on the environment merely because it was one of the
two oldest buildings in the local area.
[62]

The Committee did not refer to any evidence which supported that view, and

I do not accept the submission that the heritage values of a community are matters
which elected members of a local authority were best placed to determine without
reference to evidence and the purposes of the legislation. In making the decision, the
Committee members were entitled to bring their own perspectives to bear on the
information provided, but they were not permitted to decide such matters on a whim.
[63]

Furthermore, the Committee reached their conclusion despite the many

contra-indicators:
(a)

The building is clearly no longer in its original state.

(b)

The nature of the decay and disrepair of the building is such that the
extensive renovations necessary to restore it for continued use would
restore its appearance only, not the integrity of the original structure.

Retention of the appearance is what is proposed by the Parish in its


design of the replacement building.
(c)

The description of the building as a heritage building is inconsistent


with prior determinations that it scores poorly in the assessments for
heritage status, does not qualify as such, and does not merit
protection.

(d)

It is evident from the petition signed by hundreds of members of the


community and the letters of support that local residents have no
affinity for the building itself, a factor recognised by Mr Bollard in his
report.

(e)

There is no evidence that the removal of the building would have an


adverse effect of any kind on the occupants of neighbouring properties
or the local area generally.

(f)

There was no public response to the Herald article, which merely


reported the circumstances and did not in itself contain any criticism
of the Parishs proposals.

(g)

The view of Council staff that the removal of the building would not
have an adverse effect on the environment that was more than minor
was based on what Mr Magee described as a thorough analysis of
numerous expert reports, site meetings with the plaintiff, informal
public consultation in the form of petitions of support and Albert/Eden
Local Board support for the proposal.

[64]

I have not decided that a council needs to explain in every case why it has

made a decision to depart from the advice of officers. The need for proper written
reasons for transparency and accountability purposes are well recognised. Had the
Committee failed to give any reasons for its notification decision, this would amount

to a proper and distinct ground of judicial review capable of setting aside the
Committees decision. 9
[65]

The absence of reasons addressing and rebutting the carefully articulated

views of the expert advisers in this case, however, leads to an inference that they
were disregarded by the Council.
[66]

I am satisfied that the Committees decision that s 95A(2)(a) applied could

only have been reached on the basis that the Committee failed to take into account
the compelling evidence and advice to the contrary.

It was not a decision a

reasonable committee could have made in the circumstances.


Was there a reasonable basis to require notification under s 95(1)?
[67]

Nevertheless, it was open to the Committee to consider whether notification

should be required in the exercise of its general discretion under s 95A(1); that is,
whether notification would serve a useful purpose related to the objectives of the
RMA. The essential question the Committee was required to ask itself was whether
notification would be likely to result in the Council receiving further information
relevant to the issues for determination on the substantive application to remove the
building. There is no evidence that it did so.
[68]

There may be a concern among elected members of the Council about the

proposal to remove an old but decaying building from the site, and the Council will
have the opportunity to address that issue in considering the resource consent
application.

The large volume of material which the Committee had before it

included Mr Bollards report containing detailed information about the history of one
of the two oldest buildings in Point Chevalier. I am satisfied, therefore, that public
notification of the application is unlikely to produce any significant additional
material on that issue, or on any of the other issues relevant to the substantive
decision.

Lewis v Wilson & Horton Ltd [2000] 3 NZLR 546 (CA) at [87]. See also, Discount Brands Ltd,
above n 3, at [56]; Hanna v Whanganui District Council [2013] NZHC 1360, (2013) 17 ELRNZ
314 at [14]-[15].

Does notification in this case meet the RMAs objective of efficiency in the consent
process?
[69]

The conclusion that the Committees decision was not one that it could

reasonably have made is supported by reference to the 2009 amendment to the RMA
which was designed to increase efficiency in the consent process. 10 The Court of
Appeal in Coro Mainstreet held that the amendment was intended by Parliament to
provide greater certainty to councils in relation to non-notification decisions and to
facilitate the processing of resource consents on a non-notified basis.11 The Court
pointed to various factors in support of this interpretation, such as the fact that the
presumption in favour of notification had been removed and was replaced with a
discretion whether to notify an application.12 The amendment provides limited scope
to challenge Councils decisions not to notify. If Parliaments intention was to allow
things to be done more speedily, requiring notification when it is pointless runs
contrary to the purpose of the 2009 Amendment Act.
Conclusion that decision to require notification was unreasonable
[70]

I have decided that the Councils decision to require notification was

unreasonable and that it should be set aside:


(a)

The Committees decision that s 95A(2)(a) applied could only have


been reached on the basis that the Committee failed to take into
account the compelling evidence to the contrary.

There was no

reasonable basis on which the Council could have concluded that


removal of the building would have a more than minor adverse effect
on the environment, so as to engage s 95A(2)(a) and require
notification.
(b)

There is no evidence the Committee asked itself the essential question


under s 95A(1), whether notification would be likely to result in the
Council receiving further information relevant to the issues for
determination on the substantive application to remove the building.

10
11
12

The Resource Management (Simplifying and Streamlining) Amendment Act 2009.


Coro Mainstreet, above n 4, at [40].
At [39].

(c)

Public notification of the application is unlikely to produce any


significant additional material on the issue of the age and heritage
status of the building, or on any of the other issues relevant to the
resource consent decision.

(d)

The Committees decision to require notification is contrary to one of


the purposes of 2009 amendments to the notification regime which
was to increase efficiency in the consent process.

The other grounds for the plaintiffs application


[71]

Having concluded that the decision to require notification should be set aside

on the grounds of unreasonableness, I do not need to discuss the other grounds relied
upon by the plaintiff. I am satisfied, however, that although I have held that the
Committees decision was unreasonable, there is no basis for a conclusion that the
decision had an unlawful or improper purpose.
[72]

Furthermore, I am not persuaded in the present context that the argument

based on legitimate expectation adds anything to the nature of the enquiry the Court
is required to undertake in the judicial review of an administrative decision.
The nature of the relief to be granted
[73]

Because the notification decision was unreasonable it should be set aside.

[74]

I am required to consider whether the decision should be referred back to the

Committee for further consideration. I would do so if the matter was open for
balanced reconsideration but I have concluded that it was unreasonable for the
Committee to decide notification was required by s 95A(2)(a), and that no
reasonable committee could decide under s 95A(1) that notification would meet the
purposes of the RMA.
[75]

Since reconsideration by the Committee on a proper basis would inevitably

result in a decision that notification should not be required, I will direct that the

application for resource consent shall be processed by the Council on a non-notified


basis. In view of the delays to date, that should occur forthwith.
Orders
[76]

Accordingly I order:
(a)

The decision of the Hearings Committee (Resolution number


HEA/2014/53) dated 11 June 2014 is set aside;

(b)

The Council shall process the plaintiffs application for resource


consent for permanent removal of the Old Homestead at 92 Point
Chevalier Road, Point Chevalier forthwith on the basis that it is not
required to be publicly notified.

Costs
[77]

The plaintiff is entitled to costs. If the parties cannot agree, the plaintiff shall

have until 30 January 2015 to file and serve a memorandum. The defendant shall
have until 20 February 2013 to file and serve a memorandum in reply. Unless the
Court directs otherwise, costs shall be determined on the papers.

..
Toogood J