Promise to engage on consent application has consequences!
Promise to engage on consent application has consequences!
Tuesday 15 June, 2021
People adversely affected by a resource consent application are usually anxious to ensure that they have input into whether the local authority grants the application and may understandably feel aggrieved if the consent is granted on a non-notified basis. However, if the activity is a restricted discretionary activity, it is important to distinguish the effects arising from the restricted discretionary part of the activity from the effects arising from any permitted part of the activity.
The High Court recently determined this issue in two judicial review applications against the same decision to grant a resource consent on a non-notified basis. The Court also considered whether iwi authorities can qualify as an affected person pursuant to the definition of a “person” under the Resource Management Act (RMA) and if a promise to engage on a resource consent application can give rise to a legitimate expectation of being notified.
Whakatāne District Council (WDC) granted a non-notified resource consent for a service station located on a Māori roadway in a Light Industrial Zone. The station was a permitted activity in that zone but needed consent as the access width to the Māori roadway was too narrow and non-compliant with the relevant district plan rule. Occupiers of land adjacent to the roadway claimed that they were directly affected by the proposed activity, and owners of one property sought judicial review of the notification decision. The mandated iwi authority and kaitiaki in respect of tāonga tuku iho, including whenua Māori, Te Rūnanga o Ngāti Awa, also sought judicial review on the basis that WDC had promised to seek its input before making any notification or consent decisions, but had failed to do so.
As the service station was a permitted activity, the Council’s discretion related only to the effects of the consent on the safe and efficient use of the surrounding road. The Lysaghts’ (landowners) argued that the decision that the joint owners of the Māori road were not affected persons was unreasonable. The Court considered that the evidence showed that the consenting officers had carefully considered how the modifications to the Māori roadway entrance and usage of the road would affect the landowners. The Court accepted that the Lysaghts would be directly affected by the increased traffic resulting from the service station, but that WDC was limited to assessing the impact on the safe and efficient use of the roadway. Due to the Light Industrial Zoning, increased traffic was only relevant to the extent that it impacted on the safe and efficient use of the roadway, not to the extent it impacted on amenity values of the surrounding properties. The Court held that the conclusion that the effects on the Lysaghts of the safe and efficient use of the road were less than minor was not unreasonable.
The Lysaghts also argued that WDC was wrong in law to approve a resource consent that required modification to the road, because the modification work required both land and approval from third parties, and, therefore, the consent infringed on their property rights. The Court accepted that resource consent conditions are invalid if they infringe on third parties’ rights or require their consent. However, councils can impose a condition precedent which postpones the start of the consented activity until another action has occurred, such as a third party agreeing to modification work. The Court held that the modification to the road was a condition precedent, as it had to take place before the service station could operate. The condition did not require the Lysaghts to agree to the modifications or infringe on their property rights. The obligation was entirely on the applicant to obtain their consent or otherwise obtain the right to carry out the required road modifications. The Court dismissed the Lysaghts’ judicial review application.
Te Rūnanga o Ngāti Awa (TRONA) case
TRONA argued that WDC had made representations that it would engage with it on the application, had not complied with those representations, and TRONA had a legitimate expectation that WDC would do so, in breach of TRONA’s legitimate expectation. If a public authority promises to follow a particular process, good administration requires the authority to act fairly and follow that process, provided that the process does not obstruct its statutory duty. To determine legitimate expectation is a three-step process:
- What promise did the public authority make?
- Was it legitimate to rely on that representation?
- If there is legitimate expectation, what remedy is appropriate?
The Court accepted that WDC had made commitments to TRONA that it would keep TRONA informed of the application and would meet again to discuss the application. The Court stated that the commitment to engage was insufficient to establish an expectation that WDC would notify the consent application, as this would be an improper restraint on council discretion under s 95 of the Resource Management Act. However, it was legitimate for TRONA to rely on WDC’s commitments, as it routinely engages with TRONA on consent applications as the recognised area iwi authority. The RMA also requires active engagement with iwi authorities and regional councils must take iwi planning documents into account when preparing regional policy statements and plans.
The Court concluded that there was a legitimate expectation of consultation which WDC had failed to comply with, but, due to WDC’s limited discretion on the application, the Court was not convinced that further engagement with TRONA would have brought about a different result. The only exception was the approach that WDC had taken to the effects of the proposal on pedestrians, which the Court discussed further under the affected person submission.
TRONA also argued that, as the recognised iwi authority and kaitiaki for Ngāti Awa, it was an affected person. The Court rejected WDC’s claim that iwi authorities can never be an “affected person” as the definition of person in the RMA includes “a body of persons, whether corporate or unincorporated.” The Court stated that iwi are bodies of persons and iwi authorities are the corporate persona of the iwi, so iwi authorities could be an affected person. Whether an iwi authority is an affected person will depend on whether it is adversely affected by a proposed activity in at least a minor way.
The Court held that TRONA had not shown that the iwi would be adversely affected by the changes to the roadway in a minor or more than minor way, except for the potential effects of increased traffic on resident pedestrians. WDC could only take this into account if it fell within the matter of restricted discretion, being the safe and efficient use of the roadway. The Court considered that WDC had failed to give expert consideration to potential pedestrian-vehicular conflict or to consider any mitigation measures, which was a serious omission given the close proximity of residential properties. The owners of those properties had an obvious and legitimate interest in the safety of pedestrians and the Court considered that WDC should have better considered the residential nature of two of the four nearby blocks. The Court held that it was unreasonable for WDC to conclude that the effects on pedestrians was less than minor and to fail to seek affected party approval from neighbours. The Court set aside the decision to grant non-notified consent and sent it back to WDC to reconsider.
This is an important reminder that when assessing applications for a restricted discretionary activity, consent authorities can only consider effects that fall within the matters to which the consent authority has restricted its discretion.
Iwi authorities can also be an affected person for the purposes of limited notification; recognition of this status will depend on the facts and relevant restricted discretionary matters in every case. Consent authorities who promise to engage with a person will be required to follow through, whether formally or informally, if that promise gives rise to a legitimate expectation. A promise does not however create a requirement to limited notify but a promise to an iwi authority, having a special status under the RMA, may qualify for an affected person status or even give rise to special circumstances.
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