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Recent decision on "affected persons" highlights the importance of context

Recent decision on "affected persons" highlights the importance of context

Recent decision on "affected persons" highlights the importance of context

Wednesday 28 November, 2018

In Ennor v Auckland Council [2018] NZHC 2598, Whata J adopted the threshold test for an “affected person” under s 95E of the Resource Management Act 1991 (“RMA”) and addressed the importance of context in notification decisions. 

The Court considered an application for judicial review of the Council’s decision to grant a neighbours’ resource consent to extend the rear of their house and install a pool.  The Council, having determined that the activities covered by the resource consent required a discretionary activity consent under the relevant planning instruments, prepared a report recommending non-notification and a grant of the application. In its non-notification decision, the Council assessed that: the works would have less than minor effects; there were no special circumstances warranting public notification; there were no persons affected requiring limited notification under s 95E of the RMA; and there were no grounds for the Council to exercise its general discretion under s 95A(1). The neighbour was later granted a variation by which the pool was moved from the front to the rear of the house, and the roof line was changed.

The Court considered the relevant statutory provisions, including ss 95E and 104 of the RMA, and adopted the threshold test for an “affected person” as provided by Mander J in McMillan v Queenstown Lakes District Council [2017] NZHC 3148:

[12] For a person to be an affected person for the purposes of s 95E of the Act, the adverse effects on that person must be minor or more than minor (but not less than minor). Whether an effect is “minor” involves an assessment of fact and degree. While such an effect sits at the lower end of the scale, which includes major and moderate effects, it used to be said that it must be something more than de minimis.

[13] More recently in Green v Auckland Council, Priestly J considered that in undertaking the required qualitative assessment of effects when applying the statutory test provided by s 95E(1) regard must be had to the context in which the assessment is being made: 

“The statutory tests of ‘minor’, ‘more than minor’, and ‘less than minor’ can only be informed by context. One is dealing with degrees of smallness. Where the line might be drawn between the three categories might not be easily determined. ‘Less than minor’, however is the only category which relieves a consent authority of its s 95E(1) obligation to notify.” 

[14] Davidson J, in Gabler v Queenstown Lakes District Council, considered that the term “less than minor” means an effect that in “the overall context” is insignificant and one which is so limited that it is objectively acceptable and reasonable in the receiving environment and to a potentially affected person.

[15] A consent authority must not grant a resource consent if the application should have been notified and was not. As was acknowledged by the Council, it follows that any such consent will be invalid and unlawful.

The three grounds for review were:

(a) errors in the Council’s notification assessment on the application and the variation;

(b) errors in the substantive decisions, and

(c) that the Council acted unreasonably in failing to discuss the applications with the applicant and in failing to make a site visit to her property.  The applicant argued that the adverse effects arising from the proposal included reduction in amenity, loss of sunlight and loss of privacy and seclusion.  She argued that the notification and substantive decisions did not refer to key parts of the planning instruments, in particular those relating to the Single House Zone and the Special Character Overlay and the effects of moving the pool to the rear of the neighbour’s house.

The Court reiterated that judicial review was not an opportunity to revisit the merits of a Council decision. The Court stated that, although the non-notification and substantive decisions were “not models of their kind”, and lacked an assessment of the merits of the application by express and specific reference to the relevant plans provisions, nevertheless the Court did not consider that the Council erred in deciding to grant consent on a ‘non-notified’ basis. There was no material error in the calculation of the percentage increase in building coverage and it was now accepted that the pool was a permitted activity.

What was important in the present case was the changes to the bulk of the built form and the location of such changes. The Court dismissed concerns about the Council’s failure to undertake a site visit of the applicant’s property and was satisfied that the Council had sufficient regard to relevant plan provisions and had considered matters of key importance to the applicant.  In particular, regarding her loss of sea views, the Court stated that impairment of views would be considered when assessing the effects of the bulk of a proposed development on neighbours. “Views” informed amenity values, and it was reasonable for neighbours to assume that effects on their views would be considered if the proposed development infringed bulk and location standards.

However, in the present case the Council’s task had been to assess whether the applicant was an affected person in context, namely in a well-established suburban environment characterised by, among other things, large trees and hedges. The Court stated that there could be no expectation that existing views or outlook would be protected or preserved in that context. Rather, the Council’s task was to consider the effects of bulk on neighbours having regard to that suburban context and the objectives and policies of the planning instruments. This the Council did, and there was no error on the part of the Council in that regard.

While the Court accepted the proposed additions to the property represented a substantial change to the applicant’s immediate environs and impacted on her views to the sea, the Council was dealing with a relatively minor addition to the rear of an established residential building which was otherwise compliant. There was no expert evidence that the likely scale of the visual effect on the applicant was minor or more than minor. From the Court’s supervisory capacity on review, there was no reason to doubt the correctness of the notification or substantive decisions. Regarding the variation, the Court determined that the additional effects of the variation were de minimis, given that the pool was a permitted activity under the PAUP. The application for judicial review was accordingly declined.

The decision highlights the importance of Council planners giving sufficient attention to context in their planning reports.


For assistance with questions in relation to this topic, please contact Bridget Parham or Shaye Thomas.

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