Pring v Wanganui District Council [1999] NZCA 173; (1999) 5 ELRNZ 464; [1999] NZRMA 519 (2 September 1999)

Last Updated: 1 December 2011

IN THE COURT OF APPEAL OF NEW ZEALAND

CA27/99

	BETWEEN	J C PRING
		Appellant

	AND	WANGANUI DISTRICT COUNCIL
		First Respondent

	AND	AMI HOLDINGS LIMITED
		Second Respondent

Coram:	Richardson P Henry J Blanchard J
Hearing:	18 August 1999
Appearances:	J K Guthrie and A F D Cameron for Appellant R M Goldsbury for First Respondent I M Gault and M J Tingey for Second Respondent
Judgment:	2 September 1999

JUDGMENT OF THE COURT DELIVERED BY BLANCHARD J

Introduction

[1] A McDonald’s franchisee in Wanganui, Mr Pring, appeals the High Court’s refusal to grant judicial review of the Wanganui District Council’s decision to issue a certificate of compliance under s139 of the Resource Management Act 1991 (the Act) in respect of a proposed development by the second respondent, AMI Holdings Ltd (AMI), of a Burger King restaurant and a United Video outlet. The subject property is on the corner of two major city streets, Victoria Avenue and Dublin Street. Mr Pring’s McDonald’s restaurant is also in Victoria Street, separated from the site by only one property whose occupier, a hairdresser, is supportive of his proceeding but is not a party to the litigation.

The history of the application

[2] On 5 February 1998, in the face of objections from Mr Pring and the hairdresser, the Council had declined a resource consent application by AMI for a development on a smaller site on the same corner. AMI subsequently entered into a conditional agreement to acquire some adjacent land in Dublin Street. This enabled it (a) to increase the size of the building to house the two business (“commercial activities” in the zone in question are required to occupy a gross integrated floor space of not less than 500m2); (b) to move the vehicle entrance on the Dublin Street frontage further away from the intersection; and (c) to increase the number of car parks so as to meet the requirements of the Council’s notified Proposed Plan. Believing that its new proposals entirely met the requirements of both the Proposed Plan and the Transitional Plan, which remains operative, and that accordingly it was a “permitted activity” under both plans, AMI made application to the Council on 10 March 1998 for the certificate of compliance. It could of course simply have applied for a building permit but the obtaining of a certificate was presumably thought appropriate to quiet any doubts. Section 139 is as follows:

139. Consent authorities to grant certificates of compliance-

(1) Where a plan describes any activity as a permitted activity, or the activity could be lawfully carried out without a resource consent, in respect of any particular location, the consent authority shall, upon request and payment of the appropriate administrative charge, issue to any person who so requests a certificate that a particular proposal or activity complies with the plan in relation to that location.

(2) A consent authority may require an applicant for a certificate of compliance to provide further information relating to the request if, in the opinion of the consent authority, the information is necessary to determine whether the particular proposal or activity complies with the plan.

(3) Subject to subsection (5), no certificate of compliance may be issued where a proposed plan has been notified and the proposal or activity is not a permitted activity, or could not lawfully be carried out without a resource consent, in relation to that location in the proposed plan.

(4) A certificate of compliance shall describe the particular proposal or activity and the location concerned and be issued within 20 working days of the receipt by the consent authority of the request, or of further information requested under subsection (2), whichever is the later.

(5) A certificate of compliance shall state that the particular proposal or activity was permitted, or could be lawfully carried out without a resource consent, on the date of receipt of the request by the consent authority.

(6) Subject to sections 10, 10A, and 20 (2), a certificate of compliance shall be deemed to be an appropriate resource consent issued subject to any conditions specified in the plan, and the provisions of this Act shall apply accordingly, except that, with the exceptions of sections 120, 121, 122, 125, 134, 135, 136, and 137, this Part does not apply.

[3] After calling for certain further information from AMI and for a report from the Council’s traffic engineering division, taking advice from its solicitors and a consideration of the application by members of its planning staff, the Council issued the certificate of compliance on 27 March. AMI then unconditionally purchased the larger site and entered into arrangements for the sale and leasing of the Burger King restaurant it was about to build. It also signed an agreement to lease with United Video Ltd and a third party. Mr Pring’s solicitors advised AMI’s solicitors on 12 May that a legal challenge would be forthcoming and filed his statement of claim seeking judicial review on 5 June 1998.
[4] It seems that by that time building work had begun. We were told that the building was completed and the Burger King and United Video businesses began trading shortly after Goddard J delivered her reserved judgment on 24 December following a four day hearing in November. Therefore, by the time this matter was brought to this Court those businesses had been operating for seven or eight months. In the meantime also, the Proposed Plan, which had been notified on 29 November 1996, has moved further along the path to becoming the operative district plan and some features of the Transitional Plan which were relied on by the appellant in the High Court have ceased to apply by reason of the operation of s19 of the Act. It is therefore unnecessary to refer in this judgment to all of the matters which Goddard J had to consider, for obviously a court will not strike down a certificate after any non-compliance found to have existed at the time of its issue has in this way ceased to be an impediment.

The general approach to a s139 application

[5] The stance of the appellant in this proceeding has been, first, to criticise as inadequate both the content of the application by AMI and the process by which the Council went about the task of considering it and, secondly, to allege that in certain specific respects the proposal contravened plan rules. Though disclaiming on this appeal any argument that the Council failed to act in good faith, counsel for the appellant has submitted that, because of absence or insufficiency of information and the consequent inadequacy of the Council’s scrutiny of the proposal, the Council did not properly discharge its statutory obligation under s139. It thus lacked jurisdiction to issue the certificate, which should be quashed. It was submitted that because s139 does not afford objectors like Mr Pring the right to participate in the process, differing in this respect from a resource consent application (as to which see Bayley v Manukau City Council [1999] 1 NZLR 568, 575), a Court upon judicial review should be prepared to overturn a purported exercise of power to issue a certificate of compliance once it has been shown that the Council has erred in any material part of the factual assessment as well as if an error of law has been made in the Council’s processes or its interpretation of its own rules. On factual questions Goddard J had taken the view that the Council’s decision could not be set aside unless it was unreasonable in the Wednesbury sense. It was submitted to us that in a resource management setting such a test is unsatisfactory.
[6] It was also said that the Council must be certain that there was compliance and that in some instances in the present case it could not have been certain and must have been left in the position of weighing up what the appellant’s counsel described as fairly arguable legal or factual controversies. As a result, it was said, the Council was guilty of deciding whether the activity should be allowed (a question only to be determined by way of resource consent application), rather than whether it complied and was a permitted activity.
[7] We do not accept these arguments which at times came close to trying to turn this judicial review proceeding into a general appeal, apparently as a means of overcoming the absence of any right of participation for a would-be objector under s139. It is well established that in judicial review the Court does not substitute its own factual conclusions for that of the consent authority. It merely determines, as a matter of law, whether the proper procedures were followed, whether all relevant, and no irrelevant, considerations were taken into account, and whether the decision was one which, upon the basis of the material available to it, a reasonable decision-maker could have made. Unless the statute otherwise directs, the weight to be given to particular relevant matters is one for the consent authority, not the Court, to determine, but, of course, there must have been some material capable of supporting the decision. Having said that, it must also be recognised that because neighbours and users of adjoining streets may well be adversely and directly affected by a development which obtains a certificate of compliance and thereby is deemed to have a resource consent (subs(6)), the Court will scrutinise what has occurred more carefully and with a less tolerant eye when considering whether the decision was one open to the consent authority on the material before it than it will do in a case where the decision which is being questioned required the balancing of broad policy considerations and there was less direct impact upon the lives of individual citizens as, for example, where the exercise of statutory power involved the striking of a general rate (Wellington City Council v Woolworths New Zealand Ltd (No.2) [1996] 2 NZLR 537).
[8] The Council’s District Planner, Mr Ali, in a detailed affidavit has given a narrative of the various matters he needed to compare against the rules in the two plans, the material he had before him and how he went about making his assessment (including obtaining an opinion from the Council’s solicitor). He deposed that he believed he had sufficient information. He said that he carried out a point by point scrutiny and considered that there was no basis for refusing a certificate. Once a Council has reached that conclusion it has no discretion in the matter.
[9] Nonetheless, it was submitted that the Council had erred as a matter of law by failing to obtain enough information concerning the proposal and had also so erred in relying, in part, on information which was not contained in the application or subsequently obtained from the applicant. It was said that the Council could not properly in the circumstances have carried out the necessary point by point comparison of the proposed development against the requirements of the rules in the two plans. The appellant submitted that the information on which a consent authority makes its decision to issue a compliance certificate must emanate from the applicant; that it is not entitled to rely upon knowledge which it already has or may gain from another source. For example, the appellant said that the Council could not properly rely upon anything it had learnt when considering AMI’s previous resource application; nor could it even take account of its knowledge of traffic flows on the adjoining streets.
[10] If a proposal complies, s139 requires the consent authority to issue a certificate within the short specified statutory time-frame. The authority must first be satisfied that there is compliance. Before it can be properly satisfied it must have had sufficient information in order to be able to make a thorough comparison of the proposal with the applicable rules. It must therefore ensure that it has an adequate description of the subject matter, of what is proposed. It is given power to ask for further information relating to the request for a certificate (subs(2)). What the authority needs to know will depend upon the nature of the proposal and upon the particular rules which must be complied with. It will rarely, if ever, be appropriate for it to give an approval without being supplied with plans (in this case it had a site plan and it requested and received elevation drawings), but the requisite degree of detail will vary with the application.
[11] The source of the information is immaterial provided that in practice it is reliable and sufficient to enable the authority to know with reasonable precision the nature of the activity proposed for the site. In this case the Council already had some knowledge as a result of the earlier application, although there were significant differences. It was entitled to utilise that information if it thought fit. It verges on the ridiculous to suggest, as the appellant did, that the Council could not take account of its general knowledge about traffic movements in the locality.
[12] A particular submission on behalf of Mr Pring was that the Council did not know the size of the proposed Burger King operation – the number of tables in the restaurant – and that accordingly it could not properly assess traffic flows to and from the property. Whilst it may have been preferable for the applicant to supply forecasts of the numbers of anticipated customers, the Council was well able to make a judgment concerning numbers of vehicles likely to be visiting the site. Mr Ali was aware that the Proposed Plan increased the required parking spaces and that the proposal complied with that requirement. He knew the gross floor area of the restaurant. He deposed that he spoke to Mr Irving of AMI and was told there were to be 75 seats in the restaurant. That was relevant to the parking requirement. In fact, it transpires that there were to be 108 seats but the 41 spaces provided are in fact sufficient for that greater number of patrons on the ratio fixed by the Proposed Plan.
[13] We agree with Goddard J’s conclusion that from the information supplied, from the history of the earlier resource consent application and from its own general knowledge, the Council had sufficient material upon which to base its decision under s139. It then considered the proposal against the relevant rules, on the basis of advice from its solicitors. In considering in this way the issue of a certificate the Council may have to make value judgments on some matters.
[14] Where compliance depended upon the interpretation of a rule the question is now simply one of whether the Council adopted the correct interpretation. Where a judgment had to be made about how a (correctly interpreted) rule applied to an aspect of the proposal, the question for the Court upon judicial review is, as the Judge found, one of the reasonableness of the decision – whether it was open to the Council to be satisfied that in this respect the proposal was in compliance. With this in mind we turn to the particular matters raised by the appellant.

Specific matters

[15] Counsel for the appellant submitted in this Court that there were some matters on which the Council could not properly have been satisfied, on the basis of the information before it, that AMI’s development was in compliance.
[16] The first related to Rule 6.5(a) in Appendix 6 of the Proposed Plan:

Property Access

a. Council will require accesses from all properties, whether directly or via a service lane, to all roads to be located, designed and constructed so that vehicles can enter and leave a site at all times:

1. Without causing any adverse effect on the road and any other services in the area between the property boundary and the edge of the carriageway.
2. In a safe and convenient manner.
3. Without causing any undue adverse effect on the safe and efficient operation of any road as a through route.

[17] Mr Cameron told us that at the heart of the case is his client’s concern about the effect of the development on traffic at a busy intersection. The concern appears to relate primarily, though not exclusively, to the effect of vehicle movements on to the site on the Victoria Avenue frontage, especially an alleged problem of vehicles turning right to enter the property across the flow of traffic proceeding towards the traffic lights at the intersection. Mr Cameron pointed out that there was evidence from the Council’s traffic engineer, Mr Moore, that when the unsuccessful resource consent application was before it he was unhappy with that entrance being both entry and exit and was particularly worried about the right-turning traffic just mentioned. It had been suggested that a median strip needed to be installed to prevent right-turns into that entrance. This obviously was a safety measure. But only a few weeks later the Council had, in breach of Rule 6.5(a)(iii), issued the compliance certificate without provision for any raised median.
[18] Goddard J was able to deal with this complaint quite briefly, referring to Mr Moore’s evidence that he had taken the view at the time that traffic-related effects of the proposal could be (and were in AMI’s plan) avoided or mitigated. He had said:

Clearly there is some effect on the safe and efficient operation of the roads adjoining the site. However, in my view at the time, there was not any “undue adverse effect”. It is particularly relevant, in this regard, that the issues that had been raised by the earlier application were in my mind while I considered this application.

[19] We think the Judge was correct in concluding that Mr Moore’s view, as an expert, was well open to him. What the appellant’s submission overlooks is that there had been a substantial modification of the entrance. First, as Mr Moore noted, it had been changed, in the plans submitted for the purpose of s139, to an entrance only (no traffic was to exit there) and, secondly, it had been angled so as to discourage the entry of any right-turning traffic. Mr Moore said that he considered that the crossing, “although not ideal”, was within the parameters of Rule 6.5. He also said that, although a median could be useful, it was common practice for the Council to wait and see whether anticipated or perceived problems in fact occurred before undertaking such construction. Contrary to the submission of the appellant, this does not involve the imposition of a condition upon the compliance certificate. The roadway is under the control of the Council. It was entitled to consider that there would not be any “undue” adverse effect in terms of the rule because a median could always be installed if the Council later thought it was desirable to do so.
[20] The Council took the same approach to another concern raised by the appellant, namely, the adequacy of the entrance to cope with large delivery vehicles entering the property. It was said that they had to swing out towards the centre of the road and that one or more wheels would mount the kerb. Mr Moore’s reasonable response was that the Council had control over the physical construction of crossings over its footpaths and could take steps to mitigate any adverse effects, which he did not regard as “undue”. He also said that he was aware that fast-food outlets particularly avoid servicing at times of high demand.
[21] A final traffic matter related to the adequacy of queueing space for vehicles entering the Burger King drive-through service lane from the Dublin Street entrance. It is apparent, however, that the development complies with the relevant provision in the Proposed Plan, as the appellant’s counsel accepted at the hearing in this Court. By virtue of s19 of the Act, the Transitional Plan has been superseded in this respect.
[22] The appellant abandoned during the hearing in this Court an argument that the Council was wrong to treat the restaurant as a “commercial activity”. Goddard J found against that argument. An updating affidavit of Mr Ali shows that since the hearing the Proposed Plan has been amended to clarify the relevant definition. Food and beverage outlets are now specifically included as commercial activities.
[23] The appellant optimistically contended that the proposal was in breach of a rule of the Proposed Plan stating that “all activities apart from vehicle sales shall be contained within a building”. The reason given in the plan for this rule is that open air commercial activities and manufacturing operations can detract from the visual amenity by causing gaps in the built street-scape. The argument made for the appellant was that when food and beverages are purchased from a hatch alongside the drive-through lane, that constitutes an open air activity.
[24] The Judge said that this ground of review had no substance, noting that all activities related to the preparation and sale of food were to take place within the building – the drive-through facility being only a means of access by which take-away customers collect their food. We agree. The rule requires a commonsense interpretation. It would be bizarre if it were permissible for customers to park on the property and walk to the hatch, yet impermissible for them to drive their vehicles to the hatch for the same purpose.
[25] Next, it was submitted that there was no loading bay, in breach of the following rule:

A loading bay must be provided within the building and the provisions of Ordinance 6 shall apply, provided, however that where it is impractical to make provision for a loading bay because of the absence of a service lane or access to a subsidiary street the requirement shall be waived, provided further, however, that where physical access to a service lane or subsidiary street will be provided within a period of five years the building shall, if the Council so requires, be so designed as to enable provision of a loading bay.

[26] The argument was that a “subsidiary street” is any street which provides a second frontage. This argument too has no merit. “Subsidiary” plainly denotes in this context a minor street which can fulfil the same function as a service lane. Here there is no such street. Both frontages are on to primary arterial roads. The rule is therefore “waived” in its own terms. As it happens, all loading takes place entirely within the site, which is the obvious purpose of the rule.
[27] Then it was said that the development does not comply with Ordinance 6.4.4 of the Transitional Plan:

Drive-in Facilities

Where the use of the property generates significant traffic movements, the location of accesses and the layout of the site shall be subject to specific approval to ensure that:

(a) Interference with pedestrians is kept to a minimum;

(b) Use of the site is consistent with smooth traffic flow in the adjoining street.

[28] The submission for the appellant is that under this rule AMI’s activity requires specific approval and is therefore a discretionary activity in terms of s374(3)(b) of the Act and requires a resource consent. Goddard J accepted a submission that, even if the rule were still operative, it does not of itself “authorise” anything, but merely requires the “specific approval” of the Council in relation to design and construction of the crossing on the Council owned road reserve and accesses across Council footpaths. The Judge said that the rule simply provides the safeguard of prior approval by the Council but does not give rise to a need for a resource consent. We think there is much to be said for this view. It is necessary to give a sensible construction to a rule drafted before the advent of the Act and the Judge has done this. However, we do not need to decide the point since the rule has ceased to have practical effect by virtue of the operation of s19. It has not been carried over into the Proposed Plan. No one has requested the Council to include it and the time for making and lodging submissions or appeals has expired. Therefore, in terms of s19, the activity may be undertaken as if the previous rule has become inoperative.
[29] The appellant also alleges a failure by the Council to properly consider another rule in the Transitional Plan:

5.12 DESIGN CONTROL

5.12.1a) In all zones as specified by the Ordinances, the design and layout of land and buildings may be subject to the approval of the Council who shall consider the following criteria:

1. The suitability of a site in relation to its shape and/or size for a particular type of development.

[30] Goddard J disposed of this point by observing that “in his evidence Mr Ali referred to the relevant rules and deposed that he considered those before reaching the conclusion that the proposed development satisfied them.”
[31] It was submitted to us that this is difficult to accept. But the argument essentially repeated the suggestions dealt with earlier in this judgment about alleged inadequacy of the information before the Council, particularly that concerning traffic generation and the size of the restaurant operation. We have already given reasons why such a submission must fail. In addition, the rule has not been carried forward into the Proposed Plan and it appears that s19 has now operated to dispense with any continuing need for compliance with it.
[32] The only respect in which the Judge found that the Council had erred in certifying compliance related to the designation of a corner splay at the intersection. This will, if and when taken as road, make it easier for larger vehicles to turn left from Victoria Street into Dublin Street because the traffic lights can be relocated thereon. A designation is a provision made in a District Plan to give effect to a requirement by a requiring authority (s166). In this case the Council had issued a requirement in connection with the Proposed Plan. The requirement referred to a corner splay of “up to” 4.3 metres. The planning map, however, did not contain any measurement. Mr Ali measured it himself and, incorrectly it now transpires, thought it was actually to be 4 metres. On that basis there appeared to be no encroachment into the splay area. In fact, there is a very small encroachment of part of the drive-through area. Section 176 (1)(b) of the Act requires the prior consent of the requiring authority (the Council) before anything is done in relation to land subject to a designation that would prevent or hinder the public work to which the designation relates. So minimal is the encroachment that it cannot fairly be said that the development will hinder the proposed re-alignment of the roadway. (Arguably, also, the compliance certificate is a consent.) Goddard J, though correctly finding a non-compliance, regarded it as de minimis and, as it was the only error by the Council which she found, exercised her discretion against granting relief to the appellant. She cannot possibly be said to have erred in this use of her discretion in circumstances where there was no other non-compliance.

Result

[33] The appeal is dismissed. The appellant must pay costs to the respondents of $5,000 each, together with reasonable disbursements, including in each case travel and accommodation costs of one counsel, as fixed by the Registrar.

Solicitors
Cameron Ross Law Partnership, Wanganui for Appellant
Treadwell Gordon, Wanganui for First Respondent
Bell Gully Buddle Weir, Auckland for Second Respondent