O'Keeffe v New Plymouth District Council [2021] NZCA 55 (10 March 2021)

Last Updated: 16 March 2021

IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA

CA741/2020 [2021] NZCA 55

	BETWEEN	WAYNE O’KEEFFE Appellant
	AND	NEW PLYMOUTH DISTRICT COUNCIL First Respondent
	AND	TARANAKI ANGLICAN TRUST BOARD Second Respondent

Hearing:	11 February 2021
Court:	Brown, Clifford and Goddard JJ
Counsel:	J D K Gardner-Hopkins for Appellant H P Harwood and O L Rego for First Respondent M J E Williams for Second Respondent
Judgment:	10 March 2021 at 11.00 am

JUDGMENT OF THE COURT

1. The appeal is dismissed.
2. The appellant must pay costs to the second respondent for a standard appeal on a band A basis, with usual disbursements.

____________________________________________________________________

Table of contents

Para No

REASONS OF THE COURT

(Given by Goddard J)

Introduction and summary

• [1] The second respondent, the Taranaki Anglican Trust Board (the Trust Board), applied to the first respondent, the New Plymouth District Council (the Council), for a resource consent for the redevelopment of the St Mary’s Cathedral complex in New Plymouth (the cathedral complex). On 19 March 2020 the Council granted the resource consent on a non-notified basis.
• [2] The appellant, Mr O’Keeffe, owns a house situated on the corner of Robe and Fulford Streets, across the road from the cathedral complex. He considers that the resource consent application should have been notified, so that he and others could make submissions to the Council in relation to the application. He applied for judicial review of the Council’s decision to grant the resource consent. His application for judicial review was heard by Doogue J on 19 October 2020. The Judge dismissed the application for judicial review on 23 November 2020.^[1]
• [3] Mr O’Keeffe appealed to this Court. The Trust Board applied for an urgent fixture, on the basis that Mr O’Keeffe’s outstanding challenge to the resource consent put at risk the funding the Trust Board had obtained from various sources for the redevelopment. This Court granted an urgent fixture.^[2]
• [4] As the appeal evolved, the main focus of Mr O’Keeffe’s argument before this Court was on what the Trust Board’s resource consent application termed “special events”^[3] which included weddings, baptisms, funerals and memorial services, associated receptions, and concerts in the cathedral. Mr O’Keeffe argued in his written submissions that the Council had not considered the implications of special events by reference to rules in the New Plymouth Operative District Plan (ODP) relating to noise, and to the supply of alcohol under a liquor licence, in the residential A zone in which the cathedral is situated. These arguments had not been pursued in the High Court and were in any event misconceived: nothing in the resource consent authorised any activity that would breach the ODP rules relating to noise or supply of alcohol. The arguments based on those rules were not ultimately pursued at the hearing of this appeal.
• [5] Mr O’Keeffe also argued that the Council had failed to consider the traffic and parking effects of special events, in particular, the effects on residential amenity of an increase in traffic movements and parking in nearby streets in connection with special events. The claim before the High Court was not framed in terms of residential amenity effects caused by increased traffic and parking. But in any event, we are not persuaded that the information available to the Council in relation to traffic and parking generated by special events was inadequate. Nor are we persuaded that there was any defect in the Council’s consideration of traffic and parking effects, or any reason to think that the effects on Mr O’Keeffe and other nearby residents of traffic and parking attributable to special events were other than insignificant. It was open to the Council to conclude that any traffic or parking effects from special events, including any effects on residential amenity, were less than minor and did not require limited notification of the Trust Board’s application.
• [6] Before the High Court, another significant focus of Mr O’Keeffe’s claim was the adequacy of the Council’s assessment of the impact of the redevelopment (in particular, the relocation of the old vicarage) on visual amenity for nearby residents such as Mr O’Keeffe, and on viewshafts from public places towards Pūkākā/Marsland Hill. The visual amenity issue received much less emphasis in this Court: as Mr O’Keeffe accepted, the relocation of the old vicarage actually reduced any intrusion into views from Mr O’Keeffe’s property. We do not consider that any relevant plan required the Council to consider viewshafts towards Pūkākā/Marsland Hill. The Council did not err in assessing the effects of the redevelopment on visual amenity or viewshafts. And even if there had been an error, it would not have been appropriate to award any relief to Mr O’Keeffe in circumstances where he was not prejudiced in any way by this aspect of the redevelopment, and there was no evidence of any adverse effects on any other person.
• [7] The appeal must therefore be dismissed.

Background

• [8] St Mary’s Taranaki cathedral is New Zealand’s oldest stone church. It opened in September 1846. It is a Category 1 Heritage Building. In 2016 the cathedral was identified as being earthquake prone and was closed until such time as it could be strengthened. A proposal for redevelopment of the cathedral complex was developed by the Trust Board, in consultation with mana whenua and others. The redevelopment project was concisely summarised in the Assessment of Environmental Effects (AEE) section that was submitted in support of the Trust Board’s resource consent application:

St Marys Taranaki Cathedral Development comprises four main components:

1. Strengthening the St Marys Taranaki Cathedral, NZ’s oldest stone church.
2. Te Whare Hononga (The House that Binds) – a new community building to act as a catalyst for peace, reconciliation, and collaboration in the heart of New Plymouth.
3. Strengthening, refurbishing and changing the use of the Vicarage, and moving the building northward by 17 m to be accessible to the new complex.
4. Associated development of the grounds of western end of the church site, with a new courtyard integrating Te Whare Hononga, the Vicarage and a reworked Hatherley Hall and St Marys.

Works include a new carpark, paths and entry canopy and landscaping whilst retaining graves and significant trees.

This application for resource consent relates to items 2, 3 and 4.

The Cathedral Project has been conceived and progressed with the kaupapa of reconciliation, and will provide a living example of bicultural commitment and Christian principles of repentance, forgiveness, peace and reconciliation and support further positive change in Taranaki.

Te Whare Hononga will reflect the place of Ngāti Te Whiti, Te Ātiawa as mana whenua and form the cornerstone of the Sir Paul Reeves Centre for Peace and Reconciliation. Te Whare Hononga will also be developed as a site with information and displays to increase understanding of the land and NZ Wars origins, and it is intended to become a nationally significant tourist drawcard.

• [9] The Trust Board advised Mr O’Keeffe of its proposed redevelopment in December 2019. At that time, he expressed some concerns about the proposal.
• [10] In January 2020, the Trust Board lodged an application under the Resource Management Act 1991 (RMA) for a resource consent for the redevelopment work, including the relocation of the vicarage, construction of Te Whare Hononga, and associated development of the grounds including establishment of an on-site carpark. (A separate resource consent was sought and obtained in relation to the strengthening of the cathedral.)
• [11] The application was accompanied by the AEE referred to above, a drawing and landscaping package prepared by an architect, a heritage assessment, an earthworks assessment, an arborist assessment, an archaeological assessment, and a traffic impact assessment (TIA).
• [12] In late January 2020, the Council made a request to the Trust Board for further information under s 92 of the RMA, including the impact of traffic generation, parking and visual effects. The requested information was provided to the Council in March 2020. The response to the information request included an amended TIA.
• [13] In February 2020, Mr O’Keeffe learned that the application had been made. Mr Robinson, a consultant planner for the Council, met with Mr O’Keeffe to discuss the application and the resource consent process. Following that meeting Mr Robinson received a letter from Mr O’Keeffe outlining his concerns about the project.
• [14] In March 2020, Mr Robinson prepared a decision report for the Council in relation to the application for resource consent. That report is described in more detail below. The decision report was reviewed and approved by the Council’s planning lead, who made the final decision to grant the consent on a non-notified basis. On 19 March 2020 the Council issued a resource consent to the Trust Board to undertake redevelopment of the grounds of the cathedral complex, subject to a number of conditions imposed under s 108 of the RMA.
• [15] Later in March 2020, Mr Robinson emailed Mr O’Keeffe to advise him that the application had been approved. He discussed the decision with Mr O’Keeffe by telephone. The Council also wrote to Mr O’Keeffe in May 2020, and met with him in July 2020, in response to his continuing concerns about the project.
• [16] Meanwhile, following the grant of the resource consent, the Trust Board took steps to implement the redevelopment. On 6 June 2020, a building contract was awarded for the relocation of the vicarage. That work was underway when, on 13 July 2020, the Trust Board was advised that judicial review proceedings would be filed by Mr O’Keeffe. The relocation of the old vicarage has since been completed, but the Trust Board agreed with Mr O’Keeffe that no further work beyond making the site safe and secure would take place until the proceedings were determined.
• [17] As a result of these proceedings, further work on the redevelopment project by architects, engineers, and civil consultants was largely suspended. The Trust Board had obtained funding from various sources for the work, subject to agreed completion dates. The Trust Board has sought extensions to those completion dates but is concerned that delay caused by these proceedings may imperil that funding. The Trust Board is also concerned that a decision setting aside the resource consent and requiring a decision to be made on a notified basis would significantly delay the redevelopment project and would put its funding at risk.

The Council’s decision report

• [18] The decision report prepared by Mr Robinson describes the current site and the surrounding environment, including Pūkākā/Marsland Hill. It outlines the redevelopment proposal in some detail. It identifies the information provided in support of the application, and records Mr Robinson’s view that the information provided, including the additional information requested under s 92 of the RMA, is sufficient to enable a full assessment of the effects of the development to be carried out.
• [19] The report identifies the relevant consenting matters under the ODP and the New Plymouth Proposed District Plan issued in 2019 (PDP). It records that the proposal is a restricted discretionary activity under certain rules in the ODP. It also records that the proposal would be a non-complying activity under a rule relating to relocation of heritage buildings in the PDP.^[4] For the purpose of assessing whether notification of the application was required, the report applied the most onerous relevant activity status, which was that the activity was a non-complying activity under the PDP. So there was no limit on the scope of the effects that the Council could consider when assessing the effects of the proposal on the environment.
• [20] The report notes that the Council received correspondence from Mr O’Keeffe outlining a number of specific concerns with the proposed redevelopment, including issues in relation to parking and pedestrian movements. Mr Robinson recorded that he addressed the concerns outlined by Mr O’Keeffe as part of his effects assessment under ss 95A and 95B of the RMA.
• [21] The report considered whether public notification of the application was required by s 95A of the RMA and concluded that it was not. There is no challenge to that conclusion. The report then went on to consider whether limited notification to affected groups and affected persons was required under s 95B of the RMA. The report noted that under s 95E of the RMA the Council must decide that a person is an affected person if the relevant activity’s adverse effects on them are minor or more than minor, but are not less than minor.
• [22] By reference to that test, the report then reviewed in some detail possible effects on residents of nearby properties, including the effects of the relocated vicarage, the carpark, traffic and parking, and construction. The report concluded that the adverse effects of the proposal on those residents would be less than minor, and that the application therefore need not be notified on a limited basis under s 95B of the RMA.
• [23] The report then proceeded to assess the merits of the application under s 104 of the RMA. After reviewing the effects of the proposed redevelopment by reference to the relevant provisions of the ODP and the PDP, the report concluded that the effects of the proposal were acceptable, and the proposal was consistent with the objectives and policies of the relevant plans. The application could be granted under the ODP and the PDP. The report recommended approving the application. As noted above, that recommendation was accepted by the Council’s planning lead and a resource consent for the redevelopment work was granted.

The proceedings

• [24] The statement of claim filed on 15 July 2020 challenged the decision to grant the resource consent on two grounds.
• [25] The first ground of review set out in the statement of claim was that the Council had erred in law by undertaking an improper assessment of the proposal’s effects or failing to have regard to relevant effects or considerations. Mr O’Keeffe alleged that in making its decision, in particular its decision to proceed without limited notification of any neighbours including Mr O’Keeffe, the Council erred by:

(a) failing to properly test the assumptions in respect of traffic generation arising from the proposal;

(b) identifying only an additional 750 vehicle equivalent movements (VEM) per week;

(c) failing to assess the effects of the additional 750 VEM per week;

(d) wrongly disregarding traffic and parking effects because events such as hireage of Te Whare Hononga and the cathedral, and orchestra performances had not been factored in, and on the basis that neighbours had their own parking which would not be affected by the proposal;

(e) in respect of visual amenity and the maintenance of viewshafts, incorrectly disregarding provisions of the PDP, ignoring the viewshaft provisions of the ODP, and failing to take into account the cumulative effects of the proposal;

(f) focussing on the effects on the subject site and the heritage of the site and its buildings, rather than effects on neighbours and the wider environment;

(g) failing to take into account relevant objectives and policies in making the notification decision; and

(h) failing to identify what the s 95E threshold of “minor or more than minor (but ... not less than minor)” entailed.

• [26] The second ground of review set out in the statement of claim was that the Council erred in law in granting consent when the application should have been notified, but was not notified. Mr O’Keeffe pleaded that in these circumstances the Council had breached s 104(3)(d) of the RMA, which provides that a consent authority must not grant a resource consent if the application should have been notified but was not.
• [27] The statement of claim sought a declaration that the decision to grant the resource consent, including the non-notification decision, was unlawful and invalid, and an order quashing or setting aside the decision.
• [28] The Council and the Trust Board opposed the application for review, on the basis that the decision had been lawfully made in accordance with the requirements of the RMA. The Council had sufficient information to enable it to decide that notification was not required, and to determine the application for resource consent. The Council and the Trust Board also opposed the grant of relief on the basis that even if the Council had erred in some or all of the respects alleged, setting aside the resource consent would be disproportionate and unjust having regard to the impact on the Trust Board and the community.

High Court decision

• [29] Before the High Court, Mr O’Keeffe argued that the Council’s decision to grant the resource consent on a non-notified basis was unlawful because:^[5]

(a) It was made without adequate information.

(b) In assessing who was an affected person for the purposes of the notification decision, the Council failed to address relevant considerations, in particular, in respect of traffic generation and parking, special events, viewshafts and visual amenity. Mr O’Keeffe argued that these effects on neighbouring properties were more than minor.

• [30] After setting out the background to the proceedings, the Judge referred to a number of recent authorities on the general approach of the Court to judicial review of decisions of this kind, including the recent decision of Whata J in Ennor v Auckland Council:^[6]

[30] It is necessary to reiterate that judicial review is not an opportunity to revisit the merits of a decision made by the Council to proceed on a non‑notified basis or to grant a consent. As Harrison J stated in Auckland Regional Council:

The High Court does not exercise an appellate function on review. It is the decision-making process followed by the consent authority and its lawfulness, not the decision itself which is under consideration.

[31] Thus, an applicant on review must identify an error of law, failure to have regard to a relevant consideration, regard to an irrelevancy or procedural unfairness. I agree, however, with [counsel for the applicant] that there must be adequate information upon which to make those decisions. That is a basic requirement of reasonable and procedurally fair decision making.

• [31] The Judge then set out the relevant provisions of the RMA. As she recorded, s 95A of the RMA provides that a consent authority must determine whether to publicly notify an application for resource consent. If an application is not publicly notified, the consent authority must then decide whether to give limited notification of the application under s 95B of the RMA. Section 95B(9) provides that limited notification must be given to any “affected persons”. That term is defined in s 95E,^[7] which provides that a person is an affected person if “the consent authority decides that the activity’s adverse effects on the person are minor or more than minor (but are not less than minor).”
• [32] Section 104(1) requires a consent authority, when considering an application for resource consent, to have regard to:

(a) any actual and potential effects on the environment of allowing the activity; and

(ab) any measure proposed or agreed to by the applicant for the purpose of ensuring positive effects on the environment to offset or compensate for any adverse effects on the environment that will or may result from allowing the activity; and

(b) any relevant provisions of—

(i) a national environmental standard:

(ii) other regulations:

(iii) a national policy statement:

(iv) a New Zealand coastal policy statement:

(v) a regional policy statement or proposed regional policy statement:

(vi) a plan or proposed plan; and

(c) any other matter the consent authority considers relevant and reasonably necessary to determine the application.

[33] Section 104(3)(d) provides that a consent authority must not grant a resource consent if the application should have been notified and was not.

• [34] Section 104D imposes restrictions on granting consent for non-complying activities:

104D Particular restrictions for non-complying activities

(1) Despite any decision made for the purpose of notification in relation to adverse effects, a consent authority may grant a resource consent for a non-complying activity only if it is satisfied that either—

(a) the adverse effects of the activity on the environment (other than any effect to which section 104(3)(a)(ii) applies) will be minor; or

(b) the application is for an activity that will not be contrary to the objectives and policies of—

(i) the relevant plan, if there is a plan but no proposed plan in respect of the activity; or

(ii) the relevant proposed plan, if there is a proposed plan but no relevant plan in respect of the activity; or

(iii) both the relevant plan and the relevant proposed plan, if there is both a plan and a proposed plan in respect of the activity.

...

• [35] It was common ground in the High Court that if the notification decision was wrongly made, then as a consequence the decision to grant the resource consent would fall with it.
• [36] It was also common ground that:

(a) A decision to grant a resource consent must be supported by adequate information.

(b) An effect is “less than minor” if it is insignificant in its effect in the overall context and is so limited that it is objectively acceptable and reasonable in the receiving environment and to potentially affected persons.^[8]

• [37] After reviewing the information available to the Council and the decision report, the Judge concluded that the decision report was supported by adequate information. In particular, the information relating to traffic was adequate.^[9]
• [38] The Judge then considered the challenges to the assessment in the decision report of traffic generation and parking needs, special events, and viewshafts and visual amenity.
• [39] Mr O’Keeffe advanced five criticisms of the Council’s decision in relation to traffic generation and parking needs. He said the Council erred because:

(a) There was inadequate or misleading information in relation to traffic generation and parking needs. In particular, the Council erred by failing to require an integrated transport assessment, accepting there would be fewer traffic movements as a result of the redevelopment, and not factoring in traffic and parking needs generated by tourism and special events.

(b) It overlooked the concerns of Mr O’Keeffe and his neighbours that the traffic generated would interfere with their properties, including by depriving their visitors of carparking.

(c) It ignored the parking requirements of the ODP.

(d) It assessed the application on the basis of existing use rights, meaning the cathedral was not required to provide parking facilities, when those existing use rights had expired.

(e) It proceeded inconsistently in acknowledging that the Council, as road controlling authority, would need to consult with adjacent neighbours in respect of changes to be made to on-street parking resulting from the proposal, while failing to adopt a limited notification of the proposal.

• [40] The Judge did not accept any of these criticisms of the Council’s decision. She considered that the Council had sufficient information about traffic generation and parking. It had not overlooked Mr O’Keeffe’s concerns. The Council expressly addressed the relevant parking requirements under the ODP and the potential effects of a shortfall in parking. It concluded that the effects of overflow parking, including from major events, were less than minor. The Council had not proceeded on the basis of existing use status under s 10 of the RMA. There was no logical inconsistency between the Council’s approach to on-street parking and its non-notification decision.^[10]
• [41] The Judge then turned to consider special events. Because these were the focus of the argument in this Court, we set out the Judge’s reasoning in full:^[11]

[72] Mr O’Keeffe has concerns about the impacts of big events that will be held at the redeveloped Cathedral complex, such as weddings and private parties. In addition to the traffic and parking concerns, he is worried about late-night noise generated after 11.00 pm by these sorts of events. He emphasised that the Cathedral has been closed since 2016, so these big events will constitute a change in use from his perspective.

[73] There is no restriction within the ODP on events of the kind raised by Mr O’Keeffe – such activity can proceed on the site as of right. These effects fall within the existing/permitted consenting environment. The consent holder will be required to comply with the ODP noise limits for all activities onsite, including more stringent noise limits applying after 10.00 pm. To the extent that any such effects would in fact eventuate, there is a review provision in the consent conditions to address them.

[74] To the extent there is otherwise a lack of express reference to this topic in the decision report, that is understandable in the overall context of this matter and is by no means material to the assessment of the development or its relevant effects.

• [42] There was also extensive argument in the High Court about the visual impact of the relocated vicarage, including the intrusion of the vicarage into the Pūkākā/Marsland Hill viewshaft and the effect on views from private properties on Robe Street, including Mr O’Keeffe’s property.
• [43] The Judge noted that two of the ODP provisions triggering the need for resource consent were relevant to this issue:

(a) Rule OL71: the maximum height within the Pūkākā/Marsland Hill Urban Viewshaft area 1A is 7.5 metres.

(b) Rule Res7: the maximum height in the residential A zone is 9 metres.

• [44] As the Judge noted, the vicarage is 10.5 metres high in its new location. So it would breach both of the above rules. But the relocation of the vicarage resulted in a net reduction in height of 1.86 metres and moved the vicarage 17 metres away from Pūkākā/Marsland Hill. So the visual impact of the old vicarage on properties in Robe Street, including Mr O’Keeffe’s property, was if anything, reduced.^[12]
• [45] The Judge did not accept that the Council had failed to assess the impact of the redevelopment on visual amenity and viewshafts. Those issues were discussed in the decision report. The Council had all the information it needed to assess these matters. The assessment required under s 95E was made and was based on adequate information.^[13]
• [46] The Judge also concluded that the other grounds on which the decision was challenged were not made out. The first ground of review failed because the Council’s conclusions that the scale of the relevant effects complained of by Mr O’Keeffe were less than minor were reasonably reached, having regard to all relevant considerations, and were based on adequate information. There was no failure on the Council’s part in assessing effects. There was a potential for special events to have more impact, but the resource consent required review of this aspect of the redevelopment in one year.^[14]
• [47] It followed that s 104(3)(d) of the RMA was not engaged, and the second ground of review also failed.^[15]
• [48] The Judge went on to say that even if she had found an error, particularly in the area of special event management (which was the only matter that gave her any pause for thought), she would in any event have refused to quash the decision and remit the matter back to the Council for limited notification. The effects on the Trust Board would be disproportionate to the gravity of that error. There did not appear to be any proven substantial prejudice to Mr O’Keeffe from the grant of the consent. By contrast, there would be substantial and material prejudice to the Trust Board and the redevelopment project if relief were to be granted.^[16]

Issues on appeal

Mr O’Keeffe’s arguments on appeal

• [49] The arguments advanced by Mr O’Keeffe on appeal evolved significantly from those pursued before the High Court.
• [50] The written submissions filed by Mr Gardner-Hopkins, on behalf of Mr O’Keeffe, focussed on special events including weddings, baptisms, funerals and memorial services, associated receptions, and concerts in the cathedral. The application anticipated that such events might occur up to 80 times a year and could cater for anywhere between 50 to 350 people. Mr Gardner-Hopkins said that the “primary complaint” was that while the parameters of such special events had been identified, the effects of those special events were not identified or assessed by the Council. The Council did not have adequate information before it in respect of the effects of special events to satisfy itself that the effects on neighbours would be less than minor, and that notification could be dispensed with. Alternatively, the Council failed to have regard to the effects of special events in making its decision to proceed without notification.
• [51] Mr Gardner-Hopkins submitted that special events at the redeveloped cathedral complex would involve noise in breach of the rule in the ODP setting limits on noise from activities in the relevant residential A zone (the noise rule),^[17] and the rule in the ODP restricting the consumption of liquor in circumstances where a liquor licence is required (the alcohol rule).^[18] These matters had not been considered by the Council. Nor had the Council considered the effects of traffic and parking generated by special events at the redeveloped cathedral complex and, in particular, effects on residential amenity such as noise from people going to and from their parked cars.
• [52] Mr Gardner-Hopkins also argued, though very much as a secondary issue, that the Council erred in its assessment of the effects of the proposal on the Pūkākā/Marsland Hill viewshaft. He submitted that the Council failed to have regard to:

(a) whether relocation of the vicarage could further reduce effects on neighbours and that viewshaft; and/or

(b) effects on (or into) the Pūkākā/Marsland Hill viewshaft from public spaces, not just effects on the viewshaft from that hill.

• [53] Before this Court, Mr O’Keeffe no longer sought an order quashing the entire resource consent. Rather, he sought the following relief:

(a) quashing of the resource consent as it relates to special events;

(b) declarations as to unlawfulness in respect of the “visual/viewshaft” errors, even if other aspects of the resource consent are not quashed; and

(c) costs.

Respondents’ arguments on appeal

• [54] The Trust Board submitted that a number of the issues that Mr O’Keeffe sought to raise on appeal were not properly the subject of an appeal to this Court, as they had not been pleaded in the statement of claim or argued before the High Court. In particular, Mr O’Keeffe was seeking to pursue novel arguments that had not previously been advanced in relation to the noise rule and the alcohol rule in the ODP. There was no reference to noise or alcohol in the statement of claim, whether in relation to those rules or residential amenity more generally.
• [55] Both respondents also emphasised that nothing in the resource consent engaged the noise rule or the alcohol rule. The resource consent that the Trust Board applied for, and that the Council granted, is confined to the redevelopment of the cathedral complex. The Trust Board did not apply for consent to carry out activities in the redeveloped complex that would generate noise in breach of the limits applicable to the residential A zone in which the cathedral complex is situated. Nor was consent sought for the supply of alcohol. The consent did not authorise any activities that would breach those rules. In those circumstances, it was not necessary for the Council to assess effects resulting from a breach of those rules. Those rules would continue to apply, and would be enforced by the Council, unless and until any further resource consent was sought and obtained by the Trust Board to permit activities that would contravene those rules.
• [56] We accept the respondents’ submission that nothing in the resource consent permits activities that would breach the alcohol rule or the noise rule. We consider that is clear from the terms of the consent. The suggestion that such activities were in some way implicitly authorised by the resource consent was, in our view, misconceived. Be that as it may, the position has now been clarified. Mr Gardner‑Hopkins accepted that in those circumstances, the arguments he wished to raise about the effects of contravention of those rules fell away. So we need not consider whether these arguments could properly have been pursued on appeal.
• [57] The Trust Board also submitted that the attempt to reframe traffic and parking effects in terms of residential amenity was a novel argument that had not been pleaded and had not been argued in the High Court. It could not fairly be raised for the first time on appeal, when the respondents had not had the opportunity to address it in their evidence and submissions in the High Court. We address this point in more detail below.
• [58] The respondents’ submissions in relation to the traffic and parking consequences of special events, and the visual effects of relocating the vicarage, are set out below in the sections of this judgment addressing those issues.

Framework for judicial review of Council decisions

• [59] These proceedings seek judicial review of the Council’s decisions not to require limited notification of the Trust Board’s application, and to grant the resource consent. It is not the Court’s role to review the merits of the Council’s decision. Rather, the focus is on whether the Council had adequate information to make its decision, and whether that decision was lawfully made under the relevant provisions of the RMA.
• [60] The parties made submissions on the “intensity of review” that applies in relation to decisions not to notify an application for a resource consent. That is not an issue we need to engage with in the context of the present appeal, as on any approach the Council acted lawfully and consistently with the statutory scheme. But we note that this Court has previously rejected the argument, advanced by Mr Gardner‑Hopkins in this case, that a “hard look” approach is required in the context of non-notification decisions. As this Court said in Far North District Council v Te Runanga-a-iwi o Ngati Kahu:^[19]

[56] In our judgment the aims and purposes of the RMA cannot be construed as justifying a more intensive standard of review of a non‑notification decision than would otherwise be appropriate for a Court when exercising its powers. The judicial inquiry is required to determine whether the decision maker has complied with its statutory powers or duties. The construction or application of the relevant provisions remain objectively constant, and there can be no justification for adopting a sliding scale of review of decisions under the RMA according to a judicial perception of relative importance based upon subject matter.

Traffic consequences of special events

Mr O’Keeffe’s submissions on traffic and parking issues

• [61] Mr Gardner-Hopkins confirmed that the effects of special events that remained in issue were traffic consequences including carparking, and in particular the effect on residential amenity of increased traffic movements and noise from people coming and going from parked cars when attending special events. He submitted that those matters were not assessed in the TIA or by the Council in making its decision.
• [62] Mr Gardner-Hopkins submitted that any existing use rights under s 10 of the RMA that may have extended to special events had been lost, as there had been no use of the cathedral complex for such events for more than 12 months. He confirmed, in response to questions from the Court, that Mr O’Keeffe was not arguing that use of the cathedral as a cathedral would give rise to any issues under the RMA. Rather, the focus was on additional activities that would follow from the redevelopment of the cathedral complex. Mr Williams, counsel for the Trust Board, helpfully clarified that the Trust Board considers that services and other longstanding uses of the cathedral do not require resource consent, as they are consistent with the current residential A zone and do not have any effects prohibited by the ODP. So the question of existing use rights did not arise in the present context and need not be addressed by the Court.
• [63] Against that backdrop, Mr Gardner-Hopkins focused on his argument that the incremental traffic and parking generated by special events required consideration generally, and in particular because of their effects on residential amenity. He submitted that the TIA did not provide adequate information about traffic and parking generated by special events, and the effects of increased traffic and parking had not been considered by the Council.
• [64] Mr Gardner-Hopkins emphasised a passage in the TIA which read:

Comparison of the Proposed Traffic Generation to the Existing Traffic Generation rates shows a decrease in regular weekly traffic through this proposal of 56 vehicle movements per week. It should be noted however that events such as Whare hireage, Cathedral Hireage and Orchestra performances have not been factored in as these are sporadic events with uneven / unpredictable attendance numbers. It is also not considered practical to provide on-site carparking for these events and it is expected that on-street parking will be required and possibly event management.

• [65] Mr Gardner-Hopkins submitted that this was an explicit acknowledgement that the traffic effects of special events had not been taken into account in the quantitative assessment of traffic generation and parking. Nor, he said, were these discussed anywhere else in the TIA. He also noted that although there would be more on-site parking in the cathedral complex than before, it would be far from sufficient for special events.
• [66] In response to questions from the Court, Mr Gardner-Hopkins acknowledged that there was no evidence before this Court in relation to the existence or magnitude of any effects on residents of neighbouring properties from increased traffic movements or parking attributable to special events. But Mr Gardner-Hopkins submitted that such effects could be inferred and had not been assessed.

Respondents’ arguments on traffic and parking issues

• [67] Mr Williams submitted that the question of residential amenity effects of parking and traffic generation had not been pleaded as a relevant issue that was overlooked by the Council. Nor was this argument advanced in the High Court. Because it was not pleaded, it had not been addressed in the evidence from the Trust Board. Had the issue been raised in the High Court, the Trust Board would have been able to provide relevant evidence, including acoustic evidence about noise from people going to and from their cars. But the Trust Board had not had the opportunity to do so. In those circumstances, it was not appropriate for the issue to be raised before this Court for the first time.
• [68] Mr Williams noted that the amended TIA did set out information about the frequency and nature of special events. The Council had all the information it needed to make a “real world” assessment about the traffic and parking effects of such events, which had been identified and assessed in the decision report. The decision report concluded that any such effects on neighbouring residents would be less than minor.
• [69] Mr Williams also emphasised the absence of any evidence before the Court that there would be any effects on residents from increased traffic and parking generated by special events that exceeded the “less than minor” threshold.

Analysis

• [70] There is force in the Trust Board’s submission that although Mr O’Keeffe’s statement of claim referred to traffic and parking effects of special events, it did not allege that the Council had erred by failing to consider whether residential amenity would be affected by increased traffic movements or parking, and in particular by noise from people coming and going from their cars. Because the Trust Board and Council were not on notice that this was a live issue, they did not have an opportunity to respond to that argument with evidence, in particular acoustic evidence, focused on this issue.
• [71] But in any event, we are satisfied that the argument lacks merit. The amended TIA set out information about the expected frequency of special events, and likely attendance at those events, including evening reception functions at the vicarage following weddings. It did not attempt to quantify associated traffic movements on a daily basis because such events would be sporadic. The reference to special events “not [being] factored in” in the passage from the amended TIA set out at [64] above is a reference to those events not being factored into the table showing the expected traffic generation profile from the redeveloped complex on a daily basis. But the amended TIA provided sufficient information to enable the Council to form a practical view about the likely frequency, scale and traffic and parking effects of such events. Mr Gardner-Hopkins did not identify any material information about such events that the Council did not have that might have led to a different assessment of these matters.
• [72] The decision report prepared for the Council expressly identified the traffic movement and parking implications of the redevelopment on neighbouring residences, including reference to the “overspill” of parking that would result from special events. The decision report recorded Mr Robinson’s view that:

(a) The effects of parking and traffic generation on the surrounding roading network were minor.

(b) Based on the assessment in the decision report (including an assessment of carparking) he was “able to conclude that the residential amenity effects on all surrounding residential and non-residential properties is less than minor”.

(c) Because the development “is likely to increase the number of traffic movements to and from the site and increase parking demand [he had] been mindful of the effects on surrounding residences”.

(d) The periodic overspill of parking from the expanded on-site facilities on the cathedral grounds would “not impact on the ability of private residents to park their own vehicles in close proximity to their residences”. The effects were “considered to be less than minor in this respect”.

• [73] The implications of increased traffic and parking for nearby residents were assessed relatively briefly. But that reflected an assessment of their significance that was well open to the Council on the basis of the information before it.
• [74] Nor, on the basis of the material before us, is there any factual basis for a concern that additional traffic and parking generated by special events would have any effect on the residential amenity of neighbouring properties. The letter that Mr O’Keeffe sent to the Council in connection with the proposal did not identify this as a concern. There was nothing in the material before the Council or in the evidence before us to support the proposition that increased traffic and parking associated with special events would have any appreciable effect on residents of nearby properties that the Council should have taken into account, but had overlooked.
• [75] For all these reasons, the challenge to the Council’s decision on the basis that the Council lacked adequate information about special events, or failed to give proper consideration to the effects of traffic movements and parking generated by special events (including any effects on residential amenity), cannot succeed.

Alleged errors in relation to visual impact of relocation of vicarage

• [76] Mr Gardner-Hopkins submitted that there were two errors on the part of the Council in relation to the assessment of the visual effects of relocating the vicarage:

(a) The Council should have considered whether the effect of the intrusion of the vicarage into the viewshaft could be further reduced. It was not sufficient to focus on the reduction in impact in circumstances where it could have been reduced further still.

(b) The Council had focussed on the viewshaft from Pūkākā/Marsland Hill and had not considered viewshafts to the hill from other public places.

• [77] In response to questions from the Court, Mr Gardner-Hopkins accepted that:

(a) The original location of the vicarage represented an existing and lawful use of the property.

(b) Mr O’Keeffe had not provided any evidence of adverse effects on any views to or from the hill as a result of relocation of the vicarage.

(c) Any effect on Mr O’Keeffe was less than minor: he was better off in terms of views from his property as a result of the vicarage being moved further away and situated at a lower level.

• [78] Mr Gardner-Hopkins accepted that under the ODP, protection of views to Pūkākā/Marsland Hill was not required. The ODP protected views from the hill, not towards it. However he submitted that under the PDP objectives and policies, views “from/to” various locations including Pūkākā/Marsland Hill were to be protected. It was necessary for the Council to have regard to the PDP under s 104(1)(b)(vi) of the RMA. Weight was a matter for the decision-maker, but it was necessary that the issue be considered. The decision report was silent on the objectives and policies under the PDP in relation to viewshafts, and in particular on viewshafts to the hill.
• [79] However, Mr Gardner-Hopkins accepted that if one goes beyond the objectives and policies in the PDP and looks at the rules in the PDP, the viewshafts identified as viewshafts to be protected in relation to Pūkākā/Marsland Hill are all depicted looking away from the hill. That is confirmed by the associated text, referring to views from the assessment point.
• [80] We asked Mr Gardner-Hopkins whether he accepted that these provisions in the PDP were fatal to his argument. He recognised that they posed a difficulty for it, but suggested there might be a contradiction between the reference in the PDP objectives and policies to views “from/to” the specified assessment points, and the detailed rules that focussed only on views from the assessment points. That contradiction, he submitted, required resolution by the Court.

Analysis

• [81] In considering whether the RMA required limited notification of the Trust Board’s application, the Council was required to consider whether the effects on neighbouring residents would be “less than minor”. So far as Mr O’Keeffe was concerned, the effect of relocating the vicarage was plainly less than minor: indeed it represented an improvement. The theoretical possibility of a different relocation that would have reduced the effects further still was irrelevant to this assessment. The same applies to other residents similarly situated. The argument based on the theoretical possibility of further reductions in the height of the vicarage was both novel and misconceived.
• [82] Nor was there anything before us to suggest that the Council had erred in its assessment of visual effects so far as any other residents were concerned. In particular Mr O’Keeffe did not argue that the relocation of the vicarage closer to some properties resulted in effects on those properties that exceeded the “less than minor” threshold.
• [83] The submission that the Council should have had regard to the effect of the relocation on views towards Pūkākā/Marsland Hill is also misconceived. As noted above, Mr Gardner-Hopkins accepted that the ODP did not require consideration of views towards the hill. We consider it is clear that the PDP, properly understood, also does not require assessment of effects on views towards the hill from other locations. The statement of policies and objectives identifies, at a high level, the desirability of protection of viewshafts “from/to” a list of locations. The rules in the PDP give content to those broadly expressed policies and objectives and make it quite plain that in relation to Pūkākā/Marsland Hill, the effects with which the PDP is concerned are effects on views from that hill to certain specific locations, including Mt Taranaki.
• [84] It follows that there was no need for the Council to assess effects on views towards Pūkākā/Marsland Hill from any other location. And even if there had been, there was no basis for thinking that any material issue arose in relation to views towards Pūkākā/Marsland Hill that the Council ought to have considered, but did not consider.
• [85] We therefore do not accept the arguments advanced before us in relation to visual effects and viewshafts. No case has been made out for declaratory relief, or any other form of relief.

Summary

• [86] In summary, none of the arguments ultimately advanced on behalf of Mr O’Keeffe before this Court has been made out. The appeal must therefore be dismissed.

Costs

• [87] It was common ground that costs should follow the event and should be awarded on a band A basis for a standard appeal. The Council did not seek costs in the event that the appeal was dismissed.
• [88] The Trust Board sought an uplift of costs on the basis that Mr O’Keeffe had expanded the scope of the appeal to include issues that were not canvassed before the High Court. Mr Gardner-Hopkins submitted that no uplift should be awarded: Mr O’Keeffe had responsibly sought to focus and narrow the issues on appeal and had jettisoned aspects of his original claim. He had also significantly curtailed the relief he sought on appeal.
• [89] We agree that costs should follow the event in the usual way. We gave careful consideration to whether an uplift was appropriate in circumstances where issues had been advanced on appeal that were not properly open as they had not been pursued below. However, we accept Mr Gardner-Hopkins’ submission that other issues that might properly have been pursued were (realistically) abandoned and not pursued before this Court, with the result that the appeal was narrower in scope than it might have been if all issues that were live before the High Court had been canvassed again before this Court. The appeal was ultimately able to be heard in a little over half a day. In those circumstances we do not consider that an uplift is justified.

Result

• [90] The appeal is dismissed.
• [91] Mr O’Keeffe must pay one set of costs to the Trust Board for a standard appeal on a band A basis, with usual disbursements.

Solicitors:
RMY Legal, New Plymouth for Appellant
Simpson Grierson, Wellington for First Respondent
Gifford Devine, Hastings for Second Respondent

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^[1] O’Keeffe v New Plymouth District Council [2020] NZHC 3099 [High Court decision].

^[2] O’Keeffe v New Plymouth District Council CA741/2020, 14 January 2021.

^[3] Called “big events” in the High Court decision.

^[4] The decision report also records that the proposal would be a discretionary activity or restricted discretionary activity under other rules contained in the PDP.

^[5] High Court decision, above n 1, at [4].

^[6] At [27], citing Ennor v Auckland Council [2018] NZHC 2598, [2019] NZRMA 150, which cited Auckland Regional Council v Rodney District Council HC Auckland CIV-2007-404-3464, 24 August 2007 at [44] (footnotes omitted).

^[7] See Resource Management Act 1991, s 95B(8).

^[8] See Gabler v Queenstown Lakes District Council [2017] NZHC 2086 at [94].

^[9] High Court decision, above n 1, at [53].

^[10] At [62]–[71].

^[11] High Court decision, above n 1 (footnote omitted).

^[12] At [86].

^[13] At [89].

^[14] At [96].

^[15] At [97].

^[16] At [98]–[99].

^[17] New Plymouth Operative District Plan: Residential Environment Area Rules, r Res72.

^[18] Rule Res53.

^[19] Far North District Council v Te Runanga-a-iwi o Ngati Kahu [2013] NZCA 221 (footnotes omitted).