Millar v Ashburton District Council [2016] NZHC 3015 (13 December 2016)

Last Updated: 17 December 2016

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2016-476-000032 [2016] NZHC 3015

BETWEEN	SAMUEL JOSEPH DESMOND MILLAR AND CAROL MILLAR Applicants
AND	ASHBURTON DISTRICT COUNCIL First Respondent
AND	GREG DONALDSON CONTRACTING LIMITED Second Respondent

Hearing:	17 November 2016
Appearances:	P A C Maw and K H Woods for Applicants A J Schulte for First Respondent M J Wallace and J R King for Second Respondents
Judgment:	13 December 2016

_{JUDGMENT OF DUNNINGHAM J}

Introduction

[1] Mr and Mrs Millar have lived on their 13.6 hectare rural property on the outskirts of Tinwald, just south of Ashburton township, for nearly 30 years. Diagonally across the road from them, and adjoining the urban boundary of Tinwald, is a similar size rural block owned by Greg Donaldson Contracting Limited (GDCL).

[2] In November 2015, GDCL applied to the Ashburton District Council (the Council) for resource consent to use part of its property as a contractor’s yard for its rural based contracting business.

[3] A few months before this, Mr and Mrs Millar had advised the Council that they wished to be heard on a different proposal to develop GDCL’s site, as they

MILLAR v ASHBURTON DISTRICT COUNCIL [2016] NZHC 3015 [13 December 2016]

opposed development of the site for non-rural use. Although that proposal did not proceed, they expected to be advised of any further proposals by GDCL to develop its site. They are aggrieved, therefore, that the application for the current consent was not notified to them and was subsequently granted.

[4] In these proceedings they have applied to judicially review:

(a) the decision (if any was made) that there would not be limited notification of the application for resource consent to them as affected persons; and

(b) the decision to subsequently grant the consent.

They seek a declaration that both the purported decision on notification, and the substantive decision to grant consent, are invalid, as well as orders quashing the decisions.

Issues

[5] While the parties expressed the issues differently, in summary they are as follows:

(a) Did the Council make a decision as to notification when the independent hearings Commissioner only signed the substantive report on the grant of the resource consent prepared by the consultant planner, and not the separate report prepared by the consultant planner on the issue of notification?

(b) If the Council did make a decision on notification, did it take into account all relevant considerations, including, in particular, the effects of the storage of soil in the area described as a storage area?

(c) If the Council did make a decision on notification, did it apply the correct legal test when assessing the permitted baseline under s 95E(2)(a) of the Resource Management Act 1991 (RMA)?

(d) If the Council did make a decision on notification, was its decision that the adverse effects on the Millars and other neighbours were less than minor an unreasonable decision?

(e) Did the Council wrongly conflate the separate statutory tests relating to the notification of the application and the decision to grant consent?

(f) If the Council did make a decision on notification, did it take into account all relevant considerations when making its decision to grant consent?

(g) If the Council did err in the decision-making process on notification and/or the substantive decision, is this nevertheless a case where I should decline to exercise my discretion to set aside the Council’s decision, particularly taking into account GDCL’s decision to relinquish that part of the resource consent which would allow it to

store soil in excess of the District Plan limits?¹

Background

The first application

[6] The application for resource consent which is the subject of these proceedings was not the first application lodged by GDCL. In July 2015, GDCL made an application to establish and operate a contracting base for the storage and maintenance of contracting machinery, and also to establish and operate a bulk-fertiliser and lime storage and transport facility on the property.

[7] The Millars became aware of this application through a neighbour and were concerned about it. From their perspective, they would be adversely affected by the proposed activity as the south eastern corner of the application site is approximately

_{80 metres from the Millars’ house. The Millars instructed their lawyers to write to}

¹ Although noting GDCL’s primary position was that the consent did not permit soil storage in

excess of the District Plan limits.

the Council informing the Council that they were opposed to GDCL’s application

and wanted it to be publicly notified.

[8] As it transpired, Mr David Mountfort, the independent consultant planner who had been engaged by the Council to assess the application under s 42A of the RMA, rejected it in its entirety under s 88(3) of the RMA for failing to provide sufficient information and assessment. GDCL was advised to obtain expert assessments of transport, noise, dust and visual effects before the application would be accepted.

[9] GDCL did not proceed with that application but instead lodged a modified application. It retained the proposal to establish a contractor’s yard and associated storage, but omitted the proposed fertiliser storage and transport facility. The application was accompanied by four expert reports which included an engineering assessment, a visual and landscape assessment, a transport assessment, and a noise and dust assessment. That application was subject to a request for further information under s 92 of the RMA. In response, GDCL lodged a third complete version of the application which, as Mr Mountfort explains, is the one that was processed.

The current application

[10] The application sought land use consent to establish and operate a contractor’s yard on the 13.3 hectare L-shaped block owned by GDCL and located in the rural A zone under the Ashburton District Plan.

[11] To the north of the application site are the Tinwald sale yards, and

5.4 hectares of GDCL’s land on the boundary to the sale yards would continue to be used as holding paddocks for stock being sold in the sale yards. The middle section of the property, comprising approximately 3.5 hectares, would encompass the contractor’s yard base area and buildings. It would include an 800 square metre workshop building plus an associated 60 square metre staff area. It was also to include a 350 square metre office building to accommodate up to five fulltime equivalent staff.

[12] Finally, the balance of 4.31 hectares on the southern-most part of the property, which is closest to the Millars’ property, would be used for “storage of aggregates and soil and part of the storm water detention area for the site”. That part of the site was also to be bunded with a minimum 1.5 metre high earth bund which was to be extensively planted in accordance with a landscape plan provided. I refer to it as the “storage area”.

[13] The hours of operation were proposed to be 06.30 to 18.00 Monday to Friday and 07.30 to 13.00 Saturdays, although it was explained that at times there might be vehicle movements outside these hours, for example, for emergency works, or for mechanics requiring equipment for offsite repair/maintenance.

[14] The proposed activity was classed as a “service activity”, which is a non-complying activity within the rural A zone of the District Plan. The other non-compliances identified in the assessment of environmental effects (AEE) were:

(a) the proposal failed to comply with the site standards for site coverage and earthworks, (although site standards are applicable only to permitted or controlled activities within the District Plan);

(b) the proposal would potentially breach the night time noise standards between the hours of 06.30 and 07.00;

(c) the size of the freestanding sign and the sign on the facade of the building exceeded the permitted size of signs within rural zones; and

(d) the proposed above ground diesel storage tank of 10,000 litres exceeded the permitted 3,000 litres for an above ground storage tank in a rural zone.

[15] As a consequence, the application sought consent for a non-complying activity.

The assessment of environment effects

[16] The AEE and accompanying expert reports were, in the applicant’s view, deficient in their assessment of the effects of storage of aggregates and soil within the storage area and of the activities which would be associated with the storage of such material, including the transportation of the aggregate and soil in and out of the area.

[17] In particular, the applicant considers there were the following deficiencies:

(a) the expert noise and dust assessment included a site plan which labelled the storage area as “rural land”;

(b) the noise and dust assessment did not consider noise and dust emissions from within the storage area, only from the contractor ’s yard;

(c) the transport assessment did not assess the transport of aggregate and soil to and from, and from unloading it within, the storage area;

(d) because the transport assessment listed the anticipated daily traffic generated by staff equipment deliveries and staff arrival/departures for half day projects as being “car/ute trips”, whereas in the application itself they were described as “Heavy Goods Vehicle (HGV)” trips, it is not clear what type of vehicles were used to reach the conclusion that the activity would not adversely impact the overall ambient noise environment;

(e) in any event, the noise assessment relied on ambient monitoring carried out during off-peak traffic periods and so underestimated the contribution of the existing noise environment to the overall noise which would be generated by the additional noise of the activity;

(f) the AEE concluded that the effects of the activity would be minor but no more than minor. As a result, the notification section of the

application incorrectly stated that there was no requirement to notify affected persons pursuant to s 95F of the RMA.

Council processing of the application

[18] For various reasons, the Council did not process this application internally. Instead, Mr Ian Hyde, the Council’s district planning manager, commissioned Mr David Mountfort to assess the application and provide a report under s 42A of the RMA. Mr Mountfort was chosen both because he was a highly experienced planner, having been in practice at the time for some 47 years, and because he was familiar with the application site from his work reviewing the earlier application.

[19] In early January 2016, Mr Mountfort prepared a draft s 42A report for the

Council. That included two recommendations:

(a) that GDCL’s application be processed on a non-notified basis in accordance with ss 95A – 95F of the RMA; and

(b) that GDCL’s application be granted pursuant to ss 104, 104A, 104B,

104C and 108 of the RMA subject to a set of conditions.

[20] When he received the draft report, Mr Hyde suggested that it would be preferable to separate the combined report into two reports: one dealing with the recommendation as to notification (the notification report), and the other dealing with the recommendation on the substantive decision (the decision report). Mr Mountfort duly did this. However, the content of the reports as it related to assessment of effects and notification did not alter. The only real difference between the text of the two reports was that the decision report included two further pages which assessed the proposal against the relevant planning framework, and set out conditions on which it was recommended that consent be granted.

[21] On 20 January 2016 an independent hearings commissioner, Ms Patricia Harte, was given delegated authority by the Council to “make a decision on notification, to hear submissions (if required) and to make a decision on the application for resource consent described above”.

[22] Ms Harte was sent both the notification report and the decision report prepared by Mr Mountfort on the application. She received and reviewed those reports and made some enquiries of Mr Mountfort by email on 26 January. After receiving what she describes as satisfactory responses in relation to the matters she raised with Mr Mountfort, she signed the decision report which recommended the grant of consent on conditions, and that became the decision. She did not sign the separate report containing the recommendation on notification.

[23] The applicants’ case is that, as there was no prior decision on notification, the resource consent could not lawfully be granted, but even if there was a notification decision, there were flaws in both that decision and the substantive decision which invalidate the grant of consent.

The relevant statutory framework

Provisions relating to notification

[24] The decision as to whether to notify a consent, and to whom, is dealt with in ss 95 and 95A - 95G of the RMA.

[25] By s 95A(1) a consent authority may, in its discretion, decide whether to publicly notify an application for a resource consent for an activity. There is no statutory presumption in favour of notification,² but s 95A(2) requires a consent authority to publicly notify the application if –

(a) it decides (under s 95D) that the activity will have or is likely to have adverse effects on the environment that are more than minor; or

(b) the applicant requests public notification of the applicant; or

(c) a rule or national environmental standard requires public notification of the application.

[26] However, even if (pursuant to s 95B) a consent authority decides not to publicly notify an application for a resource consent for an activity, it must decide

_{(under ss 95E to 95G) whether there is any affected person, protected customary}

2. Since the amendments introduced by the Resource Management (Simplifying and Streamlini ng) Amendment Act 2009.

rights group or customary marine title group in relation to the activity. Section 95E provides that a person is an affected person for the purposes of the RMA, “if the activities adverse effects on the person are minor or more than minor (but are not less than minor)”.

[27] Where there is an affected person, the consent authority must give limited notification of the application to any affected person, unless a rule or national environmental standard precludes limited notification of the application.

[28] The RMA also provides that, in certain circumstances, the consent authority is permitted to, or is required to, disregard adverse effects on an affected person. Relevantly, in the present case, the consent authority:³

(a) may disregard an adverse effect of the activity on the person if a rule or national environment standard permits an activity with that effect.

...

Provisions relating to the substantive decision

[29] The application by GDCL was for resource consent for an activity which was categorised as non-complying under the Ashburton District Plan. As a non-complying activity, the proposal had to meet one of the thresholds set out in s 104D of the Act.⁴ If s 104D is satisfied, the consent authority then has a discretion as to whether to grant the application or not having regard to the criteria set out in s 104 which include, relevantly:

(a) any actual and potential effects on the environment of 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:}

³ _{RMA s 95E(2)(a).}

4. Which are, in summary, that the adverse effects on the environment will be minor or the activity will not be contrary to the objectives and policies of any relevant plan or proposed plan.

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

_{(vi) a plan or proposed plan; and}

...

(3) A consent authority must not, –

(d) grant a resource consent if the application should have been notified and was not.

...

(6) a consent authority may decline an application for a resource consent on the grounds that it has inadequate information to determine the application.

The notification decision

Did the Council make a decision on notification?

[30] The applicants argue that because Council’s delegated decision-maker, Ms Harte, only signed the decision report, and not the separate report on notification, there was no decision on notification. Even if the text of the decision is looked at in substance, they say it can only be read as addressing the grant of consent. The section at the end of the decision report entitled “Decision”, and which was signed by Ms Harte, simply stated:

That the above recommendations be adopted for the reasons outlined in the report.

In the recommendation section above, there is no recommendation as to the

notification of GDCL’s application. Instead, the recommendation section records:

That, for the above reasons:

The application be granted pursuant to ss 104, 104A/104B/104C and 108 of the Resource Management Act 1991, subject to the following conditions:

...

[31] The applicants also say that I cannot rely on Ms Harte’s affidavit evidence to support a finding that a decision was made. She provided affidavit evidence which explains that she saw no point in signing a separate report confirming the acceptance of the planner’s recommendation on notification when “the substantive decision also

included a discussion and finding on notification, and that the subsequent grant of consent proceeded on the basis that no notification was required”. She also added that, in her experience, making such a “combined decision” on both notification and the grant or refusal of consent, is reasonably standard practice at other councils.

[32] In the applicant’s submission, such an explanation fell into the same category as that in Hanna v Whanganui District Council, where Williams J found it inappropriate to give any real weight to the evidence of Council officers that expanded on and explained the reasons underlying the notification and consent decisions.⁵ As said in Hanna, “the decision must stand or fall on its own terms as

written at the time”.⁶ Similarly, Wylie J in Tasti Products Limited v Auckland

Council said, “[the decision] stands to be considered in its terms and no amount of

ex-post facto criticism or justification can change it”.⁷

[33] However, the respondents say that this is not a case where I have to rely on explanations subsequently given. Here, it is clear on the face of the decision that it comprises a decision on notification. They say it is artificial to suggest that the substantive report signed by the Commissioner, which includes all the content of the notification report and reaches a conclusion on notification, does not amount to a written record of the decision made on notification. Furthermore, reading the content of the substantive decision report, it is obvious that the notification decision was addressed in advance of the decision to grant consent, and the decision to grant consent relied on the conclusion that notification was not required in this case.

[34] I agree that I do not need to resort to explanation from Ms Harte to be satisfied that the decision report, which was adopted by Ms Harte as her reasons for granting consent, included a fully reasoned decision as to why notification (whether full or limited notification) was not required. The relevant paragraph of the report on notification read as follows:

For the reasons given in the above discussion of effects, I consider that any adverse effects from this proposal on the environment would be less than minor, and therefore, pursuant to s 95A of the Resource Management Act

⁵ _{Hanna v Whanganui District Council [2013] NZHC 1360, 17 ELRNZ 314.}

⁶ _{At [14].}

⁷ Tasti Products Limited v Auckland Council [2016] NZHC 1673 at [75].

1991 there is no need for the application to be publically notified. I also consider there are no parties who would be affected to an extent that would be minor or greater for the purposes of s 95E of the Act, and therefore no reason for limited notification of the application to any parties... I have considered possible effects on rural residential properties in Fords Road and along State Highway 1 ... Therefore I consider that this application can be processed on a non-notified basis.

[35] Furthermore, the report, also expressly acknowledged the prohibition in s 104(3)(d) of the RMA on the grant of consent for an application that should have been notified and was not. Again, the report reiterated that notification either in full or on a limited basis was not considered necessary because the effects would be less than minor and there would be no adversely affected parties. The recommendation to grant consent which was adopted by the Commissioner is premised on the reasons given in the document, and includes the conclusion that notification is not required.

[36] Given the report includes a reasoned decision which concludes that notification is not required and averts to the fact that consent cannot be granted if notification should have occurred and did not, I am satisfied that the report signed by the Commissioner includes a decision on notification, as well as a decision as to the grant of consent.

Did the Council take into account all relevant considerations?

[37] If the Court finds that the Council’s decision did include a decision on notification, the next ground of review is that the Council did not take into account all relevant considerations in its decision on notification. In this regard, Mr Maw submitted that the Council did not consider several crucial elements of GDCL’s proposal that may have significant adverse effects on the Millars. In particular, the applicants consider that the effects of activities within the storage area (which include the storage of aggregates and soil) were not assessed by the Council.

[38] While they say there is no doubt that GDCL’s application referred to soil being stored on site, the application was silent on the amount and the size of any stockpiles. The applicants’ expert, Mr McCallum Clark, says that, in the absence of any defined limits, GDCL could stockpile large quantities of soil and would only be limited by the size of the application site.

[39] In addition, the applicants say that the Council’s decision did not expressly refer to the storage of soil as part of the description of GDCL’s activities. The Council’s decision described the activity as follows:

This application seeks consent for the establishment and operation of a contracting base for the storage and maintenance of general and rural based machinery, including office administration and workshop, fuel storage, aggregate storage, truck wash and weighbridge facility for Greg Donaldson Contracting Limited.

[40] The omission of soil storage from this summary of the proposal is taken as an indication that the effects of soil storage were not considered by the Council. Indeed, the applicants say the Council’s internal planner, Mr Hyde, raised concerns about this very issue in an email to Mr Mountfort, where he asked whether the noise/dust assessment took into account the storage of material and associated uses in the storage area. Mr Mountfort’s reply refers only to the assessment of noise from the yard and does not confirm that the noise and dust assessment takes into account the effects from the storage area, whereas Mr McCallum Clark’s evidence is that if the storage area had a high turnover of a material then that could lead to relatively significant increases in noise and transportation effects.

[41] The Council responds by saying it did have adequate information on the soil and aggregate storage in order to determine that the effects would be less than minor. The key effect of soil storage that has been raised is the dust potential, and the impact of dust production from the activity was the subject of expert assessment in the AEE. It was only during the construction phase of the activity that the application stated there would be any non-compliance with the earthworks provisions of the District Plan. Other than that, there is no identified non-compliance with the plan.

[42] The respondents say, therefore, that the reporting planner and the decision- maker were clearly aware of what was to occur in the storage area and took that into account, along with the advice that aspects of these activities would be complying with the relevant plan rules. There was no error in that assessment process which would justify invalidating the decision.

[43] In my view, reading the application as a whole, it cannot be said to permit soil storage beyond the District Plan limits. This is because the application expressly identified all components of the activity which were non-complying with the plan and did not include earthworks (including deposition of soil) which would exceed permitted limits after the construction of the bunds. Mr Mountfort is therefore correct in concluding that the consent cannot be said to allow unlimited storage constrained only by the size of the site. In terms of the quantity of the aggregate storage, express limits were given on that by the applicants, so the effects of that activity could be assessed by reference to those limits.

[44] Having understood what was proposed, the effects of the activities were then considered. For example, dust effects on site during construction were considered, and were to be mitigated by a condition. Dust effects post-construction were also assessed. The application identified that they would not trigger any non-compliance with the air discharge rules in the regional plan which do not permit objectionable dust effects from the bulk handling and storage of goods (including soil) beyond the boundary of a site. The Council also accepted the expert report from Nova which recorded that:

No other activities proposed would give rise to significant dust generation beyond what is experienced from the current use of the access road for trucks and farm machinery serving the sale yards and paddocks.

The decision report concluded “due to the relatively small amount of material in the stockpiles and prevailing winds, dust emissions would be (sic) have less than minor effects”. In this regard, the application differed from the situation in Hanna, where no such reports existed to support the position presented on adverse effects.

[45] The same adequate level of assessment occurred in relation to the assessment of noise generated by the activity, including from vehicles used for the transport of aggregate and soil stored in the storage area. The application provided quite a detailed description of traffic movements, both to and from the site, and within the site. In summary, it explained that a typical generation of up to 36 vehicle movements per day would be created for the contractor’s yard but, because most of the work would be undertaken off-site, the proposal would not “involve significant vehicle movements or staff on-site for extended periods of time”. The logical

corollary was that the proposed activity did not involve significant movements of vehicles to the storage area for the purpose of loading and unloading aggregates and soil. This was reflected in the transport assessment which discuss movement to this area as follows:

The contractor’s yard access will also serve the rural land that forms the southern proportion of the site. Vehicle movements to and from that area are considered negligible.

[46] The noise assessment reflects the transport assessment and focuses on the noise from the contractor’s yard. Using reference levels for heavy machinery depots and workshops, it concludes that the main sources of noise that would be associated with the proposed development would be vehicle start-up and engine revving. The noise assessment was cognisant of the need to assess effects on adjacent neighbours, including the Millars, and concludes that even predicting a “worst case scenario” where noise in the yard areas would involve large vehicles and would be sustained and continuous for an hour, the proposal would comply with the applicable noise standards in the District Plan at all adjacent properties.

[47] The reporting planner, Mr Mountfort, who was fully versed with the proposal, was prepared to accept the expert conclusions noting, in particular, the limited number of vehicle movements which would occur as a consequence of the activity.

[48] Thus, while there is limited discussion of the activity to occur in the storage area in the application and accompanying reports, what can occur there is constrained by the description in the consent and the proposed number of vehicle movements. I consider the reporting planner, and the Commission did have regard to all relevant considerations before reaching the conclusion that the dust and noise effects of the activity, including from the transport generated by it, would be less than minor.

Did the Council misapply the permitted baseline test?

[49] The next criticism of the decision on notification is that it failed to correctly apply the permitted baseline test. The “permitted baseline” test, as developed in case

law,⁸ allows a decision-maker to exclude from consideration, effects which would in any event be authorised on that site, whether through rules in a plan or a resource consent. However, the permitted baseline test has also been qualified by excluding the use of “fanciful” activities for comparison, that is, activities which are technically permitted, but which would be unlikely to occur in reality.

[50] The permitted baseline test is now expressly incorporated into the RMA, and decision-makers considering notification have a discretion to:

... disregard an adverse effect of the [proposed] activity on the person if a rule or national environmental standard permits an activity with that effect.

[51] In the present case, the Millars are critical of the purported application of the permitted baseline test to disregard the effects of GDCL’s proposal for the purposes of notification and for the grant of consent.

[52] The relevant paragraph in the decision report discusses the permitted baseline test as follows:

The most relevant comparable activity which could be established on the site would be a farming activity, either grazing or cropping. This could be expected to include large utilitarian sheds, use a range of farm machinery on site, generate heavy traffic movements and create a certain amount of noise and dust. None of this activity would be on a scale as large as that proposed, but could take place at any hours of the day or night. Such activities would not be obliged to provide landscaping or screening and none of the activities would take place off-site. The point of this is that this area is not necessarily always going to be a quiet peaceful rural retreat and residents can expect a certain amount of activity, traffic, noise, dust etc. on the site even with fully-complying rural activities. The effects of this proposal should be compared with the effects of a complying rural activity, not with a zero baseline.

[53] The Millars’ criticism of this passage is that it picks out “a smorgasbord of high impact permitted issues and amalgamate[s] them together to produce a series of unrelated effects that must be excluded from the notification decision”. Reflecting the language used by the Court when criticising the assessment in the notification decision in Hanna, they say that by doing this, the decision “decontextualises effects

producing both unrealistic comparators and results that undermine rather than uphold

Part II of the Act”.⁹

[54] However, on a plain reading of the statement, the only conclusion drawn by the planner, and thus the decision-maker, is that effects which are similar in nature, if not in scale, could occur as of right. More importantly, this is not a case, as in Hanna when the comparison farming activity is fanciful. In that case, the comparison was to a permitted large scale dairy or dry stock farming operation and it was considered fanciful because the relevant area was subdivided into one and two hectare blocks which could not accommodate such activities. That is not the case here.

[55] In any event, when the decision is looked at as a whole, there is no evidence that the reporting officer or the Commissioner has completely excluded such effects from the assessment of effects for notification. The report writer and, ultimately, the Commissioner making the decision, assessed each of the relevant effects (being visual effects, transport effects, noise and dust effects, hazardous substances, loss of rural land and surface water management) having regard to the moderate scale of activity, and the mitigation proposed (for example, landscaping and screening). The effects were all assessed to be less than minor and there is no suggestion that the effects were considered to be completely negated by the application of the permitted baseline test.

[56] I do not consider that there has been an error in the application of the permitted baseline test. The application for review fails on this ground.

Was the Council’s decision on notification manifestly unreasonable?

[57] The next ground of review is that, even if the Council made a decision on notification and took into account all relevant considerations, the decision that the adverse effects on the Millars and other neighbours were less than minor was not a decision a reasonable decision-maker would have reached on the basis of the material in front of it.

[58] The basis on which the Millars assert the Council’s decision was

unreasonable include:

(a) the sheer scale and scope of GDCL’s proposed activity, unconstrained by conditions of consent and the proximity of those activities to neighbours;

(b) the fact the activity is a non-complying activity in a rural zone; and

(c) GDCL’s application concluded the adverse of the activity were likely

to be minor.

[59] I do not consider the second ground has any bearing on the issue. The test for notification makes no distinction between discretionary and non-complying activities. It is a test with a low threshold that applies to both categories of activity.

[60] The first and third grounds are connected and relate to whether it was reasonable to assess the activity as having effects which are less than minor. I will therefore consider them together.

[61] The Millars place particular weight on the High Court’s decision in Hanna, where the Court found that the Council’s decision not to notify the neighbours of a non-complying resource consent application to develop a small scale heavy machinery depot in a rural zone was unlawful and unreasonable. In that case, Williams J held:¹⁰

After all, the standard for limited notification is not that high. A minor impact is enough. It does not take much of a leap of imagination to conclude that sighting 7-8 pieces of heavy equipment on land adjacent to a residence with a view to regularly transporting such equipment to and from the site, could at least have a minor impact on the adjacent residence.

[62] In this case, I accept that the application itself was inconsistent in its explanation of the test for notification and therefore of whether that threshold had been met. At one point it stated that “no persons [would] experience adverse effects that are minor or more than minor as a result of this activity”, but a paragraph further

on, referred to the effects on any person being “minor or no more than minor”. If the latter was correct then, of course, limited notification would have been required on such persons.

[63] In addition, the Millars’ expert witness for this hearing records his professional opinion that the effects on the neighbours would have been at least minor, saying:

In my opinion, there is considerable potential for minor or more than minor effects on the adjoining or nearby properties from noise, traffic movements, visual effects, and dust.

However, equally, the two experienced planners involved in the application, Mr Mountfort and Ms Harte, both reach the view that the effects will be less than minor

[64] In my view, the fact the application itself described the effects as minor at some points, is not determinative. The Council must make its own assessment independently of the applicant and it can not be criticised for that.

[65] Furthermore, it is unclear why the person preparing the GDCL application concluded that the effects would be minor for the purposes of notification when the expert reports relied on did not share that view and consistently concluded that the effects would be less than minor. For instance, the noise assessment, assuming a “worst case scenario of vehicle engines running for the whole hour rather than just the period when they are entering or exiting the site or warming up or warming down”, concluded that any potential noise effects of the operation of the facility on other properties would be less than minor. Equally, any effects associated with dust from the proposed development were concluded to be less than minor and would comply with the District Plan “at all locations beyond the property boundary”. The traffic report also considered that “the proposed development can be supported from a traffic and transport perspective as having less than minor effects”.

[66] Thus, although the application itself wrongly refers to the test for avoiding notification having been met because the adverse effects will be minor or no more than minor, it is clear that the more detailed assessment of those effects included in

the application reached the more stringent conclusion required to avoid notification, which is that the effects on any other person would be less than minor.

[67] To the extent that the applicants’ expert witness, Mr McCallum Clark, draws the conclusion that the effects would be minor or more than minor I consider those were based on erroneous assumptions. Mr McCallum Clark’s concerns appear focussed not on the application as described, but on the potential for expansion of the activity given the generous size of the site, and it is that which gives rise to his conclusion that there is the “potential” for minor or more than minor effects on the adjoining properties.

[68] It is clear that Mr McCallum Clark largely concurs with the assessment of Mr Mountfort and Ms Harte if the activity was limited to what was proposed to occur in the application. He says:

In my opinion, if the application site was smaller in scale, such that the described activities were commensurate with the site area and the buildings to be constructed, or there were appropriate conditions limiting the activities to those described in a general way, then it may have been appropriate to process this application on a non-notified basis and possibly without the need for the written approval of the neighbours, given the separation distance of the core activities.

[69] Thus, Mr McCallum Clark’s conclusion that GDCL’s neighbours may experience minor or more than minor effects is based on GDCL being able to increase the scale of the activity occurring on the site without further recourse to the Council or the neighbours. He assumes that, as long as the activity falls within the general description of what is proposed (that is, use of the site for a contractor’s yard and storage of materials), the only constraint on GDCL’s expansion is the physical size of the site.

[70] I am satisfied that that reasoning is fallacious. It does not take into account that the activity is limited by the scope of the application, and by the condition imposed which requires the activity to proceed “in accordance with the information and plans submitted with the application”, all of which are specifically referenced in that condition.

[71] It is a well established legal principle that the scope of the activity is confined by the terms of the application and a consent can not grant more than was applied for.¹¹ Here the application had a comprehensive description of the proposed activity, including number of staff, size of building, average vehicle movements per day and maximum amount of aggregate to be stored. The report, which was adopted by the Commissioner as the reason for her decision, made it clear that the scope of the activity outlined in the application was crucial to her understanding of the application and its effects. By imposing the condition which required the

development to proceed in accordance with the information and plans submitted with the application the Commission made that limitation explicit, and provided a clearer mechanism for enforcement of it.

[72] There may well be room for debate about the desirability of reflecting limitations contained in an application in more specific conditions, for example, by imposing conditions as to the number of staff to be employed or specifying the maximum number of vehicle movements, as clearly that makes enforcement a simpler task than by relying on a generic condition such as the one imposed. However, it is not appropriate on an application for review to explore the merits of the conditions imposed, as long as the decision maker has not omitted to consider the need for conditions, or erred in law when imposing them.

[73] Thus, I do not accept the Millars’ expert evidence that the effects would be minor or more than minor when that assumes the resource consent permits unconstrained expansion of the activity on the site. The fact that even he acknowledges that the proposal, on its present terms, would likely have effects that are less than minor, reinforces the reasonableness of the decision made.

[74] Given my conclusions that the report writer and the independent Commissioner did not err on the other issues raised, I do not consider that their conclusion that the effects would be less than minor on the neighbouring properties

_{can be considered unreasonable.}

¹¹ Sutton v Moule (1992) 2 NZRMA 41, Clevedon Protection Society Inc. v Warren Fowler Ltd

[1997] NZEnvC 152; (1997) 3 ELRNZ 169.

Did the Council wrongly conflate the statutory test required for the notification decision and for the substantive decision?

[75] The next ground of review alleges that the Council erred in law by “conflating the separate statutory tests relating to the notification and the grant of consent” and by “considering its notification decision and the substantive decision as one decision”.

[76] I have already concluded that it is clear from the face of the document, which was endorsed as Council’s decision, that a decision was made as to notification in advance of the decision on the grant of consent. Furthermore, it was clear that the decision-maker was aware she could not go on to grant consent if the decision should have been notified but was not.

[77] That leaves the issue of whether the Council erred, in the section of the report labelled “effects on the environment”, by combining the assessment of effects in relation to both notification and the substantive grant of consent. The gist of this argument is that consideration of adverse effects on the environment for the purpose of the grant of consent is not the same as the more fine-grained test of whether there are any persons who would be affected to an extent that would be minor or greater for the purposes of s 95E.

[78] I accept those are different tests. For example, it may be possible to conclude that a development would have an effect on the environment which is less than minor when viewed as a whole, but one neighbour’s outlook may be adversely affected in a minor way, thus requiring limited notification on that neighbour.

[79] However, again, it is important to look at the detail of the decision. The effects of the proposal are assessed both in a general sense and also having regard to the properties in closest proximity. Indeed, it is a striking feature of the decision that the reporting planner and the decision-maker were aware of the Millars’ concerns and took particular care to assess the application in light of the effects on them. It is clear that the Council assessed the effects in light of the test which triggers the need for notification, in addition to undertaking a wider assessment of the effects on the environment which was relied on for the grant of consent.

[80] For this reason, I consider the Council did not conflate the notification and substantive decision and there was no error on this account.

Challenge to the substantive decision granting consent

Was the grant of consent invalid because there had been no notification decision?

[81] Given my findings above, which include that there was a notification decision which was reached applying the appropriate legal test and having regard to the relevant considerations, I do not need to consider whether the grant of consent was invalid because there was no notification decision.

Did the Council take into account all relevant considerations?

[82] If a decision was made on notification, the Millars then say that the decision granting consent failed to take into account all relevant considerations, because it did not consider:

(a) the effects of the storage of soil as part of GDCL’s operations; and

(b) the effects of storage of aggregates and soil and associated activities within the storage area; and

(c) did not consider the scheduled activity standards for the Ryal Bush Transport site when GDCL had suggested that some of those standards could form appropriate conditions of consent.

[83] I have already considered the first two of these criticisms and have rejected them. Properly read, I have held the application did not seek the right to store soil in excess of the District Plan limits and so the effects of that permitted activity could have been discounted by applying the statutory permitted baseline test. In any event, in relation to the notification decision, the effects of aggregate and soil storage (being visual, dust and noise effects) were all taken into account as discussed above.

[84] The third consideration raised under this head is that the application included a reference to the provisions in the District Plan for scheduled activities at the nearby

Ryal Bush Transport Limited site in Tinwald, which was a transport activity occurring on a rural A zoned site. The application noted that, while there were a number of standards applying to Ryal Bush that would not be relevant to the GDCL proposal,¹² other aspects of the standards that applied to Ryal Bush could be considered and imposed as conditions of consent for this proposal. The Millars are critical of the fact that the Council did not make direct reference to the Ryal Bush

Transport standards in its decision, nor did it incorporate them into conditions.

[85] In my view, this cannot be an error of law. The decision-maker must consider the effects of the activity on the environment and decide what conditions, if any, should be imposed on the consent if granted, to mitigate those effects. That is a question of judgment. It is not for the Court, on judicial review, to second guess the decision-maker’s judgment on that issue. The mere failure to adopt a suggested source of material for the drafting of conditions cannot be considered a failure to avert to a relevant consideration. The relevant consideration in this case is whether conditions should be imposed to control the effects of the activity on the environment. The decision-maker averted to that consideration and imposed a range of conditions. To go further than that is to embark on a merit-based review of the decision which is not appropriate on an application for review.

[86] For these reasons, I reject this ground of review.

Relief

[87] As I have found in favour of the respondents on all grounds of the application for review, I do not need to go on to consider the exercise of the discretion as to whether to grant relief.

[88] However, I accept that where a claimant demonstrates that a public decision-maker has erred in the exercise of power, there must be “extremely strong reasons” for declining relief.¹³ However, had I found in the Millars’ favour solely on

_{the basis of accepting their expert evidence that unlimited soil storage could occur on}

¹² This is because Ryal Bush was predominantly a stock truck transport firm which required very early morning truck movements and significant heavy vehicle washing, which was not the case with GDCL’s application.

¹³ Independent Fisheries Ltd v Minister of Earthquake Recovery [2012] NZHC 1810 at [186].

site and that it was not constrained by the fact the application did not seek to store a non-complying amount of soil on the property, then the fact that GDCL has subsequently (for the avoidance of doubt) relinquished any entitlement to store soil in excess of the District Plan limits would have been relevant to the exercise of my discretion.

[89] However, nothing else raised by the parties would have displaced the usual position that the decision should be set aside if it was made in error and the process commenced from scratch.

Result

[90] The application for review of the Council’s decision on notification and grant of the GDCL consent for a resource consent for a contractor ’s yard is rejected and I decline to make any of the orders sought.

[91] If costs cannot be agreed as between the parties, they may file memoranda as follows:

(a) within 20 working days of receipt of the decision by the respondents;

and

(b) within 10 working days of receipt of the respondents’ memoranda, by

the applicants.

Solicitors:

Wynn Williams, Christchurch

Cavell Leitch, Christchurch

Malcolm Wallace, Barrister, Christchurch

Tavendale and Partners, Christchurch