SPRING EDITION 2015

PUBLIC DECISION MAKING NEWSLETTER

This newsletter summarises recent developments in resource management and CONTENTS law that are of particular relevance to local HIGH COURT UPHOLDS BOARD’S DECISION TO DECLINE BASIN BRIDGE 2 authorities and decision makers. In this edition, we address the correct approach to assessing NOTIFICATION - REASONING IS CRUCIAL 2 alternatives on a notice of requirement, LIMITS ON COUNCIL’S DUTY OF CARE 4 notification decisions, when a duty of care is EXPERTS BEWARE - STICK TO EXPERTISE 5 owed, and the role of expert planning witnesses. NATIONAL ENVIRONMENTAL STANDARD We also briefly discuss the proposed national FOR PLANTATION FORESTRY 6 environment standard for plantation forestry, NEW LEGISLATION ON SWIMMING which went out for consultation earlier in 2015, POOL FENCES 6 and the proposed legislation on fencing of KEY CONTACTS 7 swimming pools.

Decision Makers Newsletter - Spring Edition 2015 | 1 HIGH COURT UPHOLDS BOARD’S DECISION this sufficiency of consideration should equally be TO DECLINE BASIN BRIDGE influenced by the significance of effects. In August 2014, a Board of Inquiry (Board) cancelled NZ The Court found that section 171(1)(b) of the RMA does Transport Agency’s (NZTA) notice of requirement for not require the requiring authority to fully evaluate every the Basin Bridge Project. On appeal to the High Court non-suppositious alternative with potentially reduced (Court), the Board’s decision was upheld. environmental effects. This was consistent with NZTA’s submissions on the matter. However, the Court found The appeal before the Court was taken by NZTA. that NZTA did not establish that the Board had required Following a two week hearing, a decision was issued on otherwise. The conclusions the Board reached were not 21 August 2015. of the nature that amounted to an unsupportable position There is significant discussion within the decision, and within which could be overturned on appeal. the course of the hearing itself, as to what is and what is Other issues considered by the Court included the not a question of law, and on the phrasing of the points on interpretation of section 171(1)(a) of the RMA, the implications appeal before the Court. Appeals from decisions of the of the Environmental Defence Society v King Board are only able to be on questions of law. The Court Salmon case, the heritage provisions of the did not change the commonly understood position in this City District Plan, and the enabling benefits of a project regard. The Court stated that its role was limited to the and their consideration. following matters: The timeframe within which to seek leave to appeal has now (a) Has the Board misinterpreted what was required expired. No party has sought leave to appeal the decision. of it by the Resource Management Act 1991 (RMA) and, in particular, under section 171? NOTIFICATION - REASONING IS CRUCIAL (b) If not, are the Board’s conclusions nevertheless so misconceived that they are unlawful conclusions? Two recent decisions of the High Court have reinforced the need for reasoned notification decisions. Those cases In terms of considering the merits, the Court will only are: intervene when the conclusion reached is one in which • Urban v Auckland Council and the true and only reasonable conclusion contradicts the Limited2 (Urban Auckland), which addresses bundling determination. and special circumstances. The main substantive matter addressed on appeal was the • Associated Churches of Christ Church v Auckland Board’s approach to NZTA’s assessment of alternatives. Council3 (Associated Churches), which addresses the Section 171 of the RMA required NZTA to have particular fundamental question of notification - whether regard to whether adequate consideration had been given notification would result in the receipt of further to alternative sites, routes, or methods of undertaking the information. work. That consideration is only required where the requiring authority does not have an interest in the land Urban Auckland sufficient for undertaking the work, or it is likely that the In 2014, Ports of Auckland Limited (POAL) sought work will have a significant adverse effect on the environment. resource consents from Auckland Council (Council) to The Court considered several recent authorities and undertake expansion of the Bledisloe Wharf. The endorsed Whata J’s conclusions in Queenstown Airport proposal required consent under two operative Auckland Corporation Limited v Queenstown Lakes District Council1. Council Regional Plans, being the Coastal Plan and the Air, The Court agreed that what will amount to sufficient Land and Water Plan, and under the Proposed Auckland consideration of alternative sites will be influenced, to Unitary Plan (PAUP). Separate consents were sought, some degree, by the extent of the consequences in terms processed, and granted, in an unbundled manner for the of impacts on private land. The Court considered that operative and proposed plans.

1 [2013] NZHC 2347 2 [2015] NZHC 1382 3 [2015] 18 ELRNZ 237

Decision Makers Newsletter - Spring Edition 2015 | 2 The High Court (Court) in Urban Auckland overturned on the fact that the relevant activity was a controlled the notification and substantive decisions. activity. The Court considered that to be an error, as special circumstances can exist even where an activity is The Court found that the consents should have been controlled. bundled and processed as discretionary consents applicable to both the operative and proposed plans, and Just because that was an error, did not mean that the that it was an error not to do so. The Court observed decision not to notify was invalid. Where special that in processing in an unbundled basis, the Council had circumstances exist, decision makers have a discretion not only departed from the correct legal approach, but whether to notify or not. The Court considered that also from its standard approach to processing applications. whether notification was required when special circumstances existed depended on whether public If bundled, discretionary activity classification would apply notification would result in the production of further to the proposal. When looking at all the effects, not just information relevant to the substantive decision at hand. those where control or discretion was limited, the Court The Court drew on the earlier decision of Associated found that the effects would have been more than minor. Churches in that respect. In this case, the Court This meant that notification was required and the considered that notification would have resulted in further decisions to not notify were invalid. The substantive relevant information being produced. decisions were also invalid, as they flowed from the invalid notification decisions. Associated Churches In the alternative, the Court also considered, if the consents Associated Churches was a judicial review application had lawfully been processed in an unbundled manner, against a decision to publicly notify an application. In that whether special circumstances existed requiring notification. sense it is unusual, as most judicial reviews are taken If they did, then the decision not to notify would have also against decisions not to notify by those who have been invalid. therefore been excluded from the consenting process. The Court undertook a two-step analysis. First, were The plaintiff was seeking resource consent to remove a there special circumstances? Second, did the Council turn building from its property and replace it with a new its mind to those special circumstances but exercise its building having the same footprint. Under the operative discretion not to notify? This line of consideration was in plan, resource consent was not required for the removal a scenario where there were no more than minor effects of the building but it was required for some works in of the type over which control/discretion had been vicinity of a tree. Consent under the operative plan was retained requiring notification, and no directly affected granted in 2013. That consent stated that there were no persons requiring limited notification. new relevant matters requiring consideration under the PAUP, which had at the time been notified. However, The Court found that there were special circumstances. consent was required under the PAUP for the demolition This was a result of a combination of matters, including of the building due to it being constructed prior to 1944. the greater than normal public interest, the ownership relationship between POAL and the Council, and the likely Resource consent was later sought under the PAUP. The future development to flow from the wharf structures. notification decision for that application was the decision It is clear that it was not one of the factors alone that subject to this judicial review. At the time the consent resulted in special circumstances existing, but the unique was sought, the building had been lifted from the combination of those factors in this case. foundations and placed on a removal truck. Just because the Court had found special circumstances Auckland Council (Council) decided to notify the to exist, did not mean that the decision was invalid. application. Reasons for notification included the The question was whether the decision makers had turned building’s heritage and historical context, and that its their minds to the existence of special circumstances and removal had the potential to destroy such a connection exercised their discretion not to notify. The decision resulting in more than minor adverse effects. This makers had considered whether special circumstances conclusion was reached against the advice of the applicant’s existed in the decisions. However, the lack special experts and the Council’s own advisors, who considered circumstances fact was merely asserted and solely based that the application should be processed on a non-notified

Decision Makers Newsletter - Spring Edition 2015 | 3 basis. It was also reached in the knowledge of the fact remediation was estimated in excess of $800,000. However, that the building had been removed from its foundations Monticello had not requested a LIM. The Council had and placed on a truck. issued a PIM to the previous land owner, which did not contain any reference to contamination or hazardous The High Court (Court) found that the Council had acted materials on any part of the land. in a manner that was so irrational that no decision maker, acting reasonably, could have arrived at that decision. The Council had evidence in its archived files that the site Its decision to notify was unreasonable. had been used as a town landfill, but this had not been carried over into its direct files. The Council argued that The decision makers concluded that there would be more it had no obligation to check archived records, considering than minor effects. In reaching that conclusion, they that the resource consent contained a condition which disregarded compelling evidence to the contrary. required Monticello to identify and report hazardous The decision makers had failed to ask themselves the waste sites and remediate them at their own cost. essential question of notification when reaching their The first step to establishing a claim of negligence is to decision - whether notification would be likely to result in assess whether the Council had a duty of care to Monticello. the receipt of further information relevant to the issues The Court considered whether the relationship and for the substantive determination of the application. proximity between the parties supported the imposition In this case, the Court considered that public notification of a duty. Gendall J observed that the extent of the was unlikely to produce any significant additional material liability of local authorities is not ‘set in stone’. on the issues relevant to the application. It also found that Previous case law from the Supreme Court established the decision was contrary to the streamlining purposes of that local authorities do owe a duty of care in relation to the 2009 amendments. negligent inspections. Similarly, case law from the Supreme The Court overturned the notification decision and Court establishes that councils owe a duty of care to a directed that the Council process the application on a person requesting a LIM, as they are clearly in a position non-notified basis. of proximity and the relationship between the parties is closely analogous to a contractual one. However, in this LIMITS ON COUNCIL’S DUTY OF CARE case, the Court observed that the Council does not owe a duty to the world at large, to maintain complete or On 17 July 2015, the High Court (Court) released its comprehensive records or to record contamination in all judgement on Monticello Holding Limited v LIMs. The Council was not liable because no LIM was Council4. The case involved a claim of negligence brought ever sought for the land in question. against (Council) by Monticello Holdings Limited (Monticello). Monticello claimed that The Council did not owe Monticello a duty of care in the Council was negligent in failing to disclose the existence issuing a PIM, as they were a third party to the PIM and of a former town landfill on land which it had purchased the Council’s responsibility in issuing a PIM does not for development of a residential subdivision. extend to third parties. However, had the PIM been requested by Monticello, the Court indicated that it would Monticello claimed that the Council owed it a duty of care have found that there was a duty on the Council to to keep and maintain accurate and reliable records about disclose information in its records, even historic records, the existence of contaminated sites within its sphere of and to provide accurate information. Particularly because control, to disclose that information in a Land Information the Council ought to have been aware of the potential Memorandum (LIM) and Project Information Memorandum contamination and the fact that members of the public (PIM), and that the Council should have refused to grant it would rely on the information contained in a PIM. resource consent to develop the land in the circumstances. The Court confirmed that local authorities in issuing Monticello had discovered contaminated material on its resource consents do not generally owe duties of care to land after it had obtained subdivision and resource consent. individual landowners, in line with the previous Court of The cost of the removal of contaminated material and

4 [2015] NZHC 1674

Decision Makers Newsletter - Spring Edition 2015 | 4 Appeal decision in Bella Vista Resort Limited v Western Bay own opinion in place of the policy. of Plenty District Council5. There was a lack of proximity, 4. In relation to who should make a judgment call on and to impose a duty of care would necessitate local a matter, the witness said that although the Court authorities going behind the information placed before makes the ultimate decision on the appeal, what the them. This would impose an ‘intolerable burden’. When Court is essentially doing is making ‘a judgment as to considering resource consents, local authorities are obliged the worth of my professional opinion’. to give effect to the purpose of the RMA, not to consider the viability of the project or the economic interests of The issue, in this case, was that the ARPS and the landscape the applicant. Accordingly, in this case, the Court found architect experts concluded that Mt Albert was an ONF. that in issuing the resource consent the Council owed no This meant that the District Plan provisions needed to duty of care to furnish Monticello with any information. reflect that. The witness disagreed and concluded that Mt Albert wasn’t worth protecting within the District Plan. The judgement reflects that councils can be liable in negligence in relation to PIMs, as well as LIMs, if the person The Court revisited a number of principles that an expert seeking to rely on the information in a PIM or LIM has witness must abide by. The Court stated that an expert applied for it directly. However, not every failure to keep opinion must be predicated upon: a record prescribed by legislation will be actionable. • the law and facts as they apply to the situation; Further, councils do not owe a general duty of care in relation to resource consent applications, except in • the other assumptions that the witness must express specific situations, and they are entitled to rely on the in their opinion; and information placed before them. • how the law, facts and assumptions lead to the opinion. In addition, an opinion must be expressed: EXPERTS BEWARE - STICK TO EXPERTISE • on a subject within that person’s expertise; There is a fine line between a planning witness drawing conclusions from other experts, and applying it to the • explicit to the decision before the Court; and planning framework, and going beyond their expertise. • based upon the facts and assumptions pertaining to the This issue was highlighted in the recent Environment case. Court (Court) decision in Tram Lease Limited v Auckland Council6. The decision was on a plan change appeal and The Court’s views are in line with the Expert Witness consideration of whether certain view shafts to Mt Albert Code of Conduct set out in the Environment Court should be added to the Isthmus section of the Auckland Practice Note 2014 (Code of Conduct). The Code of District Plan (District Plan). Conduct sets out the obligations of an expert witness before the Court. Fundamentally, an expert witness has In terms of the planning framework, the Auckland Regional an overriding duty to impartially assist the Court on Policy Statement (ARPS) concluded that Mt Albert is an matters within the expert’s areas of expertise. Outstanding Natural Feature (ONF). The Court’s criticism of the planning witness stemmed, in part, from the Where any of the duties are breached, as happened in this witness’ answers to questions from the Court in relation case, the Court may be minded to disregard an experts’ to Mt Albert. The witness made a number of assertions: evidence and place no weight on it. 1. Mt Albert was not an ONF. It must be borne in mind that to an expert witness, credibility is essential. Lawyers, judges and commissioners 2. It was possible to revisit a higher order policy have good memories and talk to each other. If a witness document (in this case, the ARPS) on any appeal loses his or her credibility in one matter, then it becomes on a lower order document (in this case, the very difficult for a witness to assert credibility in another District Plan). matter. On that basis, experts should ensure they are 3. It was possible for the witness to substitute his familiar with the contents of the Code of Conduct and take steps to adhere to it.

5 [2007] NZCA 33 6 [2015] NZEnvC 133

Decision Makers Newsletter - Spring Edition 2015 | 5 The role of a planner is to interpret and apply planning Submissions on the consultation document closed on provisions, and to apply the expert evidence of other 11 August 2015. A number of submissions have been witnesses to those provisions. Their role is not to substitute received, which provide a mixture of views from different his or her own view for a planning provision, or to parts of the support spectrum. At this stage, the venture outside their expertise. submissions are with MPI, who will prepare a summary of submissions. The summary of submissions will be included NATIONAL ENVIRONMENTAL STANDARD in a report, which will be publicly notified as required by FOR PLANTATION FORESTRY the RMA. A section 32 report will then be prepared and provided to the Minister for the Environment (Minister). The Ministry of Primary Industries (MPI) has announced its MPI estimate this will be before the end of 2015. If the intention to push through a new National Environmental decision is to proceed with the NES Plantation Forestry, Standard for the forestry sector. If implemented, the new the Minister will recommend to the Governor-General National Environmental Standard for Plantation Forestry that the NES Plantation Forestry be made by (NES Plantation Forestry) will standardise planning Order in Council. rules for managing plantation forestry by replacing existing regional and district plan rules. MPI released a consultation NEW LEGISLATION ON SWIMMING POOL document in June 2015 . The activities the NES Planation FENCES Forestry is proposed to cover are: The Building (Pools) Amendment Bill 2015 (Bill) • Mechanical land preparation was introduced (with little fanfare) on 9 September 2015. • Afforestation The Bill provides for the repeal of the Fencing of • Earthworks Swimming Pools Act 1987 (FOSPA) and the insertion • Forestry quarrying of a replacement sub-part into the Building Act 2004 (Act) (Part 2, sub-part 7A). • River crossings The key points arising from the Bill include: • Pruning and thinning-to-waste • The Bill provides for the use of covers on spa pools or • Harvesting hot tubs, in certain circumstances, as an alternative to • Replanting fencing. New clause F9 of the building code will address the requirements (a copy of the new clause F9 The NES Plantation Forestry is not intended to be a is set out in the Schedule to the Bill). blanket replacement of all existing rules or a removal of all regulatory power currently held by local authorities. • The insertion of new provisions into the Act means Where rules are more stringent than those in the NES that the enforcement powers provided in that Act will Plantation Forestry, they may, in some situations, prevail. be available to the matters currently provided for in Those situations include rules relating to: the FOSPA. These will be altered slightly to specifically accommodate pool fencing issues, including • activities within the coastal marine area (to align with confirmation that a notice to fix can be issued the New Zealand Coastal Policy Statement); requiring a non-compliant pool to be drained of water. • activities within geothermal and karst protection areas; • The existing definition of ‘immediate pool area’ in the • activities within areas of known cultural or heritage value; FOSPA will be retained (subject to some immaterial language changes), but shifted into the Act. Given the • activities within significant natural areas and uncertainties inherent in this definition, it is surprising outstanding natural features and landscapes; that it has not been substantially reworked. • activities within shallow aquifers (as groundwater • Territorial authorities will be obliged to inspect all systems may be complex in local areas); and pools in their districts on a 5-yearly basis, excluding spa • meeting the objectives of the National Policy pools, hot tubs, or portable pools. Statement for Freshwater Management 2014.

Decision Makers Newsletter - Spring Edition 2015 | 6 • Schedule 1 of the Act will be amended to provide that Select Committee (Select Committee). The Select various works associated with pools will not require a Committee has not released a closing date for building consent. submissions. However, a report is due on 16 March 2016. The Bill had its first reading on 16 September 2015 and If you have any questions, or require further information has been sent to the Local Government and Environment regarding any aspect of this newsletter, please contact us.

KEY CONTACTS

Kerry Anderson Stephen Quinn Partner Partner T +64 4 474 3255 T +64 4 474 3217 [email protected] [email protected]

Anne Buchanan Ashley Cornor Senior Associate Senior Associate T +64 9 300 3807 T +64 4 474 3221 [email protected] [email protected]

Megan Yardley Emma Manohar Senior Associate Senior Solicitor T +64 4 918 3063 T +64 4 918 3016 [email protected] [email protected]

Kierra Krumdieck Solicitor T +64 4 474 3228 [email protected]

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