Frosty neighbours win against council's erroneous decisions

Tuesday 5 October, 2021

“Less than minor” or “not more than minor” - does it matter if a council gets the wording of the limited notification test wrong?

Queenstown Lakes District Council recently faced a judicial review of its decisions to grant land use consent for the construction of a home in Beacon Point, Wanaka as well as to remove a consent notice from the property’s title. The applicants sought judicial review of the Council’s decision to process the two applications on a non-notified basis, as well as its comparison of the effects of the proposed activities against the site standards and zoning rules. The applicants were not aware of the resource consent decisions until construction began for the home. Despite the applicants’ timely initiation of the judicial review proceedings, the consent holders had already spent more than $1,500,000 on building their home by the time the High Court heard the matter.

“Less than minor” test for limited notification

The first successful ground of appeal concerned Council’s decision on whether limited notification of resource consent application was required. The Council concluded that the effects of the vegetation removal were “not considered to be more than minor”. This was fatal to the Council’s case because the test for affected persons under s 95E(1) of the RMA for limited notification requires that any effects on people must be “less than minor” to qualify for non-notification. The Council attempted to argue that its notification decision must be read as a whole and when doing so, it was clear that the only conclusion which could be drawn from its decision was that there were no affected persons.

The Court did not agree. The Council argued that it had relied on the assessment of environmental effects (AEE) provided by the applicant, which referred to the correct test, but the Council had made additional comments on the AEE.  Those additional comments showed that the Council officer had clearly reached her own view on the effects of removing the vegetation, using the incorrect version of the test, so the Council could not rely on the AEE to fix its decision. The proverbial nail in the coffin was that the officer simply did not explain in those additional comments in her report why she determined that the owners or occupiers of neighbouring properties would not be affected by the vegetation removal, so this ground of review was upheld.

Removal of a consent notice

The applicants also successfully argued that the Council had agreed to remove a consent notice on the title on an unlawful basis. The consent notice required permanent screening of any house built on the site when viewed from the shoreline of Lake Wānaka. The Council removed the consent notice on the basis that the applicable site standard in the District Plan (requiring an assessment of visibility from the shoreline) had the same effect as the consent notice.

The Court held this was incorrect.

A consent notice is a mandatory requirement that must be complied with on an ongoing basis; whereas a site standard can be breached if authorised by a resource consent. Consent notices are rarely removed unless there has been a change in the environment rendering the original purpose of the consent notice redundant. Conflating the two very distinct statutory mechanisms was a fatal error. The correct approach was to focus upon the effects of vegetation removal and in turn, how this may affect public certainty about the requisite planting that should have been in place as secured by a consent notice on the title.

Decision

The lack of a proper and correct assessment of the adverse effects of removing the vegetation was the main reason the Council was found to have erred in both decisions, particularly by using the wrong legal test in the land use consent limited notification decision.

Relief

Despite the Council’s errors, the Court exercised its discretion to not fully grant relief, because quashing the land use consent would have been unfair on the consent holders, who had spent millions of dollars on constructing their home in the belief that their resource consents were valid.

The Court considered that the visual prominence of the house would have been reduced if the consent notice requiring screening had remained in place, so it ordered that the consent notice be reinstated on the title, despite the title having since been subject to a boundary adjustment.

What did the Council have to do to rectify its errors?

The Court ordered the Council to reassess its decisions on the notification of the application to remove the consent notice, and on the application itself, by properly and correctly assessing the effects of the cancellation in light of what the consent notice intended to achieve. This reassessment would incorporate the changes to the environment created by the partial construction of the new home and the consideration of any alternative proposed to achieve the objectives of the original consent notice condition.

If the Council were ordered to reassess the land use consent application as well, it would have had to explain why the owners or occupiers of neighbouring properties would not be affected by the proposed activity.

A reminder to councils

Frost v Queenstown Lakes District Council is a useful reminder of how important it is to use the correct statutory test and not substitute a council’s own wording for the words in the statute. In this case, had the house not already been under construction, the Court may have set aside the land use consent in addition to the consent notice cancellation.

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