Reuters Homes Limited v Wanganui District Council
The limits of section 92 requests for further information
A recent decision of Justice Dobson in Reuters Homes Limited v Wanganui District Council (CIV-2010-483-278) is a reminder of the limits of section 92 requests for further information.
Reuters Homes Limited owns a relatively large block of land in suburban Wanganui, adjoining two substantial properties owned by Presbyterian Support Services (“PSS“) and Hospice Wanganui (“Hospice“). Reuters developed a subdivision proposal for its land, in consultation with PSS and Hospice, that created 35 small residential sites accessed by a cul-de-sac off the main road, Virginia Road. The intention was to create small units for elderly occupants in a quiet and secure living environment.
However, the District Plan showed an indicative road running through the Reuters land, connecting Virginia Road through to Edmonds Drive. Council officers expressed a wish for this connection at the first meeting with the developer post-lodgement. Reuters responded by explaining that the concept plan had been under development for two years in negotiations with PSS, and that providing a through road would require significant changes in design involving yet further negotiations with PSS. Reuters advised that in light of the adverse financial implications and adverse effect on the character that Reuters and PSS were hoping to create, the request for road connectivity was unreasonable.
The Council then followed up with a request for further information under s92 of the RMA, seeking “a revised roading layout and configuration showing the connections required.” Reuters responded, objecting to the request, and explaining why it was neither desirable nor feasible to provide the roading connection. The Council considered it was left with no option, but to fully notify the proposal under s95C of the RMA.
Reuters judicially reviewed the Council’s decision to notify, seeking orders that the request for further information was unlawful, the decision to publicly notify was unlawful, and that the Council had acted in abuse of its powers. In essence, Reuters claimed that the context in which the Council resorted to s92 as a device to force it to introduce a significant change construed a misuse of the power to request information in relation to an application, leading to an unlawful exercise of the default power under s95C to require public notification on account of the perceived inadequacy of the information.
The Court agreed. It held:
“On any view of the proposal, the transformation of the roading servicing it from a relatively small cul de sac, to a through road, would substantially transform the proposal. Reuters sought to develop a community that was complementary to two existing uses on its boundaries, with both PSS and Hospice supporting the cul de sac formation and being opposed to any through road.
WDC’s request did not seek information enabling it to better understand the traffic consequences of the cul de sac proposed. Rather, WDC sought to require the developer to transform its proposal into one that would address WDC’s objectives for a much wider area, in terms of roading development.“
The Court agreed with Reuter’s legal analysis that:
- Power will be abused if it is invoked for a purpose that is inconsistent with, or goes beyond, the purpose for which the statute has created the power;
- A purpose will be improper if it goes beyond the purposes for which the statute has created the power.
The Court held that Council officers had clearly misconstrued the scope of the power available to them under s92 as the request required Reuters to recast, in a substantial manner, the detail and scope of its application. This did not constitute a request for information on the application as lodged, but instead sought to transform that application. The Court noted:
“In other situations, requests for further information that might contemplate rearrangement of details, or inclusion of alternatives for some details, of a proposed development could be justified. Within the present context, the difference is so significant as to require the developer to transform the proposal into a different development.“
Reuters was successful, with the Court making declarations that:
- The Council could not require the provision of an amended plan addressing its own road connectivity aspirations pursuant to an information request under s92; and
- The Council had erred in law in treating Reuter’s refusal as a sufficient refusal to provide further information for the purpose of the default power to notify in section 95C.
A request under s92 must be for information that relates to the application, which is required to enable the Council to be satisfied as to the nature, scope and extent of the application and its actual or potential effects. This recent decision of the High Court makes it clear that s92 requests cannot be for the purpose of “transforming” the application into something else.
Applicants should take care before responding to s92 requests that appear to be somewhat out on a limb, particularly when the request involves providing a significantly different “alternative” to that applied for. Otherwise, the Council may elect to grant consent to the “alternative” provided in a further information request, instead of to the application before it.