Case Law

The Associated Churches of Christ Church Extension & Property Trust Board v Auckland Council

Resource consent to remove a villa built in the 1880's

Author: Bronwyn Carruthers (Partner) and Evie Rainey (Solicitor), Russell McVeagh
Number: [2014] NZHC 3405
Court: High Court
Party: The Associated Churches of Christ Church Extension & Property Trust Board v Auckland Council

Background

The Associated Churches of Christ Church Extension & Property Trust Board (“Trust“) applied for resource consent to remove a villa built in the 1880s (“Villa“), from a site at 92 Point Chevalier Road in Auckland, and replace it with a new replica building.  The Auckland Council (“Council“) Hearings Committee (“Committee“) decided to publicly notify the Trust’s resource consent application, and the Trust brought a judicial review challenging that decision.

Initially, the Villa had had no heritage listing under the Historic Places Act 1993, nor did it meet thresholds for scheduling as a heritage building under the Operative District Plan (“ODP“) or the Proposed Auckland Unitary Plan (“PAUP“).  Therefore, under the ODP, the Villa could be demolished without Council consent, but a resource consent authorising the erection of a new building in its place was still required.  This was applied for and granted on a non-notified basis. 

However, the PAUP introduced new restrictions relating to the demolition of any buildings which existed prior to 1944.  Consequently, the Trust was required to file a new resource consent application to demolish/remove the Villa.  The Committee decided by a majority that this new application should be publicly notified pursuant to s 95A of the Resource Management Act 1991 (“RMA“) for the following reasons:

(a)   The building had considerable heritage and historical significance within its local context; and
(b)   The removal of the building had the potential to destroy the historic connection between the heritage building and the local area and result in more than minor adverse effects on the local point Chevalier and wider Auckland environment.

The Trust challenged the Committee’s decision to publicly notify the resource consent as having been made for one (or more) of the following reasons:

(a)     for an improper purpose;
(b)     for un unlawful purpose;
(c)     irrationally;
(d)     unreasonably; and / or
(e)     in breach of the Trust’s legitimate expectation.

Essentially, the Trust argued that there was a “wide gap” between the evidence provided to the Committee and the Committee’s decision.  It argued that the Council’s decision was unreasonable because:

(a)     it was not based on the available evidence;
(b)     it departed from the recommendations of those advising the Council; and
(c)     it failed to provide reasons for not following those recommendations.

Council position

The Council contended that it was clear that section 95A of the RMA was and is the only relevant provision. 

The Council’s position was that the decision to require notification was made under s 95A(2) on the ground that the activity will have or is likely to have adverse effects on the environment that are more than minor.  The Council argued there was evidence on which the Hearings Committee could reasonably decide that the adverse effects of the removal and replacement of the original building were more than minor.

In the alternative, it was argued that the Council was entitled to require notification in the exercise of its general discretion under s 95A(1).

The Council had a number of further arguments, including that the decision by the Council to not follow the recommendation of its advisors about notification did not make the decision irrational or unreasonable.

Decision and reasoning

Was the Committee entitled to conclude s 95A(2)(a) applied?

Toogood J essentially only dealt with the first of the grounds contended by the Trust, that the Committee’s decision had been made unreasonably. 

His Honour followed the Wednesbury test, that the Council’s decision may be set aside if the decision was so irrational that no decision maker, acting reasonably, could have arrived at that decision. 

He also considered that the considerations to be taken into account are those in s 95A of the RMA which, themselves, must be applied in light of the general purpose of the RMA, namely sustainable management of natural and physical resources.  Noting that public notification allows the authority to gather information from people who are likely to be affected by the proposed action (giving them a right to be heard), Toogood J considered notification should be made where it will assist the objective of sustainable management.

Applying this analysis to the facts, Toogood J considered that the basis for the Committee’s decision must have been that removing this building, erected in 1880, had the potential to result in a more than minor adverse effect on the environment “merely because it was one of the two oldest buildings in the local area.”  His Honour considered the Committee did not refer to any evidence which supported that view, and he did not accept the submissions that the heritage values of a community are matters which elected members of a local authority were best placed to determine without reference to evidence and the purposes of the legislation.

Furthermore, His Honour considered the Committee reached their conclusion despite the many contra-indicators including:

(a)       the building was clearly no longer in its original state;
(b)       the nature of the decay and disrepair of the building meant that the extensive renovations necessary would restore its appearance only, not the integrity of the original structure; and
(c)       it was evident from the petition signed by hundreds of members of the community that local residents had no affinity for the building.

As such, Toogood J was satisfied that the Committee’s decision that section 95A(2) applied could only have been reached on the basis that the Committee failed to take into account the compelling evidence and advice to the contrary, and that this was not a decision a reasonable committee could have made in the circumstances.

Reasonable basis to require notification under s 95(1)?

In considering this issue Toogood J stated that the essential question the Committee was required to ask itself was whether notification would be likely to result in the Council receiving further information relevant to the issues for determination on the substantive application to remove the building. 

His Honour considered there was no evidence that it did so.  He also considered that public notification was unlikely to produce any significant additional material on the history of the building, or any other relevant issues.

The RMA’s objective of efficiency

As a final point, Toogood J considered that the conclusion that the Committee’s decision was not one that it could reasonably have made is supported by reference to the Resource Management (Simplifying and Streamlining) Amendment Act 2009 which was designed to increase efficiency in the consent process.

Relief 

Having made these findings, in particular with regard to the unreasonableness of the Committee’s decision making, there was no need for His Honour to make findings on any of the other grounds contended by the Trust.  Also, having found this, Toogood J considered that, as no reasonable committee could have decided that public notification was necessary under s 95A(2)(a) of the RMA, reconsideration by the Committee on a proper basis would inevitably result in a decision that notification should not be required.  As such, he directed that application for resource consent be processed by the Council on a non-notified basis.

Concluding comments

It is very rare for an applicant to judicially review a decision to notify (with most being challenges of decisions not to notify).  The 2009 amendments removed the presumption in favour of notification, and Toogood J has refined the remaining discretion to a question of whether notification would be likely to result in the Council receiving further information relevant to the issues for determination on the substantive application.  This will be useful for applicants, but could be seen as potentially further undermining the public participatory nature of the RMA.