Tasti Products Ltd v Auckland Council  NZHC 1673
Introduction and background
Tasti Products Limited (“Tasti“) is a food manufacturer operating 24 hours a day, six days a week on a site in Te Atatu owned by North Western Property Limited (“NWPL“). The business is growing, with the potential to expand operations onto adjoining properties owned by NWPL, Auckland Council granted consent to Midpoint Investments Limited (“Midpoint“) for a non-complying 24 unit commercial / residential development adjacent to Tasti’s manufacturing site on a non-notified basis. Tasti and NWPL sought judicial review of the decision not to give it limited notification of the consent application; the decision to grant consent for the redevelopment; and the decision not to notify a subsequent application to vary the consent conditions.
The first ground of review was that Council did not have adequate information to determine whether Tasti or NWPL were affected persons under the Resource Management Act 1991 (“RMA“). The Court commented that it doubted this issue was amenable to review, given the 2009 removal of the requirement for a council to be satisfied that it had received adequate information. Nevertheless, the Court proceeded on the assumption that Discount Brands remains good law on the issue of adequacy and found that the information before Council, while not perfect, was sufficiently comprehensive.
The second ground was whether the adverse effects of Midpoint’s proposal were such that the plaintiffs were affected persons. The Court criticised the formulation of the question, as it invites a consideration of the merits which is not part of the Court’s function on an application for judicial review, and instead considered whether the Council erred.
The Court found multiple errors in the Council’s decision:
· The Council considered the “sites”, rather than the “persons” affected when considering limited notification. Its primary focus should have been on persons and therefore it misconstrued a relevant statutory assessment under section 95E(1) of the RMA.
· The Council limited its consideration to adverse effects recognised by the operative plan, which gives reverse sensitivity effects only limited recognition (especially by comparison to the proposed plan). As a consequence, the Council only very briefly considered reverse sensitivity effects, and only by reference to the operative plan and only in relation to noise. This enquiry did not go far enough.
· The Council posed too high a test when considering whether or not a person was affected. The Council had considered whether the operative plan’s permitted activities would be “precluded” on other sites (such as Tasti’s) if the proposal was to proceed, whereas under sections 95B and 95E of the RMA if the effects are minor or more than minor, a person is affected. The standard is not high, and if persons carrying out permitted activities could be limited or constrained in so doing in a minor way they will be affected.
The notification decision referred only to the operative plan, and not to the proposed plan. Justice Wylie agreed with Tasti’s argument that the overall planning framework is necessarily a relevant consideration at notification, as the assessment of who is affected cannot occur in isolation. Consideration of the context in which the notification decision needs to be made is informative. The objectives and policies of a proposed plan that are required to be taken into account under section 104 of the RMA, are also relevant in determining whether a person was affected by the application under section 95E(1). In this situation, those objectives and policies, if adopted as notified, are likely to afford greater protection to existing landowners/occupiers in the area with a greater focus on reverse sensitivity.
The Court found that the Council erred by asking itself the wrong questions and failed to take into account all relevant considerations. The Court ruled that the Council’s notification decision was invalid, and that the consent and variation decisions must also fail. The decisions were quashed with the matter sent back to be considered afresh.
The High Court’s decision serves as a timely reminder that the planning framework provides the context for the effects assessment, and that regard must be had to both the operative and any proposed plan to get a full understanding of that context. It is also important to consider the person affected, being the owners and occupiers, rather than the land potentially affected by the application.
Of interest, the Court commented that, in these kinds of proceedings, it is not helpful for parties to file voluminous affidavits from planners seeking to criticise or support the council’s decision. The decision stands or falls by itself, criticism or justification does not change that.