GREEN v AUCKLAND COUNCIL [2013] NZHC 2364

GREEN v AUCKLAND COUNCIL [2013] NZHC 2364

The Court held the Council's non-notification decision was unlawful and unreasonable because the information relied on was inadequate and unreliable for s95E purposes (officers did not inspect the plaintiffs' property, used incorrect phrasing/tests, and failed to undertake sufficient comparative analysis of the original and proposed building platforms), the adverse effects on the plaintiffs were at least 'minor or more than minor', and accordingly the decision dated 26 October 2012 was quashed and remitted for reconsideration with direction that the plaintiffs be notified.

Citation
(2013) 17 ELRNZ 737
Parties
Plaintiffs: Jonathan Green and Megan Biles; First Defendant: Auckland Council; Second Defendants: Robert James Andrew Taylor and Doretta Palmolungo
Court
High Court
Jurisdiction
New Zealand
Judgment Date
11 September 2013
Procedural Posture
Judicial Review (resource Consent) / Judgment Delivered
Outcome
Council decision of 26 October 2012 quashed; matter remitted for reconsideration and plaintiffs to be notified; interim injunction to remain
Legal Topics
Notification, Consent Notice Variation, Limited Notification, Judicial Review, Natural Justice
Resource Management Act Administrative Law Property Law Notification Consent Notice Variation Limited Notification Judicial Review Natural Justice

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Parties

Jonathan Green and Megan Biles

Plaintiffs

Auckland Council

First Defendant

Robert James Andrew Taylor and Doretta Palmolungo

Second Defendants

Procedural Posture

Judicial Review (resource Consent) / Judgment Delivered

Legal Issues

  1. 1 Whether Auckland Council lawfully declined to give limited notification under ss95B and 95E of the RMA for an application to vary a consent notice (building platform)
  2. 2 Adequacy and reliability of information relied on by the consent authority in making a non-notification decision (Discount Brands principles)
  3. 3 Whether a comparative analysis of original and proposed building platforms was required for s221/s104 assessment

Ratio Decidendi

The Court held the Council's non-notification decision was unlawful and unreasonable because the information relied on was inadequate and unreliable for s95E purposes (officers did not inspect the plaintiffs' property, used incorrect phrasing/tests, and failed to undertake sufficient comparative analysis of the original and proposed building platforms), the adverse effects on the plaintiffs were at least 'minor or more than minor', and accordingly the decision dated 26 October 2012 was quashed and remitted for reconsideration with direction that the plaintiffs be notified.

Court Disposition

Council decision of 26 October 2012 quashed; matter remitted for reconsideration and plaintiffs to be notified; interim injunction to remain

Orders

  • Quash and set aside Auckland Council's decisions dated 26 October 2012 relating to the resource consents and consent notice variation
  • Direct Auckland Council to reconsider its decisions and make new determinations by different officers, proceeding on the basis that the plaintiffs receive notification under ss95B(2) and 95E(1) of the RMA