WALLACE v AUCKLAND COUNCIL [2021] NZHC 3095

WALLACE v AUCKLAND COUNCIL [2021] NZHC 3095

Council erred as a matter of law by assessing effects against an environment that improperly included development requiring consent and by failing to specifically consider the effects of building intensity (number of dwellings and associated activities) on neighbourhood character and residential amenity under H4.8.1(2) and H4.8.2; those legal errors rendered the non-notification and substantive decisions unlawful and the Decisions and consents were quashed and remitted for reconsideration.

Citation
[2021] NZHC 3095
Parties
First Applicants: Gary Wallace; Vicki Wallace; Second Applicants: Richard Brabant; Eleanor Brabant; Third Applicants: Jason Orr; Lesley Orr; Fourth Applicants: Amanda Wilkinson; Matthew Washington; David Nicol; Fifth Applicants: David Pedersen; Tracy Pedesen; First Respondent: Auckland Council; Second Respondent: 44 Ventnor Limited
Court
High Court
Jurisdiction
New Zealand
Judgment Date
17 November 2021
Procedural Posture
Judicial Review of Council Resource Consent Decisions (rma) / Final Judgment (decision Delivered 17 November 2021)
Outcome
Notification decision and substantive decision quashed; resource consents set aside; application remitted to Council for reconsideration
Legal Topics
Notification, Limited Notification, Affected Persons, Restricted Discretionary Activity, Auckland Unitary Plan (h4), Neighbourhood Character, Building Intensity, Section 104/104 C RMA, Section 95 E RMA
Resource Management Planning Law Administrative Law Judicial Review Notification Limited Notification Affected Persons Restricted Discretionary Activity +5 more

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Parties

Gary Wallace; Vicki Wallace

First Applicants

Richard Brabant; Eleanor Brabant

Second Applicants

Jason Orr; Lesley Orr

Third Applicants

Amanda Wilkinson; Matthew Washington; David Nicol

Fourth Applicants

David Pedersen; Tracy Pedesen

Fifth Applicants

Auckland Council

First Respondent

44 Ventnor Limited

Second Respondent

Procedural Posture

Judicial Review of Council Resource Consent Decisions (rma) / Final Judgment (decision Delivered 17 November 2021)

Legal Issues

  1. 1 What constitutes the 'environment' for ss 104 and 104C and s 95E assessments
  2. 2 Whether Council lawfully limited its assessment to matters in H4.8.1(2) and correctly applied H4.8.2
  3. 3 Proper meaning and required assessment of 'building intensity' under H4.8.1(2)

Ratio Decidendi

Council erred as a matter of law by assessing effects against an environment that improperly included development requiring consent and by failing to specifically consider the effects of building intensity (number of dwellings and associated activities) on neighbourhood character and residential amenity under H4.8.1(2) and H4.8.2; those legal errors rendered the non-notification and substantive decisions unlawful and the Decisions and consents were quashed and remitted for reconsideration.

Court Disposition

Notification decision and substantive decision quashed; resource consents set aside; application remitted to Council for reconsideration

Orders

  • Quash the Council's Notification Decision dated 5 March 2021
  • Quash the Council's Substantive Decision dated 7 March 2021 and set aside the resource consents issued