FROST v QUEENSTOWN LAKES DISTRICT COUNCIL [2021] NZHC 1474

FROST v QUEENSTOWN LAKES DISTRICT COUNCIL [2021] NZHC 1474

Court found reviewable error: the Council misapplied the statutory test for affected persons in respect of vegetation removal (used 'not more than minor' instead of 'less than minor') and wrongly treated a registered consent notice as equivalent to a site standard when cancelling it; as a result the cancellation decision (notification and substantive) was quashed and the consent notice reinstated, but the Court declined to quash the land use consent in the exercise of its discretion given prejudice and factual circumstances.

Citation
[2021] NZHC 1474
Parties
First Applicant: Murray Neil Frost; Second Applicant: William Alan Nicholas Brown; Third Applicant: Jennifer Dixon Munn; First Respondent: Queenstown Lakes District Council; Second Respondent: David Clarke; Second Respondent: Paula Clarke; Second Respondent: PKF Goldsmith Fox Trustees #3 Limited
Court
High Court
Jurisdiction
New Zealand
Judgment Date
21 June 2021
Procedural Posture
Judicial Review Under Resource Management Act (rma) / High Court Judgment Delivered 21 June 2021
Outcome
Notification and substantive decision cancelling consent notice quashed; consent notice reinstated; declaration that limited notification decision on land use consent was legally flawed but relief in relation to land use consent declined; leave reserved for implementation issues
Legal Topics
Notification, Affected Persons, Consent Notices, Vegetation Removal, Visual Amenity, Building Height, Judicial Review
Resource Management Administrative Law Property Law Notification Affected Persons Consent Notices Vegetation Removal Visual Amenity +2 more

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Parties

Murray Neil Frost

First Applicant

William Alan Nicholas Brown

Second Applicant

Jennifer Dixon Munn

Third Applicant

Queenstown Lakes District Council

First Respondent

David Clarke

Second Respondent

Paula Clarke

Second Respondent

PKF Goldsmith Fox Trustees #3 Limited

Second Respondent

Procedural Posture

Judicial Review Under Resource Management Act (rma) / High Court Judgment Delivered 21 June 2021

Legal Issues

  1. 1 Whether Council erred in notification decisions under ss95A-95F and s95E RMA by failing to identify affected persons
  2. 2 Whether Council had sufficient information and correctly assessed adverse effects of vegetation removal
  3. 3 Whether Council wrongly treated the 7m site standard as a permitted baseline in assessing height effects

Ratio Decidendi

Court found reviewable error: the Council misapplied the statutory test for affected persons in respect of vegetation removal (used 'not more than minor' instead of 'less than minor') and wrongly treated a registered consent notice as equivalent to a site standard when cancelling it; as a result the cancellation decision (notification and substantive) was quashed and the consent notice reinstated, but the Court declined to quash the land use consent in the exercise of its discretion given prejudice and factual circumstances.

Court Disposition

Notification and substantive decision cancelling consent notice quashed; consent notice reinstated; declaration that limited notification decision on land use consent was legally flawed but relief in relation to land use consent declined; leave reserved for implementation issues

Orders

  • Notification and substantive decisions on application to cancel consent notice 982581.5 on Lot 60 DP 27493 quashed
  • Consent notice 982581.5 reinstated on the record of title for 28 Briar Bank Drive (Lot 2 DP 547764)