MACPHERSON and MATHESON v NAPIER CITY COUNCIL and ANOR [2013] NZHC 2518

MACPHERSON and MATHESON v NAPIER CITY COUNCIL and ANOR [2013] NZHC 2518

The Council erred in law by treating the Trust's application as a controlled activity because, as lodged, it was substantively non-compliant (non‑complying garaging and failure to provide required NES reg 8 information for HAIL land), s88A does not save an application insofar as it was not properly treated as that type at lodgement, the NES and overlapping consent requirements meant the proposal was properly assessed as the most restrictive applicable activity (discretionary), and the consent granted on 15 March 2012 is invalid and must be set aside and remitted for reconsideration in accordance with law.

Citation
[2013] NZHC 2518
Parties
Applicant: J E Macpherson; Applicant: N J Matheson; First Respondent: Napier City Council; Second Respondent: Whatever It Takes Trust Incorporated
Court
High Court
Jurisdiction
New Zealand
Judgment Date
26 September 2013
Procedural Posture
Judicial Review Under Resource Management Act 1991 (resource Consent) / High Court Final Judgment (decision Delivered)
Outcome
Application for judicial review granted; resource consent dated 15 March 2012 set aside and returned to the consent authority for reconsideration in accordance with law.
Legal Topics
Activity Classification, Public Notification, National Environmental Standards (nes), Contaminated Land, S88 a Saving Provision, Judicial Review, Procedural Fairness
Resource Management Act 1991 Environmental Law Administrative Law Planning Law Statutory Interpretation Activity Classification Public Notification National Environmental Standards (nes) +4 more

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Legal principles 8 Authorities cited 11 Party arguments 2 Amounts and remedies 2
Sign in to unlock

Parties

J E Macpherson

Applicant

N J Matheson

Applicant

Napier City Council

First Respondent

Whatever It Takes Trust Incorporated

Second Respondent

Procedural Posture

Judicial Review Under Resource Management Act 1991 (resource Consent) / High Court Final Judgment (decision Delivered)

Legal Issues

  1. 1 Whether the Council correctly treated the application as a controlled activity when it was non-compliant on lodgement (garaging and NES information)
  2. 2 Whether the NES Regulations requirements could be deferred and addressed by consent conditions or had to be satisfied before classification/consent
  3. 3 Whether the application should have been notified (public or limited) given the correct activity classification and overlapping consents

Ratio Decidendi

The Council erred in law by treating the Trust's application as a controlled activity because, as lodged, it was substantively non-compliant (non‑complying garaging and failure to provide required NES reg 8 information for HAIL land), s88A does not save an application insofar as it was not properly treated as that type at lodgement, the NES and overlapping consent requirements meant the proposal was properly assessed as the most restrictive applicable activity (discretionary), and the consent granted on 15 March 2012 is invalid and must be set aside and remitted for reconsideration in accordance with law.

Court Disposition

Application for judicial review granted; resource consent dated 15 March 2012 set aside and returned to the consent authority for reconsideration in accordance with law.

Orders

  • The decision of Napier City Council dated 15 March 2012 granting resource consent to Whatever It Takes Trust Incorporated is set aside.
  • The matter is remitted to Napier City Council for reconsideration in accordance with the Resource Management Act 1991 and the National Environmental Standard Regulations, including correct classification of activity and appropriate notification assessment.