LAKE TEKAPO COMMUNITY & FRIENDS INC v MACKENZIE DISTRICT COUNCIL [2021] NZHC 1354

LAKE TEKAPO COMMUNITY & FRIENDS INC v MACKENZIE DISTRICT COUNCIL [2021] NZHC 1354[9 June 2021]IN THE HIGH COURT OF NEW ZEALANDTIMARU REGISTRYI TE KŌTI MATUA O AOTEAROATE TIHI-O-MARU ROHECIV-2020-476-000004[2021] NZHC 1354BETWEEN LAKE TEKAPO COMMUNITY ANDFRIENDS INCORPORATEDApplicantAND MACKENZIE DISTRICT COUNCILFirst RespondentAND TEKAPO SKY HOTEL LIMITEDSecond RespondentHearing: 25 September 2020Appearances: P A Steven QC and A R C Hawkins for the ApplicantD C Caldwell and G J Cleary for the First RespondentS M Chadwick for the Second RespondentJudgment: 9 June 2021JUDGMENT OF NATION JIntroduction[1] The applicant (the Society) was incorporated in December 2019, arising out ofconcerns some members of the Lake Tekapo community had over a development inthe Lake Tekapo township.[2] The second respondent (TSHL) is proposing to develop a new hotel. On 25September 2014, the first respondent (the Council) granted consent to TSHL for a newdevelopment (the 2014 development) on a site on the corner of Aorangi Crescent andD'Archiac Drive, Lake Tekapo (the site). The Council authorised construction andoperation of a development comprising motel units and hotel rooms.[3] In November 2016, TSHL applied for a resource consent for a somewhat variedvisitor accommodation complex and associated car parking (the 2017 development).With the proposed changes, the 2017 development was to be for 114 apartments in thenature of a hotel rather than motel accommodation.[4] On 3 July 2017, the Council issued decisions that the application not be notifiedand granting consent for the 2017 development (the 2017 decisions).[5] In January 2020, the Society filed these judicial review proceedings seekingdeclarations that both the notification and substantive decisions in the 2017 decisionswere invalid and to quash them.Legal framework[6] The Society referred to a statement from the High Court in Videbeck vAuckland City Council:1In effect, the consent authority (or its delegate) is making a decision to denythe public (or a particular member of the public) the right to be heard, withoutgiving to them any opportunity to influence that decision. The very nature ofthe decision requires the Court to be vigilant when exercising its supervisoryjurisdiction, on review.[7] The Council suggested the approach referred to in Videbeck and the referenceto the "extraordinary nature of a non-notification decision", might no longer beappropriate given the substantial legislative changes to the Resource Management Act1991 (RMA) notification regime in 2009. These changes led to the removal of theprevious presumption in favour of notification.[8] The Council referred to statements made by the Court of Appeal in Far NorthDistrict Council v Te Runanga-A-Iwi O Ngati Kahu.2 In that case, the Court of Appealreferred to Blanchard J's statement in the Supreme Court in Discount Brands Ltd vWestfield (New Zealand) Ltd (Discount Brands) as to the need for the Court on ajudicial review application to carefully scrutinise the material on which the consent1 Videbeck v Auckland City Council [2002] 3 NZLR 842 (HC) at [35].2 Far North District Council v Te Runanga-A-Iwi O Ngati Kahu [2013] NZCA 221.authority's non-notification decision was based because the consequence of such adecision excludes those who might have sought to oppose the application.3[9] The Court of Appeal said:4[55] It is unclear whether and to what extent White J ultimately relied onBlanchard J's statement in Discount Brands. However, we reject Mr Gardner-Hopkins' submission that in this context the statement can be construed assupporting what has been labelled the "hard look" approach to judicial reviewand this non-notification decision in particular.[56] In our judgment the aims and purposes of the RMA cannot be construedas justifying a more intensive standard of review of a non-notification decisionthan would otherwise be appropriate for a Court when exercising its powers.The judicial inquiry is required to determine whether the decision maker hascomplied with its statutory powers or duties. The construction or applicationof the relevant provisions remain objectively constant, and there can be nojustification for adopting a sliding scale of review of decisions under the RMAaccording to a judicial perception of relative importance based upon subjectmatter.[10] The Court of Appeal however then confirmed the High Court needed tocarefully scrutinise the material in support of the application where a Council decisionnot to notify is challenged.5[11] In Coro Mainstreet (Inc) v Thames-Coromandel District Council, the Court ofAppeal made it clear they should not be taken to have accepted that amendments madeto the RMA since Discount Brands have had no effect on the non-notification processand on the analysis of the previous law in the Supreme Court's decision in DiscountBrands.6 They said that, if the point had affected the outcome of the case, they:7 would have wanted to consider whether the 2009 amendments gave effectto the apparent intention of Parliament to give consent authorities greaterscope to decide not to notify resource consent applications, and to reduce theintensity of review to be applied to non-notification decisions from thatmandated in Discount Brands.3 Far North District Council v Te Runanga-A-Iwi O Ngati Kahu, above n 2 at [53], citing DiscountBrands Ltd v Westfield (New Zealand) Ltd [2005] NZSC 17, [2005] 2 NZLR 597 at [116], alsoknown as Westfield (New Zealand) Ltd v North Shore City Council.4 Far North District Council v Te Runanga-A-Iwi O Ngati Kahu, above n 2.5 Far North District Council v Te Runanga-A-Iwi O Ngati Kahu, above n 2, at [57], citingPalmerston North City Council v Dury [2007] NZCA 521, [2008] NZRMA 519.6 Coro Mainstreet (Inc) v Thames-Coromandel District Council, [2013] NZCA 665, [2013]NZRMA 73 at [41].7 At [41].[12] In Auckland Council v Wendco (NZ) Ltd, the Supreme Court said, because itwas satisfied the Discount Brands standard was in fact met, it did not have to decidewhether that standard was still appropriate, but noted:8[47] It is arguable that subsequent changes to the RMA mean that anapproach to non-notification decisions which is less exacting than thatrequired by Discount Brands should now be adopted.[13] In Speargrass Holdings Ltd v van Brandenburg, the Court of Appeal said thefact the consent application was for a restricted discretionary activity was a factorwhich the Council (or, in that case, a Commissioner) could take into account indeciding that notification was not necessary.9 Also, where there had been an errormaterial to the Commissioner's decision not to notify, the significance of that errorhad to be assessed against the whole background, including the fact the Council wasrequired to treat the application as requiring restricted discretionary activity consent.10[14] This Court did not receive extensive detailed submissions on how the Courtshould assess the adequacy of the information which the Council had before it whenmaking its non-notification decision.[15] In the Discount Brands approach, as articulated by Blanchard J, the Judgesrecognised that, prior to 1 August 2003, s 93(1) of the RMA provided that a Council'sobligations on receipt of an application, including its obligations in regard tonotification, were triggered once it was satisfied that it had received adequateinformation.11 There is no longer that threshold in the RMA.[16] The approach the Court should take in assessing the adequacy of informationhas been carefully discussed in a number of subsequent High Court cases. These werecarefully considered and referred to in the judgment of Fitzgerald J in Mills v FarNorth District Court.12 She decided it was appropriate to proceed:13 on the basis that while there is no separate ground for judicial review basedon the (now repealed) statutory requirement for a consenting authority to besatisfied as to the adequacy of the information, a decision [not] to notify a8 Auckland Council v Wendco (NZ) Ltd [2017] NZSC 113, [2017] 1 NZLR 1008.9 Speargrass Holdings Ltd v van Brandenburg [2019] NZCA 564, (2019) 21 ELRNZ 466, at [71].10 At [75].11 Discount Brands Ltd v Westfield (New Zealand) Ltd, above n 3, at [101].12 Mills v Far North District Court [2018] NZHC 2082.13 At [142].resource consent, and to grant a consent itself, must nevertheless be reachedon the basis of adequate and reliable information.I approach matters the same way.[17] It cannot however be said that the Court must start with a presumption that acouncil should consult with or obtain information from potentially affected partiesbefore making a notification decision. To start with such a presumption would be toignore the intent of Parliament's 2009 legislative amendments which gave greaterscope to councils to decide not to notify resource consent applications.[18] It is accepted that the principles applying to judicial review of notificationdecisions are summarised in the following passage from Coro Mainstreet (Inc) vThames-Coromandel District Council:14It is not the function of the Court on an application for review to substitute itsown decision for that of the consent authority. Nor, will the court assess themerits of the resource consent application or the decision on notification. Theinquiry the Court undertakes on an application for review is confined towhether or not the consent authority exceeded its limited jurisdictionconferred by the Act. In practice the Court generally restricts its review towhether the Council as decision maker followed proper procedures, whetherall relevant and no irrelevant considerations were taken into account, andwhether the decision was manifestly reasonable. The Court has a discretionwhether or not to grant relief even if it is persuaded that there is a reviewableerror.Evidential framework[19] The Society referred to statements from the High Court, such as that of WylieJ in Tasti Products Ltd v Auckland Council:15[75] It is the decision itself which is the subject of the review application,and not what Council officers, with the benefit of hindsight, say they did ordid not do in their affidavits. Nor it is helpful for parties to applications likethis to file voluminous affidavits by planners seeking to criticise or supportthe Council's decision. It stands to be considered in its terms and no amountof ex post facto criticism or justification can change it.14 Coro Mainstreet (Inc) v Thames-Coromandel District Council, [2013] NZHC 1163, [2013]NZRMA 442 at [40] (footnotes omitted).15 Tasti Products Ltd v Auckland Council [2016] NZHC 1673, [2017] NZRMA 22.[20] The Society submitted that much of the affidavit evidence provided for theCouncil and TSHL sought to justify aspects of the Council's process and decision-making ex post facto and should not be read to the extent it did this.[21] I agree that, on judicial review, it is the decision itself which is the subject ofreview. Because the Court is not normally concerned with the merits of the decision,opinion evidence seeking either to support or challenge the decision, by reference toreasons referred to in the decision or otherwise, will be of no relevance. For thatreason, as Wylie J said in Tasti Products Ltd, it is not helpful for parties to file affidavitsfrom planners or from the parties themselves seeking to criticise or support theCouncil's decision.[22] Evidence of that sort was filed with an affidavit for TSHL from a trafficengineer. He began by saying he had been asked to provide his expert opinion inrespect of a number of transportation-related matters pertaining to the notificationdecision and subsequent granting of consent.[23] The Society also filed affidavits from its spokesperson Dr Zuleta and Mr M RNorman who is a member of the Society and also a traffic engineer. Both affidavits,particularly by way of reply, include many expressions of opinion or are by way ofsubmission on evidence filed for the Council or TSHL.[24] The Council filed an affidavit from a Mr Matthew Noon, a professionaltransportation planner employed by Abley Transportation Consultants Ltd (Abley)16which the Council had peer review an integrated transport assessment undertaken byAvanzar Consulting Ltd (Avanzar), consultants for TSHL. Much of Mr Noon'sevidence as to the enquiries Abley made in the recommendations they gave to theCouncil was unnecessary because it simply replicated what was apparent from thereports that had been made to the Council. The affidavit however also referred toinformation he had utilised in his peer review, which was not referred to specificallyin the reports to the Council but which he knew of through earlier work for the Council.For instance, he knew the Council had recently completed an upgrade of carparking atthe community hall near the site. Through earlier work for the Council, he was aware16 Abley is a specialist professional services company with abilities in transportation planning andengineering, spatial and data intelligence.of the times at which tourist coaches could be expected to arrive at the site and whenthey would normally leave. In some instances, Mr Noon gave an explanation for aview expressed in the Abley report, not apparent from the report itself, for instancethat Abley's consideration of parking requirements was undertaken from a normaldemand perspective, not from a peak demand perspective.[25] Affidavits were also filed by Ms Aswegen, the planner who, exercisingdelegated authority, had made the notification and substantive decisions. In heraffidavit, she explained the approach she had taken in adopting a s 42A report preparedby the consultant planner engaged by the Council to assist in the Council's assessmentof the application. The Council also filed a lengthy affidavit from its consultantplanner, Ms Hart. That affidavit provided planning information relevant to the site,which was unnecessary because it was included in the s 42A report she prepared forthe Council. She also referred to steps taken by the Council and TSHL in theprocessing of the application, again, unnecessary because these were apparent fromthe documents in the common bundle.[26] Ms Harte's affidavit however also included information she had as to relevantmatters which was not in her s 42A report. She was aware of an agreement betweenthe Council and TSHL requiring TSHL to pay for an upgrade of carparking at theTekapo Community Hall as well as the Council's agreement to TSHL's developmentof 10 additional parks on Aorangi Crescent. She said she had a good knowledge ofthe site and its surrounding environment, including the primary school, communityhall and early childhood facility, and the amount of vacant zoned land within the touristand residential one zones and the zone provisions which anticipated a degree of growthfor visitor accommodation and other activities within the receiving environment. MsHarte responded to certain criticisms that had been made for the Society, either throughDr Zuleta's affidavit or the statement of claim. For instance, the Society's claim that,with the resource consent, there was the potential for the complex to be used for motelaccommodation rather than hotel units. She referred to certain concerns that she hadin preparing her report and the way she had dealt with those in her s 42A report. Inthat way, she sought to provide an explanation for certain assessments she had madein her s 42A report and sought to justify those assessments. Such evidence could beconsidered an attempt to provide ex post justification for the assessment that wasapparent in the report itself so as to be objectionable.[27] I do not consider all the evidence of Ms Hart, Ms Aswegen and Mr Noon to beobjectionable in the way Wylie J referred to in Tasti Products.17[28] On review, the Court is concerned with the process by which the Councilreached its decisions and has to assess the information Council and its officers tookinto account in reaching its decisions. But, not all steps taken by the Council or itsofficers in considering an application will be apparent from the documentary recordor from the Council's decision.[29] Not all information relied on by the Council and its officers or engagedconsultants will be apparent from reports prepared for the Council or from its decision.That is especially so, as here, where those involved in the assessment of an applicationand the decision-making process have a knowledge of the area concerned fromprevious familiarity with the area and relevant issues relating to it.[30] In Duggan v Auckland Council, Venning J said:18 a consent authority is not required to expressly refer to every relevantconsideration and decision on every application. To do so would be to imposean impossible burden on the consent authority. Where the provisions are notexpressly referred to in the relevant decision it is for this Court to determineon the facts of the case before it whether it can be said the consent authorityhas considered the relevant provisions and weighed them as part of itsdecision.[31] In Trilane Industries Ltd v Queenstown Lakes District Council, Dunningham Jsaid:19It is not appropriate, on an application for judicial review of a notificationdecision under the RMA, to produce further expert evidence to support orreject the evidence relied upon by the relevant consent authority. If theCouncil relied on evidence which was prepared by someone with appropriateexpertise, and expressed a view that was reasonably available to that personon the proposal before them, the Council will not have erred.17 Tasti Products Ltd v Auckland Council, above n 15.18 Duggan v Auckland Council [2017] NZHC 1540, [2017] NZRMA 317 at [79] (footnotes omitted).19 Trilane Industries Ltd v Queenstown Lakes District Council [2020] NZHC 1647 at [53].[32] In Discount Brands, Blanchard J, relevant to notification decisions under thethen legislation but still applicable now, said, before a consent authority can properlybe satisfied that notification can be dispensed:20[106] it must have sufficient information in order to be able to make athorough comparison of the proposal with the applicable rules of the districtplan.[107] The information before the authority can be supplied by the applicant,gathered by the authority itself or derived from the general experience andspecialist knowledge of its officers and decision-makers concerning thedistrict and the plan. [33] Where the appropriateness of the Council's processes and the adequacy ofinformation it took into account are subject to challenge, evidence responding to thosechallenges is appropriate and is of assistance. However, the merits of the Councildecisions or of the steps it or its officers took cannot be based on ex-post justificationderived from further information or further opinions which were not taken into accountat the time.The background in summary[34] On 16 July 2014, TSHL applied to the Council for resource consent to enablethe construction and operation of a visitor accommodation complex on the site. Asmentioned, the proposal was treated as including both hotel and motel units and arestaurant/bar.[35] Under the district plan, the proposal was treated as requiring provision of 77on-site carparks. TSHL proposed that 56 spaces would be provided on-site with anadditional 20 spaces on the road reserve on Aorangi Crescent.[36] The 2014 consent was granted by the Council on 25 September 2014 statingthat the additional 20 on-street spaces would be sufficient to accommodate membersof the public using the community hall and deal with overflow from the hotel.[37] On 23 November 2016, TSHL lodged another application with the Council fora similar visitor accommodation complex at the same site. This was for 114apartments, all of a hotel nature without cooking facilities. The design was no longer20 Discount Brands Ltd v Westfield (New Zealand) Ltd, above n 3.for a C-shaped building but for two separate accommodation buildings with a grassswale between them. The proposal was for 40 on-site carparks and 15 on the roadreserve on Aorangi Crescent.[38] The application was accompanied by an assessment of environmental effectsprovided by TSHL. That assessment referred to visitor accommodation being apermitted activity but the application for the hotel building being for a controlledactivity generally because of plan rules as to design and appearance. The quantum ofonsite parking anticipated was identified as a discretionary activity. It suggested thatnotification of the application was not required. In that regard, TSHL asserted the2014 consent was part of the consented environment. They stated "the parkingdemand and anticipated curb parking solution is similar to the existing consentedenvironment". TSHL said no person had been identified as being affected by theproposed activity.[39] On 14 December 2016, the Council, through its resource management planner,issued a request for further information. Amongst other matters, in that request, theCouncil asked for confirmation as to the number of carparking spaces relating to theaccommodation aspect of the proposal, confirmation that use of the café/restaurantwould be limited to paying guests of the hotel and further information as to the 15carparking spaces which would be provided within the road reserve of AorangiCrescent. The Council asked for a traffic impact assessment to be provided by asuitably qualified individual "for a complete assessment of the potential effects". Therequest was for the assessment to address certain specified matters and "any others theexpert considers to be relevant".[40] The request referred to a requirement in the plan for road boundary planting ofa certain depth and of that standard not being met along the road boundary ofD'Archiac Drive. The Council required a landscaping plan to be provided "to allow athorough assessment to be completed as part of the consenting process". Theassessment was to deal with specific matters mentioned by the Council.[41] On 31 January 2017, TSHL's planners provided a landscape assessment fromChris Glasson Landscape Architects and also attached a traffic assessment report fromAvanzar prepared by its traffic engineer and director.[42] On 10 March 2017, the Council, through its resource management planner, saidit had reviewed the application and further information response but it required stillfurther information. It required the landscape assessment to be peer reviewed by MrJeremy Head, a landscape architect familiar with the Mackenzie Basin, and for thetraffic impact assessment to be reviewed by Abley.[43] On 19 March 2017, Dr Zuleta, as president of the Lake Tekapo playgroup,wrote to the Council expressing concerns regarding the proposed development.[44] On 25 March 2017, a letter was sent by the Lake Tekapo School Board ofTrustees to the Mackenzie District councillors indicating they had traffic-relatedconcerns that might arise with future developments in the area.[45] On 4 April 2017, the Chief Executive Office (CEO) of the Council wrote to DrZuleta at the P O Box number she had used for her letter written as Lake TekapoPlaygroup president (she says she never received the letter). The CEO said the Councilhad to consider all resource consent applications within the parameters of the RMAand the operative district plan, this required the Council to assess all proposals on theirmerits. He stated "the issue of traffic management will be a central consideration ofthis application and our planning staff will be taking care to ensure these matters arefully considered".[46] Between 24 March 2017 and 12 April 2017, there was correspondence betweenthe Council and TSHL's planner over the terms on which peer reviewers were to beengaged. TSHL suggested, in considering the current proposal, it was just thedifference in effects from those that would have resulted from the 2014 consent thatshould be considered. The Council said they had not decided to what extent theexisting consent was relevant but the Council was "simply trying to understand fullythe effects of the proposal in relation to the existing environment so [they could] makea notification on [sic] decision". The Council made it clear it did not agree to the termsof reference being restricted to a comparison between the previous consent and thethen current proposal. TSHL engaged the reviewers on that basis.[47] On 18 May 2017, Abley provided its peer review of the Avanzar assessment.[48] In June 2017, Jeremy Head, landscape architect, provided a peer review ofTSHL's landscape assessment.[49] On 30 June 2017, the Council's consultant planners, Arlene Baird and PatriciaHarte, of the firm Davie Lovell-Smith, issued a report on the proposed application forthe purposes of ss 95A(3)(a) and 95B(2) as to notification and ss 104 and 104C as tothe substantive application (the s 42A report). Subject to conditions, the reportrecommended the application be processed on a non-notified basis.[50] On 3 July 2017, the Council's planning and regulations manager, Ms Aswegen,issued a decision that the application proceed on a non-notified basis and granting the2017 consent pursuant to ss 104 and 104C of the RMA.[51] On 21 December 2017, the Council, through Ms Aswegen, issued a decisionapproving changes to the conditions on the 2017 consent. In these proceedings, thereis no challenge to the Council's process or decisions in approving those variations.Planning context for the application[52] As mentioned, visitor accommodation was a permitted activity within thetourist zone which applied to the site (subject to standards).[53] Resource consent was required under certain rules in the Mackenzie DistrictPlan (the district plan). Under the district plan, all buildings, extensions andredevelopments in the zone with a gross floor area greater than 10 square metres werea controlled activity in relation to design and appearance.[54] As required by the Council, TSHL provided a detailed assessment as tolandscaping design and appearance from Chris Glasson Landscape Architects Ltd. Itreferred to the dimensions of the proposed buildings, certain rooms being indented inthe buildings resulting in shadow lines to reduce the flatness of the building walls, thematerials to be used in the construction, the views other properties would have of thesite and the development, the proposed planting, and the retention of a large openspace between the two main buildings for drainage and amenity purposes. TheCouncil's landscape architect and the Council's consultant planners accepted that theseelements were consistent with the conclusion in the landscape report that thedevelopment would be well integrated into the site.[55] Rule 4.5.1 stated that any permitted activity that did not comply with aspecified permitted activity standard would be a discretionary activity but that "inconsidering any such Discretionary Activity the consent authority (the Council) shalllimit the exercise of its discretionary to the matters of non-compliance". One of thepermitted activity standards referred to, which the proposal did not comply with, waslandscaping.[56] The district plan required a landscaped area of an average depth of three metresand a minimum depth of one metre to be established along all road boundaries exceptentranceways. For the purpose of the rule, at least 50 per cent of the landscaped areahad to be planted with trees and shrubs. The proposal did not comply in terms ofpercentage or depth.[57] These matters of non-compliance were also addressed in the landscapingassessment obtained from Chris Glasson Landscape Architects and were the subjectof their overall conclusion earlier referred to.21[58] As to transportation, r 1 in chapter 15 of the District Plan stated:Any activity which does not provide for parking, access and loading inaccordance with the following standards shall be a discretionary activity inrespect of the matter(s) of non-compliance.[59] The district plan required that the surface of all parking and loading was to beformed and paved or otherwise maintained so as not to create dust or noise nuisanceor to deteriorate in adverse weather conditions. The proposal did not comply in thatparking spaces 34 to 40 were identified as being gravelled spaces over the swale (theopen area between the two buildings). The s 42A report recommended the Council'sdecision be made on the basis that parking spaces 34 to 40 were to be identified andalso to be sealed or constructed using permeable paving, and to be so maintained.[60] The district plan required the length of the vehicle crossing from the street tothe site to be a minimum of four metres and maximum of nine metres. The proposal21 At para [54].did not comply in that the vehicle crossing for the northern access on Aorangi Crescentwas more than nine metres. (The proposed northern vehicle crossing wasapproximately 10.5 metres wide at the curb face but reduced to less than nine metreson the site boundary.)[61] The s 42A report recorded concerns that the width of the crossing mightindicate to drivers there was two-way access at this point creating confusion forvehicles turning at the access. To address that concern, it recommended it be acondition of the consent that "no entry" signs and arrow markings should be installedat the relevant points to facilitate outbound traffic movements and to avoid trafficconflict.[62] The district plan required 53 parking spaces for the 114 hotel room complex,accompanying manager's accommodation and a café/restaurant. The proposalprovided 40 on-site but 15 off site.[63] In the planner's s 42A report and in Ms Aswegen's decision, there wasreference to the provisions in the District Plan which made the proposed developmenta discretionary activity but that was followed with the statement:In accordance with the above, the hotel building is a controlled activity inrelation to design and appearance. The activity is a restricted discretionaryactivity under this plan in relation to landscaping, parking numbers, surfacingof carparks and the length of vehicle crossings.[64] The plan did not however use the term "restricted discretionary activity". Inthe Act, restricted discretionary activity is defined as meaning an activity described ins 87A(3). It states:87A Classes of activities(3) If an activity is described in this Act, regulations (including any nationalenvironmental standard), a plan, or a proposed plan as a restricteddiscretionary activity, a resource consent is required for the activityand—(a) the consent authority's power to decline a consent, or to grant aconsent and to impose conditions on the consent, is restricted tothe matters over which discretion is restricted (whether in its planor proposed plan, a national environmental standard, or otherwise);and(b) if granted, the activity must comply with the requirements,conditions, and permissions, if any, specified in the Act,regulations, plan, or proposed plan.[65] Section 87A(3) defines a restricted discretionary plan as being an activity thathas been so described in a relevant document as such. Section 87A(3) however limitsthe way in which a Council must consider an application for consent as to such anactivity. It is clear from s 87A(3)(b) that the grant of a consent for a restricteddiscretionary activity cannot change the requirements, conditions and permissionsotherwise provided for in the District Plan.[66] Here, the planners referred to the matters as to which the consent was for arestricted discretionary activity when they had not been so described in the DistrictPlan. This was not however a ground on which the Society sought review of theCouncil's decisions. Nor would it have been a reviewable error. It was clear from theDistrict Plan that the development was for a discretionary activity only as to mattersover which the plan reserved a discretion to grant or refuse a consent or to imposeconditions on a consent. The plan expressly limited the Council's discretion to theways in which the development did not comply with the standards for the developmentto be a permitted activity. The plan thus required the Council to consider theapplication for the 2018 development and the matters of non-compliance withstandards in precisely the same way as would have been necessary had the term"restricted discretionary activity" as to such matters been used in the District Plan.That being the case, observations from the Court of Appeal and the Supreme Court, asto how applications for consent to a restricted discretionary activity are to beconsidered by consent authorities and how that is relevant on judicial review, arepertinent in this case.[67] Consistent with the Supreme Court's judgment in Auckland Council v Wendco,in determining whether to grant a resource consent for the restricted discretionaryactivities, the Council was entitled to have regard only to those matters over which ithad a restricted discretion in the district plan.22[68] The Council was required to notify those affected by the application unless theadverse effects on them of the lack of parking were less than minor. In addressing22 Auckland Council v Wendco, above n 8.whether that was so, the Council was required by s 95E(2)(b) of the RMA to ignoreany effects which did not relate to a matter for which a rule in the plan reserves controlor restricts discretion.[69] Apart from the non-compliance for stipulated parking spaces, there is nosuggestion that the other matters, which resulted in the development being adiscretionary activity, required notification of the application or the refusal of thesubstantive application. This is of some importance in this case.[70] On 19 March 2017, Dr Zuleta wrote to the Council in her capacity as the LakeTekapo playgroup president to express concerns regarding the proposed developmenton the site. While acknowledging the site in question was in the tourist zone, she said:The school and playgroup are the hub of this community and having highdensity tourist accommodation in such close proximity is poor planning andsimply dangerous.I trust you will look after the interests of our community and not those of agreedy developer.[71] In her first affidavit filed in support of the review application, Dr Zuleta said,in late 2016, residents were unaware of a Council decision not to notify the applicationfor its lack of sufficient parking but said that, at the time, they thought the privatecovenants (with restrictions as to the height of any buildings on the site) would meanthe hotel complex could not be constructed.[72] Quite reasonably, TSHL could have expected they would be able to develop avisitors' accommodation facility on the site because it would be a permitted activity,except as to the few aspects of the development which did not comply with relevantstandards. There is evidence the Society is challenging the decision over notification,not to ensure the developer would provide parking spaces to meet the requirements forthe proposed development as set out in the District Plan, but to prevent the site beingused for an activity which is permitted within a tourist zone.[73] Whatever the position, the Council nevertheless had to ensure it reached itsnotification decision and dealt with the application substantively in accordance withthe requirements of the RMA. I must decide whether it did so.Did the Council fail to consider whether there were any persons who might beadversely affected by the 2017 development such that they ought to be limitednotified on the basis:(a) that the district plan contained a rule that precluded limited notification ofthe application;(b) because the notification relied upon the earlier substantive assessment ofeffects under s 104(1)(a) and there was no separate consideration of effectsin making the notification decision.[74] The Society contends there were owners and occupiers of adjacent land whoought to have been considered including the Lake Tekapo playgroup, Lake Tekapokindergarten and Lake Tekapo school. The Society contends there was no attempt toidentify persons such as those who might be affected or to consider how they mightbe affected.[75] The Council accepted the Society correctly summarised the relevant provisionsof the RMA as to notification:1. By s95A(1) of the RMA, a consent authority may, in its discretion, decidewhether to publicly notify an application for a resource consent for anactivity unless (relevantly) by s95A(3) a rule in a plan precludes publicnotification of the application and the applicant has not requested publicnotification;2. By s95A(2) of the RMA, a consent authority must publicly notify theapplication if it decides that the activity will have or is likely to haveadverse effects on the environment that are more than minor;3. By s95D (a), in determining whether an activity will have or is likely tohave adverse effects on the environment that are more than minor, aconsent authority must disregard any effects on persons who own oroccupy−(i) the land in, on, or over which the activity will occur; or(ii) any land adjacent to that land;4. By s95B of the RMA, if a consent authority does not publicly notify anapplication for resource consent for an activity, it must decide (under s95E)whether, for the purposes of considering limited notification:(1) there is any affected person, affected protected customary rightsgroup, or affected customary marine title group in relation to theactivity;5. By s95B(2) of the RMA, the consent authority: must give limited notification of the application to any affectedperson unless a rule or national environmental standard precludeslimited notification of the application;6. By s95E of the RMA, the consent authority must decide that a person is anaffected person, in relation to an activity, if the activity's adverse effects onthe person are minor or more than minor, including on persons who ownor occupy land adjacent to or on the site the subject of the application.[76] Both Ms Harte, the consultant planner who prepared the s 42A report, and MsAswegen who made the non-notification decision deposed in affidavits that they hadnot considered the district plan precluded either public or limited notification. Moresignificantly, that approach was consistent with the terms of the s 42A report, adoptedas the reasons for the 2017 decisions.[77] In the 2017 decisions there were these sections:NotificationSection 95A-D of the RMA sets out the criteria for determining whether anapplication should be publicly notified, limited notified or non-notified. Inaccordance with section 95A(2)(a) a consent authority must publicly notifythe application if it decides (under section 95D) that the activity will have oris likely to have adverse effects on the environment that are more than minor.For the reasons given in the above discussion of effects, I consider that anyadverse effects from this proposal on the environment would be less thanminor, and therefore the application need not be publicly notified inaccordance with Section 95A of the Resource Management Act 1991.Persons who may be adversely affected by the activity [Section 95E]In accordance with section 95B(2) of the RMA, the consent authority mustgive limited notification of the application to any affected person unless a ruleor national environmental standard precludes limited notification of theapplication.Part 4.0 of the Transport Chapter states that resource consents in relation tosurface of parking areas (2j) are to be non-notified.I consider that no persons are affected by the proposal and therefore theapplication need not be limited notified.ConclusionIt is considered that the application can be processed on a non-notified basisin accordance with Sections 95A(2)(b) and 95B(2) of the ResourceManagement Act 1991.For the above reasons, it is considered that [sic] appropriate that theapplication be granted pursuant to Sections 104C, and 108 of the ResourceManagement Act 1991, subject to the imposed conditions.[78] There was thus reference to a rule which said there was to be non-notificationas to applications for resource consents in relation to surfaces of parking areas. It wasappropriate for that limitation to be mentioned because one of the areas of non-compliance which required resource consent related to the surface of the parking areaon the swale.[79] It is the substance of the decision which must be looked at.23 The nextparagraph clearly states that the application need not be limited notified because theplanner and then the decision-maker considered that no persons were affected by theproposal. Nowhere in the decision was it said that the application need not be limitednotified because of a rule precluding limited notification.[80] The Council was not in error in reaching its decision as to non-notificationbased on an error that a rule in the plan prohibited the limited notification.[81] Earlier in the report and the decision, it was made clear that resource consentwas required for matters other than as to surface of parking areas. Those matters werediscussed extensively in the report, all under the heading "effects on the environment".The conclusion reached after such consideration was that "overall it is considered thatthe proposed scheme achieves an outcome acceptable within the tourist zone and thatany adverse effects are less than minor".[82] It is apparent from the decision and from the documentary record of theCouncil's assessment of the proposal that the Council did consider whether there werepersons or parties in the vicinity affected by the application.[83] In responding to TSHL's application of 14 December 2016, the Councilrequired TSHL to provide a traffic impact assessment from a suitably qualifiedindividual. It required the assessment to address various specified matters and anyothers the expert considered relevant. One of the specified matters was:Effect of increased traffic flow and cumulative effects on existing activities.The proposal relates to a site adjoining a residential zone which includes Lake23 Sutton v Moule (1992) 2 NZRMA 41 (CA).Tekapo Primary School and [a] recently consented early childhood educationfacility. Consideration should be given to the potential to adversely impactthese activities and safety for pedestrians, particularly around drop off/pick uptimes.[84] TSHL's application included an assessment of environmental effects. Theintegrated transport assessment provided by Avanzar in response to the Council'srequest referred to the adjacent road environment. There was specific reference to "asmall school with 35 students" being to the north of the site, a community hall with an18 space off-street carpark being opposite and backpacker accommodation beinglocated directly to the south of the community hall.[85] Under the heading "Road safety" Avanzar said:A search of the NZ Transport Agency CAS database has shown that there areno crashes associated with the intersection of SH 8/Aorangi Crescent in thelast 10 years. There are also no crashes on Aorangi Crescent over the sameperiod. This suggests there are no underlying road safety issues. There is noreason to expect the currently proposed development to create any road safetyissues.[86] Avanzar referred to angle parking to be installed on Aorangi Crescent to serviceboth the hotel and the community hall. They also referred to the primary school beingserved by a pedestrian crossing in the vicinity of the proposed hotel access.[87] In processing the application, the Council required TSHL to arrange a peerreview of the traffic impact assessment first provided by TSHL by the Council'snominated consultant, Mr Noon, of Abley. The consultants were specifically asked toreview the TSHL traffic impact assessment in terms of:(a) rules under the district plan (section 15) including parking requirementsfor visitor accommodation activity;(b) differences between the consented and proposed activity, particularly onactivity, parking and vehicle access; and(c) other traffic-related considerations such as pedestrian movements, effectson the adjoining road network, specifically Aorangi Crescent and loadingarrangements, etc.[88] The primary school, community centre and early childhood care facility wereall located on or immediately off Aorangi Crescent.[89] In its peer review, Abley noted the proposed provision of additional spaces onAorangi Crescent were intended to service both the hotel and the community hall.[90] In the introduction to its review, Abley did refer to the 2014 consent but thensaid:The review of the traffic and transportation aspects of the resource consentha[ve] been informed by an assessment of the transportation rules in theMackenzie District Plan and an analysis of the effects of the non-compliancesthat may arise.[91] Abley considered how pedestrians on Aorangi Crescent could be affected bythe non-complying width of a vehicle crossing. They concluded there would be noadverse effects arising from this non-compliance provided that the landscaping area atthe northern access was amended as was ultimately required and "entry only" signageand markings were installed at the access.[92] In the report and in the 2017 decisions, the Council expressly held there wereno persons who might have been adversely affected by the proposal such that theyought to have been limited notified. In the report they did not refer expressly to theeffects on the Lake Tekapo playgroup, Lake Tekapo kindergarten and Lake Tekaposchool. But it is apparent from the report and decision that the Council did considerwhether there were persons or parties affected so as to require limited notification.[93] In the introduction to the report, there was a map showing the location of thesite in relation to neighbouring properties. There was specific mention of the sitebordering land forming part of the Lake Tekapo school under the heading "the existingenvironment". There was reference to land to the east being within the residential onezone and containing residential accommodation and a community centre. Inconsideration of the traffic and parking proposals, there was specific mention in theCouncil report of parking spaces that would be provided on Aorangi Crescent whichwould service both the hotel and the community hall opposite.[94] The 2017 decisions referred to Transport Policy 1A in the district plan:To protect the efficiency, safety and amenity of various activity areas, the statehighway network and the road hierarchy in the District by ensuring adequateon-site parking, loading and access provisions exist.Comment: These various aspects of the development have been assessed withthe conclusion that the safety, efficiency and amenity of the area and itsroading is not expected to be compromised. However as noted this will in partdepend on how the hotel is operated. It is therefore recommended that areview clause be included in the conditions to enable the conditions of consentto be reviewed if traffic related issues arise.In my opinion the application is consistent with the above and all otherrelevant objectives and policies in the District Plan, as the proposal willmaintain the character and amenity of the Tourist zone and will not adverselyimpact the nearby residential environment.[95] There was another section in the 2017 decisions which indicates the Councilhad regard to adjoining areas:Business Policy 2A – Impact On Business And Adjoining AreasTo avoid or minimise the adverse effects of activities in business areas so asto ensure these areas and adjoining areas remain pleasant, attractive and safe.Comment: The adverse effects of the hotel activity on this site are expectedto be limited to traffic generation. However if the site is well managed thetraffic movements to and from the site, including the on-street parking, shouldnot create road safety or any noise issues. The creation of an additional 5 carspaces opposite the community centre will also benefit users of the centre.[96] There was mention of the community hall at 7 Aorangi Crescent in the Councillandscape architect's peer review of the applicant's landscape assessment.[97] On 9 June 2017, TSHL, through its planner, emailed the Council offering topay for 10 additional angle parks on Aorangi Crescent close to or outside the LakeTekapo school for use/by (in conjunction with) the school. The offer was made withthe assertion that parking, as proposed in the application, was sufficient to meetdemand generated by the proposal and was conditional on a consent coming throughpromptly. That condition was not met and the provision of these 10 parks was not acondition of the consent ultimately granted. Nevertheless, the correspondence wasconsistent with the Council and TSHL being conscious of the proximity of LakeTekapo school and of the way parking and traffic movements arising out of thedevelopment could impact on the nearby school.[98] The Council was aware of the early childhood centre. On 15 December 2016,it issued a resource consent for the operation of that centre on a residential site but itwas for a maximum of 19 children at any one time, a maximum of two full-time staffmembers and hours of operation limited to between 9.00 am and 3.00 pm. It was acondition of the consent that there be nine carparking spaces on the site with a 1.5metre wide footpath providing foot access from the carpark to the site entrance.[99] The s 42A report, adopted as reasons for the Council decision, was preparedand reviewed by consultant planners engaged by the Mackenzie District Councilincluding Ms Harte.[100] Ms Harte explained she had worked with the Mackenzie District Council forin excess of 25 years. She said she was very familiar with the site of the proposedhotel on Aorangi Crescent and the surrounding area, having processed a number ofresource applications for hotels and accommodation at Lake Tekapo, accommodationand residential activities on D'Archiac Drive. Ms Harte confirmed her familiarity withthe area, in particular the primary school, community hall and early childhood facility.[101] Ms Harte's familiarity with these matters was within the category of the"extensive relevant knowledge" referred to by the Supreme Court in Discount Brands,knowledge that the Council could properly draw on in making its decision onnotification and the granting of a consent.24[102] Between 11 May 2017 and 31 May 2017, Ms Harte was copied into all emailsbetween the senior planner for the Council who was then initially processing theapplication and the applicant's agent. Those emails related to confirmation of receiptof plans and peer reviews.[103] Ms Harte's company took over the processing of the TSHL application on 31May 2017. She personally dealt with transportation issues as well as others and anassessment of the application against relevant provisions of the district plan. In heraffidavit, she responded to the allegation in the Society's statement of claim that theCouncil failed to identify and consider the neighbourhood/receiving environment,24 Discount Brands Ltd v Westfield (New Zealand) Ltd, above n 3, at [50].including changes to and new activities introduced into the neighbourhood since the2014 decision and/or changes or new activities planned for the future.[104] I do not consider her evidence could be assessed as an ex-post factojustification for the Council's decisions. It was consistent with the documentaryrecord of the process adopted by the Council in considering TSHL's application andthe decision itself. Insofar as she referred to her knowledge of the area based on herwork over a number of years for the Council, it was reasonable for the Council to takethat knowledge and experience into account in making its decisions.[105] Ms Harte's s 42A report described the general area and listed activities onneighbouring land. The s 42A report recommended the inclusion of a conditionrequiring TSHL to obtain approval of the specific plans for the proposed on-streetparking and associated landscaping. This was consistent with the planner having aconcern as to how TSHL's proposals for on-street parking and associated landscapingcould limit visibility for both pedestrians and bus drivers in the vicinity of the accesspoint for the hotel.[106] I do not accept the submission for the Society that the Council failed toconsider the owners and occupiers and adjacent land, including the Lake Tekapoplaygroup, Lake Tekapo kindergarten and Lake Tekapo school.[107] The Society also submits there was no relevant assessment of adverse effectson adjacent persons identified because the Council relied on the earlier assessment ofeffects as to the substantive application.[108] The s 42A report was headed:Report / Decision on a Non-notifiedResource Consent Application(Sections 95A(3)(a), 95B(2), 104 and 104C)[109] It was thus a report as to matters to be considered for decisions as to bothnotification and the substantive s 104 application. Both counsel for the Council andMs Harte in her affidavit said that, at the time of the 2017 decisions, combineddecisions were commonplace although that practice has now changed. I accepthowever that there was and remains no statutory prohibition against the decisionsbeing made in combination although dealing with the issues separately probably betterensures that the particular criteria for decisions as to notification as opposed to theissues for determination of the substantive application are properly addressed.[110] In considering whether limited or public notification was required, the Councilhad to assess the effects of the proposal on the environment and people potentiallyaffected but only in relation to the matters of non-compliance with the district plan orthe basis on which the development was for a controlled activity. The report anddecision included a detailed assessment of the effects on the environment and as to thematters of non-compliance and the way any potential consequences/effects of non-compliance were to be mitigated.[111] I am satisfied that, in the s 42A report and the 2017 decisions, the Council didconsider the effects on the environment and the adverse effects on adjacent personsfor the purpose of the decision as to notification as well as for the purpose of decidingwhether to grant the substantive application.Failure to identify and consider receiving environment[112] The Society's second challenge was that the Council failed to identify thereceiving environment when undertaking the effects assessment. The Societysubmitted the Council ought to have undertaken a fresh assessment of effects on theexisting and future receiving environment as though the 2014 resource consent hadnot been issued. The Society submitted the decision did not refer to relevant aspectsof the receiving environment, namely the kindergarten consented on 15 November2016, the playgroup, the use of Aorangi Crescent as a new alternative route for theAlps to Ocean cycle trail which opened on 27 January 2016 and residential growth inthe vicinity of the site since 2014. The Society submitted the Council had limited itsassessment to a comparison between what was allowed with the 2014 resource consentand the effects of the development proposed by the 2016 application.[113] By reason of reference to various matters I have referred to at paras [81] to[105] I am satisfied the Council did identify and consider the neighbourhood/receivingenvironment to the extent required for it to have adequate information on which tomake decisions, first as to notification and then on the substantive application.[114] In addition to those matters, it is apparent that the Council and its planners hadbefore them a graphic supplement to the landscape assessment which featured not onlyan aerial view of the site and surroundings but a number of photographs whichillustrated the level of residential growth and development in the surrounding area asat 2016/17.[115] Mr Noon was the transportation manager at Abley who the Council relied onto peer review the integrated transport assessment undertaken by Avanzar for TSHL.[116] In his affidavit, Mr Noon said Abley had been engaged by the Council toprovide a range of transport, engineering and planning advice since 2016. Thisincluded the development and delivery of a transport strategy for the MackenzieDistrict Council and the development and delivery in 2016, the development anddelivery of Tekapo parking demand surveys and analysis in 2017. He had providedsupport and advice to the Council regarding the development of a Tekapo transportplan, including running community/stakeholder engagement activities such asworkshops, public information stands and analysing community feedback. He said hewas familiar with land use matters that influenced transport planning for Tekapoincluding the growth in domestic and international tourism associated with, forexample, the development of the Alps to Ocean cycle trail and also the districtobtaining dark sky reserve status in 2012.[117] I accept that Mr Noon had extensive relevant knowledge which was relied uponby Ms Harte in her s 42A report and then by Ms Aswegen in her 2017 consent decision.[118] As already referred to, Abley was asked in a general way to advise the Councilas to whether there were any safety issues the Council had to consider associated withthe 2017 development. I am satisfied that the planners in making theirrecommendations on the 42A report, and Ms Aswegen in reaching her consentdecision, did so with the benefit of knowledge as to relevant aspects of the receivingenvironment with regard to actual and potential transport issues, as might arise forpeople in the neighbourhood of the development.[119] The Society has also not established that the Council assessed the effects of the2017 development by simply identifying and comparing the effects of the 2017development with the 2014 consented development.[120] TSHL had presented its application in 2016 with its assessment of environmenteffects as if the Council had to treat the 2014 consent as part of the receivingenvironment so that the effects of the 2016 development should be considered only tothe extent they were different from those that would have resulted from the 2014development.[121] TSHL's initial assessment of transportation issues was made on that basis.When Avanzar provided its integrated transport assessment as required by the Council,they referred to the existing consented environment with reference to the 2014proposed consented development. They concluded their summary by saying "overallthe new proposed hotel development will have fewer traffic effects than the existingconsented development and the effect of the changes will be less than minor".[122] The Council, through its planner, indicated to TSHL's planner and agent thatthe Council required a peer review of both the Avanzar transport report and theGlasson landscape assessment. TSHL's planner asserted to the Council that theconsented environment was highly relevant to the processing of the 2016 applicationand said that, "when the current proposal is compared to the consented environment,it is just the difference in effects that should be considered".[123] The Council's planner said the Council did not agree to the terms of referencebeing restricted to a comparison between the previous consent and the 2017development. In scrutinising TSHL's proposed terms of peer review for both thetransport and landscape assessment, the Council deleted TSHL's proposed referenceto the reviews having to be "only in terms of the differences between the consentedenvironment and proposed activity". The reviews were then arranged without thatlimitation.[124] The 2014 resource consent did not lapse until 25 September 2019.[125] The Court of Appeal has held it is open to the Council to consider the effectsof an unimplemented resource consent in assessing the effects of the instant proposalon the environment but whether or not and to what extent they would do so woulddepend on the facts of the particular situation they were dealing with.25[126] In this case, the application was for a development to replace the 2014consented proposal so that 2014 proposed development was not going to be part of thefuture environment if a resource consent was granted in terms of the later application.[127] Nevertheless, it could not be said, to the extent there was any consideration ofthe 2014 resource consent, it was as to an irrelevant matter. The 2014 consent hadbeen granted for a similar development on the same site by the same developer. Manyof the effects that had to be considered with the 2017 development must also havebeen considered with the 2014 resource consent. In 2014 the Council had to assessthe effects on the environment of the then proposed development, what steps shouldbe taken to mitigate any effects that could have been to the detriment of theenvironment or people in the vicinity of the development and the conditions thatshould be attached to a consent. It was reasonable for the Council to have regard tosuch matters when assessing whether notification was required and whether a resourceconsent should issue for the 2017 development.26[128] In the s 42A report, there was a reference to the 2014 consent under the heading"The Existing Environment" but only to state "an existing resource consent,RM140040, was granted in September 2014 for a 100 bedroom hotel on th[e] site witha different design, layout and parking arrangements". There were however briefcomments as to ways in which the layout and design of the 2018 development weresuperior to the 2014 development. There was a comparison of the parking proposalsbut the references were incidental to the Council's decisions.25 Arrigato Investments Ltd v Auckland Regional Council [2002] 1 NZLR 323 at [35]−[36]; andQueenstown Lakes District Council v Hawthorn Estates (2006) 12 ELRNZ 299 (CA) at [57] and[63]; and Far North District Council v Te Tunanga-A-Iwi O Ngati Kahu, above n 2, at [93].26 Consistent with the determination of Venning J in Duggan v Auckland Council, above n 18, at[87]−[90].[129] In her affidavit, Ms Harte said she had not considered it appropriate to use the2014 consent as a de facto baseline for the assessment of the effects of the 2017proposal. She said the primary bases for the assessment were the effects of non-compliance with the district plan standards and the degree to which the proposalconformed with the objectives and policies of the plan. While those statements in heraffidavit might be considered as an ex post justification for the Council's decision soas to be irrelevant, it is apparent from the report itself that this was her approach.[130] I accordingly reject the submission the Council failed to identify and describethe receiving environment or that it wrongly limited its assessment to a comparison ofthe effects of the 2014 consented activity with those of the 2018 development.Failure to assess safety issues[131] In her submissions for the Society, Ms Steven QC (as she was then) drew theCourt's attention to statements from the Supreme Court in Discount Brands Ltd vWestfield (New Zealand) Ltd to the effect that policies and objectives contained in aplan or proposed plan are to be taken into account in making both the substantivedecision on a resource consent application and in considering whether a person isaffected by the application so as to require limited notification to that person.27[132] The Society submitted that, as a consequence of not doing this, the Councilfailed to assess the adverse effects of the increased volume of traffic from a safetyperspective for visitors and pupils at the adjacent school, kindergarten and playgroup,including the potential for conflict associated with drop-off and pick-up times. TheSociety submitted that, through this omission, the Council failed to identify potentiallyadversely affected persons.[133] The criticisms reflect the concerns of Dr Zuleta as expressed in her letter,written as the Lake Tekapo playgroup president, on 19 March 2017 where she said theschool and the playgroup were the hub of the community and having high densitytourist accommodation in such close proximity is poor planning and simply dangerous.27 Discount Brands Ltd v Westfield (New Zealand) Ltd, above n 3, at [82].[134] In applying the plan, in particular as to matters in r 5, chapter 15, the Councilhowever had a discretion only as to the way the proposed parking and loadingprovisions did not meet the standards in the plan. The Council's assessment of effectscould not take into account the effects which would have been generated by a proposeddevelopment which would have met those standards. In its peer review of the Avanzarreport, Abley discussed the extent to which there was a difference between thestandards and what was proposed by TSHL. The difference was outlined in the s 42Areport and referred to in the reasons for the Council's decision.[135] In the s 42A report and the 2017 decisions, the Council referred to r 5, chapter15 of the district plan as to the standards for parking or loading spaces 28 for theproposed development and matters which it was required to consider:(a) whether a significant adverse effect on the character and amenity of thesurrounding area would occur as a result of not providing all the requiredparking or loading space;29(b) the extent to which the safety and efficiency of the surrounding roadingnetwork would be adversely affected by parked and manoeuvring vehicleson the roads;30 and(c) any cumulative effect of the lack of on-site parking and loading spaces onconjunction with other activities in the vicinity not providing the requirednumber of parking or loading spaces.31[136] It was apparent from the s 42A report that the Council did consider the supplyof parking in the vicinity. It noted there was to be a combination of contribution to theupgrade and enlargement of the community hall carpark opposite the development andthe creation of an additional on-street parking area adjoining the hotel. As to thepossible adverse impact on amenity and character of the areas around the development,through the provision of some of the required parking on the street, the s 42A report28 Rule 5, chapter 15(a), (b), (c) and (d).29 Rule 5, chapter 15(f).30 Rule 5, chapter 15(g).31 Rule 5, chapter 15(h).assessed that impact to be limited due to the design of the parking bay withincorporated landscape elements tying it to the streetscape in the area.[137] In terms of meeting varying parking demands, the assessment in the s 42Areport was that the proposed on-street parking bay would generally be an asset forpeople living in or visiting the area as it was considered unlikely there would besubstantial use of the parking area by hotel guests.[138] Before me, the Council acknowledged that the Avanzar report for TSHL andthe Council in the s 42A report and its decision did not expressly refer to safety issuesin relation to the school, playgroup or kindergarten. The Council nevertheless didrefer to the road environment, including the school and community hall, vehicle accessand consider the impact on intersections and road safety. The conclusion in theAvanzar report was "there is no reason to expect the currently proposed developmentto create any road safety issues". Abley's peer review of the Avanzar report did notidentify any safety issues.[139] In considering whether the Council had adequate information as to safetyissues in making its decisions it is appropriate to look at the way in which the proposeddevelopment and the provision for loading and parking spaces was a discretionaryactivity and did not meet the standards in the District Plan for a permitted activity.32Once account had been taken of the off-site parking on the road reserve which was tobe paid for by TSHL, there were to be 55 carparks. This was more than the 53 requiredto be on-site but 15 were on road reserve adjacent to the site. The other non-compliance was as to the increased width of an accessway to the 2017 development.Safety risks as to the latter were to be mitigated through there being appropriate exitand entry signs and markings on the road.[140] There was to be protection for the users of all nearby facilities and those whomight be using roads in that vicinity through it being recommended in the s 42A reportthat a review clause be included to enable the conditions of the consent to be reviewedif traffic-related issues arise.32 See Speargrass Holdings Ltd v Van Brandenberg, above n 9.[141] I consider the Council had adequate information to assess the effect on theenvironment and on neighbours of the ways the 2017 development did not complywith standards in the district plan as to the provision for parking and loading spaces,and the width of accessways. Furthermore, it made the necessary assessment. Themerits of its determination cannot be the subject of review.Failure to assess parking demands[142] The Society's further submission was that the Council overlooked the effectsof allowing parking within the road reserve to be used in association with the hotelcomplex when there are other demands from these spaces from other adjoiningactivities. The Society submitted the Council had no evidence that the parking demandfrom nearby community and residential activities would still be met, simply rolledover the on-street arrangement first formulated in 2014 without any updatedassessment of community parking demand, absent any consultation with the adjacentcommunity. It was suggested, through submissions and opinions expressed by DrZuleta and Mr Norman, that the Council had failed to consider potential increaseddemand for parking spaces that might be associated with the development, for instancethe use of the hotel by independent travellers with their own vehicles (as opposed tothose who arrived in a bus).[143] The Council did not however simply roll over the on-street arrangement firstformulated in 2014 without any updated assessment of community parking demands.It engaged Abley to peer review the Avanzar report. As Ms Steven for the Societyacknowledged, the terms of their engagement were not limited to consideration of theproposals in the 2017 development as compared to the 2014 development. Abley wasasked to advise as to whether there were any issues arising out of the proposals as totransportation issues including provision for parking. Although their report includeda comparison as to relevant features of the 2017 proposed hotel development againstthe 2014 consented development, Abley assessed the 2017 development "against thetransportation rules of the Mackenzie District Plan". It identified the way thedevelopment would not comply with certain rules and recommended consentconditions to mitigate any consequences for people in the area who might have beenadversely affected by the matters where there was non-compliance. Through MrNoon, the Council had the benefit of his knowledge as to both the current transportissues for the area and the potential for future increased demands.[144] In her affidavit Dr Zuleta said the Council would have been better informed asto the demands if there had been consultation with people in the community. TheRMA recognises that developments can proceed without such consultation eitherbecause the proposed development is a permitted activity in accordance with thedistrict plan or because, with adequate information, the Council decides on itsconsideration of matters as required by the RMA that such consultation is not required.[145] The Council decided, consistent with the s 42A report, that the effects on theenvironment and on people potentially affected by the proposed development, byreason of non-compliance with parking standards for a permitted activity, were notsuch as to require limited notification of the application. That assessment was madeon the basis there would be conditions attached to the consent that would mitigateconcerns that could arise through the matters of non-compliance.[146] I am satisfied that the Council made that decision with adequate informationas to the demand for parking that could result from both the proposed developmentand others needing to park or travel in that area.[147] The Society has not established that there was any error of process in thisregard.Conflation of decisions[148] The Society's final ground of appeal was that the Council wrongly conflatedits substantive s 104 assessment and decision with the decision on notification. Itargued that the decision whether to notify an application either publicly or on a limitednotification, "must logically [precede] the decision on the application itself".33[149] In Seafield Farm (HB) Ltd and Taranui Company Ltd v Hastings DistrictCouncil, as here, the Council had engaged an independent planner to process the33 Tasti Products Ltd v Auckland Council, above n 15, at [81].application.34 That planner provided a detailed report to the Council. As here, it dealtwith both notification and substantive resource consent issues. As here, the delegateddecisionmaker adopted the recommendations in those reports.[150] Dobson J held the decisionmaker had made separate decisions as to bothnotification and the substantive application.[151] Dobson J explained why it would be desirable for planners who had beenengaged in that case to provide a separate report dealing with notification issues buthe acknowledged the making of notification and substantive decisions at the same timewas not prohibited by the RMA.[152] In Milla v Ashburton District Council, an independent planner wascommissioned to prepare a s 42A report.35 His report included a recommendation asto non-notification and also as to the grant of the resource consent subject toconditions. The Council's district planning manager suggested he separate thecombined report into two reports, one dealing with the recommendation as tonotification and the other dealing with the substantive decision. He did this, but thecontent of the reports did not alter. The Council appointed an independent hearingsCommissioner to make both the notification and substantive decisions.[153] Dunningham J in the High Court found the Commissioner had made twoseparate decisions and, looking at the detail in the reports, there had been no errorthrough conflating the notification and substantive decisions.[154] The Society submitted that, in this case, there was not the duly requiredseparate notification decision because the assessment of effects referred to in the s 42Areport and adopted by the Council did not engage with the "finer grained"36notification test and that notification was undertaken in a most perfunctory manner.[155] I do not accept those criticisms.34 Seafield Farm (HB) Ltd and Taranui Company Ltd v Hastings District Council [2018] NZHC1980, (2018) 20 ELRNZ 746.35 Milla v Ashburton District Council [2016] NZHC 3015.36 At [77].[156] As evidenced by the Council's requirement for a further detailed landscapeassessment of the 2017 development and the requirement for the Avanzartransportation report to be peer reviewed by Abley, the Council had made a detailedand careful assessment of all relevant effects of the proposal insofar as they had to beconsidered by the Council in dealing with the proposal as a controlled activity or as arestricted discretionary activity.[157] Through the engagement of Abley as well as the report provided by Avanzar,there was careful consideration of parking, traffic and safety issues with which theSociety was concerned. As already referred to in the s 42A report, as adopted by theCouncil, there was separate consideration of the matters that had to be considered indeciding whether there should be limited notification of the application.37 A separatedecision was made as to such matters.[158] The Society has accordingly not established there was an error in the Council'sdecision as to non-notification by reason of the report writer and then thedecisionmaker conflating the substantive s 104 assessment with the decision onnotification. The decision as to notification and the substantive application were madeseparately.Overall conclusion[159] The 2017 development is for a hotel on the site, with accommodation in 114separate units. There will be a restaurant and bar but only for paid visitors to the hotel.The site is situated within the tourist zone, as provided for in the district plan. It couldbe expected that, with such a development, there would be increased bus and car trafficin the vicinity of the hotel and a need for parking. Those in the vicinity of thedevelopment could not have objected to such a development proceeding provided itmet all the standards for a permitted activity.[160] The 2017 development was a controlled activity as to design and landscapingissues. There is no challenge to the Council's conclusion that, as to those matters, the37 Above at [81]−[106].effects on the environment of the proposed development and on persons who mighthave been affected by the 2017 development would be less than minor.[161] The 2017 development did not meet the standards as to the width of one vehiclecrossing to the development and as to the requirement for a hard surface on a particularparking area. In terms of the consent which would be granted for the 2017development and conditions attaching to that consent, the Council was ensuring thedevelopment would proceed in a way that mitigated the effects of those areas of non-compliance in a way that meant those effects on the environment, and on people in thevicinity, would be less than minor.[162] The Society's concern is as to the way the proposed development couldadversely impact on other users of the roads adjacent to the site. They couldpotentially have had a right to be heard in respect of such effects only to the extentthose effects arose out of the ways the proposed development did not meet the relevantstandards for a permitted activity.[163] The standard at issue was a requirement that, with the development, there be aminimum of 53 on-site carparks. TSHL's plans provide for there to be 40 on-sitecarparks but a further 15 carparks on an area of road reserve on Aorangi Driveimmediately adjacent to the hotel. Those carparks will be available for those in thevicinity to use when they are not being used by visitors to the hotel. That parking areais to be landscaped and formed in a way that ensures the location of the parking spacesdoes not compromise the safety of pedestrians and others travelling in the vicinity.The consent was subject to the Council's approval of just how that is done. It was alsoa condition of the consent that the Council would be able to review the conditions ofthe consent if any safety issues did emerge through the way the hotel is being managed.[164] The Society's case is that the effects of the proposed development on theenvironment and on other people affected will or could be such that either public orlimited notification was required. The Society's concern is all about the impact thedevelopment would have on other people using the road or footpaths in the vicinity ofthe proposed hotel. In making its assessment about these matters, the Council'sconsideration was limited to considering what the effect would be of 15 carparks beingon road reserve adjacent to the hotel rather than on-site.[165] The Council required TSHL to provide both an environmental assessment anda transport assessment from independent consultants in support of TSHL's application.It had those assessments peer reviewed by appropriate consultants. With the benefitof their advice, the Council decided, to the extent there was a departure from therequired standard for parking, the effects of that departure on the environment and onpersons or activities who might otherwise have been affected would be less than minor.[166] It was not submitted for the Society that there were aspects of the 2017development consistent with a significantly increased density of scale beyond whatwould have been associated with an activity permitted by the district plan. It was notsuggested that, with such a potential increased density, there would be increased busor other traffic movements beyond what would be associated with an activitypermitted by the district plan. The Society has not suggested that such informationmight have been available if the Council had looked for it. The Society's criticism isthat the Council did not obtain information or have regard to other activities whichwere occurring or could occur in the vicinity of the development.[167] There was no error in the Council considering traffic issues in relation to thedevelopment for which it was giving its consent and not the potential for a change inuse of the site. The first condition of the resource consent required the developmentto proceed in accordance with the plans provided to the Council with the 2016application and as updated through the consent process. The approved plans for the2017 development directly reflect the general specifications summarised in theCouncil's decision document. They do not allow for any motel or independenttraveller units to be part of the development. A change in the development from hotelto motel activity would be a significant change from the consented use. A resourceconsent would have to be obtained for such a change in use. It is a condition of theconsent that the "consent authority may review the conditions of this resource consentto deal with adverse effects on the environment which may arise from the exercise ofthe consent ". Through that condition, the Council would also be able to review theconsent if the 2017 development was to be used as a motel rather than a hotel.[168] The applicant has not persuaded me that there was any error of process in theway the Council reached its decision. Accordingly, the applicant has not establishedthere are grounds on which the decisions of the Council as to notification and ingranting the resource consent should be quashed. On that basis, the Society'sapplication for review must be dismissed.The exercise of a discretion[169] Because I have found there was no reviewable error in the Council's processesor decisions, it is not strictly necessary to consider this. Nevertheless, I do so.[170] I have regard to the scale of the proposed development and the extent to whichit was a permitted activity and complied with all the relevant standards for a permittedactivity. There were matters as to which the Council had only, in effect, a restricteddiscretion. It was not suggested for the Society that notification was required becauseof the way in which the application was for a controlled activity. It was not suggestedthat the provision for parking spaces on road reserve was going to generate more trafficthan would have been the case for the development as a fully permitted activity. Itwas not suggested that the Council had been unreasonable in deciding that the effectsof non-compliance with required standards as to the accessways to the developmentwere not going to be adequately mitigated through conditions attaching to the consent.[171] It is not for the Court to review the merits of the Council's decision but, on theinformation available to it, the Council could reasonably conclude that the effects onthe environment and on people potentially affected by non-compliance with relevantstandards if the district plan would be less than minor.[172] In Speargrass Holdings Ltd, the Court of Appeal said that the fact the Council'sdecision was as to a matter over which it had only restricted discretion should beweighed in the balance in exercising the discretion which the court would have if itfound there were grounds for review.38 Here, those matters were of limitedconsequence in the context of all the effects that would result from the 2017development had it complied with all the standards for it as a permitted activity.38 Speargrass Holdings Ltd v van Brandenberg, above n 9, at [71].[173] There was also a significant delay in the Society bringing these proceedings.The Society was not incorporated until some two years and five months after theCouncil granted the resource consent.[174] Following the grant of resource consent for the 2017 development, TSHLnegotiated and entered into management and technical agreements with aninternational hotel chain. The evidence is that these were finalised in 2019.[175] TSHL says it has lodged its application for a building consent. TSHL says ithas entered contracts for the development in reliance on the 2017 consent (CB450).Dr Zuleta said in an affidavit that they did this only after the Society had lodged itsapplication for review. Even if that is so, TSHL must have incurred considerableexpense in having plans prepared sufficient to support such an application.[176] I thus accept that TSHL has incurred significant costs in progressing thedevelopment as consented. I accept that, if the relief sought by the Society wasgranted, this would likely have considerable and significant implications for theagreements between TSHL and the hotel chain, and also such contracts as it has withconsultants and contractors.[177] The Lake Tekapo playgroup and Lake Tekapo school were aware of TSHL'sapplication and the proposed 2017 development when they wrote to the Council inMarch 2017. It would seem from Dr Zuleta's affidavit that she, and presumably otherresidents who might have been opposed to the development of a hotel on the site, werecontent to rely on how they hoped the height restriction covenant over the site wouldprevent use of the site for a hotel rather than to enquire of the Council as to what washappening with what they had heard could be the Council's consideration of a newdevelopment proposal for the site.[178] To a major extent, the 2016 application was for consent to a permitted activity.The matters over which the Council could, in its discretion, have refused consent werelimited. It is by no means likely that, if the Council's 2017 decisions were quashedand the Council had to reconsider the matter, there would be public or limitednotification of it.[179] In that regard, I consider it also relevant that the nub of the Society's complaintis that, in its decisions, the Council did not obtain adequate information as to certainactivities in the vicinity of the site. Even if there was no express reference in the s42A report or the Council's decision to those matters, the evidence does establish thatthe planner responsible for the s 42A report and Mr Noon who peer reviewed theAvanzar transport assessment were aware of such matters when they made theirrecommendations and advised the Council as to relevant issues.[180] The High Court in Coro Mainstreet Inc v Thames-Coromandel District Councilstated:39It is generally accepted that standing in judicial review proceedings isestablished when the person applying has "a sufficient interest" in the matterto which the proceedings relate. In recent years, the trend has been to assessstanding as a factor in the exercise of the Court's remedial discretion.[181] The Society does not own any property or carry out any activity in the vicinitythat could be directly impacted by the activity approved with the relevant consent.Operation of the hotel on the site will not affect the Society in any material way. Whilesome of the Society's members, or all of them, may have a genuine and sufficientinterest in the proceedings, the evidence suggests their concern was not as to therebeing 15 carparks on the Council reserve but that the development was for a hotel onthe site. It appears their objection is as to a permitted activity under the district plan,a development which could, but for minor issues of non-compliance, have proceededwithout their being able to have any say in the matter.[182] In all the particular circumstances of this case, had I found there was areviewable error, in the exercise of my discretion, I would have declined the Societythe relief it sought.Conclusion[183] The Society's application fails.39 Coro Mainstreet Inc v Thames-Coromandel District Council, above n 14, at [32] (footnotesomitted).Costs[184] The Council and TSHL have been successful in these proceedings. They willbe entitled to costs. If no agreement can be reached over those, the respondents are tofile memoranda as to the costs they seek by 2 July 2021. The Society can file amemorandum in reply by 23 July 2021. The respondents can file memoranda in replyto the Society's submissions by 16 August 2021. The memoranda are to be no longerthan five pages. I will make a decision as to costs on the papers.Solicitors:P A Steven QC, Barrister, ChristchurchLane Neave, ChristchurchD C Caldwell, Barrister, ChristchurchAnthony Harper, ChristchurchAnderson Lloyd, Dunedin.