TASTI PRODUCTS LTD & ANOR v AUCKLAND COUNCIL & ORS [2016] NZHC 1673

TASTI PRODUCTS LTD & ANOR v AUCKLAND COUNCIL & ORS [2016] NZHC 1673

The notification decision was legally flawed because the Council asked the wrong question by focusing on 'sites' rather than 'persons', applied an overly high 'preclusion' test for effects, failed to adequately consider reverse sensitivity effects beyond internal noise (including external noise, light, vibration and odour) and omitted consideration of relevant PAUP objectives and policies; accordingly the notification, consent and variation decisions were quashed and remitted to Auckland Council for reconsideration by independent planning officers.

Citation
(2016) 19 ELRNZ 555
Parties
First Plaintiff: Tasti Products Limited; Second Plaintiff: North Western Property Limited; First Defendant: Auckland Council; Second Defendant: Midpoint Investments Limited; Third Defendant: Keith Walker Buildings Limited
Court
High Court
Jurisdiction
New Zealand
Judgment Date
21 July 2016
Procedural Posture
Judicial Review Under the Resource Management Act 1991 (application for Review) / High Court Judgment (first Instance Decision)
Outcome
Notification decision, consent decision and variation decisions quashed as invalid and remitted to Auckland Council for reconsideration by independent planning officers; plaintiffs awarded costs
Legal Topics
Notification, Limited Notification (s95 B/s95 E), Reverse Sensitivity, Proposed Plan (paup), Consent Conditions, S127 Variation
Resource Management Law Administrative Law Planning Law Notification Limited Notification (s95 B/s95 E) Reverse Sensitivity Proposed Plan (paup) Consent Conditions +1 more

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Parties

Tasti Products Limited

First Plaintiff

North Western Property Limited

Second Plaintiff

Auckland Council

First Defendant

Midpoint Investments Limited

Second Defendant

Keith Walker Buildings Limited

Third Defendant

Procedural Posture

Judicial Review Under the Resource Management Act 1991 (application for Review) / High Court Judgment (first Instance Decision)

Legal Issues

  1. 1 Whether the council had adequate information to decide limited notification under ss95B and 95E
  2. 2 Whether the council applied the correct legal test for identifying affected persons under s95E (persons v sites)
  3. 3 Whether the council should have considered PAUP objectives and policies when deciding notification

Ratio Decidendi

The notification decision was legally flawed because the Council asked the wrong question by focusing on 'sites' rather than 'persons', applied an overly high 'preclusion' test for effects, failed to adequately consider reverse sensitivity effects beyond internal noise (including external noise, light, vibration and odour) and omitted consideration of relevant PAUP objectives and policies; accordingly the notification, consent and variation decisions were quashed and remitted to Auckland Council for reconsideration by independent planning officers.

Court Disposition

Notification decision, consent decision and variation decisions quashed as invalid and remitted to Auckland Council for reconsideration by independent planning officers; plaintiffs awarded costs

Orders

  • The notification decision dated 23 October 2015, the consent decision dated 23 October 2015 and the variation decisions dated 18 May 2016 are quashed as invalid and set aside
  • The matters are remitted to Auckland Council to be reconsidered afresh and according to law by independent planning officers who had no prior involvement