PETERSEN & ORS v KĀPITI COAST DISTRICT COUNCIL & ANOR [2023] NZHC 2994

PETERSEN & ORS v KĀPITI COAST DISTRICT COUNCIL & ANOR [2023] NZHC 2994 [26 October 2023]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECIV-2023-485-119[2023] NZHC 2994UNDER the Judicial Review Procedure Act 2016 andPart 30 of the High Court RulesIN THE MATTER of an application for judicial review of adecision made by or on behalf of KāpitiCoast District CouncilBETWEEN CONRAD HARALD CHRISTIANPETERSENFirst ApplicantAND HELEN ELIZABETH COOKSecond ApplicantGEOFFREY FRANCIS TWISSThird ApplicantKĀPITI COAST DISTRICT COUNCILFirst RespondentGRESHAM TRUSTEE LIMITEDSecond RespondentHearing: 16 October 2023Counsel: C J Griggs and P C Kelly for ApplicantsD Randal and V Brunton for First RespondentC Stevens for Second RespondentJudgment: 26 October 2023JUDGMENT OF ISAC J[Application for judicial review]Introduction[1] In this proceeding the applicants seek judicial review of a decision of the KāpitiCoast District Council not to publicly notify an application for a subdivision consentby the second respondent, Gresham Trustee Ltd. They also seek review of theCouncil's associated decision to provide limited notification of the application to agroup of affected parties that did not include the applicants. If successful in theirchallenges, the applicants seek an order setting aside the subsequent subdivisionconsent made in Gresham's favour.[2] Three issues require determination:(a) First, whether the notification decision was effective and "perfected".(b) Second, whether the notification decision was lawfully made.(c) Finally, if a reviewable error is identified, whether it is appropriate togrant relief.Background[3] Kāpiti Coast District Council has granted a resource consent to Gresham forthe subdivision and residential development of approximately 1.9 ha of largely bareland situated at 240 Kāpiti Road, Paraparaumu. The development will comprise135 dwellings and 165 car parks with associated earthworks involving 23,940 cubicmetres to a maximum depth of 4.4 metres. The site is surrounded by relatively densehousing on three sides and Kāpiti Road on the other. Kāpiti Coast Airport is locateddirectly across Kāpiti Road from the proposed subdivision. There are currently twosmall buildings on the site, but otherwise it is described by one of the applicants in heraffidavit as a "horse paddock".[4] The three applicants live at varying distances from 240 Kāpiti Road. Theclosest are Mr and Mrs Twiss, who live on Regent Drive, approximately 85 metresfrom the closest boundary of the proposed subdivision. A private road will beconstructed within the site providing access to the subdivision from Halsey Grove,which is situated approximately two houses from Mr and Mrs Twiss' house.[5] Gresham's application for resource consent was lodged with the Council on8 March 2022. The Council was then required to consider, under s 95(1) of theResource Management Act 1991 (RMA), whether to give public notification of theapplication and, if not, whether to provide limited notification to affected persons.[6] On 25 July 2022 the Council's team leader of resource consents adopted thenotification recommendations made to her in a 30-page report by a Council planner.The recommendations, which form part of the decision, were:9 PUBLIC NOTIFICATION RECOMMENDATIONI am of the opinion that the proposal need not be publicly notified forthe following reasons:• The applicant has not requested that the proposal be notified(s95A(3));• Public notification is not required pursuant to section 95C;• No exchange or recreation reserve is proposed;• There are no special circumstances associated with the proposeddevelopment which could warrant the application being publiclynotified. While the proposal is a non-complying activity,residential development in a residential area is not considered tobe an unusual circumstance.[7] The Council officer then considered whether limited notification should takeplace under ss 95B and 95E and, if so, its extent. The report's recommendation wasthat the visual, character and amenity effects of the proposed buildings together withthe associated subdivision and earthworks may potentially be "minor" and, for thatreason, recommended limited notification on 16 nearby dwellings situated onCedar Drive, Halsey Grove, Regent Drive and Langdale Avenue. These propertiesappear to be situated considerably closer to the proposed subdivision than theapplicants' homes and are essentially adjacent to the site.[8] The Council's team leader then accepted the report's recommendation forlimited notification on the identified affected parties. The effect of that decision wasto exclude the applicants from the class of landowners on whom notification would bemade.[9] Four days after the notification decision, the Council posted the application forsubdivision consent and supporting documents to its public website. It did not,however, post the notification report. Ms Sarah Banks, a Council officer, has deposedthat the Council's standard practice is not to publish its notification decisionsproactively. This is for two reasons. The first is that publishing a notification decisionso that it is readily available to the public, including those who are not adverselyaffected by a proposal and have no ability to make a submission on a consentapplication, could cause confusion among those people and create a false impressionof engagement by the Council with them when "they are unable to participate". Thesecond is that publication of notification decisions to people who are unable toparticipate would "create an administrative burden for no obvious public benefit".[10] A public hearing was held on 10 November 2022. Mrs Twiss and Ms Cookattended the meeting but were told that they were not permitted to address the HearingCommissioner on the resource consent application.[11] The subdivision consent was granted in a decision of 9 December 2022. Theapplicants subsequently obtained a copy of the notification report and decision fromthe Council on 23 February 2023, and commenced these proceedings on13 March 2023.First issue: was the notification decision effective and "perfected"?The applicants' challenge[12] At the hearing Mr Griggs, who appeared as counsel for the applicants,submitted that the key question for the Court was this:When a council makes a notification decision under s 95 of the RMA whichhas the effect of excluding participation by members of the public who havean interest (especially persons who have told the council they have an interest)is it lawful for the council to withhold notification of the decision when itcould easily have been uploaded to the internet?[13] Relying on the Court of Appeal's decision in Goulding v Chief Executive,Ministry of Fisheries,1 the applicants argue that a valid administrative decision in theexercise of a statutory power which is the outcome of a "completed process", butwhich has not been formally communicated to "interested parties", has not been"perfected". In Goulding the Court found that an administrative decision that has notyet been communicated to affected persons may be revoked and a fresh decisionsubstituted at any time prior to communication.[14] The applicants say that they were entitled to be advised of the notificationdecision in a timely way, and the failure of the Council to do so renders the notificationdecision unlawful in the sense that it has not been "perfected" by its communicationto the applicants as persons affected by it. The Council subsequently acted on thenotification decision as though it was lawful, by issuing the resource consent.[15] The applicants argue that in light of the "Goulding principle" it was incumbenton the Council to communicate the notification decision to them as members of thepublic, because it was members of the public whose rights of participation in theconsent process were brought to an end by the decision. Without communication, theapplicants as members of the public were effectively denied their right guaranteed ins 27(2) of the New Zealand Bill of Rights Act 1990 to seek judicial review before thehearing of the resource consent application. Section 6 of the Bill of Rights requiress 95(1) of the RMA to be given a rights consistent interpretation. This in turn requiresthe "importation" of a communication requirement for the notification decision. Theseprocedural obligations include a requirement to provide reasons to the applicants as towhy they were not part of the class of property owner on whom limited notificationoccurred.2[16] The applicants also argue that contrary to the Council officer's opinion, makingavailable the notification decision to the public generally would not involve any addedadministrative burden. The report and decision could have been made available on theinternet simply by a "drag and drop". The position is even stronger in relation to what1 Goulding v Chief Executive, Ministry of Fisheries [2004] 3 NZLR 173 (CA) at [43].2 Citing G D S Taylor Judicial Review: A New Zealand Perspective (4th ed, LexisNexis, Wellington,2018) at [9.18]; and Lewis v Wilson and Horton Ltd [2000] 3 NZLR 546 (CA) at [80].is said to be the "second reviewable decision", namely the decision to provide forlimited notification which excluded the applicants. The applicants say that there canbe no doubt they were interested parties, in the sense that they were directly affectedby the notification decision, and the Council was aware that both Mr Petersen andMr Twiss consider themselves affected and wished to be advised of the result.Consideration[17] The applicants' first ground of challenge fails for four reasons.[18] First, they have not been denied any right to natural justice, whether under s 27of the Bill of Rights or under the common law. This proceeding is itself the exerciseof the right. Had the applicants been made aware of the notification decision earlier,their only recourse would have been judicial review. Their complaint then is at besttemporal: that they ought to have received the notification decision, without request,before the resource consent was granted. Given in this proceeding they seek to havethe resource consent set aside on the basis of an unlawful notification decision, thereis no meaningful difference to their position caused by the alleged wrong. As theCouncil accepts, a consent authority must not grant a resource consent if theapplication should have been notified and was not.3[19] Second, there is no legal obligation in the RMA, the Bill of Rights or the Courtof Appeal's decision in Goulding that requires a consent authority to bring home to allthe world its limited notification decisions.4 There can be no credible suggestion inthis case that the Council withheld the notification decision from the applicants in theface of a request. I agree with the submissions of Mr Randal for the Council that theobligations of the first respondent to provide information to constituents arises unders 35 of the RMA—relating to its duty to gather information and keep records—andunder the Local Government Official Information and Meetings Act 1987. There is nosuggestion that the Council failed to comply with those obligations here. And the Courtof Appeal's decision in Goulding is not relevant to the present case. There the Court3 Resource Management Act 1991, s 104(3)(d).4 Fullers Group Ltd v Auckland Regional Council HC Auckland M1077/98, 21 August 1998 at 14;and Poutama Kaitiaki Charitable Trust v Taranaki Regional Council [2020] NZHC 3159, (2020)22 ELRNZ 202 at [251].was concerned with the point in time at which a decision maker became functus officiobefore which it might revisit the decision and remake it.5 In this case, once thenotification decision was communicated to the affected parties identified within it, thedecision was perfected.[20] Third, I do not accept that a perfectly lawful notification decision by a consentauthority can be set aside in judicial review proceedings because it has not beenprovided to those who might be unhappy with its outcome. But that is the effect andimplication of the applicants' submission. Related to this difficulty is the fact that thereis no limit on the class of persons upon whom Mr Griggs contended the Council hada duty to communicate its decision. When asked whether such a duty could bedischarged by publication on the internet for persons who were blind or did not havean internet connection, Mr Griggs was driven to the utilitarian position that publicationon the internet is all that could be expected. I cannot reconcile that limitation, however,with the breadth of the duty the applicants contend for. Goulding contemplatescommunication of a decision to those affected by it, not merely making it available tothose who go looking for it.[21] Finally, it cannot be the case that a community member can unilaterally imposeobligations on a council in relation to the communication of notification decisions bysimply advising the local authority of their interest in the outcome of the decision. TheRMA itself defines who are affected persons with rights of participation in the consentprocess. It is those parties to whom a consent authority clearly owes an obligation tocommunicate notification decisions.5 If the effect of Goulding is as the applicants argue to render the notification decision incompleteuntil communicated to the applicants, it would seem unlikely that there has been a decision in thepresent case that is amenable to judicial review. Mr Griggs' response to this conundrum was tosuggest that it was the Council's decision to act on the notification as if it was valid that is theexercise of a public power capable of review. This contention is not pleaded and, in any case,would mean every limited notification decision could be set aside in judicial review by any personexcluded from the class on whom limited notification has taken place and where the decision hadnot been communicated to that person.Second issue: was the notification decision lawful?RMA notification requirements[22] At this point it is useful to begin with the general scheme of the notificationprovisions of the RMA.[23] A consent authority must determine whether or not an application should benotified, and to whom, in accordance with ss 95 to 95G of the RMA. Those provisionsset out a step-by-step decision-making process.Public notification[24] First, a consent authority must follow the steps in section 95A to determinewhether to publicly notify a consent application.[25] Of particular importance here is step 3. It requires the Council to publiclynotify the application if, in accordance with s 95D, the proposed activity will have oris likely to have adverse effects on the environment that are more than minor.6 The keytask for a consent authority is to identify relevant environmental effects and evaluatewhether they are "more than minor". In assessing the likely adverse effects on theenvironment, the consent authority must disregard any effects on persons who own oroccupy adjacent land to the site of the proposed activity.7 The effects on such personsare addressed through the statutory regime for limited notification.Limited notification[26] If public notification is not required, the consent authority must decide whetherto give limited notification to any affected person following the step-by-step processin s 95B. Step 3 of that process is also relevant: it requires notification where theconsent authority determines a person to be an "affected person" in accordance withs 95E. Under that provision, a person is an affected person if "the consent authoritydecides that the activity's adverse effects on the person are minor or more than minor(but are not less than minor)".6 "Environment" and "effect" are broadly defined in ss 2 and 3 respectively.7 Resource Management Act, s 95D(a)(ii).[27] The RMA thus sets adverse effects thresholds that must be reached orsurpassed before notification is required. A proposal must adversely affect a person toa "minor or more than minor" extent in order for the person to be notified under s 95B.Whether an effect reaches this threshold involves an assessment of fact and degreeinformed by context.8 As the High Court observed in Speargrass Holdings Ltd vQueenstown Lakes District Council:9Much of Speargrass's argument is based on its own expert evidence tenderedin the hearing which reached contrary conclusions as to whether theapplication generated less than minor, minor or more than minor adverseeffects on Speargrass. However, simply because another qualified personmight hold a different view does not render the Council's decision erroneousand amenable to being set aside on review. While the Courts suggest thatconsent authorities should take care before deciding that a neighbour is notaffected by an application, the RMA envisages that not every application willbe amenable to notification, particularly when the effects are within theenvelope of effects expected under the plan or can be appropriately managedon standard conditions.[28] The term "less than minor" was considered by the High Court in Gabler vQueenstown Lakes District Council. There Davison J found:10The nuanced qualitative assessment of effects was discussed in the High Courtby Priestley J [citing Green v Auckland Council [2013] NZHC 2364 at [126]):The statutory tests of 'minor', 'more than minor', and 'less thanminor' can only be informed by context. One is dealing with degreesof smallness. Where the line might be drawn between the threecategories might not be easily determined. 'Less than minor',however, is the only category which relieves a consent authority of itss 95E(1) obligation to notify.The test used to be of "de minimis" effect. The use of the expression "less thanminor" points in a similar direction. "Less than minor" in my judgment meansthat which is insignificant in its effect, in the overall context, that which is solimited that it is objectively acceptable and reasonable in the receivingenvironment and to potentially affected persons.8 Speargrass Holdings Ltd v Queenstown Lakes District Council [2018] NZHC 1009, (2018) 20ELRNZ 645 at [139]; and McMillan v Queenstown Lakes District Council [2017] NZHC 3148,[2019] NZRMA 256 at [12].9 At [165] (footnote omitted).10 Gabler v Queenstown Lakes District Council [2017] NZHC 2086, (2017) 20 ELRNZ 76 at [93]and [94]; cited with approval in Speargrass Holdings Ltd v Queenstown Lakes District Council,above n 9, at [139] and Lysaght v Whakatāne District Council [2021] NZHC 68, (2021) 22 ELRNZ383 at [4].[29] While a minor effect sits at the lower end of a scale that includes major andmoderate effects, it must be something more than de minimis.11The applicants' challenge[30] The applicants submit that even if a notification decision had beencommunicated to them, the decision was unlawful because it failed to comply with therequirements of ss 95B and 95E of the RMA. The illegality arises from what is said tobe a material error of fact about the level of impact from increased traffic from thedevelopment on the applicants as well as other road users.[31] Mr Griggs submits there is an internal inconsistency between the reasoning andthe conclusion reached in the notification decision about the scale of those trafficeffects. The planner's report on which the notification decision is based concluded that"the proposal is considered to have less than minor adverse effects on transport whichcan further be reduced and mitigated by conditions on a granted consent". However,Mr Griggs submits that there is no support for this conclusion in the traffic reportsprovided by Gresham to the Council on which the notification decision was based, orwithin the body of the notification report itself.[32] In analysing the transport effects of the proposal, the Council is said to haverelied on two reports on the impact of the development on traffic flows. The first wasan integrated transport assessment provided by Stantec New Zealand. Mr Griggsbrought my attention to a statement in the report that the likely traffic impacts at theCedar Drive and Kāpiti Road intersection "are minor". In counsel's submission theuse of the term "minor" in an expert traffic assessment cannot have been accidental.Effects that are minor meet the threshold needed to trigger limited notification, andStantec's opinion is therefore materially at odds with the Council planner's conclusionin the notification report that the effects are "less than minor".[33] The second traffic report on which the Council relied in forming its decisioncontains the same problem, according to Mr Griggs. An independent peer review ofthe Stantec report was prepared by Tonkin+Taylor for the Council. The firm did not11 King v Auckland City Council (1999) 6 ELRNZ 79 (HC) at [29(f)].disagree with Stantec's assessment, and concluded that the development would cause"minor increases in delay" at the Kāpiti Road and Cedar Drive intersection.[34] These assessments were then confirmed by Stantec's project manager, whoprovided a brief of evidence for the resource consent hearing in November 2022 inwhich he confirmed his view that "some drivers may experience longer delays" andthat the "scale and effects of the added Site traffic will be minor".[35] Then, in the body of the notification report itself, the Council's responsibleofficer, Ms Banks, concluded on the basis of the Stantec and Tonkin+Taylor reportsthat the traffic effects "will not adversely affect the adjoining properties or have aneffect on the efficient and safe functioning of the local roading network that is morethan minor" (counsel's emphasis). Mr Griggs argues that, as a matter of logicalconstruction, if an effect is "not more than minor" then it must at least be minor. IfMs Banks had intended to say that the traffic effects were less than minor, she wouldhave said so. However, she could not have properly said so on the basis of the expertassessments, because Stantec assessed those effects to be minor, and Tonkin+Tayloragreed with that assessment.[36] It is therefore impossible, according to Mr Griggs, to reconcile the evidencebefore the Council planner with Ms Banks' conclusion in the notification report that:The proposal is considered to have less than minor adverse effects ontransport[37] Given the only evidence available to the Council indicated that the effects ontraffic users, including the applicants, was minor or more than minor, Mr Griggssubmits that the notification report's conclusion that the effects were less than minorwas not a conclusion that was open to it. The conclusion was therefore a fundamentalerror of fact.Consideration[38] The applicants' challenge to the notification decision is limited to theconsideration of traffic effects in terms of the relevant statutory threshold tests. Theapplicants have not provided any evidence that calls into doubt the expert viewscontained within the relevant reports provided to the Council. Rather, their challengeis based on an interpretation of those reports and their treatment within the notificationdecision.[39] Having considered the evidence available to the Council as well as the contentof the notification decision itself, I do not consider there has been any error in theCouncil's approach. It is clear that the relevant statements in the notification reportand decision were directed to two different threshold tests. The first test the Councilhad to consider related to public notification. Section 95A of the RMA required theCouncil to publicly notify the application if the proposed activity was likely to haveadverse environmental effects that were "more than minor".[40] The second threshold test the Council was obliged to consider related to limitednotification under s 95B. The Council had to determine whether certain people wereaffected parties under s 95E, which in turn depended on whether the activity's adverseeffects on them were minor or more than minor (but not less than minor).[41] Two important consequences follow. First, it is immediately evident that thetwo tests involve different thresholds. Public notification is triggered by adverseenvironmental effects that are "more than minor". Limited notification is onlytriggered when the adverse effects on an identifiable person are "not less than minor".When the evidence, reports and notification decision are considered in light of thedifferent threshold questions the Council applied, the "internal inconsistency" betweenthe analysis and conclusion in the notification report identified by Mr Griggs vanishes.[42] Second, it is the Council that must make the evaluative assessment of the levelof effects, not the applicants' experts. It does not appear from the relevant trafficreports available to the Council that the experts were purporting to give an opinion onthe notification thresholds the Council had to apply. Rather, they provided an overallassessment of the scale of the effects. What that assessment might mean fornotification of the consent application itself would be for the Council to determine asthe authority holding the statutory power of decision.The expert traffic reports[43] The Stantec report concluded that the additional development traffic on theoperation of the Kāpiti Road and Cedar Drive intersection (the focus of traffic effectsfrom the development) would at worst result in a change in motorist wait times ofbetween three and six seconds. This led Stantec to conclude:As shown, the added delays occurring at the intersection as a result of theproposed development Site trips are minor, with changes likely to beimperceptible to existing users on the network.(emphasis added)[44] Unsurprisingly, effects that are likely to be imperceptible might well beconsidered less than minor.[45] Tonkin+Taylor reached the same view using similar language:T+T consider the assessment undertaken [by Stantec] sufficient todemonstrate that the increased traffic movements should not result in anoticeable increase in congestion or unreasonable delays for road users.(emphasis added)[46] Similarly, the brief of evidence Mr Whittaker supplied to the HearingCommissioner concluded that "the scale and effects of the added Site traffic will beminor". This follows immediately after reference to the same table that appears in theStantec report noting an increase in driver wait times of, at worst, three to six seconds.It is also clear that the witness was directing his comment to the overall scale ofenvironmental effects, not effects on identifiable persons in terms of the limitednotification test.12The notification report and decision[47] Consideration of the report beyond the narrow passages identified by theapplicants also reveals that there is no inconsistency between its evaluation andconclusion, nor any error in the Council's approach.12 Beyond this, a fundamental problem with the applicant's reliance on Mr Whittaker's evidence isthat it came into existence months after the notification decision had been made.[48] The report was prepared by a principal resource consents planner forconsideration by the team leader of resource consents. After a detailed description ofthe site and subdivision proposal, the 30-page document begins by identifying therelevant statutory provisions relating to both public and limited notification, includingeffects that must be disregarded in terms of the analysis of effects in accordance withs 95D. It then goes on to provide a detailed assessment of relevant effects, identifyingthe following matters as requiring consideration:(a) design and layout effects;(b) vehicle access and transport effects;(c) construction effects;(d) visual, character and amenity effects;(e) natural hazard effects;(f) effects relating to the provision of services; and(g) positive effects.[49] Under the heading "Vehicle access and transport effects", the reportsummarises Stantec and Tonkin+Taylor's assessments and concludes:On the basis of the abovementioned expert assessments, I consider that thetraffic effects of the proposal will be able to be mitigated provided thatconditions on a granted consent address the abovementioned information andwill not adversely affect the adjoining properties or have an effect on theefficient and safe functioning of the local roading network that is more thanminor.[50] Given the structure of the report and the language used, the report writer at thispoint was clearly addressing the public notification threshold, not the limitednotification threshold central to the applicants' challenge to the decision.[51] The report then goes on to consider whether limited notification might berequired. It concludes that visual, character and amenity effects on the owners of16 dwellings "may potentially be minor", and that limited notification is thereforerequired on those affected parties. It is also clear that the report writer did not considerthere would be traffic effects reaching the threshold necessary to trigger limitednotification on any party. That is consistent with the substance of the findings in thetwo detailed traffic reports available to the Council.[52] The position of owners of properties on Regent and Cedar drives opposite thesite and on the corner of Halsey Grove and Regent Drive was then considered.13 Thereport writer concluded that these property owners are not affected by the proposal:These properties do not directly adjoin the application site and are separatedby other adjoining properties or the public road. I consider that the effects ofthis proposal on these properties are largely similar to what could occur withina public roadI consider the traffic movements on these properties and the surroundingstreets to be less than minor as it would occur over a relatively short period oftime. Other construction effects, such as trade vehicle associated with theconstruction of the units, will be typical of what could be expected for aresidential development on a large vacant lot such as this one.[53] The report then concludes with the decision of the team leader of resourceconsents that "the above recommendation be adopted".[54] For these reasons I am satisfied that the Council gave careful consideration topotential traffic impacts of the proposal, correctly addressed both of the relevantstatutory tests, had appropriate regard to the expert evidence, and reached a conclusionthat was plainly open to it. Accordingly, the second ground of review must also bedismissed.Third issue: materiality and reliefThe applicants' case[55] By way of affirmative defence, the Council pleads that even if the notificationdecision was made unlawfully, the outcome of that decision and on the resourceconsent itself would not have been any different.13 This appears likely to have included at least one of the applicants, Mr Twiss.[56] In response, Mr Griggs submitted that the applicants had put forward cogentevidence the development could harm indigenous lizards. The evidence came fromtwo environmental scientists, Ms Tidwell and Mr Goldwater. In summary theirevidence was to the effect that there was a high likelihood that northern grass skinkscould be present on the site, with low and very low likelihoods of at risk indigenousspecies of gecko and skink being present. Mr Goldwater deposes that in his experienceit would be common for a developer in the present case to obtain a "lizard survey"from which conditions might be imposed in relation to the protection and removal oflizards before development took place.[57] Mr Griggs submits that given the ecological evidence, there is every reason toexpect that the outcome of the resource consent application could have been different.Indeed, he pointed to Mr Randal's apparent acceptance that might have been the casehad ecological evidence been called as part of the consenting process. He also arguedthat the ecological evidence, and the failure of the Council to consider and address theimpact of the development on indigenous species, confirmed a breach of naturaljustice, and that the resource consent decision is flawed and should be set aside.[58] As to relief and the exercise of the discretion, the applicants argue that thesubdivision is being marketed for sale but there is no expectation that the consenteddevelopment will commence imminently. The breach of natural justice is seriousbecause the withholding of the notification from the applicants was a deliberatedecision, and better quality decisions, including in relation to the resource consent inissue, are made through the democratic process of RMA consenting decisions,including giving voice to those who are affected by an activity and have something tosay of importance.Consideration[59] In relation to the applicants' evidence relating to possible ecological effects,while it is not pleaded I am not persuaded that a desktop report prepared by Ms Tidwellwould be a sound basis on which to consider there had been a reviewable error on thepart of the Council in reaching both its notification decision and in granting theconsent.14 As Ms Banks notes in her evidence for the Council, the site comprises apaddock grazed by horses and also contains patches of pine trees, scrub and buildings.It is clearly not a location of any ecological significance and is not identified as suchwithin the Kāpiti Coast District Plan. This was addressed in the assessment ofenvironmental effects prepared by Cuttriss Consultants in support of Gresham'sresource consent application. Indeed, Ms Tidwell concludes her report by recordingthat much of the site is poor habitat for lizards, and that there is a low or very lowchance of any at risk lizards being present. Northern grass skinks may be present inthe pampas patches and bracken fern, in her assessment, but are a commonnon-threatened species.[60] Mr Goldwater generally agrees with Ms Tidwell's assessment. He concludedthat the site is "of generally low ecological value, particularly in relation to the currentvegetation values".[61] I am certainly not persuaded that the ecological evidence provides any basis toconclude that the outcome of the resource consent application would have beenmaterially different in terms of the applicant's interests. They oppose thetransformation of a greenspace into an urban development, not the absence of consentconditions on the development protecting indigenous lizards. For these reasons, evenif I had been satisfied that there was some error on the Council's part in relation to thefirst and second grounds of review, I would not have granted the relief sought.Conclusion and result[62] The application for judicial review is dismissed. The respondents have beensuccessful and are entitled to one measure of costs calculated on a 2B basis togetherwith disbursements as fixed by the registrar. I would encourage the respondents toresolve any question of apportionment between themselves.14 The report's stated methodology was to search the Department of Conservation's BiowebHerpetofauna Database for all verified records of indigenous herpetofauna within 10 kms of KāpitiIsland (excluding the island itself, which is a predator-free sanctuary not representative of themainland). A "site visit" was also conducted by which the property was viewed through binocularsfrom adjacent public roads. The report concludes that while there are no records of lizards at theproperty, five indigenous species are present within a 10 km radius of it.Isac JSolicitors:The Law Connection, Raumati Beach for ApplicantsBuddle Findlay, Wellington for First RespondentMorrison Kent, Wellington for Second Respondent