OFFICIAL BAY HERITAGE PROTECTION SOCIETY INCORPORATED V AUCKLAND CITY COUNCIL AND ANOR CA CA489/07

OFFICIAL BAY HERITAGE PROTECTION SOCIETY INCORPORATED V AUCKLAND CITY COUNCIL AND ANOR CA CA489/07 16 November 2007IN THE COURT OF APPEAL OF NEW ZEALAND CA489/07 [2007] NZCA 511BETWEEN OFFICIAL BAY HERITAGE PROTECTION SOCIETY INCORPORATED Appellant AND AUCKLAND CITY COUNCIL First Respondent AND PERRON CENTRAL LIMITED Second Respondent Hearing: 9 October 2007 Court: William Young P, Chambers and O'Regan JJ Counsel: B P Keene QC and D A Kirkpatrick for Appellant W S Loutit and B S Carruthers for First Respondent C N Whata and D J Minhinnick for Second Respondent Judgment: 16 November 2007 at 12.30pmJUDGMENT OF THE COURT A The appeal is dismissed. B The appellant must pay costs of $3,000 plus usual disbursements to each respondent. We do not certify for second counsel.REASONS OF THE COURT(Given by O'Regan J)Heritage protection in Auckland city[1] Perron Central Limited plans to build a 17 storey apartment building, to be known as "The Verve", on a site in Eden Crescent, Auckland, close to the Eden Crescent/Parliament Street intersection. The side of the apartment building will abut the rear of a heritage building in Parliament Street. Perron applied to the Auckland City Council (the Council) for resource consent. The application was dealt with on a non-notified basis, and resource consent was granted. The Official Bay Heritage Protection Society (the Society) brought judicial review proceedings in the High Court challenging both the failure to notify the resource consent application (or serve it on affected local residents) and the granting of the resource consent itself. The challenge failed in the High Court: Official Bay Heritage Protection Society Inc v Auckland City Council HC AK CIV-2006-404-5947 16 July 2007. The Society appeals to this Court against that decision.Issues on appeal[2] At their broadest, the key issues on the appeal are: (a) Whether the Council made an error of law in failing to notify Perron's application or to serve it on local residents; and (b) Whether the decision to grant a resource consent was vitiated by the same error of law and by the failure to notify or serve the application. [3] The two issues overlap to a considerable extent because the point of law on which the Society says the Council misdirected itself relates to both. In order toresolve them, we need to address two legal issues which are at the heart of this appeal. [4] The first is an issue of interpretation of the heritage criterion against which the Council was required to consider Perron's proposal for erection of the building in Eden Crescent under the planning rules applying to Perron's application. The Council proceeded on the basis that the heritage criterion did not address the height and bulk of the building. It took the view that the reference in the heritage criterion to "frontage height and design" referred to the height and design of the frontage of a new building, not the frontage, the height, and the design of the whole building. That interpretation was upheld by Rodney Hansen J. The first legal issue that we must resolve is: what is the correct interpretation of "frontage height and design" in the heritage criterion? That, in turn, assists in answering the broader question, whether the heritage criterion addresses the height and bulk of a proposed new building. [5] The second legal issue concerns r 15.3.2.6 of Auckland City District Plan Operative 2004 Central Area Section (the Operative District Plan). The Council determined that r 15.3.2.6, which provides that applications for resource consent for certain restricted discretionary activities would be dealt with on a non-notified basis, required it to deal with Perron's application on a non-notified basis. The High Court Judge agreed. The issue on appeal is whether the Council was correct in that view. [6] Once we have addressed those issues we will deal with the remaining matters that arise in determining the lawfulness of the decisions under review. The respondents argued that, even if the appellants were successful, relief should be declined in the exercise of the Court's discretion, because if the Council considered the matter afresh it would inevitably grant a new resource consent for the proposed development. [7] Before turning to these issues we will outline the factual background. The factual summary substantially replicates that in the High Court judgment, which all parties accepted was fair and accurate.Factual background[8] Just across the road from the Auckland High Court, in Parliament Street, is a row of five heritage buildings. They are among a number of buildings in the locality (including the High Court itself) whose architectural and historical value has been recognised and protected by the Council and the New Zealand Historic Places Trust. That area of Auckland was, in the early days of the city's settlement, known as Official Bay – hence the Society's name. [9] The formation of the Society, principally by residents of the heritage buildings in Parliament Street, was prompted by the prospect of Perron's proposed high-rise development in Eden Crescent. The Society is committed to the preservation of the environment of the area, particularly its heritage value. Members of the Society saw the development as detrimental to the heritage and amenity values of the area. [10] The Society made representations to the Council in an effort to block the granting of resource consent for Perron's proposed development or at least to require the Council to publicly notify the application for resource consent or serve it on them. They were unsuccessful. The application was not notified or served, and a resource consent was subsequently granted. [11] The heritage buildings in Parliament Street occupy a frontage running from its intersection with Waterloo Quadrant in the south to the point at which Parliament Street is intersected by Eden Crescent. The land owned by Perron is at 29 – 31 Eden Crescent. It abuts the boundary of the largest of the five heritage buildings in Parliament Street. [12] On 8 August 2003 Perron was granted a resource consent to construct a 15- level building on the site for residential accommodation for students. This building would have covered less of the site than that which is currently proposed, and its bulk would have been less significant.[13] Consents were also obtained for the demolition of a brick building then occupying the site. That building has since been demolished. [14] Perron decided not to proceed with the 15-level development for which it had resource consent. On 30 June 2005 Perron lodged a further application for a resource consent. It sought consent to build a redesigned 17-level apartment building of higher quality with an associated restaurant or café at ground level. The proposed building would cover most of the site, apart from a small courtyard area. Each of the seventeen levels of the building, apart from ground level, would have five self-contained units, providing in total eighty apartments. They vary in size from 54m² to 83m². [15] Shortly before this latter application was filed, on 3 June 2005, the Council had notified proposed Plan Change 2 to the Operative District Plan. We will call this notified version "proposed Plan Change 2". Under s 9 of the Resource Management Act 1991 (RMA), the application fell to be considered by reference to both the Operative District Plan and proposed Plan Change 2. [16] On 26 April 2007, following the High Court hearing, but before the High Court judgment was delivered, the Council made decisions on submissions in relation to proposed Plan Change 2. The decision adopting proposed Plan Change 2 made some significant changes to proposed Plan Change 2. We will call the version of Plan Change 2 adopted by the Council "decision Plan Change 2". The decision to adopt this version of Plan Change 2 is subject to an appeal to the Environment Court. [17] It was common ground that, despite the adoption of decision Plan Change 2, Perron's application was governed by proposed Plan Change 2. However, we were referred to decision Plan Change 2 as an aid to interpretation of proposed Plan Change 2. It was also said to be relevant to remedy, because of the fact that any renewed application by Perron would, subject to any later decision of the Environment Court, be addressed in light of decision Plan Change 2.Does the heritage criterion address height and bulk of a proposed new building?[18] In order to answer this question, it is necessary to set out in some detail the relevant provisions of the Operative District Plan and proposed Plan Change 2. [19] Part 6 of the Operative District Plan is entitled "Development Controls". Rule 6.2.1(a) of the Operative District Plan, which is unchanged by proposed Plan Change 2, provides that the height of a building shall not exceed the limits determined by the general height controls shown on Planning Overlay Map 3, which is attached to the Operative District Plan. Reference to that map shows that the limit imposed on the land owned by Perron is 50 metres above mean street level. It is not in dispute that the building proposed by Perron is within that limit. [20] It is common ground that the only consents required under the Operative District Plan for the proposed development (before proposed Plan Change 2) related to the sale of food and beverage (which is a controlled activity) and the proposed loading area (a restricted discretionary activity). A consent was not required for the erection of the building itself as it complied with the relevant development controls. [21] Under proposed Plan Change 2, consents were required in relation to widths of circulation corridors, balcony sizes and outlook spaces and, relevantly for the purpose of this case, for the erection of any new building. All four aspects of the proposed development requiring consent under proposed Plan Change 2 were restricted discretionary activities, that is, consent could be declined and conditions imposed only by reference to matters in respect of which the Council had restricted its discretion: s 77B(3) of the RMA. [22] The case turns on the meaning of aspects of proposed Plan Change 2 that altered the Operative District Plan or, more correctly, proposed alterations to it. (We will treat the proposed alterations as actual alterations because they were required to be treated as such for the purposes of assessing Perron's application.) Those of relevance to this case were:(a) New policy 3.5.1(j); (b) New r 5.5.3; (c) New r 5.6.3(d), which specified twelve criteria against which a proposal for the erection of a new building must be assessed. Included among these is criterion 8, dealing with heritage issues. That is the heritage criterion to which we have already referred. We will use the term "heritage criterion" for the remainder of this judgment. [23] Proposed Plan Change 2 amended r 3.5.1 of the Operative District Plan, which sets out the policies to give effect to the Operative District Plan's stated objective of achieving "a quality environment". Proposed Plan Change 2 added two new policies to the list in r 3.5.1, (paras (i) and (j)). Para (j) provides:(j) By promoting and encouraging high quality urban design which respects the form, scale and architecture of existing buildings where appropriate.[24] The Society placed particular emphasis on the term "scale". In essence, it argued that this supported the contention that rules dealing with heritage are directed to the scale (ie height and bulk) of any new building for which consent is sought. [25] In decision Plan Change 2, this policy was rewritten so that it now reads:(j) By promoting excellence and diversity in architecture and urban design directed at enhancing the relationship of buildings with public open space and reflecting the special topographical and historic attributes of the Central Area.[26] Notably, there is no mention of the need to respect the scale of existing buildings.Rule 5.5.3[27] Proposed Plan Change 2 added a new r 5.5.3 to the Operative District Plan. This makes the erection of any new building a restricted discretionary activity in terms of s 77B(3) of the RMA. So Perron needed resource consent to erect the proposed apartment building, which it would not have required prior to the notification of proposed Plan Change 2. There was no material alteration to proposed r 5.5.3 in decision Plan Change 2.The heritage criterion[28] Rule 5.6.3 of the Operative District Plan sets out additional assessment criteria in respect of certain activities for which resource consent is required. Proposed Plan Change 2 added a new para (d) to r 5.6.3, the relevant part of which is the heritage criterion, which deals with new developments that abut or are in close proximity to scheduled heritage items. It provides:8 Development Abutting or In Close Proximity to Scheduled Heritage Itemsa) Frontage height and design of new development should have regard to scheduled heritage buildings in the vicinity and maintain a consistent scale. This does not mean a rigid adherence to the height of adjoining and nearby heritage buildings but rather respect for their scale, setback, form and character. b) A new building abutting, or in close proximity to a set back heritage building may not be required to be constructed predominantly to the street boundary, where a better urban design outcome could be achieved by respecting the spatial location of the heritage building. c) Building elevation design and materials should respect (rather than replicate) any patterns of elements existing in retained heritage buildings, but new and contemporary interpretations in form and detail may be used.[29] Of particular significance to this case is the reference to "frontage height and design" in para (a).[30] Para (a) of the heritage criterion was amended in decision Plan Change 2 so that it now provides:(a) The design of building frontages and elevations facing streets and/or other public open spaces should have regard to the setback, form and character of scheduled heritage building(s) abutting or adjacent to the site. This requires consideration of important heritage elements and qualities through building design on frontages and elevations visible from streets and other public open spaces.[31] Prior to the notification of proposed Plan Change 2, the Council prepared an evaluation pursuant to s 32 of the RMA. This required an assessment to be undertaken of the objectives, policies, rules and methods contained in proposed Plan Change 2. This report stated at [4.3], in a section discussing whether the proposed rules assisted the Council to carry out its function of control of actual or potential effects of the use, development or protection of land:While development controls act to limit the height and scale of buildings and thus assist in mitigation of effects of building bulk, the form and appearance of buildings is further controlled and enhanced by design based assessment criteria which are designed to influence a high standard of amenity and urban design. The 'design based approach' provides a valuable framework for assessment of proposals by Council's Urban Design Panel (established in April 2003) as part of the mandatory resource consent process for new buildings and additions within the Central Area.Frontage height and design[32] The nub of the argument on the appeal concerns the issue as to the meaning of the words "[f]rontage height and design". There are two possibilities. The words could refer to the height and design of a building's frontage. On this interpretation, issues relating to the height and bulk of the building are governed exclusively by the Development Controls in Part 6 of the Operative District Plan, particularly r 6.2.1(a) of the Operative District Plan: see [19] above. Alternatively they could refer to three discrete concepts – ie the height, the design and the frontage of a building. On this interpretation, the heritage criterion modifies or qualifies the rules relating to height and bulk of a new building in Part 6. Perron and the Council favour the former interpretation, the Society the latter.[33] It is notable that there is no comma between the words "[f]rontage" and "height". Punctuation can of course influence the interpretation of a provision, but it is worth recalling the words in Bennion Statutory Interpretation (4ed 2002) at 640: "Punctuation is a device not for making meaning, but for making meaning plain". [34] It was common ground that, when interpreting provisions in district plans, courts should adopt the approach set out by this Court in Powell v Dunedin City Council [2004] 3 NZLR 721 at [35]:While we accept it is appropriate to seek the plain meaning of a rule from the words themselves, it is not appropriate to undertake that exercise in a vacuum [R]egard must be had to the immediate context and, where any obscurity or ambiguity arises, it may be necessary to refer to the other sections of the plan and the objectives and policies of the plan itself. Interpreting a rule by a rigid adherence to the wording of the particular rule itself would not, in our view, be consistent with the requirements of the Interpretation Act.[35] Rodney Hansen J found that the context of the Operative District Plan supported the construction of the phrase to mean "the height and design of a building's frontage". [36] First, the Judge noted that the decisions version of paragraph (a) of the heritage criterion puts the matter beyond doubt by referring to "The design of building frontages ". Additionally, paragraph (b) supports the interpretation that the heritage criterion is dealing exclusively with frontages. Paragraph (b) makes a reference to a new building that abuts or is near a set back heritage building – therefore the concern of the rule is the appearance of a new building insofar as it is visible from a roadway. [37] The Judge considered that the s 32 report quoted at [31] above demonstrated conclusively that the height and bulk of buildings were matters that fell to be considered in terms of the development controls in Part 6 of the Operative District Plan, whereas the additional assessment criteria stipulated in r 5.6.3 went to ensuring "a high standard of amenity and urban design". In other words, the Operative District Plan already dealt with height in the development controls in Part 6, which were unaffected by proposed Plan Change 2. Proposed Plan Change 2 introducedmore specific and aesthetic criteria, such as ensuring sympathetic frontage development. [38] The respondents drew further support for the interpretation favoured by Rodney Hansen J from the reference to the same phrase, "frontage height and design", in Part 14.4 of the Operative District Plan. That part sets out resource management objectives, rules, strategies and assessment criteria for another area of the central city, the Queen Street Valley Precinct. Rule 14.4.7.2 sets out assessment criteria to be adopted when considering applications for resource consent that relate to the Precinct. It is therefore analogous to r 5.6.3. Relevantly, r 14.4.7.2 provides:b) Building levels aligned to the street boundaries shall incorporate design elements which acknowledge the existing human scale and character of the precinct. In particular: i) Frontage height and design should have regard to existing buildings in the vicinity and maintain a consistent scale. This does not mean a rigid adherence to a single height but it does mean a respect for the general appearance of the surrounding blocks. ii) Design of frontages should include vertical and horizontal details which avoid dominance of frontage elements larger than historically present. Where existing sites are amalgamated, the frontage design should have regard to the existing "grain" of development and convey a residual sense of the original subdivision pattern.[39] A number of other criteria refer directly to the design of frontages and the desirability of frontages being designed to "avoid aggregated service and access interruptions to frontage continuity" (r 14.4.7.2(g)). [40] We accept that these provisions support the view that "frontage height and design" refers to the maintenance of a common design of frontages on a given street, rather than to the height of buildings generally. Rule 14.4.7.2(b)(ii), which immediately follows r 14.4.7.2(b)(i), speaks directly about "design of frontages", indicating that the subject matter of r 14.4.7.2(b)(i) is the frontage of a building, not the building itself.[41] Counsel for the Council, Mr Loutit, also drew support from the description of the purpose of the twelve criteria in s 5.6.3(d) in the "General Explanation" that appears in r 5.2.6. That paragraph begins:The Plan makes provision for buildings to be developed throughout the Central Area subject to compliance with development controls. To ensure that the most is made of building opportunity with the Central Area, a 'designed based' [sic] approach has been taken with all building development and redevelopment required to be assessed against design assessment criteria.[42] We agree that this explanation supports the view that the development controls in Part 6 govern height and bulk, while the criteria in r 5.6.3(d) deal with design issues. That, in turn, supports the interpretation of the heritage criterion adopted by the High Court Judge. [43] Counsel for the Society, Mr Keene QC, submitted that the Judge's interpretation was wrong, and disputed the significance of r 14.4.7.2. He argued that the three elements of the heritage criterion constituted a comprehensive set of controls available to the Council to allow it to ensure that heritage buildings were given a different and more sympathetic treatment by abutting proximate developments than ordinary buildings would receive. He emphasised the context provided by new policy 3.5.1(j), which specifically referred to a policy of encouraging urban design which respected not only the form and architecture of existing buildings, but also the scale. [44] Mr Keene said the express reference to scale in relation to existing buildings supported the proposition that paragraph (a) of the heritage criterion should be interpreted so that it allows the Council to exercise discretionary control over the height of a proposed new building, ie that the reference to "height" is a reference to the height of the building itself, not to the height of the frontage. He questioned whether the height of a frontage, taken in isolation from the overall height of the building, could respect the scale of an adjoining heritage building without affecting bulk and height considerations. Thus, he said that if the heritage criterion is read down to apply only to the height of the frontage of the building, this would not allow the Council to achieve the policy of respecting the scale of scheduled heritage buildings in the vicinity of a proposed new building.[45] We accept that some support for the Society's interpretation is obtained from policy 3.5.1(j), in that the best way of respecting the scale of existing heritage buildings would be to restrict the scale of new buildings. But we accept the respondent's submissions that, when read in the overall context of the Operative District Plan, it is clear that the heritage criterion is not intended to override the development controls in the Operative District Plan, particularly the controls on height. If such a significant modification of such an important aspect of the Operative District Plan had been intended, one would have expected it to be expressed clearly, and that qualifying words would have been added to r 6.2.1(a). [46] We agree with the High Court Judge that the report prepared under s 32 supports that position. Para 4.3 of the s 32 report (see [31] above) is clear, and would be quite misleading if proposed Plan Change 2 had introduced a new height control for new buildings abutting existing heritage buildings. The general explanation in r 5.2.6 of the Operative District Plan also supports the position. [47] The Society's submission about the more limited interpretation leaving the Council with too little control to ensure respect for the scale of scheduled heritage buildings is a commentary on the adequacy of the heritage criterion. It is not for us to express a view on that. The Society's view of the inadequacy of the heritage criterion does not assist us in interpreting the words of the relevant provisions in their context. [48] The comparison of the drafting of paragraph (a) of the heritage criterion with that of r 14.4.7.2 also supports this interpretation. [49] In short, we agree with Rodney Hansen J that the reference to frontage height and design in the heritage criterion refers to the height of a building at its street frontage, not to its overall height. [50] The Council has now signalled clearly that that was its intention in the wording of the heritage criterion in decision Plan Change 2. But we do not see that as assisting the interpretation of proposed Plan Change 2 which was the law applying to Perron's application. We doubt that a subsequent change to that law can providemuch assistance to a court reviewing a decision made under the earlier version of the law.Conclusion: heritage criterion[51] The upshot of this analysis is that we conclude that the Council had not reserved to itself the discretion to require any alteration to the height of the proposed building, because it was within the parameters provided for in the development controls in Part 6 of the Operative District Plan. The Council did reserve to itself some degree of control over the design of the building, under the criteria in r 5.6.3.1(d). Of course, it also retained control over other aspects of the proposal for which consent was required, namely the width of circulation corridors, balcony sizes and outlook spaces. [52] But, crucially for the purposes of this appeal, none of the aspects of the proposed development for which the Council had reserved discretion to itself was of any real moment to the Society or the Parliament Street residents. Their concern was with the height and bulk of the building, and that was an element of the proposal which the Council did not retain discretion to influence. One aspect of the building over which the Council retained control was the height of its frontage. But the design of the building was such that it had no separate "frontage" and, in any event, the frontage onto Eden Crescent had no significance for the heritage buildings fronting Parliament Street. No issue relating to the frontage was raised by the Society in the High Court. [53] We uphold the decision of Rodney Hansen J that the heritage criterion does not address the height and bulk of a proposed new building.Rule 15.3.2.6: Was public notice or service required?[54] We now turn to the second legal issue identified at [5] above, concerning r 15.3.2.6 of the Operative District Plan, which provides:15.3.2.6 Restricted Discretionary ActivitiesExcept as provided for by section 94C(2) of the Act, the following discretionary activities will be considered without public notification or the need to obtain the written approval of or serve notice on affected persons. The Council will restrict the exercise of its discretion to those matters specified in the Plan for each particular activity. e) Any activity identified as a restricted discretionary activity in other parts of the Plan, except where those parts specify that this rule shall not apply.[55] As noted at [27] above, rule 5.5.3 (as inserted by proposed Plan Change 2) deems the erection of a new building to be a restricted discretionary activity in terms of s 77B(3) of the RMA. Rule 5.5.3 does not specify the non-application of r 15.3.2.6. Section 77B(3) provides:If an activity is described in this Act, regulations, or a plan or proposed plan as a restricted discretionary activity,— (a) a resource consent is required for the activity; and (b) the consent authority must specify in the plan or proposed plan matters to which it has restricted its discretion; and (c) the consent authority's powers to decline a resource consent and to impose conditions are restricted to matters that have been specified under paragraph (b); and (d) the activity must comply with the standards, terms, or conditions, if any, specified in the plan or proposed plan.[56] Section 93(1) of the RMA provides that an application for resource consent must be notified unless it is for a controlled activity or the consent authority is satisfied that the adverse effects of the activity on the environment will be minor. Section 94 provides for service of notice of the application on persons who may be adversely affected by an activity if notification under s 93 is not required. Sections 94A – 95 set out an extensive notice regime. This governs the tests for forming an opinion as to whether adverse effects are minor and for deciding who is adversely affected, the variation of notification and service requirements, and the time limits for notification. Section 94C, to which r 15.3.2.6 is expressed to be subject, providesthat if an applicant requests, the consent authority must notify the application (s 94C(1)) and if special circumstances exist, the consent authority may notify the application (s 94C(2)). [57] Rule 15.3.2.6 prima facie conflicts with the requirement in s 93(1) to notify unless the effects of a proposed activity are minor and with s 94. However, s 77D of the RMA expressly contemplates the overriding of the s 93(1) requirement. Section 77D provides:77D Rules for certain activities may include restrictions on notificationA rule for a controlled activity or a restricted discretionary activity may state whether applications for a resource consent for the activity may be decided without notification under section 93 or without service under section 94(1).[58] Rule 15.3.2.6 is made under that provision. (Section 94D(2) is in similar terms to s 77D.) The upshot is that r 15.3.2.6 provides for a restricted discretionary activity to be dealt with on a non-notified basis, even if the activity's effects on the environment are more than minor, provided that the applicant does not request notification or that the authority does not deem special circumstances to exist. [59] Rodney Hansen J found that r 15.3.2.6 unambiguously applied to r 5.5.3. He said the rule provided that the activity will be considered without public notification or the need to serve notices, so the obligation to consider the possibility of notification or service under ss 93 and 94 is removed. He concluded, therefore, that the Council was not required to make a decision, and there was no exercise of a discretion on its part. In the alternative, he concluded that, if the Council was not entitled to invoke r 15.3.2.6, it was nevertheless entitled to disregard issues of height and bulk. As no other features of the proposal were claimed by the Society to have potential adverse affects which were more than minor, the Council was entitled to conclude that neither notification nor service was required. The Judge saw the case as on all fours with the decision of the High Court in Body Corporate 97010 v Auckland City Council [2000] NZRMA 202, which was upheld by this Court inBody Corporate 97010 v Auckland City Council [2000] 3 NZLR 513.[60] Rodney Hansen J noted that counsel for the Society had argued in the High Court that, notwithstanding that r 15.3.2.6 provided that the Council will consider a qualifying activity without notification or service, the Council had a discretion whether to notify or serve it. He said a similar argument had been made in relation to a similar rule in Gordon v Auckland City Council HC AK CIV 2006-404-004417 29 November 2006. In that case Fogarty J had said that such an argument was tantamount to a challenge to the vires of the rule. He said no such challenge had been made by the Society, and in any event it was not clear to him that a rule in the form of r 15.3.2.6 was ultra vires s 77D. [61] There was some discussion about the vires of the rule in this Court, but the issue is not before this Court either, and we do not propose to deal with it in the absence of full argument. We record that Mr Loutit argued that r 15.3.2.6 did notrequire all proposals for restricted discretionary activities to be dealt with on a non- notified basis, because it was expressed to be subject to s 94C, and thus the Council had to determine in each case whether special circumstances existed, in which case it would be open to the Council to notify or serve notice on adversely affected parties. For that reason he did not adopt the finding of Rodney Hansen J that the Council in this case had no made no decision on notification or service: he said the decision not to notify or serve involved the Council in considering whether special circumstances applied and the Council rightly determined that none did apply. [62] Rule 15.3.2.6 does not, on any interpretation, completely obviate the need for consideration of the possibility of notification or service. That is for the reason given by Mr Loutit: that the Council must rule out the existence of "special circumstances" before concluding that it is appropriate not to notify or serve. Leaving aside issues of vires, we think it is necessary to interpret r 15.3.2.6 consistently with the empowering provision in the RMA, and, in our view, it would not be consistent with the RMA if the provision were interpreted as meaning that the Council was not required to address the issue of notification at all in a case like this one. Rather, as Blanchard J put it in Discount Brands Ltd v Westfield (New Zealand) Ltd [2005] 2 NZLR 597 at [103] (SC), a consent authority can make a non- notification decision "in a relatively straightforward way, by reference to the express terms of the district plan".[63] We agree with Mr Loutit that r 15.3.2.6 does not obviate the need for consideration of notification. We therefore respectfully disagree with the finding by Rodney Hansen J that no decision was made on notification in this case. We accept Mr Loutit's submission that the Council did determine that no special circumstances applied, and that there is no basis for challenging that determination. [64] Rule 15.3.2.6 would have been very significant in this case if we had decided that the Council had a discretion under the provisions of Plan Change 2 to require a reduction in the height of the building. In that case, it would have been clear that at least service would be required because of the adverse effect of a high building on the Parliament Street residents. So a rule mandating non-service would have been highly material to the outcome of the case. But, in light of our conclusion on the first issue, the significance of r 15.3.2.6 diminishes, for the reason to which we now come.Was notification or service required in this case?[65] We now turn to the more general question, as to whether notification or service was required in the present case. We are clear in our conclusion that neither was required, whether or not r 15.3.2.6 is brought into play. [66] In the light of our conclusion that the height and bulk of the building was not an aspect of Perron's proposal which required consent, the matters which were properly in issue were design aspects of the building, other matters relevant to the r 5.6.3(d) criteria, and the width of circulation corridors, balcony sizes and outlook spaces. It was common ground that r 15.3.2.6 did not apply to the last three of these because the relevant provision of the Operative District Plan expressly said so. In addition, Perron applied for consent for food and beverage activity (the proposed café on the ground floor) and a departure from loading standards. [67] It is clear that none of these aspects of Perron's proposal had effects that were more than minor, so the Council was entitled to conclude that public notification was not required under s 93. It was equally clear that none of these matters adverselyaffected the residents in Parliament Street, so the Council was entitled to decide not to serve notice on them of Perron's application. [68] As Rodney Hansen J found, the finding that the relevant provisions of proposed Plan Change 2 could not affect the height of Perron's proposed building effectively disposed of the Society's contention that notice or service was required. Once it is established that the Council was entitled to disregard issues of height and bulk, its decisions under ss 93 and 94 are uncontroversial: the matters within the Council's discretion were plainly minor and did not cause any adverse effect on the neighbouring landowners. We agree with the Judge that Body Corporate 97010 is on all fours with the present case.Challenge to the decision to grant resource consent[69] The resolution of the issue relating to the Council's discretion to control the height of the development also resolves this aspect of the case. The Society's challenge to the grant of the resource consent was based substantially on the failure of the Council to notify or serve the application, and we have found that the Council made no error in that regard. Once it is determined that the Council had no discretion to require a reduction in the height or bulk of the development, it is obvious that there is no basis for challenge to the grant of the resource consent in this case under normal judicial review principles. We did not understand counsel for the Society to suggest otherwise.Other matters[70] In view of our conclusions on the validity of the decision not to notify or serve and of the decision to grant resource consent, it is not necessary for us to deal with other arguments raised by the respondents dealing with the relevance of proposed Plan Change 2 to the "permitted baseline" test and in relation to the granting of a remedy. We record the argument made on behalf of Perron that, even if the Society had succeeded, and the Court had required reconsideration of Perron's application, it would have been inevitable that the application would not have beennotified or served and that it would have been successful; this because on a reconsideration the proposal would have had to be considered on the basis of decision Plan Change 2, not proposed Plan Change 2. Decision Plan Change 2 is expressed in terms that unambiguously rule out any discretion relating to the height and bulk of the proposed Perron building.Result[71] The appeal is dismissed.Costs[72] In the High Court, Rodney Hansen J awarded costs against the Society on a 2B basis. He accepted there was a public interest element in the litigation, but noted that the Society was also acting in the private interest of its members, the residents of the heritage buildings in Parliament Street. In our view it is appropriate to take a similar approach to costs in this case, and we therefore make an award against the Society on a standard basis, requiring it to pay costs of $6,000 (to be divided evenly between the respondents) and the usual disbursements of both respondents. Like the High Court Judge, we do not certify for second counsel for the respondents.Solicitors: Holmes Dangen & Associates, Auckland for Appellant Simpson Grierson, Auckland for First Respondent Russell McVeagh, Auckland for Second Respondent