ROYAL FOREST AND BIRD PROTECTION SOCIETY OF NEW ZEALAND INCORPORATED V KAPITI COAST DISTRICT COUNCIL AND ANOR HC WN CIV-2007-485-635

ROYAL FOREST AND BIRD PROTECTION SOCIETY OF NEW ZEALAND INCORPORATED V KAPITI COAST DISTRICT COUNCIL AND ANOR HC WN CIV-2007-485-635 21 November 2007IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY CIV-2007-485-635BETWEEN ROYAL FOREST AND BIRD PROTECTION SOCIETY OF NEW ZEALAND INCORPORATED Plaintiff AND KAPITI COAST DISTRICT COUNCIL First Defendant AND KOTUKU PARKS LIMITED Second Defendant Hearing: 20 September 2007 Counsel: P Beverley & J Opie for Plaintiff J G A Winchester & E C Dowding-Smith for First Defendant S Kos QC & J Verbiesen for Second Defendant Judgment: 21 November 2007 at 4.00 p.m.JUDGMENT OF SIMON FRANCE J 1. Introduction[1] In these proceedings the plaintiff (Forest and Bird) challenges the decision of the Kapiti Coast District Council (the Council) to issue a subdivision resource consent without publicly notifying the application. The application may be processed on a non-notified basis if the Council is satisfied that:the adverse effects of the activity on the environment will be minor.[2] If the Council decides to proceed on a non-notified basis, it must nevertheless serve notice of the application on anyone who may be adversely affected by it. TheCouncil decided Forest and Bird was not a person who may be adversely affected; the decision is also challenged on review. [3] The second defendant, Kotuku, is the developer. The present application concerned Stage IV of a large development, which dates back to 1985. The site in issue was the subject of a subdivision application, in 1998. Consent was given but was overturned by the Environment Court in 2000. The present application is significantly reduced in scale from that previously considered by the Environment Court. The site is in Waikanae, and the focus of the plaintiff is the impact of the subdivision on the sand dunes, and on the neighbouring Waikanae Estuary Scientific Reserve.2. Legal authorities[4] The general scheme of the Act is that an application for resource consent should be notified unless the adverse effects are minor. It is important, however, to note a qualification to that – in assessing effects, the Council is to disregard any effect on a person who has given written approval to the application. It was estimated from the bar that 90-95% of applications go unnotified, no doubt due to a large extent to this qualification. The bulk of the non-notified consents will no doubt be residential applications where neighbours have provided written consent. [5] When a resource consent application is made, there are two potential opportunities for participation by other persons: a) First, if the application is publicly notified; b) Second, if the person is served with a notice of the application. [6] Either process creates the opportunity to make submissions, to require a hearing to take place, and to take the matter to the Environment Court. Denied either option, a person has no capacity within the consent process to comment upon the application.[7] There have been several judgments which have considered the obligations on a Council, and the role of a reviewing Court, in relation to the non-notification decision. The leading authority is Discount Brands Ltd v Westfield (New Zealand) Ltd [2005] 2 NZLR 597 (SC). That decision considered a form of the Resource Management Act 1991 (RMA) that has been substantially amended since. However, subsequent decisions have taken the view that the essential principles identified inDiscount Brands remain unaltered. [8] In Discount Brands the members of the Court emphasised the block that a non-notification decision represents on public participation. The value of public participation was identified by Keith J (at [46]):The purpose of these public participatory processes are two-fold – first, to recognise and protect as appropriate the particular rights and interest of those affected and more general public interests and secondly, the enhance the quality of the decision making.[9] At the time of the decision under challenge in Discount Brands, the statutory scheme imposed a two-step process on a decision-maker. First, it had to be satisfied as to the adequacy of the information it had on which to base the decision; second, it then had to consider the adverse effects issue. In 2003 the legislation was amended to remove "adequacy of information" as a separate preliminary inquiry. [10] Several High Court cases have considered non-notification challenges since the 2003 amendments. There is a uniformity in the identification by those Courts of the relevant principles, and those restatements are generally adopted by the parties in this case – the cases include Northcote Mainstreet Incorporated v North Shore City Council [2006] NZRMA 137; Sawmill Workers Against Poisons Incorporated v Whakatane District Council ROT HC CIV-2006-483-32, 13 February 2006, Heath J;Petone Planning Action Group Incorporated v Hutt City Council WLG HC CIV- 2006-485-405, 10 October 2006, Clifford J; Peter Rea v Wellington City CouncilWLG HC CIV-2007-485-0162, 17 April 2007, MacKenzie J; and Auckland Regional Council v Rodney District Council Auckland HC CIV-2007-404-3464, 24 August 2007, Hansen J. Also commonly relied upon, in relation the proper approach of a Court to such challenges, is Pring v Wanganui District Council [1999] NZRMA 519 (CA).[11] Different formulations of the principles can be identified. Rather than adding another, I set out those of Clifford J in Petone Planning Action Group:[35] The general propositions put to me by the plaintiff, with which counsel for the first and second defendants agreed, were that: a) The 2003 amendments to the Act on notification retained the principle that non-notification was an exception, but a preliminary decision on the adequacy of information available in support of the application did not need to be made before deciding not to notify (there was no longer a "gate-keeper" role): Northcote (paras 81, 93 and 95) and SWAP (para 40). b) Under the 2003 amendments, the authority still needs to have sufficient information at the stage of deciding whether or not to notify to make the decision on a properly informed basis with reliable information regarding the nature and context of the application and the issues it raises from a planning perspective, including to determine the likely effects: Northcote (paras 109 and 111) and SWAP (para 42). c) The extent of information is related to the nature and importance of the issues involved, e.g. if public health issues are raised a more detailed appraisal of amenity issues may be required: SWAP (para 43-44) and Northcote (para 109). d) The principles stated in (b) and (c) above do not change the pre- 2003 test of adequacy or sufficiency of information in "any material way" from that stated by Blanchard J in Discount Brands Ltd SC (para 114): Northcote (para 110) and SWAP(para 41). e) The appropriate intensity of review of the finding that adverse effects would be no more than minor remains that stated inPring v Wanganui District Council [1999] NZRMA 519 at 523:Northcote (para 170). f) The 2003 changes to s 93 removing the references to "direct effect" and "adjacent owners and occupiers of land" altered the scope of who is adversely affected by a proposal to require notification to them by extending the provision to persons indirectly affected and to those who are not affected because they are owners or occupiers of land: Northcote (paras 184- 188). g) Even if it is determined that adverse effects are no more than minor, all who are adversely affected are to be notified unless they have [all] given consent: Northcote (para 93) and SWAP(para 40). (my addition) [36] As regards judicial review principles the plaintiff submitted that the passage from Pring quoted in Northcote (at para 170) was to be followed. It could be summarised in the following propositions relevant to this proceeding:a) All relevant considerations must be taken into account and irrelevant considerations ignored. b) The decision must be one a reasonable decision-maker could reach on the basis of the material available to it. c) The weight given to relevant matters is for the decision-maker, but there must be something there to which the decision-maker can give weight. d) This Court will scrutinise the decision more closely and with a less tolerant eye than it would decisions where broad policy considerations were present and there was less impact on peoples' lives.[12] Against that background I turn to the particular case.3. History of the site[13] Kotuku was formed in 1972. It acquired a substantial block of land in 1973, which landed included the present Stage IV site. In 1978 the Crown acquired 27.3 hectares of the land, which then became the Waikanae Estuary Scenic Reserve. DOC is the body which administers the Reserve, and is to be regarded as the landowner. [14] In 1985 Kotuku entered into a joint venture with adjacent landowners that involved 40 hectares of land adjoining the Waikanae Estuary. A subdivision concept plan was drawn up in 1989, and approved by the Kapiti Borough Council. In Kotuku's view that concept plan has remained the governing document in the subsequent 18 years of specific applications and developments. In 1999 a further 2.29 hectares was obtained by DOC to complete the Waikanae Estuary Reserve. [15] The land that is the subject of the present application consists of 2.06 hectares, which is to be divided into a 10 lot subdivision. The site contains low level sand hills with an average height of six metres, and a maximum dune height of nine metres. A man-made lake adjoins the site to the south-east. The Waikanae River Estuary and the Coastal Marine Area are situated immediately to the north and west of the site. The Waikanae Estuary is a scientific reserve managed by DOC. The District Plan lists the Reserve as an "ecological" area, and an outstanding landscape.A buffer area with an open space zoning exists between the site and the Coastal Marine Area. [16] In 1998 Kotuku obtained a resource consent for a 31 lot subdivision on an increased site area of 3.2 hectares. The application had proceeded on a notified basis and the opponents successfully challenged the consent in the Environment Court. That decision will be discussed in more detail shortly. [17] As is plain, the present 10 lot application on a smaller area of 2.06 hectares is much reduced from the original proposal. The process of public consultation that has accompanied the application is given different emphases and analysis by Kotuku on the one hand, and Forest and Bird on the other, but the essentials can be stated. It is clear Kotuku has worked hard to obtain the support of those who were in opposition to the original proposal. For example, a staunch critic of the 31 lot proposal was a landscape architect Mr Frank Boffa. For the revised proposal Kotuku engaged Mr Boffa and his firm to work with them on the landscape and visual effects considerations. Other opponents of the first application such as local iwi, and the Kapiti Environment Action group have also consented to the revised proposal. [18] Of the original opponents, Forest and Bird and the Waikanae Estuary Guardians were the two primary bodies to continue to withhold approvals. [19] The proposal was treated as being for a discretionary activity. The land in question is zoned residential, and the size of the proposed lots meets the minimum requirements of the relevant plan. However, the scale of the earthworks exceeded the permitted activity standards as regards volume, and because it would reduce the level of the land by one metre. Further, the work was being conducted within 20 metres of the adjacent lake noted earlier. [20] Before detailing the evidence of the Council planners as to why the application was not notified, it is necessary to consider the Environment Court decision on the previous consent.4. The Environment Court decision[21] As noted, the original proposal and consent concerned a 31 lot proposal. In addition four lots were to be used for road, reserve and reserve access. The subdivision would have involved borrowing 65,000 cubic metres of material from other areas to the east of the site. (By comparison the present proposal involves a total earthworks of 13,000 cubic metres, with 8,000 of that being brought in.) [22] The 2000 Court decision traversed the evidence before it in some detail. It is important to distinguish that process from the actual conclusions of the Court. The Court concluded concerning the sand dunes: a) The subdivision site had considerable natural character. The contribution to the natural character of the coastal environment was enhanced by two features – the proximity of the Estuary, and the fact that the sand dune land-form of the sites (the subdivision and the "borrow areas" from where the extra material would come) "is a remnant of the landform which once characterised the Kapiti coast, most of which has been destroyed"; b) The proposed earthworks would change the sand due character of the sites forever, and accordingly their contribution to the coastal environment would be lost; c) The sand dudes did not qualify as outstanding natural features or landscape. [23] Concerning the issue of indigenous vegetation and fauna habitats, the Court concluded that the site itself was not a significant habitat but the adjacent Waikanae Estuary was "a significant habitat of indigenous fauna", the indigenous vegetation of which was a necessary part of the habitat. [24] Concerning the visual effects of the proposal, it was concluded that:The totality of the development, from earthworks replacing the natural undulations with a mainly featureless landform, to houses and accessory structures (including fences), would result in a landscape that would be less attractive.[25] The primary adverse visual effects were noted as being in relation to the borrow areas. [26] It is important to state the Court's conclusion in its exact terms:In short, in the circumstances of the particular site the proposal is too intensive and would have effects on the environment that are too great. That is not to conclude that no residential use of the site should be permitted. But it is not appropriate for this Court to set limits, nor to offer the owners advice about how to design development that deserves consent.5. A preliminary observation[27] There was considerable commentary on this decision in the affidavits and submissions. The deponents who filed evidence in support of the challenge tended, in my view, to see the decision as establishing a greater value for the site than can be justified by its actual terms. There was a tendency to equate recitation of evidence by the Court with adoption of the evidence. [28] On the other hand some of the defendants' evidence, in the context of the adequacy of the information before the Council on the present application, tended to place too much weight on the evidence before the Court in 2000. That concerned a vastly different proposal, and the Court's conclusion cited above is not an imprimatur for some development. [29] The reality, in my view, is that the Environment Court decision is a relevant piece of context, but should not be over-weighted in the present process. Once it is accepted, as seems common ground, that the present proposal bears no real similarity to the one before the Court, the limits on using the 2000 decision become plain. Certainly the Court's finding on the values of the land in question needed to be given careful consideration, but as should be plain from the conclusions set out, those findings were not as expansive as seemed to be claimed. Also they were influencedby the impact both on the site itself, and the adjacent sites which were to be the source of 65,000 cubic metres of fill.6. The Council's handling of the present application[30] Evidence was filed from Mr David Gair, who was the Council's "Principal Planner, Subdivisions", and Mr Michael Mackiggan, who was a senior resource consents planner with the Council. Mr Gair and Mr Mackiggan held a delegated authority to make the notification and consent decisions. Mr Mackiggan had been employed by the Council only a relatively short time before his role in the present application. Also, in addition to the affidavits they have filed, obviously relevant to this aspect of the narrative is the actual written Report prepared by the two men at the time. That Report represents the Council's formal decision not to notify the application. It has no statutory basis, but is the means by which the process and decisions are recorded. [31] Mr Gair says he considered that:• The careful approach of the applicant, including decisions to control the placement of building platforms, ensured the natural character of the land was not affected in a manner that was more than minor;• The building exclusion zones created a buffer between the site and the Scientific Reserve, meaning the natural character of the coastal environment was maintained, as the earthworks would have a minimal impact.• Public access is already allowed by DOC to the Reserve, and there was a substantial fence offering protection. [32] Mr Mackiggan emphasises the developers' decision to prescribe the building platform sites as being important in controlling future impacts. He made a site visit and then reviewed the application with Mr Gair. Mr Mackiggan considered the ultimate effect of the earthworks would be negligible, particularly given their scalecompared to the overall size of the site. It was felt the natural character of the dunes development would be preserved, and the buffer zones were important in minimising impact on the Reserve. The engagement of Mr Boffa was seen as a significant plus. [33] Mr Mackiggan says he carefully read the previous Court decision. He considered the main environmental effects that would arise were nuisance effects and potential visual effects. The nuisance effects would be temporary. The design of the earthworks would, in his view, preserve the natural character of the dune environment. [34] The written Report prepared at the time largely mirrors this later evidence. Although the plaintiff fairly warns against placing too much reliance on after the event explanations, as opposed to reliance on the contemporaneous documents, there is no great discrepancy between the two such as to cause concern. The Report is very much a formal record that is intended to show that all the boxes have been ticked. It provides little insight into the actual reasoning underlying the conclusions. One is, therefore, to a certain extent required to rely upon later explanations and there is no reason to doubt the affidavits of Messrs Gair or Mackiggan as to what their thinking was.7. Other evidence on the review[35] Having detailed the evidence of Messrs Gair and Mackiggan filed for the first defendant, it is convenient to continue with the balance of the defendants' evidence before addressing that filed for the plaintiff. It is intended at this point only to outline the broad nature of the evidence. If the detail is relevant it can be identified as required. [36] No other evidence was filed for the Council. [37] On behalf of Kotuku, the Chairman of Kotuku, Mr Alan Fraser, set out the history of the site and the consultation undertaken. Mr Halliday, a Resource Management Planner employed by the firm, which prepared and submitted the application for Kotuku, also filed evidence. The focus of his evidence was primarilyto describe the nature and timing of the earthworks; this was filed for the purpose of an interim orders hearing heard previously by Mallon J. [38] Mr Alec Stevenson is a Waikanae resident who lives opposite the proposed development. He has lived in the Waikanae Estuary are for 30 years. His evidence is to the effect that, given what is already permitted in the area, and what already occurs in the area, he does not consider the proposal will have an impact. [39] Mr Ian Prentice is a Registered Professional Surveyor and a director of the consultant who prepared the application. He describes the consultation process. He disputes the potential impacts claimed by the plaintiff's witnesses, and suggests the problems being raised were never put in issue during the consultation process. [40] Mr Paul Kennedy is an Environmental Consultant who was involved in the unsuccessful 2000 consent application but not in the current one. His focus is to address the plaintiff's challenges as to the adequacy of the information available to the Council. A focus of his evidence is that insufficient weight has been given by the plaintiff's witnesses to the evidence before the Environment Court, and insufficient weight has been given to the existing use and density of population in the area.8. Plaintiff's evidence[41] The plaintiff's evidence is from Forest and Bird officials, and from experts on the issues of sand-dunes and bird life. [42] Mr Robert McLachlan is the secretary of the Kapi-Mana branch of Forest and Bird. He details the Society's involvement in the 2000 application, and Court proceedings, and its efforts to have the current application publicly notified or to have Forest and Bird heard as an affected party. In a reply affidavit he disputes the efficiency of the boundary fence (essentially because it ends and you can just walk around it). He also disputes the suggestion by Mr Fraser that Forest and Bird indicated in 2000 it would support a lesser development.[43] Mr Michael Britton is the General Manager of Forest and Bird. His evidence is directed at the Society's position in relation to interim orders, and undertakings as to damages. [44] Mr James Griffiths is an expert in dune ecology. He has not studied the dune ecology in Waikanae but makes general observations. His essential thesis is that dune systems are interconnected, and it is not possible to say without a full study what specific interference with the dunes on the site will have on the broader system. Further the dune systems in New Zealand are lessening in number, and therefore merit protection. He details what matters a full report should cover. In a reply affidavit he reasserts his evidence. [45] Mr Alan Tennyson is a zoologist who is also very familiar with the birdlife of the Waikanae Estuary. His evidence was a source of the Environment Court conclusion that the Estuary was a significant habitat of indigenous fauna. He summarises his 2000 evidence, and notes that almost all the weakness then identified have been addressed. However, his conclusion is that the proposed lesser development is still likely to have serious negative effects on the birdlife. My reading of Mr Tennyson's evidence, including his two supplementary affirmations, is that he considers any increase in the human population will be seriously negative.9. Issue one – the decision not to notify[46] The plaintiff's challenge involves two primary complaints:• First, the Council did not consider the whole range of adverse effects that might arise from the subdivision proposal. It is argued that the Council focussed only on the impact that the earthworks would have on the site itself. The law obliged it to consider all potential effects, not just the immediate issue that led to consent being required in the first place. The two notable adverse effects that had to be considered, and were not, were the impact of the subdivision on the neighbouring Estuary, and the visual impacts of the proposal. Both matters had been the subject of consideration by the Environment Court in 2000, and surprise wasexpressed that the Council did not recognise the importance of these aspects;• Second, the information that was available to the Council on all the effects, both those considered and unconsidered, was inadequate and did not allow a lawful decision to be taken. [47] Other points are made but need not be separately identified at this stage. [48] An important aspect of the response of both defendants is that the Council was obliged not to consider the impacts on the Estuary. This was because the adjoining landowner, DOC, had consented to the subdivision. The defendants therefore relied on s94A(c) of the Act which provides94A Forming opinion as to whether adverse effects are minor or more than minorWhen forming an opinion, for the purpose of section 93, as to whether the adverse effects of an activity on the environment will be minor or more than minor, a consent authority – (c) must disregard any effect on a person who has given written approval to the application.[49] Focussing, therefore, only on the adverse impacts on the particular site, the submission of both defendants is that the information available to the Council was adequate, and the decision reached was one that was open to the Council. [50] This judgment analyses the challenges first from the viewpoint of adverse impacts on the particular site, and then considers the relevance of adverse effects on the other sites, and in particular the Scientific Reserve.(a) Consideration of impacts on the site itself(i) Competing submissions[51] The essential challenges to the decision as it relates to the site itself are that the Council had insufficient information given the importance of the features of the site, and failed to consider all the potential adverse effects. [52] The plaintiff emphasises aspects of the 2000 decision that recognise the value of the sand dunes as part of the natural character of the coastal environment (a matter of national importance under s6 of the RMA). It points to the Court's conclusion that:"the landform of the sites contributes so much to the natural character of the coastal environment, and is among the last representatives of it in the district".[53] The inadequacy of the information concerning the visual impacts, and the inadequacy of the consideration of such impacts, is also submitted to be a fundamental error. Generally Mr Beverley submitted the Council placed too much weight on the untested evidence in the application, and the fact that a former critic, Mr Boffa, was now responsible for the landscaping. Further, the second defendant's application is written in terms of whether consent should ultimately be given, which is a different test from whether an application should be publicly notified. [54] Aspects of the way the tests are stated in the written Report are criticised. For example, the Report states:"The subsequent residential development of the site is clearly contemplated by the Environment Court. The earthworks proposed are a natural development progressed from that decision."[55] I interrupt the outlining of the plaintiff's case to observe that this statement in the Report must be regarded as incorrect. To suggest the Court's decision of 2000 was in some way a blueprint for a future subdivision is to misread the Court's reasoning. It is also submitted by the plaintiff that the Report wrongly relies on the fact that residential subdivision is an authorised activity for the site. Whilst relevantto the ultimate consent decision, it is not a factor relevant to determining public notification, in that the s93 focus is on the significance of any adverse effects created by the intended use, not on whether those adverse effects should ultimately be permitted. [56] In response the Council emphasises that the merits of the decision are not an issue for the Court, except in so far as Wednesbury unreasonableness is alleged. Concerning the information available, Mr Winchester submitted the intention the legislation was to provide a balance between the level of detail required, and the type of proposal being put forward. [57] In this case the Council had received a "comprehensive and well thought out reappraisal for the development site". [58] Mr Winchester submitted it is a judgment call for the Council to determine, as a matter of fact, whether the effects are minor. The Council refers to the "Site History" section of the written Report as indicating proper consideration of the site's significance and the impacts on it. The limits of the role of the Report are noted, and reliance is placed on the additional affidavits filed on these proceedings. It is submitted the Council was right to place weight on Mr Boffa. [59] Mr Kos QC appeared for Kotuku. As a general proposition he submitted that the plaintiff was seeking a review of the merits disguised as a judicial review application. Mr Kos emphasised the extensive background of the subdivision, dating not just back to the 2000 decision, but right through to the original approved concept plan. The Court proceedings in 2000 had involved extensive evidence, and the Council had had proper regard to it.(ii) Analysis[60] I begin with the written Report of the Council. It is helpful to set out the whole of the Site History section on which the Council relies."The application site forms part of the wider Kotuku Parks development being developed by Kotuku Parks Limited and is known as Stage Four. TheKotuku Park Development area is being developed in accordance with a concept plan designed in conjunction with the Kapiti Coast District Council dating from 1989. A resource consent for 31 residential allotments on this site (and the land to the north) involving earthworks of up to 75,000m3 of cut and fill was approved by the Council in October 1998 subject to 40 conditions (RM 970254). This decision was however appealed to the Environment Court by several submitters as well as the applicant who opposed several conditions of consent. The Environment Court determined the appeals by submitters should be allowed and cancelled the Council's decision on the basis that the development was too intensive and would have effects on the environment that would be too great. In closing the Judge noted "that is not to conclude that no residential use of the site should be permitted". Subsequent to the Environment Court's decision the applicant has employed the services of consultant landscape architects Boffa Miskell, and significantly amended the proposal reducing the overall number of residential allotments sought to 10. Protracted discussions and negotiations have been undertaken with the parties to the Environment Court appeal resulting their eventual agreement to the proposal now under consideration.[61] Under the heading of Earthworks, the Report notes:"The earthworks proposed exceed the Permitted Activity Standards and will change the present landform by reducing the overall height of the sand dunes to provide flood free building sites, plus facilitate the creation of roads and building platforms. It is considered that the works will enable residential subdivision within the scale and intensity intended by the District Plan for the Residential Zone. The subsequent residential development of this site is clearly contemplated by the Environment Court decision. The earthworks proposed are the natural development progression from that decision. It is considered that the adverse effects of the earthworks on the subdivision site itself will be less than minor, as they will be temporary in nature, of short duration, and largely physically removed from adjoining residential properties. They will be undertaken as per the Earthworks Management Plan submitted to and approved as satisfactory by Council's Subdivision Engineers.[62] The Report concluded the effects would be minor:Although the earthworks exceed the permitted standards and will change the present landform by creating roads and building platforms, it is considered the works will enable residential subdivision within the scale and intensity intended by the District Plan for the Residential Zone. It is considered that the adverse effects of the earthworks will be no more than minor."[63] Standing alone this document would give rise to some concern. Recalling that the Environment Court held that the sand dunes were not of themselvesoutstanding natural features, but were a remnant of a landform which once characterised the Kapiti Coast, there is nothing in the passages cited that shows any consideration of the impact of the development on the landform themselves. The section under earthworks seems very focussed on the mechanics of creating the building site – i.e. the truck traffic and digging involved. Hence one has the emphasis on temporary effects, with no express reference even to the reasons why a consent application is required, namely the change to the height of the dunes, and the amount of material being imported. [64] Despite earlier comments about the relevance of the Environment Court's conclusions, it is helpful at this stage to look at some of the evidence that was before the Court on that occasion and which informed its assessment. The points that are noted below are by no means an exhaustive analysis of the Environment Court decision, but do capture the concerns that informed the Court's approach:• the most significant dune would be lowered by 9m to 6m;• the sand dune in borrow land A would be modified by the amount of material to be taken from it;• the developer's landscape architect accepted that the dunes are very important in defining the natural character of the site, and are its main features. The proposed flattening of them would be a complete antithesis of the natural character. The "foredunes" within the site are the last remaining ones on the coast for a considerable distance to the north and to the south;• a planning consultant of the developer:"acknowledged that they are significant landforms. He testified that the oxbow is an outstanding natural feature, and that the dune adjoining it has significant value. He considered that the proposed earthworks in that dune (Cut A) were not acceptable because of their proximity to the oxbow feature, and potential effects on landscape and amenity values.[65] As a matter of balance it should be noted that the Court also sets out other evidence from the developers that downplays the value of the dunes on that particular site. Turning to some of the other evidence detailed in the judgment, one of the Council's planners stated that:"the existing dunes within the subdivision site represent a substantial part of the small number of natural dune formations remaining on the margins of the Waikanae Estuary Scientific Reserve, and contribute to the natural character of the area."[66] Mr Boffa had testified that the proposal would modify the dunes to the extent that the foredune system would largely be lost. [67] All this evidence led the Court to the conclusions it reached – the site and the borrow areas possess considerable natural character; this is enhanced by its proximity to the Estuary and the fact that the dunes are a remnant of what was once a much larger landform. [68] In my view what one would expect in relation to this revised proposal is some sort of cross-referencing to these concerns. It is clear the present subdivision is much more modest, and involves a vastly different amount of earthworks. That its impacts on these landforms will be much less is not difficult to infer. How less though? And in what way? What does this proposal do to the dunes and the landform, and is that impact so minor as to fall within s94? [69] The passages I have cited from the Report obviously fail to provide this information, nor do they suggest that such a consideration has been undertaken. It is necessary to then consider the affidavits of the two decision-makers. [70] Mr Gair says the careful approach of the applicant ensured that the natural character of this environment was not affected by the proposed earthworks in a manner that was more than minor. It does not appear that Mr Gair visited the site, so presumably he found this information in the application. His evidence does not provide any reference to the appropriate parts.[71] Mr Mackiggan did visit the site. Like Mr Gair he emphasises the advantages of the developer controlling matters by stipulating where the building platforms were to go. This presumably meant that the impacts could be assessed at the time of application, and would not be affected by individual choices of subsequent purchasers. [72] Mr Mackiggan deposes the bulk of the effects will be from the work associated with the earthworks. He determined that:"the ultimate effect of the earthworks would be negligible, particularly given that the overall scale of the earthworks are not great given the size of the site."[73] That conclusion is certainly directed to the issue under consideration, but does not specifically address the nature of the works on the dune formations. However, he goes on to say:"I also considered that the proposed earthworks had been carefully designed to minimise dune disturbance only to the extent which was necessary for development to occur, and ensure that in general the natural character of the dune environment in that area would be retained." (my emphasis)[74] There are plusses and minuses in this. It is a clear focussing on the issues of concern to the Environment Court, and suggests that at least visually to Mr Mackiggan's eye, the impacts were being minimised. However, it also raises concerns that the correct issue was being addressed. The italicised passages do not suggest that Mr Mackiggan was looking at whether the impacts were minor, so much as whether they had been minimised as much as possible. [75] To be fair, however, Mr Mackiggan does go on to note that Mr Boffa had done careful work in designing the earthworks and locating building platforms. He concluded that this work ensured that the visual effects were significantly mitigated, and that:"the natural character of the local and coastal environment was not affected in a way that was more than minor."[76] This again is evidence that the decision-maker has turned his mind to the issues that concerned the Court. The next parts of the affidavit again reinforce animpression that the focus is at times more on whether they are minimised as much whether they are minor. However, I consider that Mr Mackiggan's evidence does indicate the Council has addressed the right issue. [77] Turning to the underlying information, the Court was supplied with the second respondent's full application to the Council, which I have read. From the Assessment of the Effects on the Environment Report, more detail as to why it is a restricted discretionary activity emerges in that it is identified that the permitted earthworks activity is less than 50 cubic metres, a total obviously exceeded by a significant margin by this proposal. [78] The planned earthworks are explained in more detail. 13,000 cubic metres are required to provide the roading access, and to ensure that the building platforms are the required height above the 1 in a 100 year flood level. The timeframe required for this work is detailed as is what the intensity of truck traffic will be. Only 5140 cubic metres of the required amount can be obtained from the site itself. The reason that only a limited quantity is available from the site is because the impacts on the landform are being minimised. The existing average height of the dunes is identified as 6m; the highest dune, which will be unaffected by the development, is 9m. The average change in ground level over the earthworked site will be 1 metre. The Report notes the road has been redesigned so as to now snake through the site at the low points to avoid affecting dune tops and to minimise impact on the topography. [79] The advantages of establishing the building platforms at one time are discussed. It is noted that for Lots 3-7 it will be necessary to "relocate" and replicate the minor dunes around the periphery of the earthworked area. The amount of trucking work required is caused by the decision to retain the greater part of the main dune running through Lots 2 and 9. This meant more borrowed fill was required. Appended to the AAE Report is the Earthworks Management Plan which details the areas of fill and cut (removal). [80] The second source of information is the landscape and visual effects report written by Mr Boffa. That report appends 3D formatted images of the landforms before and after the earthworks, and before and after the mitigating landscaping.The focus of the actual report is very much on the planting and landscaping which is designed to minimise the visual impacts, but in the course of establishing the setting to be landscaped, useful visual information on the effect of the earthworks is identified. [81] At this point I next consider the plaintiff's submissions concerning the information the Council did not have and should have. The primary evidence relied on in this regard is from Mr Griffiths. As previously noted he is an expert in dune ecology. His essential thesis is that one cannot know the impacts of work on dunes without a full study. His focus is on the ecology of the dune itself, rather than on the landform aspect. [82] His evidence is at a general level. It involves no study of the site itself, and the value or otherwise of the dunes on that site. Mr Griffiths' point in response to this would be that dunes are a linked system, so interference with one may impact to a greater or lesser extent on others. Nevertheless, I am unconvinced as to the value of an abstract analysis such as his at this stage of the proceedings. [83] Mr Griffith's observations on the information that was available to the Council is that it does not go far enough in that it does not provide a detailed study of the role of these dunes within the overall dune system. He does not dispute the correctness of the information that is there about the impacts on the landform themselves. [84] Mr Griffith's evidence introduces a new focus. Although one witness, whom he cites, had referred during the 2000 proceedings to the links between the site dunes and the Reserve, it was not a focus of those proceedings nor was the ecology of the particular dune a matter which concerned the Court. To a large extent Mr Griffiths' evidence seems more directed to wider policy and zoning planning issues, than providing any real assistance on the specific application. I agree with the observations of the respondents that there is an air of unreality about his evidence in that it gives no acknowledgement at all of existing sites and developments and occupancy, and does not seek in any way to place the particular application within a context, or recognise permitted uses. On the other hand, the permitted earthworksare less than 50 cubic metres; the present proposal exceeds that by 13,000 cubic metres. [85] In assessing whether the Council had adequate information, focussed on the right question and reached an available decision to not notify, I remind myself of some observations from Discount Brands. The Chief Justice observed:"[28] There is nothing in its decision to indicate that the consent authority appreciated the true nature of the question it had to address under s94(2). It proceeded as though it were considering the substantive determination of a resource consent for a non-complying activity under s105 (which would have required a conclusion that the effects on the environment were minor) and on the basis of material put before it by the applicant and generated from the council's own resources. The question it should have considered was whether it could be satisfied without notification that any adverse effects on the environment of the activity proposed were minor. If not, it was required to notify the application."and Tipping J made the important point that information is to be distinguished from assertion. [86] The matter is finely balanced. There was material in the application that allowed some assessment of the impact of the dunes; that material was in both narrative and diagrammatic form. Mr Mackiggan had the advantages of a site visit which must greatly assist with perspective. The Council was entitled to rely on the fact that Mr Boffa had expertise, and his views had been accorded weight by the Environment Court. The application shows he was concerned in the proposal to minimise landform impact, and visual effects. [87] On the other hand the words of the Chief Justice appear to be in sharp focus. Has the Council turned its mind to the actual decision it is taking, which is whether to notify. I consider on the material it might have been open to the decision-maker to conclude that it could be satisfied, without notification, that the effects on the landform would be not more than minor. Has it directed itself to that issue, though? [88] In the final analysis the plaintiff has not satisfied me that the decision-makers asked the wrong question. Certainly in the way they framed some of their statements there is room for the view that they were looking at the ultimate consent question, rather than the prior notification question, but the passages I have cited, particularlyfrom Mr Mackiggan, satisfy me. To those could be added passages from both men's affidavits where they explain they did not consider further information was required or that notification would provide more information. Mr Mackiggan notes the history of the site and the earlier proposal had allowed for opinions to be placed in the public arena. [89] The issue with the landforms is very much a visual one, both in terms of visual effects, but also in terms of exactly what impact and alteration to existing dunes is actually happening. None of the plaintiff's evidence suggests the information before the Council was incorrect on these matters. Whether that degree of impact is "more than minor" is a judgment to be made, and I do not consider it can be said the Council's conclusion was not open to it, even taking a hard look approach and emphasising that the consequence is no public participation. [90] On that last point, least it be thought that the "public" had been shut out, I do observe there is validity in Mr Mackiggan's point about prior opportunities. Also, the second respondent's consultation process on this proposal had been extensive, and is reflected in the wide range of consenting persons and bodies. Several of these are not adjacent landowners, but are public interest bodies just like the plaintiff. [91] The remaining challenges concerned similar complaints about the visual impacts. No evidence is provided by the plaintiff to support their concern. I do not need to detail the evidence that was available to the Council on this. The Boffa Report, the application as a whole, and the evidence filed on these proceedings more than satisfies me as to the sufficiency of the information, and the availability of the decision to the decision-maker. Whilst not to be over-weighted, the history of the matter highlighted very clearly the perceived deficiencies from a visual impacts perspective. Mr Boffa was the staunchest critic. His changed role was a relevant factor the decision-makers could rely on, whilst of course needing to assess the matter on its merits. [92] It is an area where it is permissible in my view for the Council to have regard to the fact that the site is zoned residential, and so the existence of houses per se is a permitted activity. The plans are careful as to the location of the building platforms,the covenants that will be imposed (e.g. 4.5 metre height restriction) and the detailed planting that will be done. [93] Although initially having doubts, the consideration of all the evidence available to the Council had led me to conclude that the Council's decision that the impact on the site were minor was one lawfully open to it, and that it reached that decision having asked itself the correct question.(b) Consideration of off-site impacts[94] As noted earlier, section 94A of RMA provides:94A Forming opinion as to whether adverse effects are minor or more than minorWhen forming an opinion, for the purpose of section 93, as to whether the adverse effects of an activity on the environment will be minor or more than minor, a consent authority – (c) must disregard any effect on a person who has given written approval to the application.[95] The issue is the scope of paragraph (c). Is it open to a landowner to sign off on all adverse impacts on a site, regardless of their significance? If so, the effect of a written consent is to prohibit the decision-maker from making its own assessment of whether the wider costs of the proposal on the environment are too great. [96] In addressing the competing positions I note that the Environment Court in 2000 cannot have seen the predecessor to s94A as having this effect. DOC had also consented to that proposal but a large part of the judgment is directed towards the impact on "DOC's land", i.e. the Reserve and Estuary. Mr Kos advises the present point was not taken in 2000. [97] The position of the respondents is that the section means what it says. If it does not cover all effects, then both an applicant and the decision-maker would be in a hopeless position in terms of certainty; what exactly is the scope of a written consent if it is less than all impacts.[98] The plaintiff submits that the section cannot be as broad as that in its effect, and would limit the scope of a consent to impacts on the landowner's use of the land. Otherwise matters of national importance could be signed away by a landowner uninterested in them. [99] There is merit in both positions. The wording of the provision seems plain, and defining the limits of the consent – i.e. which impacts are or are not covered – would be difficult, and potentially vague in outcome. On the other hand, it is a surprising proposition that the impacts on something such as the Waikanae Estuary are not able to be considered. [100] In analysing the matter it is helpful to ignore the fact that in this case DOC is the consenting landowner, and so can be assumed to have brought a degree of expert analysis to bear on the matters that concern the plaintiff. The Court's conclusion on the effect of a consent will necessary apply to all persons who have given their consent. [101] Apart from the plain wording of s94A(c), little in the scheme of the Act supports the respondents' position. Decision-makers are required to balance competing concerns, and Part 2 matters are elevated to mandatory considerations that all decision-makers shall have particular regard to. In this case the adjacent site has been described in these terms by the Environment Court:" the Waikanae Estuary is a significant habitat of indigenous fauna; that the indigenous vegetable there is a necessary part of that habitat, and that the proposed subdivision [the earlier 2000 proposal] would not be consistent with the national importance ascribed to protection of persons of significant habitats of indigenous fauna."[102] As noted, the Court in 2000 plainly did not see itself as limited in the factors it might consider, even though DOC had given written approval to that proposal. [103] It is difficult to assess the impact of limiting the scope of a consent. Will not doing so leave the environment at risk as the plaintiff alleges? One can assume that often sites of such importance will be in the hands of responsible public landowners such as DOC, but presumably that is not always the case. Further even such bodiescan err in their assessment, as the Court thought DOC had done as regards the earlier proposal. [104] Further, the plaintiff's suggested qualification might not create the uncertainty the respondents suggest. If one takes the plaintiff's suggestion, and limits s94A to impacts on the consenter's use of the land – e.g. matters such as visual impacts, sunlight etc – that will in the vast majority of cases be all the impacts. The context is that a landowner has signed off on the impacts on the landowner; what the plaintiff's qualification allows is the decision-maker to consider whether the wider impacts on the site nevertheless carry broader adverse effects on the:• ecosystems and their constituent parts, including people and communities;• all natural and physical resources;• amenity values;• the social, economic, aesthetic and cultural conditions which affect such considerations (the definition of "environment" in s2 of the Act). [105] No-one made anything of the point but the wording of DOC's consent is interesting. The letter said:"This approval is limited to the likely adverse effects of the proposal on the Department's interests and should not be construed as approval to effects on the environment generally."[106] Presumably the lack of focus by the parties on this suggests that it has been read as referring to environmental impacts other than impacts on the Reserve. The "Department's interests", for the purposes of the consent, are limited to the Reserve and all DOC is doing is emphasising that point. [107] Ultimately the issue comes down to a plain wording that seems somewhat at odds with the general statutory scheme. Section 94A(c) was initially s94(4) of the Act. Section 94(4) was repealed as part of a major amendment in 2003. Next,though, in August 2005 an amendment reinserted the provision, but now as the new s94A(c). The Explanatory Notes to both the initial amendment that removed the provision, and the amendment that reinserted it in 2005, are both silent on the reasons for the changes. The only relevant comment is in a minority report by the Green Party Member of the Select Committee which considered the 2005 Amendment. Ms Fitzsimons MP observed that the effect of s94A(c) is to muddle the existing provisions; it:"may be interpreted as allowing more than minor environmental effects if a person affected has given consent."[108] Concerning the equivalent provision applicable to the actual consent decision, s104(3)(b), the Environment Court in Queenstown Property Holdings vQueenstown Lakes District Council [1998] NZ RMA 145 considered that a landlord's consent did not necessarily embrace the tenants. Other than that, the issue does not seem to have been considered by the Court. [109] The respondents suggested that the ability of a Council to nevertheless notify an application where it considered special circumstances exist (s94C) could be seen as a safeguard if the plain meaning approach were adopted. However, that cannot be so. If s94A(c) absolutely prohibits a decision-maker from considering adverse effects that the affected person has consented to, then there is no point in notifying the application because of those effects. Because there is an identical provision for the consent decision, those effects will necessarily be equally irrelevant to that decision. [110] An interesting feature of the present application is that, despite s94A(c) and their interpretation of it, both Kotuku as applicant and the Council as decision-maker did in fact comment on the measures taken by the developer to mitigate environment impacts on the Reserve. That they did so is understandable, but on their submitted interpretation these measures are irrelevant apart from a good citizen viewpoint. [111] Finally I note the surprising lack of any previous discussion or authority on the point was explained by counsel in this case as being because their respectiveviews were each so obviously correct and widely accepted, that no-one had seen the need to analyse it! [112] All that said, and with what might be argued to be a lack of interpretative creativity, I conclude that the words mean what they say. They are plain on their face, and it is difficult to ignore that Parliament, having once removed them, specifically and quite quickly put them back in. No attempt was made to limit their obvious effect. [113] I therefore consider the Council was right to put to one side the impacts on the Reserve. Section 94A(c) required the decision-maker to accept DOC's consent on its face. I note for completeness, that there can be no doubt that if consideration had to be given to these impacts the process was inadequate. That is to be expected given the Council's view that it was obligated not to consider these adverse impacts.10. Issue two – Is the plaintiff a person who "may be affected"?[114] Section 94 of RMA deals with situations where a decision-maker has decided that public notification is not required. In such circumstances it is nevertheless required to serve notice of the application on every person "who may be adversely affected" unless every such person has given written approval to the application. [115] The plaintiff says it is a person who may be adversely affected by Kotuku's application, and accordingly notice was required to be given both to it, and to everyone who may be affected. As a subsidiary argument, the plaintiff says the Council has been uneven and unfair in its decision making as regards who is treated as an affected party. [116] To clear the last point away, at the end of the written Report, under a heading of "Affected Parties", the report writers (Messrs Gair and Mackiggan) listed those who had given written approval. They then observed "there are no other bodies considered to be adversely affected". Amongst the written approval bodies are groups such as Kapiti Environment Action Inc. The plaintiff claims at least equalstatus to that group and infers from this section of the Report that Kapiti Action has been treated as an affected party whereas it has not. [117] The report writers depose that in listing the parties who had given written approval, they were not thereby classifying each party as an affected person. It was simply a list of who, in fact, had filed written approvals. I accept this evidence which is consistent with a natural reading of the Report. [118] Turning then to the primary issue, the plaintiff contends that the plaintiff applied a incorrect legal test in deciding who may be affected. In his evidence Mr Mackiggan, in explaining why Forest and Bird was not treated as a person who may be affected, observed:"It is not a landowner, and there is no direct effect of the proposal on the Plaintiff."[119] The legislation previously, but not now, used the test:"likely to be directly affected"and the plaintiff submits that the Council has applied the old rather than the new test. [120] First, it can be observed that the fact that a person is or is not directly affected can still be a relevant consideration when determining whether that person "may be adversely affected". However, it is not necessary to determine whether the decision-makers in this case were simply noting the point as a relevant fact, or were as alleged elevating it to an (incorrect) legal test. That is because I am satisfied that the plaintiff could not come within the section properly applied. [121] In Northcote Mainstreet Inc v North Shore City Council [2006] NZRMA 137, Lang J described the s94 test in these terms:"Eligibility need not be derived from the ownership or occupation of land that is proximate to that activity, although that will often be the case. Persons are generally likely to be adversely affected by a proposed activity because they live or carry on an activity on land that is proximate to the proposed activity. Eligibility will, however, only extend to persons who are adversely affected in an environmental sense." (para [188])[122] Forest and Bird is a nation-wide organisation with some 40,000 members. Its objects are to take all reasonable steps to preserve and protect the indigenous flora and fauna and natural features of New Zealand. It has area branches, which advocate concerning these matters in their local district. [123] On one level it can be said that any threat to a site such as the Waikanae Estuary does affect the Society, in that there are risks to the very things concerning which the Society has undertaken its important public role. The 2000 Environment Court decision made plain the importance of the Estuary as a significant habitat for indigenous flora and fauna. [124] However, s94 must be read in its context. It requires a decision-maker to identify who may be adversely affected by a specific proposal, and in my view that must mean specifically affected either directly or indirectly. The person must have a stake or interest greater than a member of the community who holds a focussed but general concern for indigenous flora and fauna. The fact that several such members of the community with such focussed but general concerns band together can not, of itself, provide the necessary "application specific" interest. [125] If this were not so the task on decision-makers would be made far too onerous; once one splits s94 away from a specific application, determining who may be adversely affected by a perceived detriment to the environment will become guesswork, or could only be resolved by notifying a standard list of general interest bodies. This point was made by Lang J in Northcote Mainstreet (at para [197]):To include within the definition of "adversely affected" persons, any individual or body with a self proclaimed interest or concern would, in my view, produce far reaching consequences. In particular, it would be virtually impossible for a counsel authority to predict where any such interest would lie when there is no clear, external indicia to rely on.[126] I accordingly uphold the Council's decision not to regard the plaintiff as a person who "may be adversely affected".11. Issue three – Special circumstances?[127] Section 94C of RMA gives the decision-maker a discretion to notify a consent application if it:considers that special circumstances exist.[128] The respondents contend that this is a broad direction and relies on Miller J in Housiaux v Kapiti Coast District Council (HC Wellington, CIV-2003-485-2678, 19 March 2004). There Miller J observed that the section calls for an:Exercise of discretion based on the Council's assessment of the factual position and use of its expertise and judgment. Accordingly there is limited scope for judicial review (para [46]).[129] The plaintiff refers to the decision of Elias J (as she then was) in Murray vWhakatane District Council [1997] NZRMA 433. The Chief Justice , referring to earlier authority, observed special circumstance are circumstances that are unusual and exceptional, but may be less than extraordinary or unique. [130] In the written Report the writers concluded there were no special circumstances having reviewed both the present application and previous one. The plaintiff essentially contends that was an unreasonable conclusion given the history of the matter. [131] Whilst I reject any implicit suggestion that the broad nature of the discretion makes it immune from review as long as the decision-maker merely acknowledges the existence of a discretion, I do accept it is an area where experience is an important component in assessing whether an application gives rise to special considerations. Any review must recognise the familiarity a Council has with resource consent applications. [132] That said, a Report which simply says without more, as the present one does, that having considered the application and its predecessor there are no special circumstances leaves itself open. The affidavit evidence does not expand on this aspect, which is odd given that it is plain that prior to taking its decision the plaintiffhad specifically referred to the general discretion in urging the Council to publicly notify it. Why the decision-makers thought the events surrounding the previous application, and the Court's decision, did not amount to special circumstances is not known. [133] A difficulty is that this discretion cannot be divorced from the earlier analysis. If the impacts on the Reserve are not relevant adverse effects because DOC has consented, I do not consider those effects can drive a special considerations decision. That would be both to undermine s94A(c), and be pointless because the effects are equally required to be ignored when issuing consent. [134] Once one puts the Estuary to one side, and has a proposal that in the Council's view has only minor effects on the site itself, it is difficult to see how the history of the matter must amount to special circumstances. Further the Council was entitled to have regard to the widespread approval that had been given by various persons following extensive consultation. Although I have concerns about the adequacy of the consideration of the discretion, I am of the view that a fuller analysis would inevitably have led to the same outcome of no special considerations.12. Relief[135] Mr Kos advanced powerful arguments against the granting of relief. I think it proper to record that my assessment was that the matters raised would have made it proper to send the decision back to the Council rather than the Court directing notification. However, because I have found no errors I do not need to detail the submissions. [136] I do wish to record, however, that I do not consider the argument based on delay is valid. Having now read all the material, there are several places where it is stated that the work will not commence for five years. Close reading of such passages may reveal some of them refer to the building of houses rather than the earthworks. However, aware of those general indications as to the intended timeframes, I do not consider the plaintiff was disentitled by its delay of 6 months in bringing the proceedings.13. Conclusion[137] I reject the challenges to the Council's decision to not notify Kotuku's application. The parties may file memoranda on costs if they cannot agree. The respondents should file any submissions within 3 weeks of receiving judgment, and the plaintiffs have 1 week to respond. To assist, I note that the plaintiff's public interest status is obviously relevant to that consideration, but does not per se represent an immunity. On the other hand, although unsuccessful, the challenges to the impact on the sand dunes, and special considerations, were far from lacking substance. I could not say the same about the argument concerning affected party status. [138] The application for review is dismissed. ____________________ Simon France JIn accordance with r540(4) I direct the Registrar to endorse this judgment with the delivery time of 4.00 p.m. on the 21 st day of November 2007. Solicitors: P Beverley & J Opie for Plaintiff J G A Winchester & E C Dowding-Smith for First Defendant S Kos QC & J Verbiesen for Second Defendant