TURNERS & GROWERS HORT LTD V FAR NORTH DC HC WHA CIV 2012-488-000039

TURNERS & GROWERS HORT LTD V FAR NORTH DC HC WHA CIV 2012-488-000039 [25 May 2012]IN THE HIGH COURT OF NEW ZEALANDWHANGAREI REGISTRYCIV 2012-488-000039[2012] NZHC 1142UNDER Judicature Amendment Act 1972IN THE MATTER OF an application for judicial review of adecision to issue a Certificate ofCompliance pursuant to s 139 of theResource Management Act 1991BETWEEN TURNERS & GROWERSHORTICULTURE LIMITEDPlaintiffAND FAR NORTH DISTRICT COUNCILFirst DefendantAND NORTHLAND WASTE LIMITEDSecond DefendantHearing: 26 April 2012Appearances: B S Carruthers and S H Pilkington for plaintiffR B Enright and J Verry for first defendantP Cavanagh QC and J T Caunter for second defendantJudgment: 25 May 2012JUDGMENT OF GILBERT JThis judgment was delivered by me on 25 May 2012 at 2.30 pmpursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDate: .Counsel: P Cavanagh QC, Auckland: pcavanagh@shortlandchambers.co.nzSolicitors: Russell McVeagh, Auckland: bronwyn.carruthers@russellmcveagh.comDLA Phillips Fox, Auckland: robert.enright@dlapf.comCopy: Far North District Council: john.verry@fndc@govt.nzIntroduction[1] On 27 September 2011 the first defendant, the Far North District Council (the Council), granted a certificate of compliance pursuant to s 139 of the Resource Management Act 1991 (RMA) to the second defendant, Northland Waste Limited(Northland Waste). The certificate confirms that Northland Waste's proposal toestablish a waste transfer station on its property at Waipapa Road, Kerikeri, is a permitted activity under the Operative Far North District Plan and can be undertaken without the need for any resource consent.[2] Turners & Growers Horticulture Limited (Turners & Growers) owns an adjoining property from which it operates an export fruit packing facility under thetrading name "Kerifresh". Northland Waste's site is accessed from Waipapa Road via a shared driveway which runs over the Kerifresh site.[3] Turners & Growers is opposed to the establishment of a waste transfer stationon the adjoining property. It has applied for judicial review of the Council's decision to issue the certificate. It claims that the Council made errors of law, failed to take into account relevant considerations and acted unreasonably in issuing the certificate. It seeks an order setting aside the certificate.Background[4] Turners & Growers' Kerifresh facility, which was established on the WaipapaRoad site over 20 years ago, currently processes over 12,000 tonnes of fruit annually, 60 per cent of which is exported to Europe, Asia, the United States and Australia. The facility employs up to 550 permanent and casual staff from Kerikeri and surrounding areas during the peak production season. The Kerifresh facility is frequently audited to ensure compliance with various export market food quality and safety compliance programmes. The audits involve an assessment of the Kerifresh operating environment against a number of criteria. The criteria include air quality, encompassing dust, bacteria and odour contamination; water quality, vermin, pests and insects; and general hygiene of the processing plant and surroundingenvironment. The facility must maintain compliance with these audited requirements to be able to continue to export fruit.[5] Northland Waste is engaged in the business of waste collection, recycling and waste disposal. It currently operates a waste transfer station at Kaikohe on land which it holds under lease. It recently reviewed its operations to improve the efficiency of its processes for the collection, sorting and disposal of waste. It identified the Waipapa Road site as the most suitable location for the establishment of a new materials recovery transfer facility. It therefore proceeded to purchase the land but has not yet taken steps to establish the facility because of the uncertainty arising out of the present dispute.[6] Following purchase of the land, Northland Waste applied to the Council on 30 August 2011 for a certificate of compliance pursuant to s 139 of the RMA confirming that its proposed activity on the site could be lawfully conducted without a resource consent.[7] Section 139 relevantly provides:Consent authorities and Environmental Protection Authority to issue certificates of compliance(1) This section applies if an activity could be done lawfully in a particular location without a resource consent.(2) A person may request the consent authority to issue a certificate of compliance.(3) A certificate states that the activity can be done lawfully in a particular location without a resource consent.(4) The authority may require the person to provide further information if the authority considers that the information is necessary for the purpose of applying subsection (5).(5) The authority must issue the certificate if—(a) the activity can be done lawfully in the particular location without a resource consent; and(b) the person pays the appropriate administrative charge....(7) The certificate issued to the person must—(a) describe the activity and the location; and(b) state that the activity can be done lawfully in the particular location without a resource consent as at the date on which the authority received the request....(10) A certificate is treated as if it were an appropriate resource consent that—(a) contains the conditions specified in an applicable national environmental standard; and(b) contains the conditions specified in an applicable plan.[8] An authority receiving an application for a certificate under s 139 must thoroughly scrutinise the activity on a point-by-point basis against all applicable district plan rules.1 If the activity can be carried on lawfully in the location without resource consent, the authority – in this case the Council - must issue the certificate. On the other hand, if the activity does not comply with the requirements of the district plan in all respects, a certificate under s 139 may not be issued. The authority does not have a discretion as to whether or not to issue a certificate. The activity either conforms with all applicable rules or it does not.[9] A decision by an authority to issue a certificate under s 139 is an important one, both for the applicant and for third parties who may be affected. The certificate provides an absolute assurance that the authority agrees that the activity is permitted.2 The applicant is entitled to rely on such a certificate. Potentially - affected third parties have no right to participate in the decision. They are therefore dependent on the authority making the correct assessment. Judicial review is the only avenue for redress for third parties whose rights may have been affected.3 It is therefore important that, before any decision is made, the authority has sufficient information in relation to the proposed activity to make a thorough comparison of the activity with all applicable rules and determine whether or not it complies in all respects.1 Culpan v Vose [1993] 2 NZRMA 380 (PT); and Pring v Wanganui District Council [1999] NZRMA519 (CA).2 Housing New Zealand Corporation v Auckland City Council (2007) 14 ELRNZ 52 (EC).3 Bayley v Manukau City Council [1999] 1 NZLR 568 (CA).[10] Northland Waste's application for a s 139 certificate described the proposedactivity as follows:To use the land and proposed buildings for a materials recovery transfer station to store collected residual materials, sort and repackage for transportation.[11] No information was provided as to what the "residual materials" would be.Nor was any information provided as to how the facility would operate, the volume or type of materials expected, the number of staff to be employed or whether it would be open to the general public.[12] Northland Waste described the proposed development in the next section ofits application which was headed "The Proposal". This gave a brief description ofthe site, the proposed earthworks, the formation of a new driveway and the construction of buildings. It also addressed various requirements under the District Plan including impermeable surface area, traffic movements and discharge to air.[13] Under the heading "Buildings", Northland Waste advised that the proposalinvolved the construction of:(a) A bulk storage shed (800 m2);(b) An engineers' shed (80 m2);(c) Offices\lunchroom (36 m2);(d) Equipment storage for trucks, loaders and transporters;(e) Storage for empty bulk containers;(f) Storage for bulk items; and(g) A weighbridge.[14] Northland Waste attached a plan showing the proposed bulk storage depot together with elevations. A plan showing the proposed site layout was also attached.[15] Impermeable surfaces were stated to comprise 10.5% of the total land area. Although not stated in the application, this was calculated by dividing the areaoccupied by the proposed bulk storage shed, the engineers' shed and theoffices/lunchroom by the total site area which was stated to be 8,500 m2.[16] In the next section of the application, which assessed the proposed activity in relation to the District Plan rules, Northland Waste addressed compliance with the impermeable surfaces requirement as follows:8.6.5.1.3 Impermeable Surfaces'The maximum total site area covered by buildings and other impermeablesurfaces shall be 15%'.Maximum land coverage under permitted activity is 15% of 8,500m2. The total amount of site coverage is 896m2 calculated to be 10.5% thus is well within of the permitted level.[17] The only information Northland Waste provided to the Council about trafficmovements under the section headed "The Proposal" was as follows:9.0 TRAFFIC MOVEMENTS AND TRAFFIC INTENSITYNo more than 60 one-way traffic movements per day.Site coverage of 896 m2, land use traffic intensity factor is 4 movements per 100 m2, total 36 traffic movements per day.[18] Northland Waste then addressed compliance with the relevant District Plan rule as follows:8.6.5.1.5 Traffic Intensity'The Traffic Intensity Factor for a site in this zone is 60 daily one waymovements. The Traffic Intensity Factor shall be determined by reference to Appendix 3A in Part 4. This rule only applies when establishing a new activity on a site. It does not apply to existing activities, however, the Traffic Intensity Factor for the existing uses (apart from those exempted below) on site need to be taken into account when assessing new activities in order to address cumulative effects.Exemptions: A single residential unit, farming, forestry and construction traffic (associated with the establishment of an activity) are exempt from this rule.Site coverage is 896m2.Land use traffic intensity factor is 4 movements/100 m2.This creates a total of 36 Traffic movements – permitted.[19] Discharge to air was simply addressed as follows:Northland Regional Council has confirmed no discharge permit is required for this activity. The activity is permitted.No details of the asserted confirmation were provided.[20] Following receipt of Northland Waste's application on 30 August 2011, it wasallocated to one of the Council's resource planners, Theresa Burkhardt, forprocessing. Ms Burkhardt completed a draft determination as to whether the s 139 certificate could be issued.[21] In a section headed "District Plan Assessment", Ms Burkhardt set out theDistrict Plan rules she considered were relevant and assessed compliance of the proposal with those rules. The rules she considered which are relevant to the presentproceeding are contained in the "Rural Environment" chapter of the District Plan andwere dealt with as follows:8.6.5.1.3 IMPERMEABLESURFACESThe maximum total site areacovered by buildings and otherimpermeable surfaces shall be15%.The proposal includes an 800m2 shed;18m2 office; 18m2 lunch room/toilets;and a 60m2 engineers shed which willresult in total impermeable surfaces of896m2.COMPLIES8.6.5.1.5 TRAFFIC INTENSITYThe Traffic Intensity Factor for asite in this zone is 60 daily oneway movements. The TrafficIntensity Factor shall bedetermined by reference toAppendix 3A in Part 4.In assessing the proposal againstAppendix 3A in Part 4 of the DistrictPlan the proposal will generate 4average daily one-way vehiclemovements per 100m2 GFA. As theproposal includes buildings with a totalGFA of 896m2 it is determined topotentially general [sic] approx 36average daily one-way vehiclemovements, within the permitted 60daily one way movements.COMPLIES[22] Ms Burkhardt did not refer at all to the section of the Plan dealing with the discharge to air of contaminants. One of the policies identified in this section of the Plan is to separate incompatible land uses where it is practicable and where there is arisk of adverse effects on adjoining properties arising from the discharge of odour to air.4 Another policy is to ensure that activities which give rise to discharges to air do not affect human health or activities and environments which are sensitive to such discharges.5[23] Rule 12.6.6.1 of the Plan provides:12.6.6.1 PERMITTED ACTIVITIESAn activity is a permitted activity if:(a) it does not require a discharge consent from the Northland Regional Council under s 15(1)(c) of the Act; and(b) it complies with the relevant standards for permitted activities in the zone in which it is located set out in Part 2 of the Plan – Environment Provisions; and(c) it complies with the other relevant standards for permitted activities set out in Part 3 of the Plan – District Wide Provisions.[24] Section 15(1)(c) of the RMA provides:15 Discharge of contaminants into environment(1) No person may discharge any—...(c) contaminant from any industrial or trade premises into air;...unless the discharge is expressly allowed by a national environmental standard or other regulations, a rule in a regional plan as well as a rule in a proposed regional plan for the same region (if there is one), or a resource consent.[25] Ms Burkhardt concluded the draft determination with the following recommendation:4 Rule 12.6.4.2.5 Rule 12.6.4.1.8. RecommendationIn terms of Part 2 Environment Provisions and Chapter 8.6.5.1 Permitted Activities in the Rural Production Zone, the assessing planner is able to conclude from the assessment table above, the activity is a permitted activity.In terms of Part 3 District Wide Provisions and Chapter 12.3 – Soils and Minerals, the assessing planner is able to conclude from the assessment table above, the activity is a permitted activity.In terms of Part 3, District Wide Provisions and Chapter 15 Transportation, the assessing planner is able to conclude from the assessment table above, the activity is a permitted activity.Overall, it is considered that the proposal, based on the information submitted to Council, is a permitted activity under the District Plan, and is therefore able to be undertaken without resource consent.Report & Recommendation prepared by: Theresa Burkhardt, Graduate Resource Planner[26] The application was then referred to Patrick Killalea, the principal planner inthe Council's environmental management department. Mr Killalea checkedMs Burkhardt's assessment. He noted that the scheme plan provided with theapplication showed a number of Huka bins and storage bins. He was unsure whether these should be classified as buildings in terms of the District Plan. He therefore sent a letter to Northland Waste on 26 September 2011 pursuant to s 92 of the RMA seeking clarification on this point. Neither this letter nor the response was produced in evidence but Mr Killalea states that following receipt of the information he had requested, he signed the draft determination prepared by Ms Burkhardt and the s 139 certificate on 27 September 2011.[27] The determination was as follows:Decision: That the above recommendation be adopted.[28] The certificate signed by Mr Killalea states:Pursuant to section 139 of the Resource Management Act 1991, I hereby certify that the proposal or activity described in the schedule below complied with provisions of the Operative Far North District Plan as at the date of receipt of request and in relation to the specified location in the schedule below. This certificate is subject to any relevant conditions or provisions contained in the specified District Plan.SCHEDULEApplication Reference: 2120077-RMACOCPerson Requesting Certificate: Northland Waste LimitedDate of Request Was Received: 30 August 2011Description of the Proposal: To utilise land and construct buildings for a materials recovery facility to store collected residual materials, sort, and repackage for distribution, incorporating:The construction of a bulk storageshed; engineer's shed; office andweighbridge.The storage of trucks; loaders; transporters; empty bulk containers and bulk items.As shown in the approved plans prepared by Living Architecture,referenced 'Northland Waste, Waipapa Road, Kerikeri, Northland'; sheets A- 01; A-02; A-03, dated 06.11, and attached to this consent with theCouncil's "Approved Stamp" affixed tothem.Legal Description of Land: Lot 2 DP 437473CERTIFIED UNDER DELEGATED AUTHORITYPat KillaleaPrincipal PlannerNOTE: The information provided by the applicant in support of the request for this Certificate has been relied upon. Any error or omissions within that supporting information identified after the issue of this Certificate may render this Certificate null and void.Grounds of application for review[29] Turners & Growers founds its application for review of the Council'sdecision to issue the certificate on the following three grounds:(a) The Council failed to assess the scale, intensity and character of the proposal when selecting the appropriate Traffic Intensity Factor (TIF)in the District Plan and, as a result, incorrectly applied the TIF for"Industry – Bulk Warehousing".(b) The Council failed to calculate the impermeable surface area correctly by failing to take into account the Huka bins and storage bins, the weighbridge and hard stand area under the roof of the main shed.6(c) The Council failed to consider whether the proposal complied with the discharge to air requirements in the Plan.[30] The above grounds were relied on by Turners & Growers in each of its three causes of action: error of law, failure to take into account relevant considerations, and unreasonableness. In my view, it does not matter how the error is characterised: the critical question is whether there was any material error on the part of the Council in reaching its decision to issue the certificate.Legal principles[31] The enquiry on an application for judicial review is confined to whether the decision-maker followed proper procedures, whether all relevant and no irrelevant considerations were taken into account, and whether the decision was reasonable.7 It is not the function of the Court on review to consider the potential adverse effects of the proposal or to attempt any assessment of the merits of the application. The Court will not substitute its own factual conclusions for those of a consent authority.8[32] The Court has a discretion whether or not to grant relief even if it is persuaded that there is a reviewable error. It would not be appropriate to grant relief where there is no utility in doing so because, for example, it is clear that the same outcome is inevitable.9 However, the usual presumption is that relief will be granted6 The statement of claim also referred to the compacted hardfill driveway, access aisles andmanoeuvring areas but this aspect of the claim was sensibly abandoned at the hearing.7 Quarantine Waste (NZ) Ltd v Waste Resources Ltd [1994] NZRMA 529 (HC).8 Pring v Wanganui District Council at [7].9 Sawmill Workers Against Poisons Inc v Whakatane District Council (No 2) [2006] NZRMA 500(HC); and Lalli v Attorney-General (Minister of Immigration) [2009] NZAR 720 (HC).if it could have practical value.10 An overall evaluation is required in determining how the discretion should be exercised in the particular case so as to best serve the interests of justice.11Did the Council err in law?Impermeable surfaces[33] It is not disputed that the Council failed to take into account all impermeable surfaces in calculating the relevant coverage ratio. In this respect it was led into error by Northland Waste. The impermeable areas acknowledged to have been overlooked by the Council were the weighbridge, which covers 22.5 m2; the hard stand area under the roof of the main shed, which covers 67.5 m2; and storage areas for such things as trucks, loaders, transporters, empty containers including Huka bins, and other bulk items. The Council erred in failing to take into account these areas when it considered whether the proposal complied with the District Plan rule relating to impermeable surfaces.[34] However, Northland Waste and the Council contend that the error is immaterial in this case because, even taking into account these additional areas, the total impermeable/non-impermeable surface area ratio is comfortably within the maximum permitted under the rule. This is not accepted by Turners & Growers.[35] I cannot determine whether the proposal will comply once these additional areas are taken into account because the proposal is not sufficiently clear. For example, the proposal does not stipulate the number of bins and other items that may be stored outside the buildings at any time. Mr Cavanagh QC, for Northland Waste, recognised this problem but he submitted that it could be addressed by the Court directing the Council to amend the plan by inserting a notation to the effect that no more that 275 m2 of the site may be covered by bins at any one time, excluding bins located within any building on site. I am not persuaded that this is the appropriate course. There may be other, better solutions. In any event, it is not appropriate for10 Just One Life Ltd v Queenstown Lakes District Council [2004] NZRMA 325 (CA) at [39].11 A J Burr Ltd v Blenheim Borough Council [1980] 2 NZLR 1 (CA).the Court to make the assessment and substitute its own factual conclusions as to the extent of the impermeable areas on this site and whether the proposal complies with the relevant rule.[36] The Council erred by issuing the certificate without considering these other areas and by not clarifying the extent of them before determining whether or not the proposal complied with the relevant plan rule. Turners & Growers has succeeded in establishing this ground of its application.Traffic Intensity Factor[37] Rule 8.6.5.1.5 of the District Plan applies when a new activity is being established on a site. It provides that the maximum TIF is 60 daily one-way movements and that the TIF is to be determined by reference to Appendix 3A in Part 4 of the Plan. Appendix 3A sets out the TIF which has been calculated for a variety of activities. A waste transfer station is not one of the listed activities. Note 2 in the Appendix states that if there is no TIF for the activity under consideration, the TIF for the activity in the Appendix that is closest in scale, intensity and character to the activity being considered must be used.[38] The land use activities listed in the Appendix include various activities within broad categories such as "retail", "office and commercial", and "industry". The TIFfor these activities range from four per 100m2 of gross floor area (GFA) for industry categories other than industrial units, to 500 per 100 m2 of the GFA of the shop for service stations with a shop. In some cases, the TIF is not calculated by reference to gross floor area. For example, the TIF for a building supply outlet is 30 per employee. In the case of a garden or hire centre, the TIF is 50 per 100 m2 of space open to the public.[39] Ms Burkhardt adopted a TIF of four but did not explain in her draft determination and recommendation why she had done so. It appears that she chose this TIF on the basis that industrial activities such as distribution centres, bulk warehousing and contractors' depots are closest in scale, intensity and character towaste transfer stations. Mr Killalea did not address the issue in his determination.[40] Mr Enright, for the Council, submitted that a waste transfer station is self- evidently an industrial activity. Mr Cavanagh supported this submission. He submitted that there was no need for any explanation for choosing the industrial category of TIF because a waste transfer station is obviously industrial in nature. These submissions overlook that the Council is required to consider the scale and intensity of the proposed activity, not merely its character. They also overlook thatthe relevant activity in the Appendix is not "industrial" or "retail". Rather, it is theparticular activity described under these headings in the Appendix which must be considered for comparison purposes.[41] Because a waste transfer station is not one of the activities listed in Appendix 3A, the Council was required to adopt the TIF for the activity in the Appendix that was closest to the scale, intensity and character of the proposed activity. The Council could not do this without sufficient information as to the scale, intensity and character of the proposed waste transfer station. Mr Killalea acknowledged in his affidavit that the application did not describe the proposal in detail.[42] In my view, the information supplied to the Council by Northland Waste was inadequate to enable the Council to undertake this assessment properly. Northland Waste did not give any information about how the facility would operate, the operating hours, the number of people who would be employed, the volume of material expected to be handled or whether the facility would be open to the public. Without this information, the Council was not able properly to assess the scale and intensity of the proposed activity, and make a reasonably informed decision about which TIF to adopt. Mr Killalea acknowledged that the question as to whether the facility would be open to the public would have important implications for the level and pattern of traffic generation.[43] The Council should have sought more information from Northland Waste in exercise of its power under s 139(4) of the RMA before assessing the appropriate TIF and making its decision on whether or not the certificate should be issued. In my view, the Council acted unreasonably in making its decision on such limited information. Turners & Growers has succeeded in establishing this ground of its application.[44] Northland Waste and the Council submitted that even if I found that there was an error in the decision-making process because inadequate information was supplied, I should not grant relief because it is clear that the decision was correct. I am not in a position to make this assessment. In my view, the assessment should be made by the Council once it has all of the required information, not by the Court on an application for review.Discharge to air[45] Before considering the discharge to air issue, I need to deal with a preliminary point raised by Mr Cavanagh. He submitted that the Court lackedjurisdiction to entertain any complaint regarding the Council's treatment of thedischarge to air issue. This was because, he submitted, the issue is not referred to in the statement of claim.[46] The statement of claim alleges that Northland Waste failed to provideadequate details of the "residual materials" or how these would be handled andtreated.12 It alleges that, as a result, the Council could not consider the effects against the rules of the District Plan and could not comprehend the implications of the proposal on adjacent properties. 13 The statement of claim also expresslychallenges Council's reliance on Northland Waste's assertion that no air dischargepermit was required.14[47] Not only does the statement of claim raise this issue, it is quite clear that allparties understood that it formed part of Turners & Growers' claim. Northland Wasteresponded to these allegations in its statement of defence by saying that it had no obligation to obtain a certificate of compliance or to provide confirmation from the Northland Regional Council that its proposed activity complied. The defendants addressed the issue in their evidence and submissions. I therefore reject Mr Cavanagh's submission on the jurisdictional issue.12 Para 24 of the Statement of Claim.13 Para 25.14 Para 30.[48] The proposed waste transfer station will only be a permitted activity in the zone if it does not require consent from the Northland Regional Council under s 15(1)(c) of the RMA. It must therefore comply with rules 9.1.6 and 9.1.8 of the Regional Air Plan. These rules provide:RULE 9.1.6The discharge of contaminants to air from effluent storage, treatment, transfer and disposal systems is a Permitted Activity provided that:(a) The effluent discharge volume does not exceed 3 cubic metres per day, averaged over the month of greatest discharge and/or the maximum effluent discharge volume does not exceed 6 cubic metres over any 24 hour period; or(b) The discharge is from a pit privy;and there is no offensive or objectionable odour, or any noxious or dangerous levels of gases at or beyond the property boundary.RULE 9.1.8The discharge of contaminants to air from industrial or trade premises used for the transfer, treatment or disposal of solid waste materials or other solid waste management purpose, or for composting organic material which:(1) Is a transfer station or recycling depot; or(2) Was existing and operational as at 1 April 1995; and(3) Was authorised by a resource consent on or before 27 July 1995, (the date of notification of the Proposed Regional Air Quality Plan);is a Permitted Activity provided that:(a) The discharge shall not result in any noxious, dangerous, offensive or objectionable levels of airborne contaminants, beyond the boundary of the subject property;until such time as the earliest expiry date of any associated resource consents; thereafter Rule 9.2(1)(ii) applies.Explanation. This rule includes the storage, transfer, treatment, and disposal of solid waste, and the composting of organic materials. It allows such discharges to continue until such time as associated resource consents expire. Then an application for a resource consent to discharge contaminants to air will be required, along with applications to replace the expired consents, in accordance with Rule 9.2(1)(ii). All new processes, with the exception of transfer stations (including skips) and recycling depots, will be required to apply for a resource consent to discharge contaminants to air pursuant to Rule 9.3(2).[49] One might expect that in considering an application under s 139 for a waste transfer station, the Council would consider whether there might be any issues relating to offensive or objectionable odours, or any noxious or dangerous levels of gases at or beyond the boundary of the property. I note that the application also referred to the installation of a new sewerage treatment plant but no details of this were supplied by Northland Waste or sought by the Council, and there is no evidence that the Council considered whether any discharge to air implications might arise from this.[50] The issue as to whether the proposal complied with the relevant District Plan rule relating to discharge to air was not addressed at all by Ms Burkhardt in her recommendation or by Mr Killalea in his decision. As I have already noted, Northland Waste stated in its application that the Northland Regional Council had confirmed that no discharge permit was required for the proposed activity. It appears that the Council either accepted this statement at face value without any further enquiry or did not consider the issue at all.[51] In my view, the Council was not entitled to accept at face value the bald assertion by Northland Waste that the Northland Regional Council had confirmedthat no discharge permit was required. The "confirmation" asserted by NorthlandWaste was not demonstrated by anything in writing from Northland Regional Council. No particulars were given as to who had provided the confirmation, whether that person had authority to give such confirmation, when the confirmation had been provided, and on what basis and in what circumstances it had allegedly been provided.[52] The Council had insufficient information about the scale and intensity of theintended operations; the "residual materials" that were to be stored, sorted andrepackaged for transportation; or the expected volumes of materials to be processed. There was no proper basis for the Council to assume that adequate information had been provided to the Northland Regional Council to enable it to provide any meaningful confirmation that no discharge permit was required for the proposed activity. The information provided by Northland Waste on this important issue was not sufficiently comprehensive or reliable for the Council to be able to rely on it forthe purposes of its decision. The Council ought to have made further enquires before making its decision.[53] After the present dispute arose, the Council asked the Northland Regional Council whether it had confirmed that a discharge consent was not required for the proposed activity. Mr McDonald, the manager of the Resource Management, Environmental Management Department, sent an email on 19 October 2011 to Dr Lieffering, the Consents Senior Programme Manager at the Northland Regional Council, asking:...Are you able to advise if such confirmation has been given as claimed? It now appears that the facility will include the transport of general waste that will then be sorted. On this basis is it likely that any air discharge permit would be required?[54] Dr Lieffering replied that day:You have asked whether the Northland Regional Council (NRC) advised Northland Waste Ltd that no discharge permit is required for a proposed waste management activity on Lot 2 DP 437473, Waipapa.I can confirm that Stuart Savell met with Ray Lambert and one other person in June. The question asked of Stuart was whether a discharge to air resource consent was required for a facility that would be used to sort waste material. No details were given regarding where the site was or the exact nature of the activity apart from that it would fall within the ambit of being a transfer station/recycling depot and that the activity would take place within a building (i.e. it was a reasonably general inquiry). Stuart advised them that a new facility used for the transfer or recycling of waste materials may be apermitted activity as long as it didn't result in noxious, dangerous, offensive,or objectionable levels of airborne contaminants beyond the property boundary of the subject site. A copy of the relevant rule was provided to them. That was the extent of the advice given.Not long after this Stuart also had a telephone inquiry from a consultant planner who asked a very similar question. Stuart is unsure if this person was representing Northland Waste Ltd but in any case the advice given was the same.The default position is that persons may enjoy the benefits of permitted activity rules until otherwise shown that they are not able to meet them (usually as a result of complaints which would be investigated by NRC staff and may result in enforcement action). It would be different if the NRC were processing an application for a Certificate of Compliance for the activity – in which case they need to provide sufficient information to satisfy the NRC that they will meet all the permitted activity criteria – however thatis not the case here as no Certificate of Compliance application has been lodged with the NRC.I trust the above answers your question.[55] This exchange of emails reinforces my conclusion that the Council should nothave relied on Northland Waste's unsupported assertion that it had receivedconfirmation from the Northland Regional Council that no discharge consent was required. More information was required about the proposal before any reliable assessment of this issue could be made. Andrew Curtis, an air quality engineer engaged by Northland Waste for the purposes of this proceeding, confirmed that the potential for discharges to air from a materials recovery and transfer station is directly related to the material that is being handled and the way in which it is handled. No such information was provided to the Council.[56] The Council was obliged to satisfy itself that no discharge consent was required. It did not have sufficient information to enable it to do so and therefore acted unreasonably in issuing its decision. It may well be, for the reasons discussed, that the Council completely overlooked this issue when reaching its decision. Either way, it erred in law. Turners & Growers has also succeeded on this ground of its application.Should relief be granted?[57] Northland Waste presented a significant amount of evidence with the aim of demonstrating that any error of law by the Council in granting the certificate was inconsequential because the same outcome would be inevitable, even if the decision is set aside and the matter is referred back to the Council for reconsideration.[58] I am not satisfied that it would be pointless to grant relief in this case. The additional information provided in these affidavits underscores the fact that the Council had insufficient information to make a proper decision in the first place. The Council will need additional information about the proposal to enable it to consider the scale, intensity and character of the proposed operation and whether a certificate should be granted. I cannot anticipate what that further information will be or whether the proposed activity, once fully explained and delineated, will complyfully with all relevant rules in the District Plan. That assessment should be made by the Council, not by this Court.[59] The decision whether or not to issue a certificate under s 139 is an important one for Turners & Growers and for Northland Waste. It may well affect other parties as well. For the reasons I have given, I consider that the decision-making process which led to the issue of the certificate to Northland Waste was flawed. The errors cannot be dismissed as trivial or of no possible consequence. In all of the circumstances, I am satisfied that the interests of justice require me to exercise my discretion to grant relief in this case.Result[60] The certificate issued by the first defendant on 27 September 2011 to the second defendant pursuant to s 139 of the RMA is set aside.[61] The plaintiff is entitled to costs assessed on a category 2B basis.___________________________M A Gilbert J