VIPASSANA FOUNDATION CHARITABLE TRUST BOARD v AUCKLAND COUNCIL & ORS [2019] NZCA 100

VIPASSANA FOUNDATION CHARITABLE TRUST BOARD v AUCKLAND COUNCIL & ORS [2019]NZCA 100IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA411/2017[2019] NZCA 100BETWEEN VIPASSANA FOUNDATIONCHARITABLE TRUST BOARDAppellantAND AUCKLAND COUNCILFirst RespondentRAYMOND MYLES O'BRIEN ANDVICTORIA MEI SIEN PICHLERSecond RespondentsAUCKLAND SHOOTING CLUBINCORPORATEDThird RespondentHearing: 7 and 8 August 2018Court: Cooper, Gilbert and Williams JJCounsel: S J Ryan and O J Towle for AppellantN M H Whittington and P I C Comrie-Thomson forFirst RespondentJ M Savage for Second and Third RespondentsJudgment: 10 April 2019 at 10 amJUDGMENT OF THE COURTA The application for leave to adduce further evidence is disposed of inaccordance with the terms of [21] of this judgment.B The appeal is allowed.C The certificate of compliance issued by the first respondent on18 August 2016 (and reissued on 21 November 2017) is set aside.D The respondents are jointly and severally liable to pay the appellant one setof costs for a standard appeal on a band A basis and usual disbursements.E Costs in the High Court are to be determined in that Court.____________________________________________________________________REASONS OF THE COURT(Given by Cooper J)Table of ContentsPara NoIntroduction [1]The proceeding in the High Court [11]Application for leave to adduce further evidence [20]Reconsideration by the Council [22]Section 139 [25]The issues [29]Earthworks [31]Noise [41]Discharge of contaminants [55]Existing building [77]Discretion [84]Result [99]Introduction[1] Vipassana Foundation Charitable Trust Board (the Trust) soughtjudicial review of the decision by Auckland Council (the Council) to issue a certificateof compliance under s 139 of the Resource Management Act 1991 (the RMA) tothe second respondents. The Trust's purpose is to promote the teaching of Vipassanameditation. The certificate of compliance was issued in respect of a proposed outdoorshooting range to be located in a rural setting at 273 Tuhirangi Road (the property) inKaukapakapa. The site was about 1.2 km from the Trust's meditation retreat.[2] The Trust claimed the certificate should not have been issued because theactivity for which the certificate was sought did not comply with the relevant districtand regional plan provisions. The activity was described as follows in the application:Outdoor target shooting with firearms, including pistols, shotguns and rifles,involving tests of proficiency (accuracy and speed). Clearly defined shootingareas will be constructed in a manner compliant with all safety requirements,as referred to in the other attachments. The primary ancillary buildingrequired is a toilet and a storage area for targets and target holders.As such, this activity falls under the provisions for Outdoor Recreation inthe Auckland Council District Plan Operative Rodney Section 2011 Rule 7.9as a Permitted Activity.[3] Further information was provided to the Council about the activity in an emaildated 24 June 2016, from Mr O'Brien, who owned the property jointly with his wife,Ms Pichler. The email advised the Council that a club was to be formed, affiliatedwith Pistol New Zealand; the latter's range certification process would require theranges to be provided to comply with all safety and other requirements of the policeand Pistol New Zealand. Normal operations would involve about 30 people at theranges on any given day, although this figure might rise to 50 or 60 for club matches.For national competitions (perhaps three or four times per year) there would normallybe between 100 and 150 competitors, and in the case of international competitions(most likely one per year) there would be around 300 to 400.[4] Hours of operation were described in the email as follows:7 days, 8am to 6pm, but perhaps later in daylight saving hours. If there isdemand for night operations these would be considered but unlikely to be inthe first few years of operation.[5] In relation to noise, the email said:The ranges will be constructed to minimise the sound footprint (location,orientation, berms, tree planting) to ensure that the sound limits are adheredto. The aim from design and construction will be to have noise levels at orbelow the requirements 10 metres inside the property boundary.[6] The following was said in relation to earthworks:Once the CoC is issued we will be doing detailed range construction plans.Earthworks will be kept to the minimum required for construction, makingmaximum use of the natural contours and features, but at this time I don't havean estimate of the earthworks required.The purchase of the land for this purpose is complete, but once the CoC isissued we can put together a plan for developing what we hope will become avaluable outdoor recreation facility.[7] The Council officer dealing with the application, and who was to report on it,was Ms Rebecca Harris. She appears to have taken a proactive approach, activelyseeking further information from Mr O'Brien about the proposal, which was provideddown to the day on which the certificate was issued. In the course of this process,Mr O'Brien confirmed there would be no more than three major events per year, thosehaving 100–150 competitors and with a total of no more than a total 200 people inattendance.1[8] Email exchanges between Ms Harris and Mr O'Brien also resulted in theprovision of further information concerning the extent of the earthworks proposed,and in an amended description of the activity referred to in the application.On 16 August, Ms Harris emailed Mr O'Brien saying that following an earlierconversation between them she had altered the description of the proposal to read asfollows:To construct an outdoor firearms (pistol) range which will operate for amaximum of 8 hours per day between the hours of 6am and 6pm, Monday toSunday, involving accessory buildings with a total gross floor area of less than25m2 for a toilet and storage facilities, with a minimum of 10 on-site parksprovided. The proposed 'Western Range' will not operate on Sundays. Whenboth the Western and Eastern Ranges are in operation (Monday to Saturday)a maximum of 6 bays in total will be in use at any one time. Earthworks willnot exceed 1000m3 or 1000m2 and will be undertaken in accordance with theperformance standards in Rule 7.9.4.2.1.3 No earthworks will take placewithin 10m of a wetland or natural watercourse.[9] The certificate of compliance when issued on 18 August described the activityin those terms, with the addition of a final sentence: "Vegetation removal will notexceed 1 ha in area."[10] Ms Harris's report relied on the material received including that in the email of24 June as well as reports dated 27 July and 8 August 2016 from Marshall DayAcoustics, a well-known firm with expertise concerning the effects of noise and itsmeasurement, who had been retained by the second respondents.The proceeding in the High Court[11] The Trust alleged in the High Court that the certificate was invalid because:1 Vipassana Foundation Charitable Trust Board v Auckland Council [2017] NZHC 1457, [2017]NZRMA 339 [High Court judgment] at [32].(a) The proposal included material misinformation about the number ofparticipants in the activity, with information provided varying betweenmaxima of 300 to 400 and 200.(b) No detailed plans had been provided clearly setting out the scope of theactivities as required for a certificate of compliance. Assurances givenby Mr O'Brien about earthworks and the description of the earthworksactivity given in Ms Harris's report were not consistent with the grantof the certificate to cover 15 berms for the Eastern and Western rangesidentified in plans provided to the Council.(c) There was no proper assessment of the wastewater effects in terms ofrelevant discharge rules for wastewater.(d) The proposal included a non-compliant ancillary building of more than25 m2 that had not been assessed.(e) There was no proper assessment of the effects of discharge ofcontaminants (in particular, lead) to land caused by the shootingactivity.(f) There was no proper assessment of noise effects, because the relevantmeasurement standard used in the District Plan was inappropriate formeasuring noise emanating from use of firearms or was invalid.[12] Whata J rejected the argument relying on the insufficiency of the plansprovided, observing that "at a general level the proposed activity is not at all difficultto digest. The nature of the activity, a shooting range, is obvious."2 Further, thelocation and layout of the shooting ranges had been shown on plans accompanying theacoustic reports. There was also nothing to prevent the applicant for a certificate ofcompliance modifying a proposal during its processing; the maximum number of 2002 At [30].persons on site had been provided by Mr O'Brien during the processing of theapplication and the Council could rely on and enforce that limit.3[13] As to the extent of the necessary earthworks, the Judge noted that Mr O'Brienhad also indicated that he was prepared to limit the earthworks on the site to 1000 m3or 1000 m2 and had produced some information to show this was achievable.4Relevantly, he had "referred to earthworks calculations for the berms" (there wereraised areas dividing off the individual ranges along which the guns were fired) andthese had been adopted in indicative terms in Ms Harris's report. Once again, theefficacy of the numbers was for the Council, not the Court on review: and the figureswere "readily capable of verification and enforcement" and compliance could "beassured".5 The Judge also held it was legitimate for the assessment and design of theappropriate system to be deferred to the building consent stage.6[14] However, the High Court held that the application was flawed because it didnot disclose the existence of a building, and the Council erred by not taking intoaccount or assessing the significance of the building.7 Nevertheless, the Judgeconsidered that was an error that could be remedied by either the removal of thebuilding, or alternatively the giving of an undertaking that the building would not beused in conjunction with the activity.8[15] The Judge also found that the application contained no information aboutcompliance of the activity with s 15 of the RMA, or any applicable dischargestandards.9 It was common ground that the operation of the shooting range wouldcause discharges of lead, a contaminant, to the land, but the effects of this dischargehad not been "transparently assessed" as part of the application, which made noreference to the relevant discharge rules.10 After reviewing relevant evidence on this3 At [31]–[32].4 At [33].5 At [33].6 At [34].7 At [40].8 At [74(a)].9 At [42]. Section 15(1) of the Resource Management Act 1991 states that no person may dischargea contaminant onto or into land in circumstances which may result in the contaminant enteringwater.10 At [42].issue, the Judge found that there was "a small risk only" that there might becontamination of water so as to engage the prohibition on discharge in s 15(1) ofthe RMA; but the risk was one that could not be completely discounted, so the failureby the Council to consider the issue was not immaterial.11 Nevertheless, the effects ofboth this and the omission to consider the building were minor, if not de minimis, anddid not directly affect the Trust at all.12[16] The errors were unintentional and understandable in context; the viability ofthe site for the activity had been diligently assessed by the applicants, and they hadinvested in establishing the shooting range in good faith.13 In these circumstances, andgiven his rejection of other issues raised by the Trust, he said that he proposed to referthe application back to the Council and not to quash the certificate of compliance.14However, he afforded the parties the opportunity to address further submissions on thequestion of relief.[17] Two days later, having received the further submissions, the Judge delivered asecond judgment in which he disposed of the application in the manner he hadforeshadowed.15 Thus the matter would be referred back to the Council forreconsideration but without the Court quashing the certificate of compliance.16He made final orders directing the Council to reconsider the decision made unders 139 of the RMA in light of his first judgment, and noting that pursuant to s 4(5C) ofthe Judicature Amendment Act 1972, the decision to be reconsidered continued to haveeffect unless and until revoked or amended by the Council.17 He reserved leave tothe parties to seek further directions if necessary including in the event that thereconsideration was unduly delayed.18[18] It was implicit in the first of these orders that the Council would have the abilityto make a fresh decision on the application under s 139 of the RMA if, following11 At [51].12 At [74(b)].13 At [74].14 At [76].15 Vipassana Foundation Charitable Trust Board v Auckland Council [2017] NZHC 1492, [2017]NZRMA 313 [second High Court judgment].16 At [6].17 At [11].18 At [11].reconsideration, it thought a different decision should initially have been made.This was clearly within the contemplation of s 4(5B) of the Judicature AmendmentAct.19 The Judge recognised the course he was taking was unusual. He said:[7] I acknowledge the maintenance of the certificate pendingreconsideration is an unusual, indeed rare course. But this is an unusual case.In addition to the matters set out at [74] and [75] of my judgment,[20] it isrelevant to note the concession made by the Council and the plaintiffs that thedecision will be reconsidered on the basis of the planning instruments in playat the time of the application. This is relevant because on the issues andevidence properly before me:(a) the proposed activity does not contravene a rule in an applicableplanning instrument; and(b) the effects of the activity do not exceed any relevant applicablepermitted activity standards.(Footnote omitted.)[19] The Judge italicised "properly" here because, as he explained in the firstjudgment, the Council had filed a memorandum after the High Court hearingconcerning the activity status of discharges of contaminants under the Council'sDistrict Plan, claiming that the District Plan rules relate only to discharges from land.The Judge proceeded without reference to the Council's memorandum, dealing withthe issues as they had been raised at the hearing.Application for leave to adduce further evidence[20] We dealt at the outset of the hearing of the appeal with an application made bythe Trust for leave to adduce further evidence. The proposed further evidence wascontained in an affidavit of Kirsty McKay, a trustee and the office manager ofthe Trust. The affidavit related to the ongoing use of the existing building on the land,compliance with the earthworks standards, the fact the Club had made a resourceconsent application in reliance on the permitted baseline established by the certificate19 Section 4(5) of the Judicature Amendment Act 1972 enabled the High Court to direct a decisionmaker to reconsider and determine any matter to which the application for review relates "inaddition to or instead of granting any other relief", and s 4(5B) confirmed the jurisdiction of theoriginal decision maker to reconsider and determine the matter in accordance with the Court'sdirection. Section 4(5C) provided, consistently with what happened here that in the case of sucha reference back, the act or omission to be reconsidered continues "to have effect according to itstenor unless and until it is revoked or amended by that person". Section 17 of the Judicial ReviewProcedure Act 2016 now provides for relief in similar terms.20 We have summarised these at [15] and [16] above.of compliance and what had happened during the reconsideration of issues bythe Council directed by the Judge.[21] We rejected the application except in relation to the evidence about thereconsideration by the Council. We said we would give our reasons in this judgment.Our reasoning was essentially that whether or not the High Court erred must dependon the evidence about the Council's issue of the certificate of compliance as it stoodbefore that Court. But we considered it would be relevant for us to know what hadhappened on the reconsideration by the Council directed by the High Court. So weallowed the application to that limited extent.Reconsideration by the Council[22] The Council's reconsideration of the application followed in accordance withthe Judge's direction. It had two stages. It was addressed first by a duty commissioner,Ms Cherie Lane, who considered the certificate of compliance should be revoked.Ms Lane's decision was then the subject of objection by Mr O'Brien and Ms Pichler,under s 357A of the RMA. A hearing panel of two different commissioners,Messrs K Littlejohn and R Scott, allowed the objection. By their decision issued on21 November 2017, they determined that the proposal was a permitted activity on theday the application for the certificate of compliance was made. They directed that thecertificate of compliance be reissued.[23] We mention one issue, if only to clear it away. It arises fromthe commissioners' reference to the certificate being reissued and the fact that therehas been no application to review the 21 November decision. The pleadings remainin the form they took when the application for review was before the High Court: theamended statement of claim dated 10 May 2017 focuses on the Council's originaldecision to issue the certificate of compliance. The notice of appeal relates to aspectsof the Judge's decision and the Council's original decision, seeking as relief thequashing of the certificate of compliance dated 18 August 2016. There is no mentionof the subsequent decision made by the panel of independent commissioners.[24] The parties did not raise any issue in this respect, and we are satisfied theywere right not to do so. The pleadings are adequate to challenge the certificate. In thisrespect, although the commissioners decided to reissue the certificate, they apparentlycontemplated that the original certificate would be the certificate that applied.They made no provision for it to be changed in any respect. That was appropriategiven that the process envisaged by the High Court orders was that the applicationwould be reconsidered, but pending such reconsideration, the original certificatewould not be quashed. It was also appropriate since only one certificate had beensought, and under s 139(7)(b) of the RMA, a certificate must state that the proposal towhich it relates can be done lawfully "as at the date on which the authority receivedthe request". Since the result of the reconsideration was not to quash the certificate,the result was that the original certificate remained in force. It would only have beenif the commissioners had decided that it should be quashed that they would haveneeded to make any order concerning it. In the circumstances, the reference to thecertificate being reissued was otiose, and cannot affect the Trust's ability to proceedwith its challenge to the certificate's lawfulness.Section 139[25] Before dealing with the substantive issues that arise on the appeal, it isappropriate to discuss s 139 of the RMA. At the time the Council issued the certificateof compliance, the section provided:139 Consent authorities and Environmental Protection Authority toissue certificates of compliance(1) This section applies if an activity could be done lawfully in aparticular location without a resource consent.(2) A person may request the consent authority to issue a certificate ofcompliance.(3) A certificate states that the activity can be done lawfully in a particularlocation without a resource consent.(4) The authority may require the person to provide further information ifthe authority considers that the information is necessary for thepurpose of applying subsection (5).(5) The authority must issue the certificate if—(a) the activity can be done lawfully in the particular locationwithout a resource consent; and(b) the person pays the appropriate administrative charge.(6) The authority must issue the certificate within 20 working days of thelater of the following:(a) the date on which it received the request:(b) the date on which it received the further information undersubsection (4).(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 particularlocation without a resource consent as at the date on whichthe authority received the request.(8) The authority must not issue a certificate if—(a) the request for a certificate is made after a proposed plan isnotified; and(b) the activity could not be done lawfully in the particularlocation without a resource consent under the proposed plan.(9) Sections 357A and 357C to 358 apply to a request for a certificate.(10) A certificate is treated as if it were an appropriate resource consentthat—(a) contains the conditions specified in an applicable nationalenvironmental standard; and(b) contains the conditions specified in an applicable plan.(11) A certificate treated as a resource consent is subject to sections 10,10A, and 20A(2).(12) A certificate treated as a resource consent is subject to this Act as if itwere a resource consent, except that the only sections in this Part thatapply to it are sections 120, 121, 122, 125, 134, 135, 136, and 137.(13) If an activity relates to a matter that is or is part of a proposal ofnational significance for which a direction has been made undersection 142(2) or 147(1)(a) or (b), a person may request a certificatefrom the Environmental Protection Authority and this section applieswith the following modifications:(a) a reference to a consent authority is to be treated as a referenceto the EPA; and(b) subsection (5)(b) does not apply; and(c) the EPA may recover its actual and reasonable costs of dealingwith the request from the person making the request.(14) In this section, activity includes a particular proposal.[26] The section was analysed by this Court in Pring v Wanganui DistrictCouncil.21 The Judge appropriately took that as the leading decision on the applicationof the section, quoting the following passages:22Unless the statute otherwise directs, the weight to be given to particularrelevant matters is one for the consent authority, not the Court, to determine,but, of course, there must have been some material capable of supporting thedecision. Having said that, it must also be recognised that because neighboursand users of adjoining streets may well be adversely and directly affected bya development which obtains a certificate of compliance and thereby isdeemed to have a resource consent (subs (6)), the Court will scrutinise whathas occurred more carefully and with a less tolerant eye when consideringwhether the decision was one open to the consent authority on the materialbefore it than it will do in a case where the decision which is being questionedrequired the balancing of broad policy considerations and there was less directimpact upon the lives of individual citizens as, for example, where the exerciseof statutory power involved the striking of a general rate (Wellington CityCouncil v Woolworths New Zealand Ltd (No 2), [1996] 2 NZLR 537).If a proposal complies, s 139 requires the consent authority to issue acertificate within the short specified statutory time-frame. The authority mustfirst be satisfied that there is compliance. Before it can be properly satisfiedit must have had sufficient information in order to be able to make a thoroughcomparison of the proposal with the applicable rules. It must therefore ensurethat it has an adequate description of the subject matter, of what is proposed.It is given power to ask for further information relating to the request for acertificate (subs (2)). What the authority needs to know will depend upon thenature of the proposal and upon the particular rules which must be compliedwith. It will rarely, if ever, be appropriate for it to give an approval withoutbeing supplied with plans (in this case it had a site plan and it requested andreceived elevation drawings), but the requisite degree of detail will vary withthe application.[27] We think it appropriate to emphasise the requirement that the Council havesufficient information to enable it to make the appropriate comparison of the proposalwith the applicable rules. Since the certificate can only be issued if the activity forwhich it is sought can lawfully be carried out without a resource consent,23 it isnecessary for the Council to form a view on which rules in the relevant planninginstruments apply to the proposal. It must have sufficient information to enable it todo that, desirably in the application as presented but, failing that, as might be providedin response to requests for further information prior to the issue of the certificate.21 Pring v Wanganui District Council [1999] NZRMA 519 (CA).22 At [7] and [10].23 This follows from s 139(1) and (3): the section only applies if an activity could be done lawfullyin a particular location without a resource consent, and that is what a certificate issued states.Unless or until the Council has sufficient information for this purpose, the certificateshould not be issued.[28] Further, the issue is compliance, or non-compliance, of the activity for whichthe certificate is sought, with the rules in the relevant plan or plans. Once the Councilhas ascertained which rules apply to the proposal it must then ask whether the proposalcomplies with the rules for permitted activities. The effect of the proposal is notrelevant to that issue, unless compliance with a relevant rule turns on presence orabsence of a particular effect. The latter situation ought to be unusual, as good draftingpractice will have the consequence that permitted activities will be clearly specified,without the uncertainties inherent in assessing effects for the purposes of activityclassification. It is clear in any event that the Council must be satisfied that theproposal complies with every relevant rule; if not, then resource consent would berequired and, in accordance with s 139(1), there would be no power to issue acertificate. As this Court said in Mawhinney v Waitakere City Council, s 139:24 makes plain that a certificate of compliance will only be issued where theactivity in respect of which it is sought could lawfully be carried out withouta resource consent, and that means that an application must satisfy the councilthat every aspect of the activity (positively) conforms with the relevantrules The issues[29] The Trust pursues five main issues on the appeal. It submits:(a) The Judge erred in holding that the Council had sufficient informationto conclude that the earthworks to be undertaken could comply with theearthworks rules, which restrict both the volume and area ofearthworks. As part of this argument the Trust claims the plansprovided were insufficient to show the existing ground topography, thedimensions of the bunds dividing the shooting bays, and the extent ofcut and fill necessary to form them.24 Mawhinney v Waitakere City Council [2009] NZCA 335 at [28].(b) As to noise effects, the Council and Marshall Day Acoustics had notassessed the activity by appropriate techniques. It is said that, properlyconstrued, the relevant rules in the District Plan required the use ofspecial noise measurement techniques appropriate for the measurementof impulsive sounds such as those arising from gunfire or blasting.That had not occurred. It was inappropriate to use the New ZealandStandards referred to in the district plan,25 because the assessmenttechniques they contained were not appropriate for the measurement ofimpulsive noise such as gunfire; the Standards themselves recognisedthe measurement of that kind of noise was outside their scope.Consequently, the noise effects had not been assessed in accordancewith the appropriate techniques.(c) As to the discharge of contaminants, the substantive complaint is thatthe Judge misconstrued relevant rules in the Council's Air Land andWater Plan (the ALWP) which, properly construed, meant theprospective discharge of contaminants (lead) from shooting activitiesto land, or to land in circumstances where it might enter water, requireda resource consent.(d) As to the existing building on the land, the Trust says the Judge erredin allowing the Council to accept an undertaking not to use the existingbuilding (of more than 25 m2) on the land in conjunction with theshooting range activity.(e) The Trust also complains that the Judge, in exercising his discretion todecline relief by quashing the certificate, did not properly take intoaccount the fact that the issue of the certificate would establish apermitted baseline on the site, able to be relied on for the purposes of asubsequent resource consent application.25 NZS 6801:1999 Measurement of Environmental Sound; and NZS 6802:1999 Assessment ofEnvironmental Noise.[30] We will deal with these issues in turn. We record that the Council, whilemaking submissions concerning discovery and the interpretation of plan rules relatingto the discharge of contaminants and noise, otherwise abided the decision of the Court.Earthworks[31] Under the Council's District Plan the relevant activity classification was thatof "outdoor recreation not involving buildings except for ancillary buildings(eg. toilets, ticket offices, storage) up to a combined total floor area of 25m2 per site".The Judge noted that the application had in addition been processed on the basis thatthe activity fell within the category of:Use of a site on not more than a total of 3 days within any 12 month periodfor events such as festivals, carnivals, markets, race meetings and rallies(including temporary structures for such activities) provided that the numberof persons catered for and attending such events does not exceed 200 for eachevent and where access for the activity is not obtained from a state highway.[32] The report on the application prepared by Ms Harris noted that underr 7.9.4.2.1.1 of the District Plan, earthworks were permitted if less than 200 m3, orgreater than 200 m3 but less than 1,000 m3 subject to compliance with the performancestandards set out in r 7.9.4.2.1.3. She then recorded the applicant's confirmation thatthe proposed earthworks would be within the permitted threshold of less than1,000 m3. She noted that although exact designs were "yet to be finalised", the"approximate volume of a 20m x 7.525m2 trapezoid shaped earth bund will result inapproximately five ranges (requiring six earth bunds) being able to be constructed asa permitted activity".[33] She then recorded that the proposed location of the eastern and western rangeswould be outside the area marked as a floodplain on the Council's GIS maps, and thatno earthworks would take place within 10 m of a wetland or natural watercourse.These observations apparently dealt with the relevant performance standards for theearthworks to qualify as a permitted activity, set out in r 7.9.4.2.1.3.2626 The rule contains additional standards, but we do not understand the Trust to claim they are notcomplied with.[34] As already noted above, the original application for the certificate ofcompliance simply described the activity as "outdoor target shooting with firearms"while noting that "[c]learly defined shooting areas will be constructed in a mannercompliant with all safety requirements, as referred to in the other attachments".The other attachments comprised a letter from a New Zealand Police approved "rangeinspecting officer", Mr Peter Miles, who said he had visited the site to see whether itwould be suitable for developing into a pistol range. He expressed his opinion that the"lower" part of the property where there was an existing motocross track would be"more than suitable for developing into a number of 25 and 50 Metre outdoor nodanger area Pistol and rifle ranges". It appears that an aerial photograph was attachedto Mr Miles' letter identifying that area of the property, but it did not identify wherewithin the area the shooting bays would be located. Nor did it state a number of bays.[35] Although the Council's standard application form for a certificate ofcompliance provided for the provision of a site plan, none was submitted. The box onthe form marked "Plans prepared in accordance with Guidance note 1: Preparation ofPlans", was ticked, but the only "plan" initially submitted was that attached toMr Miles' letter.[36] It will also be recalled that when Mr O'Brien wrote to the Council on24 June 2016 providing further information he was unable to give any particulars asto the extent of the earthworks. Rather, he proposed that detailed range constructionplans would be provided after issue of the certificate of compliance. Althoughearthworks would be kept to the minimum required, he acknowledged that "at thistime" he did not have an estimate of the earthworks required. This should have thrownup a red flag for the Council.[37] Then, when Ms Harris wrote to Mr O'Brien on 16 August with her altereddescription of the proposal, she included a provision that earthworks would not exceed1,000 m3 or 1,000 m2 and would be undertaken in accordance with the District Plan'sperformance standards. This was then reflected in her report on the application dated18 August 2016. The report's reference to the eastern and western ranges can beunderstood by reference to a plan that was included in the report provided byMarshall Day Acoustics on 8 August 2016. This was the first depiction of the proposalin plan form, although it was really no more than a sketch with bays showingsuperimposed on an aerial photograph. Western and eastern ranges were identified,with six bays being depicted in each range. Although a total of 12 bays were shown,Ms Harris apparently calculated the amount of necessary earthworks on the basis ofthere being approximately five ranges. Notwithstanding that calculation, she alsowrote in her report that when both the western and eastern ranges were in operation amaximum of six bays in total would be used at any one time. So the report itselfcontemplated that more than five ranges would be implemented.[38] Given Mr O'Brien's approach of deferring the provision of detailed rangeconstruction plans until after the issuing of the certificate of compliance, it is notsurprising that throughout the processing of the application doubt surrounded theextent of the earthworks that would be necessary to construct it. The Council dealtwith this inherent difficulty by treating the application as if the earthworks wouldcomply with both the district (1,000 m3) and regional (1,000 m2) limit. But theapplication did not say that. Ms Harris herself did a calculation demonstrating thatwas possible, but only with fewer bays constructed than the application purported toshow. Mr Savage submitted in this Court that the applicant had in fact built only fourshooting bays in order to comply with the District Plan rules, but the application wasnot so limited.[39] We have concluded in all the circumstances that the Council had insufficientinformation to properly assess the extent of earthworks involved in the proposedactivity. Further, it is not sufficient for a council to take the view in issuing a certificateof compliance that compliance can be assumed in respect of the relevant plan rules.Neither is it appropriate for certificates of compliance to be issued which areconditional on compliance with the District Plan. The whole point of the statutoryprocess is to enable applicants to receive the Council's certificate that a specifiedproposal complies with the District Plan. Unless the Council can properly be sosatisfied, the certificate must not be issued, as we have already said.[40] The Judge evidently thought it was sufficient that Mr O'Brien had volunteeredto comply with the earthworks limits in the plan, and the Council could enforce that.But the certificate, in fact, clearly concerned a proposal that contained a significantlylarger number of shooting ranges than could be provided within the earthworkslimitations in the plan. Such a certificate should not have been issued.Noise[41] The Trust raises three issues. The first is whether the noise effects of theactivity were assessed in accordance with NZS 6801:1999 "Measurement ofEnvironmental Sound" and NZS 6802:1999 "Assessment of Environmental Noise",as required by r 16.9.2.1.5 of the District Plan. The second issue asks the relatedquestion of whether the Council observed r 16.9.2.1.5 when it accepted the report ofMarshall Day Acoustics dated 8 August 2016 as demonstrating that the noise limits inthe plan would not be exceeded for gunfire noise. The third and consequential issueis whether, if the answer to the first or the second issue is in the negative, that meansthe activity is not a permitted activity.[42] The starting point of the appellant's argument is that the relevant District Planin this case, in common with many other district plans throughout New Zealand,provides for a noise limit expressed as dBA Leq (6 am–6 pm) and dBA Lmax (applicableat all other times for night time noise). Compliance with that noise limit is then to beestablished by measurement and assessment of the noise limits in accordance with theprovisions of the New Zealand Standards (r 16.9.2.1.5(a)), and in the case of doubtabout whether a particular activity will comply with the noise limit, a stipulatingprovision of an acoustic design certificate from a recognised acoustic consultantdemonstrating that the noise limit will not be exceeded. The report of 8 August 2016from Marshall Day Acoustics, and signed by Micky Yang of that firm, was intendedto be the acoustic certificate for the purposes of r 16.9.2.1.5(b). Although the Trustquestioned the basis of Marshall Day Acoustics' advice, we do not understand it toassert that it was not a report from a recognised acoustic consultation.[43] In the 8 August report, Mr Yang stated that r 16.9.2.1.2 provided that the noiselevels measured inside the notional boundary of the site must not exceed 50 dB LAeqMonday to Saturday 0600–1800, and 45 dBA LAeq for Sundays and public holidaysbetween the same hours. In fact, the district plan rules are expressed in terms of Leqvalues as opposed to LAeq values; however, r 16.9.2.1.5(a) permits averaging withincertain limits:(a) Noise levels shall be measured and assessed in accordance with theprovisions of New Zealand Standard NZS 6801: 1999 "Measurementof Environmental Sound" and New Zealand Standard NZS 6802:1999 "Assessment of Environmental Noise" except that averaging ofmeasured Leq noise levels shall be permitted for comparison with therelevant limit as follows:The averaged Leq value shall not exceed the relevant limit, andin any case the limit shall not be exceeded by more than5 dBA for any single time interval. Leq values shall beaveraged on an energy basis whereby the logarithmic mean isdetermined. Measured Leq levels shall not be averaged ifcomparison is to be made with a night-time limit between10:00pm and 7:00am.[44] Mr Yang recorded his assumptions concerning the activity in the followingparagraph:It is understood that the proposed hours of operation would be 8 hours of theavailable 12 hour daytime period giving 1 decibel of duration adjustment inaccordance with New Zealand Standard NZS 6802:2008"Acoustics - Environmental Noise". Between Monday to Saturday, the pistolclub will use a total of six bays from the eastern and western ranges and onSunday, only the eastern range will be used. The noise level was predictedbased on the proposed pistol range configurations and 5m high earth berms(Figure 1). The Monday to Saturday predicted levels were based on the sixwestern ranges and the Sunday predicted levels were based on the six easternranges. The predicted levels are presented in Table 1 with Figure 2 showingthe dwellings of the nearest receivers This was a reasonable reflection of the nature of the application as known at the time.[45] Mr Yang also referred to his use of a computer-based model which had beendeveloped to determine the noise received at the notional boundary of the nearestexisting receivers. This model used the general method of calculation contained inInternational Standard ISO 9613–2:1996 "Acoustics - Attenuation of sound duringpropagation outdoors". He said:The activity sound power was based on a measurement of moving andstationary shooters using a variety of pistols comprising mainly of 9 mm boreweapons at a similar club. The model was calibrated to an unattenuated noiselevel of 67 dB LAeq at 115m. The noise source was assumed to be at a heightof 1.5m.[46] He set out in a table a predicted level of dB LAeq which on the face of itdemonstrated compliance with the District Plan provisions. He concluded:As shown, the Rating levels comply with the noise performance standard inthe District Plan at all receivers with the pistol club open on all days assuminga special audible character correction and they operate within the day specificranges. It is noted that the predicted sound level at the notional boundary ofthe nearest dwellings range between 37 and 46 dB LAeq from the westernrange, and 33 and 41 dB LAeq from the eastern range, which is a relatively lowlevel during the day time. Other background noise sources may mask the clubactivity which would mean that the special audible character would not apply.We recommend that noise surveys are undertaken when the club first opens todetermine effects.We recommend that an operational management plan be implemented thatrestricts activity to specific ranges i.e. on Monday to Saturday anycombination of bays in the western and eastern ranges may be used providedthat no more than six bays are in use. On Sunday only the eastern range isused.[47] Mr Ryan was critical of the adjustment to which Mr Yang referred as havingbeen made in accordance with NZS 6802:2008 "Acoustics – Environmental noise".Resort to that standard was necessary to arrive at a predicted level of dB LAeq withadjustments for "restricted time" and the "special audible character" of noisegenerated by gunfire. Mr Ryan noted that a Council officer, Mr Winter, had questionedthe appropriateness of using LAeq as the most appropriate descriptor to assess noiseeffects for a shooting range. Mr Ryan submits that the Council failed to address theissue identified by Mr Winter and was also critical of Marshall Day Acoustics for alsohaving failed to do so.[48] In the High Court, the Trust relied on evidence from an experienced acousticalconsultant, Mr Nevil Hegley, who gave evidence that the measuring and assessmentfor impulse sound such as gunfire requires special techniques that are generally outsidethe scope of NZS 6802:1999, and indeed the use of the Standard for "the general useof assessing gunfire sound" is specifically excluded by cl 1.2 of the Standard. It wastherefore "incorrect" to adopt NZS 6802 for the assessment of gunfire noise. He saidin addition that the reason for the exclusion of gunfire noise was that there is no knowncorrelation between gunfire and the assessment criteria set out in NZS 6802, whichhad been adopted to assess general environmental noise, which has a differentcharacteristic to gunfire noise, the latter generating what he referred to as "an impulsesound".[49] The Club relied on expert evidence from Mr Graham Warren, also anexperienced acoustical consultant employed by Marshall Day Acoustics. Mr Warrenconfirmed that the noise emission levels likely to be generated by the activity weredetermined by means of a computer model which incorporated data relating to thetopography in the area and the sound levels together with various factors affectingsound propagation. He observed that the computer software used has internationalrecognition and acceptance, and that Marshall Day Acoustics has had many years ofexperience in its operation. He noted that the topographical data used in applying theprogram had come from the Council's "GIS viewer", and the sound power level hadbeen determined from line-of-sight sound level measurements undertaken andreported by Council officers at another shooting range. While he agreed withMr Hegley that NZS 6802:1999 excluded the assessment of gunfire noise, he was ofthe opinion that NZS 6802 could be satisfactorily used for comparison against districtplan rules "when applied selectively and with experienced professional judgment".He referred to his past experience in carrying out such an assessment at anotherpistol club.[50] The Judge essentially accepted Mr Warren's evidence and we are satisfied hewas right to do so. The Trust's argument, based on Mr Hegley's evidence, is inherentlydifficult to sustain because the District Plan sets noise levels which are applied topermitted, controlled or restricted discretionary activities subject to certain exceptions.Shooting ranges or other outdoor activities involving gunfire are not an exception tothe rule. At the same time, the plan requires that the stipulated noise levels shall bemeasured and assessed in accordance with the provisions of New Zealand StandardNZS 6801:1999 "Measurement of Environmental Sound" and New Zealand StandardNZS 6802:1999 "Assessment of Environment Noise", subject to an exceptionallowing for the averaging of a measured Leq noise level. In other words,the District Plan itself requires the application of NZS 6802:1999 notwithstandingdifficulties that may arise because it is an inappropriate control when applied togunfire. It would not be a sensible outcome to hold that activities whichthe District Plan intends should be permitted (subject to meeting the relevant controls)must be excluded because the rules require the assessment of noise to take place inaccordance with a standard that cannot be applied to those activities. We do notconstrue the district plan as requiring that outcome.[51] Rule 16.9.2.1.5, which contains the obligation to measure and assess noiselevels in accordance with NZS 6801 and NZS 6802, also provides at (b):Where there is doubt whether a particular activity will comply with the noiseperformance standards under Rule 16.9.2, an acoustic design certificate froma recognised acoustic consultant shall be provided, demonstrating that thenoise limits in the table will not be exceeded.[52] That is what occurred in the present case. Mr Yang and Mr Warren explainedthe process they adopted to assess compliance, given the difficulty that themeasurement techniques required by the plan could not be directly applied.Apart from a mildly expressed criticism in relation to the modelling of the relevantground contour, Mr Hegley was not critical of Mr Yang's methodology per se. Hispoint was rather that the standard was inappropriate as a means for assessing gunfirenoise. But the plan contemplates noise consultants giving a certificate of compliance,having applied their expertise to the issue. We consider the Judge was entitled to holdthat the certificate given by Mr Yang in the present case provided a proper basis forthe Council to conclude that the proposal would comply with the applicable noisestandards.27[53] For completeness, we note that a similar issue arose in respect of a differentDistrict Plan and an earlier version of NZS 6802 (NZS 6802:1991) inNorth Canterbury Clay Target Association Inc v Waimakariri District Council.28 ThisCourt refused to upset the finding of the Environment Court that the shooting activityin that case complied with the noise limits in the District Plan, notwithstanding theinapplicability of NZS 6802:1991.29 In the present case, the Judge properly appliedCanterbury Clay Target Association Inc as he was bound to do.[54] We accordingly reject the Trust's argument on this issue.27 High Court judgment, above n 1, at [66].28 North Canterbury Clay Target Association Inc v Waimakariri District Council [2016] NZCA 305,[2016] 3 NZLR 764.29 At [17].Discharge of contaminants[55] As noted above the Trust's substantive argument in this part of its case claimthat the Judge misconstrued the ALWP.30 It will be recalled that it was commonground in the High Court that the operation of the shooting range would causedischarges of lead to the land. However, the Judge held the effects of such dischargeswere not "transparently assessed" as part of the application, which had made noreference to the relevant discharge rules.31 It seems from the discussion in thejudgment that the Judge used the expression "transparently assessed" in response to asubmission made by counsel for the second and third respondents based upon astatement in a letter from a Council in-house solicitor. This was to the effect thatMs Harris did not consider the proposal required a discharge consent when sheprocessed the application, because it was extremely unlikely that contaminants fromthe bullets would reach natural ground or any waterway.32 The Judge pointed out thatMs Harris had not been called to give evidence to that effect.33 Also, the reasons givenin the grant of the certificate and the report supporting the grant were the most cogentevidence of what had been taken into account for the purpose of the decision.34 Therehad been no reference to the relevant discharge rules in either document.[56] In the circumstances, the Judge considered that there had been a material errorbecause the question of compliance with s 15 of the RMA had not been addressed, andthis was one of the bases upon which he had referred the matter back to the Councilfor further consideration.35[57] Notwithstanding that, the Judge said he had examined the submissions andevidence about compliance with the discharge rules because it might be relevant tomateriality.36 He then referred to the evidence on the potential for contamination as itwas before him, which he thought suggested a "small risk only of contamination of30 Argument was focused on this plan rather than what were said to be similar provisions inthe Proposed Auckland Unitary Plan.31 High Court judgment, above n 1, at [42].32 At [46].33 At [47].34 At [48].35 At [51] and [79]–[80].36 At [49].water" such as might trigger the prohibition in s 15(1), although the risk could not becompletely discounted.37[58] He proceeded to address an argument that had arisen during the course of thehearing in the context of a submission made by the second and third respondents thatproperly construed, r 5.5.41 of the ALWP permitted the discharges.The commissioners who took part in the reconsideration of the matter and determinedthat the certificate of compliance should be reissued considered themselves bound bywhat the Judge said on this issue.[59] Rule 5.5.41 of the ALWP states as follows:38Other than is provided by Rule 5.5.40A, the discharge of contaminants to landor water from land is a Permitted Activity subject to:(a) Concentrations of target contaminants, or the 95% upperconfidence limit of the mean which shall be determined inaccordance with the Contaminated Land ManagementGuidelines No 5 Site Investigation and Analysis of Soils(MfE, February 2004), shall not exceed the greater of (i) or(ii) below:(i) for in situ soil and material imported and/or depositedonto the land:1. The criteria specified at Schedule 10:Permitted Activity Criteria. The humanhealth values in Schedule 10 apply unless theeffects of land use on human health have beenexpressly authorised either throughDistrict Plan rules or a resource consent by aterritorial authority. For contaminants notincluded in Schedule 10;...(ii) for in situ soil and material imported and/or depositedonto the land the natural background levels for thatsoil or material or the relevant background levelsspecified in ARC Technical Publication "Backgroundconcentrations of inorganic elements in soils from theAuckland Region", TP153, October 2001.37 At [51].38 The version quoted is as set out in the High Court judgment, above n 1, at [53].[60] As can be seen, the meaning of this provision has to be ascertained byreference, among other things, to the ALWP's sch 10: Permitted Activity Criteria.The Judge set out the relevant part of sch 10 in the judgment:39The contaminant levels specified in the table below apply to historical landuses only. They are not to be construed as levels to which land can be pollutedup to as a result of ongoing discharges or as levels to which land must beremedied.Contaminant Permitted Activity SoilCriteria (mg/kg)Discharge HumanHealthLead 250.0[61] The Judge thought it clear that rule 5.5.41 sets a permitted activity thresholdfor discharges from contaminated land by reference to a combined concentration ofcontaminant "in situ soil and material imported and/or deposited onto land".40The combined level of the contamination must not exceed the specified standard.The Judge noted that Ms McDonald, an environmental engineer called by the Club,had given evidence that the contamination from the proposed shooting range wouldnot offend the contaminated land rules, given very low readings for existingcontamination.41 He concluded, based on Ms McDonald's evidence, that the shootingrange would be permitted by the rule "in terms of discharges from land to land".42[62] The Trust put a counter argument, based on the opening words of sch 10, thatthe contaminant levels specified in the schedule apply to historical land uses only.The Judge rejected that submission, noting that r 5.5.41 is part of a regime of rulesdesigned to protect against the environmental risks arising from ongoing discharges toland from contaminated land, not discharges to land from other sources.4339 At [54].40 At [55].41 At [49].42 At [55]. The Judge had earlier (at [49]) summarised Ms McDonald's evidence as being that thecontaminated land rules would not have applied to the activity because of very low levels ofexisting contamination. The Judge's discussion of discharges from land to land presumablyreflects the mechanism of any contamination caused by the bullets entering the land and lead thenleaching out.43 At [55].[63] Mr Ryan submitted that when read in its proper context r 5.5.41 of the ALWPis directed at remediating land that has already been contaminated as a result of historicuse of the land. In this respect, he referred to the location of the rule within chapter 5of the ALWP which deals with various forms of discharges to land or to water andcharacterised the rule as part of a set of rules that regulate discharges fromcontaminated land. He also relied on the introductory language in the ALWP aboutcontaminated land, provisions in the issues section of the ALWP, objectives stated forthe issues, and policies, in particular policy 5.4.37B. That provides:The contaminant levels specified in Rules 5.5.41, 5.5.42 and 5.5.42A do notestablish remediation criteria for land which must be met in all cases, althoughland owners may choose to remediate contaminated land to those levelsshould they wish to comply with those Rules.[64] That policy is said to relate to objectives 5.3.14–5.3.16 on which Mr Ryan alsorelied. However, these are expressed in language that is too general to assist theinterpretative exercise.[65] Mr Ryan also relied on sch 10 of the ALWP, in particular its introduction.That provides:The contaminant levels specified in the table below apply to historical landuses only. They are not to be construed as levels to which land can be pollutedup to as a result of ongoing discharges or as levels to which land must beremediated.[66] So, Mr Ryan claimed, r 5.5.41 does not contemplate allowing a landowner toconduct discharges from land to land up to a certain level. Counsel argued that inassessing a proposal for the purposes of granting a certificate of compliance, theapproach to discharges must be prospective in nature. In the case of theshooting range, the task was to assess the discharges that would occur as a result ofshooting activities and whether they would comply with all of the relevant rules. Thiswas "at odds" with r 5.5.41 which in fact requires a determination of the extent towhich the land is contaminated "as it exists".[67] Mr Ryan next contended that if it was correct that r 5.5.41 did not apply, thenthe discharges were caught by the default r 5.5.68, which provides:Any discharge, which is not otherwise provided for in any other rule in thischapter is a Discretionary Activity.[68] Mr Ryan observed that under s 87B(1)(a) of the RMA, an application for aresource consent for an activity must be treated as an application for a discretionaryactivity consent if pt 3 requires a resource consent to be obtained for the activity andthere is no plan or proposed plan, or no relevant rule in a plan or proposed plan.He relied on the presence of s 15 in pt 3.[69] For the Council, Mr Whittington submitted that r 5.5.41 of the ALWP protectsagainst the risks to the environment of ongoing discharges to land from contaminatedland. He submitted the shooting activity is permitted under the rule. It does not,however, deal with discharges to land from other sources. Contaminant dischargesresulting from the shooting range activity, for example lead oxidation to air and bulletcasings into ground, which are not permitted by r 5.5.41 are not dealt with under anyother rule in chapter 5 of the ALWP. However, rather than being caught by the defaultr 5.5.68, the Council argued that the discharges were regulated by s 15(2A) ofthe RMA, and therefore prohibited only if they contravene a regional rule. Applyingthis approach, the Council's Commissioners who reconsidered the matter concludedthat there was no rule in the ALWP (or the Proposed Auckland Unitary Plan) statingthat the firing of bullets from a firearm into land (or the oxidation of their lead casingsto air) is not allowed.[70] Section 15 of the RMA provides as follows:15 Discharge of contaminants into environment(1) No person may discharge any—(a) contaminant or water into water; or(b) contaminant onto or into land in circumstances which mayresult in that contaminant (or any other contaminantemanating as a result of natural processes from thatcontaminant) entering water; or(c) contaminant from any industrial or trade premises into air; or(d) contaminant from any industrial or trade premises onto or intoland—unless the discharge is expressly allowed by a national environmentalstandard or other regulations, a rule in a regional plan as well as a rulein a proposed regional plan for the same region (if there is one), or aresource consent.(2) No person may discharge a contaminant into the air, or into or ontoland, from a place or any other source, whether moveable or not, in amanner that contravenes a national environmental standard unless thedischarge—(a) is expressly allowed by other regulations; or(b) is expressly allowed by a resource consent; or(c) is an activity allowed by section 20A.(2A) No person may discharge a contaminant into the air, or into or ontoland, from a place or any other source, whether moveable or not, in amanner that contravenes a regional rule unless the discharge—(a) is expressly allowed by a national environmental standard orother regulations; or(b) is expressly allowed by a resource consent; or(c) is an activity allowed by section 20A.(3) This section shall not apply to anything to which section 15A orsection 15B applies.[71] It is unnecessary in this case to refer to s 20A. In the present case, there is nosuggestion that the Club intended to apply for a resource consent to discharge acontaminant. The question is whether an application was required under s 15(1) ors 15(2A) of the RMA.44 Under the former, discharges are prohibited unless allowed(relevantly) under a rule in a regional plan or a resource consent. Under the latter,discharges are prohibited only if they contravene a regional rule, and are not allowed,amongst other things, by a resource consent.[72] We agree with the Judge that r 5.5.41 is to be understood as controllingdischarges of contaminants from land: the opening words embrace the discharge ofcontaminants "to land or water from land". The rule states this is a permitted activity,subject to compliance with the concentrations of contaminants limited by the rule.We also agree with the Judge that the limit on concentration is to be applied by arriving44 Section 15(2) is not relevant because there is no relevant national environmental standard.at the sum of existing contamination and what is added by the discharge. It is thecombined level that must not exceed the specified standard.[73] It follows that we cannot accept Mr Ryan's argument that r 5.5.41 is aboutremediating the environment; rather, it authorises the discharge of contaminants,subject to limits. The more general provisions in the objectives, issues and policies onwhich he relied do not alter that fact.[74] The Judge's conclusion that the discharges involved in the present activitywould be permitted by r 5.5.41 insofar as they involved discharges to land from landwas based on the evidence provided by Ms McDonald.45 We have not been given anybasis for reaching a different view. Coupled with the fact that no other rule required aresource consent to be obtained for the shooting activity, this means that, for thepurposes of s 15(2A) of the RMA, the discharge of contaminants involved in theshooting activity did not contravene a regional rule. That conclusion also has theconsequence that there is no room for the application of r 5.5.68 which, as mentionedabove, has effect to require discretionary activity consent where a discharge is nototherwise provided for. We agree with Mr Whittington on this point.[75] The Judge's residual concern about the possibility of contamination reachingwater was one of the reasons that led him to refer the matter back to the Council, butit is clear he thought there should be explicit consideration of all issues relevant tocompliance with s 15, and any applicable discharge standards. The conclusions heexpressed in the judgment about the scope of r 5.5.41 and their implications were forthe purposes of considering "materiality".46 In the event, the commissioners'consideration of these issues led to the reissuing of the certificate.[76] For the reasons we have given we reject the Trust's principal contention on thispart of the case.45 At [55].46 At [49].Existing building[77] The Trust argued that the Club's application was misleading because it omittedreference to an existing building of 84 m2 located within the site. The Trust at thatstage alleged that the building was to be used for the purposes of the shooting range.The Judge concluded that the application documentation was in fact misleading in thisrespect.47[78] The relevant District Plan provisions in fact contained a limit of 25 m2 in thefloor area of a building able to be used in conjunction with outdoor recreation.On learning of this error, Mr O'Brien had "repurposed" the building to store farmingequipment for an adjacent site also owned by him. The Club also adopted the stancethat if it were thought necessary to ensure the proposal complied with the District Plan,the building could be removed.[79] Reference to this building in the plan of the proposal was one of the two baseson which the Judge found that the certificate of compliance was flawed.48 He recordedthat the error in relation to the building could be remedied by the removal of thebuilding and/or an undertaking that it would not be used in conjunction with theactivity.49 By the time of the second judgment he was in a position to write:50 the shooting range owners have given an undertaking not to use thebuilding in association with the proposed activity effectively eliminating thesignificance of one error from consideration.[80] In this Court, Mr Ryan has complained that the Judge should not have acceptedthe undertaking. He referred to evidence obtained by the Trust of the use of thebuilding in conjunction with the activities of the Club and also noted that the Councilwould have been aware of that ongoing activity from site inspections made prior tothe hearing in the High Court. Further evidence was sought to be lead establishingongoing use of the building in conjunction with the Club's activities, but we declinedthe application to adduce that evidence.47 At [39].48 At [73].49 At [74(a)].50 Second High Court judgment, above n 15, at [8].[81] The short point is that the undertaking having been given to the Court, the Clubmust now not use the building in conjunction with its activities. Any such use couldbe the subject of an appropriate enforcement proceeding by the Council and would notof course be authorised by the certificate.[82] We consider the approach taken by the Judge on this issue was available to himand was a sensible way of dealing with the issue.[83] We reject the Trust's argument on this point.Discretion[84] As noted earlier, the Trust complains that the Judge, in exercising his discretionto decline relief by quashing the certificate, did not properly take into account the factthat the issue of the certificate would establish a permitted baseline on the site, able tobe relied on for the purposes of a subsequent resource consent application. The Trustalso submits that the Judge erred by dissecting the individual errors alleged, and byengaging in a merits-based assessment of the effect on the Trust of each alleged error.Mr Ryan submitted this was not the function of the court on review nor the subject ofevidence relevant to the grant of the certificate.[85] For the second and third respondents, Mr Savage submitted that the materialerrors found by the Judge were not significant and related to issues that did not affectthe Trust. By referring the matters back to the Council, the Judge had dealt adequatelywith the identified errors: the undertaking not to use the building had effectively curedits inclusion in the application and the further consideration required for the dischargeof contaminants issue had satisfactorily resolved it. As to earthworks, the certificatehad not been fully implemented, only four bays had been installed mindful of the planlimits on earthworks. Mr Savage pointed out that Mr O'Brien and the Club had doneall that was required of them by the Council including the provision of information,and the commission of independent expert reports concerning noise.[86] This case is unusual because of the fact the Judge found there had been materialerrors but nevertheless declined to set aside the certificate and required furtherconsideration from the council. Our consideration of the legal issues raised againstthe certificate has resulted in a conclusion that the Council had insufficient informationproperly to assess the extent of earthworks involved in the activity, and that the numberof shooting ranges authorised by the certificate would necessarily exceed the extent ofearthworks permitted by the Council's plans. We have rejected the Trust's argumentson the other issues raised. In the case of the contaminants discharge issue, likethe Judge, we would have held that there was a material error in the Council'sconsideration of that issue, but we think it would be unrealistic now to consider thatas favouring the grant of a remedy because it was effectively dealt with in the processrequired by the Judge.[87] What needs to be considered now is whether the Trust should have relief inrelation to the issue of the certificate for the proposal, given the number of shootingbays authorised and the lack of information sufficient to demonstrate there could becompliance with the relevant earthworks controls.[88] We accept Mr Ryan's submission that the issue of a certificate of compliancehas the effect of establishing a permitted baseline on the site. The purpose of thepermitted baseline is "to isolate, and make irrelevant, effects of activities on theenvironment that are permitted by a plan, or have already been consented to.Such effects cannot then be taken into account when assessing the effects of aparticular resource consent application."51 The logic that underpins the approach wasexplained by Tipping J in Arrigato Investments Ltd v Auckland Regional Council:52Thus, if the activity permitted by the plan will create some adverse effect onthe environment, that adverse effect does not count in the ss 104 and 105assessments. It is part of the permitted baseline in the sense that it is deemedto be already affecting the environment or, if you like, it is not a relevantadverse effect. The consequence is that only other or further adverse effectsemanating from the proposal under consideration are brought to account.[89] Where a certificate of compliance is obtained it confirms that the proposal towhich it relates is one that complies with the plan and any subsequent proposal tointensify the use of the site need only be assessed in terms of its incremental impact.The permitted baseline is of some significance in this case, because on the day afterthe grant of the certificate, the activity status of an outdoor shooting range changed,51 Queenstown Lakes District Council v Hawthorn Estate Ltd [2006] NZRMA 424 (CA) at [65].52 Arrigato Investments Ltd v Auckland Regional Council [2002] 1 NZLR 323 (CA) at [29].as a result of decisions made on the proposed Auckland Unitary Plan, which had theeffect that a resource consent would have been required for the proposal. But the pointis a significant one, even without that particular consideration. Because of their statusas effective resource consents, certificates of compliance will always establish apermitted baseline unaffected by subsequent plan changes.53 They are a formalstatement by the relevant authority of what the planning instrument in question permitsas of right.[90] Section 139 is clearly drafted on the assumption that if issued, a certificate willaccurately state that the particular proposal would comply with the plan. There is aspecific power in s 139(4) for the authority to require the provision of furtherinformation where that is "necessary for the purpose of applying subsection (5)".Subsection (5) requires the authority to issue the certificate if "the activity can be donelawfully in the particular location without a resource consent". Subsection (7) requiresthose same words to be recited in the certificate when issued.[91] Section 139(8) provides that a certificate must be refused if the request is madeafter a proposed plan is publicly notified which has the effect that an activity could notbe done lawfully in the particular location without a resource consent under theproposed plan. There is no equivalent provision proscribing the issue of certificateswhere a proposal fails to comply with an operative plan, because there does not needto be. That is axiomatic. Indeed, s 139(1) states that the section only applies if anactivity could be done lawfully in a particular location without a resource consent.[92] Considering all these provisions together it is fair to say the statutory schemerequires the authority to act as a certifier of a state of affairs, comprising mixed lawand fact. Ideally, given appropriately drafted plan provisions, that will not involve theexercise of judgment, it will be a matter which should be readily apparent. But if itdoes involve judgment, great care would be needed before deciding to issue thecertificate. That is because the consequence of issue of a certificate will be that noresource consent is required for the proposal and there will consequently be no public53 Section 139(10) of the Resource Management Act, set out above, provides that the certificate istreated as if it were an appropriate resource consent. Since s 139(12) applies s 125 of the Act(among other provisions), the certificate remains good currency for up to five years.participation in the decision-making process. More than that, if a certificate is wronglyissued, people may be adversely affected by the activity in a way not in factcontemplated by the relevant plan.[93] The nature of certificates of compliance and their role under the RMA is suchthat where it is established a certificate has been wrongly issued, the issues relevant towhether the certificate should be set aside will not properly be limited to an assessmentof the position of the holder of the certificate and the party or parties who have raiseda legal challenge. If left in place the wrongly granted certificate will be effective toestablish a right to use the land and create a permitted baseline that might affectpersons not before the court (there has been no process of public notification, nor isthere any right of appeal for a person claiming to be adversely affected), or peoplesubsequently coming to the area.54 The issue of the certificate is in this sense a publicact, and in this context, the authority's obligation to reach the correct decision aboutwhether the proposal complies must have special emphasis.[94] As the Judge recognised in the present case, ordinarily errors of law will resultin the grant of a certificate of compliance being set aside.55 However, he also observedthat that was not an absolute rule. In Air Nelson Ltd v Minister of TransportO'Regan J, delivering the judgment of this Court, said:56[59] Public law remedies are discretionary. In considering whether toexercise its discretion not to quash an unlawful decision or grant anotherremedy, the court can take into account the needs of good administration, anydelay or other disentitling conduct of the claimant, the effect on third parties,the commercial community or industry, and the utility of granting a remedy.[60] Nevertheless, there must be extremely strong reasons to decline togrant relief. For example, in Berkeley v Secretary of State for the Environment[2001] 2 AC 603 (HL), Lord Bingham described the discretion as being "verynarrow" (at p 608) whereas Lord Hoffmann said cases in which relief wouldbe declined were "exceptional" (at p 616).[61] In principle, the starting point is that where a claimant demonstratesthat a public decision-maker has erred in the exercise of its power, the claimantis entitled to relief. 54 Although s 120 of the Resource Management Act applies, the right of appeal conferred is only forthe applicant for the certificate; since there is no right to make a submission on the application aparty claiming to be adversely affected could not be brought within s 120(1)(b) of the Act.55 High Court judgment, above n 1, at [74].56 Air Nelson Ltd v Minister of Transport [2008] NZCA 26, [2008] NZAR 139.[95] In his text Judicial Review: A New Zealand Perspective, Dr Taylor refers toAir Nelson Ltd as having established the "default position".57 Other cases have saidthat where an error of law is involved refusal of relief will be "rare"58 and "[i]f someform of relief could have a practical value then it ought to be granted."59 AlthoughDr Taylor refers to three subsequent cases which are said to depart from this principlein favour of a wider discretion, those cases were decided in contexts far different fromthe present.60 In our view, having regard to the nature of the powers and dutiesconferred in s 139 of the RMA, the discretion issue should be approached on the basisof the normal Air Nelson Ltd test.[96] It cannot be said here that there would be no point in granting a remedy.Quashing the certificate would obviously remove the ability of the Club to rely on it,and as matters would then stand a resource consent would be required for the activityrecorded in the certificate. All this would be of practical value to the Trust. It isprobable the Trust (possibly others) would be able to participate in that application.61Whether or not that is the case, it would enable a proper focus to be brought on theextent of earthworks required and consequentially the intensity of any developmentpermitted on the site.[97] There has been no delay or disentitling conduct on the part of the Trust. Nor dowe consider there are extremely strong reasons to decline granting relief. We do notoverlook the Judge's conclusion that the second and third respondents have investedin establishing the shooting range, but while we accept his further conclusion they hadno intention to mislead, it was for them as the applicants for the certificate to advise57 Graham Taylor, Judicial Review: A New Zealand Perspective (4th ed, LexisNexis, Wellington,2018) at [5.29].58 GXL Royalties Ltd v Minister of Energy [2010] NZCA 185, [2010] NZAR 518 at [67].59 Just One Life Ltd v Queenstown Lakes District Council [2004] 3 NZLR 226 (CA) at [39].60 Rees v Firth [2011] NZCA 668, [2012] 1 NZLR 408 at [48]; Tauber v Commissioner ofInland Revenue [2012] NZCA 411, [2012] 3 NZLR 549 at [89]–[91]; and Secretary for Justice vSimes [2012] NZCA 459, [2012] NZAR 1044 at [117].61 The application would require restricted discretionary activity consent. The plan says that thenormal tests for notification apply. And the matters to which the Council has restricted the exerciseof its discretion are quite broad and include effects on amenity values of the neighbourhood, effectsof noise on amenity values of the neighbourhood, and effects of traffic volume on the safety andconvenience of other road users (r H19.12.1). Similar issues are referred to as assessment criteria,which also include whether site landscaping and other matters "avoid, remedy, or mitigate theadverse visual effects of the buildings and related site works on rural character and amenityvalues" (r H19.12.2).the Council as to the precise area and volume of the earthworks involved in theproposal.[98] Having considered all of the circumstances we have concluded the appealshould be allowed and the certificate set aside.Result[99] The application for leave to adduce further evidence is disposed of inaccordance with the terms of [21] of this judgment.[100] The appeal is allowed.[101] The certificate of compliance issued by the first respondent on 18 August 2016(and reissued on 21 November 2017) is set aside.[102] The respondents are jointly and severally liable to pay the appellant one set ofcosts on a band A basis and usual disbursements.[103] Costs in the High Court are to be determined in that Court.Solicitors:Pidgeon Law, Auckland for AppellantMeredith Connell, Auckland for First RespondentBlackwells, Auckland for Second and Third Respondents