Urban Auckland, the Society for the Protection of Auckland City and Waterfront Incorporated v Auckland Council [2015] NZHC 1382 (19 June 2015)

Error of law

[149] Mr Palmer next submitted that, through its duty Commissioners, the Council made an error of law by assuming that because of the controlled activity status of the

extensions to the wharf no special circumstances arose. If so, then it was not a valid reason for deciding there were no special circumstances. The respondents submit that no purpose would have been served by notifying so that supported the Commissioner’s decision there were no special circumstances.

[150] I consider there is force in Urban Auckland’s submission that the Commissioners erred in law by considering that, as the extension was a controlled activity, and an expected form of development, no special circumstances existed. Further, for the reasons given above, I consider there was purpose to be achieved by notification and receiving further input into the decisions on the applications from the public.

[151] Commissioner Macky’s decision for non-notification under the Coastal Plan is as follows:

Under section 95A this application for a controlled activity to alter or extend an existing lawful structure in Port Management Area 1A shall not be publicly notified because:

Pursuant to section 95A(2)(3), a rule precludes public notification of the application: Rule 25.5.24 in the ARCP:C provides that applications for controlled activities shall be considered without public notification or limited notification of the application to any affected person unless there are special circumstances justifying public notification:

1. The applicant has not requested public notification.

2. No special circumstances exist because the structure is a controlled activity under the Plan and an expected form of development in this location.

1. There are no specific rules which require the written approval of affected persons.

2. There is no identified protected customary rights group or identified customary marine title group.

[152] In his decision Commissioner Kaye gave the following reasons on notification:

Under sections 95A and 95B this application shall not be publicly … notified because:

1. Pursuant to section 95A(2)(3), a rule precludes public notification of the application …

2. The applicant has not requested public notification.

3. No special circumstances are considered to exist because the structure is a controlled activity under the Plan and an expected form of development within this location [and noting that Rule 25.5.1 provides that port activities associated with the use of the wharf facility are permitted activities].

4. There are no customary rights group or marine title groups in the region affected by this proposal.

[153] On the face of the decision of both Commissioners, it appears that the principal reason they decided special circumstances did not exist is that the extension was a controlled activity, and an expected form of development. In coming to that view I consider the Commissioners have misdirected themselves. The relevant rule in the Coastal Plan itself contemplates that even though the activity might be controlled there may still be special circumstances justifying public notification in accordance with s 95A(4) of the RMA.

[154] Although the Commissioners both gave evidence in which they set out their reasons for deciding not to notify in more detail, the wording of the decision itself is plain. While I take into account the Commissioners’ affidavits, in which they set out in more detail their reasoning on this issue, it is helpful to focus on the contemporaneous documents and decisions because they are less subject to the risk of inaccuracy and rationalisation after the event: Mackenzie District Council v

Electricity Corporation of New Zealand.³⁵ That is particularly so where, as here, the consent decisions both expressly refer to the point in issue and articulate the reason for not finding special circumstances.

[155] Simon France J in Royal Forest & Bird Protection Society of NZ Inc rejected the suggestion the broad nature of the discretion made it immune from review so long as the decision-maker acknowledged the existence of the discretion.³⁶ 

_{Judge also acknowledged that a report which says, without more, that having}

³⁵ Mackenzie District Council v Electricity Corporation of New Zealand [1992] 3 NZLR 41 (CA)

_{at 48.}

³⁶ Royal Forest & Bird Protection Society of New Zealand Inc v Kapiti Coast District Council and

Anor, above n 33, at [131].

The considered the application there were no special circumstances, leaves itself open to criticism.³⁷

 

[156] I also note that the evidence before the Court suggests Commissioner Macky had some issues with the notification decision recommended to her. Ms Valentine asked Ms Halpin to speak to Ms Macky. There is a record of Ms Halpin reporting to Ms Valentine after speaking with Commissioner Macky that:

I have spoken with [Commissioner Macky] and she is all good. She really appreciated being able to talk through the application with me as she was having a wee bit of concern around notification! She is feeling much more comfortable now – phew! Give me a call and I can enlighten you further.

[157] I consider that special circumstances existed which supported notification in this case. The Commissioners fell into error by considering that, just because the extension was a controlled activity and an “expected development”, no special circumstances existed. For that reason also, I am satisfied that the discretion was exercised in error. The applications should have been notified.

Summary

(a) The applications for consent should have been bundled which would have required notification, as the most restrictive activity was a discretionary activity. The adverse effects identified by Urban Auckland will fall to be considered.

(b) Alternatively, special circumstances existed which required notification in this case. The Commissioners fell into error in determining that because the extension was a controlled activity and an expected development no special circumstances existed so that it was unnecessary to notify in any event.

 

Result

[191] The consents issued on a non-notified basis are set aside.

[192] I decline Urban Auckland’s application for a declaration. I confirm there is no need for the POAL to obtain any further consent under 3.I.6.1.10 of the Proposed Plan.