Completeness of Consent Applications & Adequacy of Information

Introduction

A recent High Court case regarding a notification decision by the Wellington City Council once again shows that attempting to overturn such decisions through judicial review is an uphill battle.

The case of Aspros v Wellington City Council [2019] NZHC 1684 (Aspros) involved an application to demolish and rebuild a residential home in Brooklyn, Wellington. The site in question, adjacent to the plaintiff’s property, was owned by the consent applicants (the Owners). The Wellington City Council (the Council) processed the application and decided to grant it on a non-notified basis.

Aspros traverses a number of objections raised by the plaintiff regarding the Council’s decision-making process. However, in this article we focus on two interlinked points of interest. Firstly, the Court’s finding that a council’s decision to accept an application (under section 88 of the RMA) will rarely be susceptible to judicial review and, secondly, the Court’s finding regarding adequacy of the information required to support a non-notification decision.

We discuss these points further below, after some initial comments on judicial review in general.

Judicial Review of Council Consent Decision in General

We’ve written before about the judicial review process in the context of non-notified applications. That article is a great high-level summary and well worth a read alongside the substance of this article: link.

If you are not familiar with judicial review proceedings, a key point to note here is that judicial review isn’t a “no holds-barred” review of a council’s consenting decisions. In practice the Court generally restricts its review to: whether the council followed all relevant procedures, whether it took into account all relevant and no irrelevant matters, and lastly, whether the decision was manifestly reasonable¹.

Completeness of Application - the acceptance decision

The plaintiff argued that the Council erred in law by accepting a resource consent application for processing which purportedly did not comply with s 88 of the RMA.

Under s 88(2), an application for a resource consent must be made in the prescribed form and must include information relating to the activity, including an assessment of the activity's effects on the environment, as required by Schedule 4 RMA.

Section 88(3) confers a discretion on the Council to decide whether or not to regard an application as complete for the purposes of accepting the application for processing. Councils may decline to accept an application that is deficient, (i.e. missing some of the Sch 4 requirements) as long as they do so within 10 days of receiving the application. Recent data² shows that councils return around 3% of consent applications annually under s 88.

In Aspros the Council did not assert this power, choosing instead to accept the Owner’s application as complete under s 88. The High Court found that the Council had acted within its authority to do so and upheld the section 88 decision.

The High Court distinguished between the completeness of an application at the time it is accepted for processing, and adequacy of the information available to the Council at the time notification decision is made.

The Court held that a s 88 acceptance decision is only concerned with completeness of the application, and that section 92 provides the consent authority with an opportunity to request further information, if required, from the applicant.

Also of note is the finding that s 88 decisions are decisions of an administrative nature rather than a merits-based consideration, and that the court's supervisory jurisdiction (via judicial review) will rarely be engaged when assessing whether a consent application has been properly accepted for processing under s 88.

Adequacy of Information - the notification decision

One of the grounds for review in Aspros was the plaintiff’s allegation that the Council’s decision not to notify was based on inadequate information and therefore the decision should be overturned along with the grant/decline decision.

The High Court addressed the confusion in recent years as to whether adequacy of information was still available as a ground for review of non-notification decision³; concluding that yes, it was.

The Court applied the Discount Brands Ltd v Westfield (New Zealand) Ltd [2005] NZSC 17 standard for determining if the information available to the Council at the time of its notification decision was adequate.

Ultimately the Court concluded that the Council did have adequate information, noting that the applicant’s information was comprehensive (spanning 219 pages) and the Council processing officer also completed independent assessments and obtained advice from other experts within Council.

Therefore the information before the Council met the Discount Brands standard because it was adequate to satisfy the Council of:

 

  1. the nature and scale of the proposed activity;
  2. the adverse effects from the activity;
  3. whether any persons were adversely affected by the proposal; and
  4. whether the information given by the applicant was reliable.

The Court also noted that the level of information in an application should be proportional to the nature and scale of the activity and its effects. Applying this to the facts in Aspros, the Judge held that it was entirely reasonable for the Owner (an architect), and not a professional planner, to have drafted the consent application as the activity was relatively small in nature and effects.

Conclusions

Aspros makes it clear that an acceptance decision under s 88 is not a fertile ground for judicial review.

Aspros is also a timely reminder to ensure that consent applications are supported by comprehensive information proportionate to the scale of the proposal, as this will help protect an applicant against successful judicial review proceedings.

This is especially important during the current COVID-19 context as councils are being asked by the government to fast-track large projects and generally prioritise processing of consent applications to stimulate the economy and support economic recovery.

Whilst these measures are appropriate and likely to be attractive to some developers, it remains important to ensure that consent applications are supported by adequate information as judicial review will remain an avenue for third parties who consider they have been disenfranchised by a council decision to process an application on a non-notified basis.

If you have any questions about the matters raised in this article please get in touch with one of the Adderley Head team.

 

¹ Coro Mainstreet (Inc) v Thames-Coromandel District Council [2013] NZHC 1163 at [40]; upheld in Coro Mainstreet (Inc) v Thames-Coromandel District Court [2013] NZCA 665

² Ministry for the Environment Trends in Resource Management Act implementation: National Monitoring System 2014/15 to 2018/19  (Ministry for the Environment, 09 April 2020) at 36

³ This uncertainty stems from a 2003 amendment to the RMA; where the requirement of adequacy of information was removed from section 93.

 

Disclaimer: This is a brief summary for information purposes only and is not legal advice.

Posted on Thursday 30th April, 2020 at 02:45 pm