IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CIV-2014-425-000077 [2015] NZHC 1041

UNDER	the Judicature Amendment Act 1972	

IN THE MATTER	
of a decision made pursuant to the
Resource Management Act 1991	

BETWEEN	
OWEN GEORGE NASH Plaintiff	

AND	
QUEENSTOWN LAKES DISTRICT COUNCIL
First Defendant

WOODLOT PROPERTIES LIMITED Second Defendant	

Hearing:	4 February 2015	

Appearances:	
G Todd and K Pfeffer for plaintiff N Whittington for first defendant N Soper for second defendant	

Judgment:	
18 May 2015	

JUDGMENT OF CLIFFORD J

Table of Contents
Introduction ..........................................................................................................[1]
Facts.......................................................................................................................[2] The planning context..........................................................................................[10] The Challenged Non-notification Decisions.....................................................[25] The errors asserted by Mr Nash .......................................................................[28] Illegality – misapplication of permitted baseline and the receiving
environment ................................................................................................[30]
Unreasonableness .............................................................................................[104] Delay ..................................................................................................................[107] Result .................................................................................................................[108]

NASH v QUEENSTOWN LAKES DISTRICT COUNCIL [2015] NZHC 1041 [18 May 2015]

Introduction

[1]       This is an application to declare resource consents for a multi-unit residential property  development  near  Queenstown  invalid  on  the  basis  that  the  consent authority, the first defendant the Queenstown Lakes District Council (QLDC), acted unlawfully when deciding that the applications for those consents did not need to be publicly notified.

Facts

[2]       Mr Owen Nash, the plaintiff, owns a property above Lake Wakatipu at Larch Hill Place, near Frankton.  Woodlot Properties Ltd (Woodlot), the second defendant, is developing a multi-unit residential property on land it owns at Larch Hill Place (the  Woodlot  Development).     Neither  Mr Nash’s  property  nor  the  Woodlot Development  has  road  access  from  Larch  Hill  Place.    Rather  access  to  those properties is off the nearby Andrews Road which is, in turn, accessed from SH6A, the Frankton to Queenstown highway.

[3]       Mr Nash is concerned that the Woodlot Development will adversely affect traffic movement on Andrews Road and, in particular, at the intersection of Andrews Road and SH6A.

[4]       The Woodlot Development was initially consented, on a non-notified basis, in December 2007.1    Woodlot’s plans were subsequently affected by the adverse economic circumstances that followed the global financial crisis.   In response, the development was delayed and Woodlot changed the details of the development on a number of occasions.  Since December 2007 QLDC has issued, again each time on a non-notified basis, a further six resource consents for the Woodlot Development reflecting those changes.  The following table summarises the details of the various
consents:

1           RM070741 (Queenstown LDC numbers applications for resource consents and issues resource consents by year and sequentially. Thus RM070741 refers to the QLDC’s decision in respect of the 741st   resource consent applied for in 2007).

Issue Date	No.	Nature	
3 December 2007	RM070741	Consent for construction of two blocks each containing 6 x 2 bedroom units, a total of
12 units.	
25 January 2008	RM080009	Variation to RM070741 to allow staging.	
3 December 2008	RM081340	Consent for construction of two blocks containing  a  total  of  14  units  (6  x  4 bedroom; 8 x 2 bedroom).	
24 August 2011	RM110460	Variation to RM081340 to remove one block, subdivide the site and to increase the number of 2 bedroom units from 8 to 10 in remaining block.	
16 October 2012	RM120496	Consent for construction of two blocks containing a total of 14 units (12 x 2 bedroom and 2 x 7 bedroom).	
28 November 2013	RM130600	Consent for construction of two blocks containing a total of 20 units (12 x 2 bedroom and 8 x 2 bedroom).	
8 October 2014	RM140739	Variation to RM 130600 relating to outdoor areas and car parks.	

[5]       Mr Nash applies for judicial review of QLDC’s decisions, under s 95 of the Resource Management Act 1999 (the RMA), not to publicly notify the applications which resulted in RM081340 (12 December 2010), RM120496 (16 October 2012) and RM130600 (28 November 2013) (the Challenged Non-notification Decisions).

[6]       Mr Nash says that when making the Challenged Non-notification Decisions QLDC acted unlawfully in either not considering adverse traffic effects or deciding that they were minor or not more than minor.      Mr Nash says this Court should declare the relevant consents invalid.   Recognising, however, that his challenge is only based on QLDC’s alleged failure to consider traffic effects when making the Challenged Non-notification Decisions, any relief should be fashioned to require QLDC to reconsider the relevant resource consent applications on a notified basis as regards those effects alone.

[7]       QLDC says it acted lawfully at all times.

[8]       Woodlot supports QLDC’s position, but says that if QLDC did act unlawfully in  any  way,  relief  should  be  denied  due  to  Mr Nash’s  delay  in  bringing  these proceedings.

[9]       By  the  time  this  application  was  heard,  the  Woodlot  Development  was virtually complete.   In his affidavit Mr Broomfield stated it was on track for completion in late February of 2015.   I can only assume that it is, in fact, now complete.    For  some  time,  however,  Woodlot  carried  out  little  or  no  work  at Larchhill Place.  By the time of the third Challenged Non-notification Decision, in November 2013, Woodlot had undertaken the majority of the required earthworks pursuant to RM120496.  I was not told when that work commenced.  Construction work began once that non-notification decision was made and RM130600 was granted.

The planning context

[10]     The planning rules for all of Woodlot’s applications are found in the current

Queenstown Lakes District Plan (the District Plan).2

[11]     The Woodlot Development was originally characterised in accordance with the District Plan as a residential development located in the Low Density Residential Zone.   The District Plan establishes rules for that zone on the basis, among other things, of site and zone standards.   The significance of site and zone standards is described in the District Plan in the following terms:3

The District Plan adopts a two-tier system of standards in each zone.

Site Standards are specified in relation to matters which tend to impact on the use of the particular site or adjacent areas.   While these standards are important, they are not considered fundamental to the integrity of an area as a whole and so are specified in a way that if development does not comply with these standards the Council will consider the matter of non-compliance by way of a resource consent for a discretionary activity.  This enables the Council to consider the implications of non-compliance on the use and enjoyment of the site involved and on neighbouring sites.

2	The Queenstown Lakes District Plan was made partially operative in 2003 and fully operative in
2009.   While only partially operative in 2007 and 2008, the parts that apply with respect to
RM 07041 and RM 081340 were operative at the time.
3	Queenstown Lakes District Plan DP, r 1.4 [DP].

Zone Standards are standards which are fundamental to environmental standards or character which are to be attained for a zone or area.  Because of their importance all activities which fail to meet these standards are non- complying activities which face a more rigorous assessment if they are to obtain a resource consent (as compared with a discretionary activity.

[12]     As relevant, a residential development in the Low Density Residential Zone:

(a)	that complies with all relevant zone and site standards, is a permitted activity;4

(b)	that complies with all zone standards but does not comply with one or more site standards, is a restricted discretionary activity;5   and

(c)	that  does  not  comply  with  one  or  more  zone  standards,  is  a non-complying activity.6

[13]     As first proposed in December 2007 the Woodlot Development, in very large measure, complied with the zone and site standards for the Low Density Residential Zone.   It was not, however, a permitted activity.   It was a restricted discretionary activity as regards two site standards: the extent of the earthworks required and the size of the blocks’ balconies.  It was a non-complying activity because at its highest point it exceeded, by 2.31 metres, the zone standard height limit of seven metres.

[14]     As eventually proposed in November 2013, the Woodlot Development was a comprehensive  residential  development  located  in  the  Low  Density  Residential Zone.   It was a comprehensive residential development, rather than simply a residential development, due to a change in the number of units proposed to be built. That change, from 14 to 20, had resulted in the site density (the area of the site divided by the number of units) “increasing” from 533m2 per unit to 320m2 per unit.7
As  such  the Woodlot  Development  was  a discretionary activity.8     The Woodlot

4	DP, r 7.5.3.1.
5	DP, r 7.5.3.4(vi).
6	DP, r 7.5.3.5.
7	See table at [4].   The minimum site density for a residential development is 450m2, for a comprehensive residential development it is 200m2.
8	DP, r 7.5.3.4(v).

Development still exceeded the zone standard seven metre height limit.  It remained, therefore, a non-complying activity.

[15]     The District Plan specifies “assessment  matters” for the various zones  it creates: these are matters which, on a non-exclusive basis, the Council shall have regard to in deciding whether or not to grant consents or impose conditions.   As relevant for (discretionary) comprehensive residential developments in the Low Density Residential Zone these include:9

vi	Discretionary	Activity	–	Comprehensive	Residential
Development

(a)   Any adverse effects of the activity in terms of:

…

(iii)    Level of traffic congestion or reduction in levels of traffic safety which are inconsistent with the classification of the adjoining road.

…

(v)     Any  cumulative  effect  of  traffic  generation  from  the activity in conjunction with traffic generation from other activities in the vicinity.

…

[16]     Woodlot therefore had to apply to the QLDC for resource consents for the Woodlot Development.   Once an application for a resource consent is received, a consent authority has 10 working days to decide whether the application is to be publicly notified, or notified to affected parties on a limited basis.10

[17]     Before 1 October 2009, and hence when the first Challenged Non-notification Decision was made, there was a presumption of public notification.   Until then s 93(1) of the Resource Management Act 1991 (RMA) had provided:

93	When public notification of consent applications is required

(1)	A consent authority must notify an application for a resource consent unless─

(a)	the application is for a controlled activity; or

9	DP, r 7.7.2(vi).
10	Resource Management Act 1991, s 95 [RMA].

(b)	the consent authority is satisfied that the adverse effects of the activity on the environment will be minor.

[18]     That is no longer the case.  As from 1 October 2009 s 95A of the RMA has provided:

95A   Public notification of consent application at consent authority’s
discretion

(1) A consent authority may, in its discretion, decide whether to publicly notify an application for a resource consent for an activity.

(2) Despite subsection (1), a consent authority must publicly notify the application if─

(a)  it decides (under section 95D) that the activity will have or is likely to have adverse effects on the environment that are more than minor; or …

[19]     Given that the Woodlot Development was a non-complying activity – albeit by reference to the zone standard height limit alone – when making its decision whether to notify Woodlot’s first resource consent application QLDC was required to, and did, consider the Woodlot Development as a whole as a non-complying activity. As relevant, its 27 November 2007 non-notification decision:

(a)	On the height issue, found:

This height intrusion can be absorbed into the existing environment and is largely an internalised effect.  The site forms part of a gully, and therefore ground level is lower than some of the surrounding sites, and the height will be less intrusive than if the general area was level and flat.

(b)	Considered   that   any  risks   associated  with   the  non-conforming earthworks were controlled or mitigated by the terms of the proposal.

(c)	Concluded the adverse effects of the (slightly) smaller balconies were less than minor.

[20]     On that basis QLDC concluded that notification was not required as regards those issues.   RM070741 was based on similar conclusions.   Similar conclusions were reached on those matters (height, earthworks, outdoor areas) in the Challenged

Non-notification Decisions.   Those matters do not concern Mr Nash, and are not referred to again.

[21]     On the matter of concern to Mr Nash, traffic, the initial 27 November 2007 non-notification decision concluded:

Traffic generation

The proposed development is anticipated to increase the number of vehicle movements to and from the site and increase the traffic generated in the area.

[22]     However the adverse effects of this have been considered nil as the level of the development proposed is anticipated by the District Plan.

[23]     A similar conclusion was reached as regards building coverage density:

The subject site is [6400] square meters.  The proposal has a site coverage of approximately 26%, and a site density of 533m2 per unit. This is well within the permitted allowances for the Low Density zone, therefore the adverse effects are considered to be nil.

[24]     In other words, QLDC11 concluded that District Plan allowed for the density of the Woodlot Development, and the associated effects on traffic, and on that basis there were no relevant adverse effects to be considered.  Mr Nash does not challenge that decision.

The Challenged Non-notification Decisions

[25]     In the first and second Challenged Non-notification Decisions the possible adverse effects of the Woodlot Development were assessed by reference:

(a)       first, to the extent of the adverse effects associated with the Woodlot

Development as previously consented, as part – QLDC reasoned – of

the “permitted baseline”; and

11         A number of the decisions challenged in these proceedings were made by delegates of QLDC, including a council-controlled entity, Lakes Environmental Ltd.  There is in these proceedings no challenge to any of those delegations and, accordingly, I refer to all decisions as being those of QLDC.

(b)	secondly, to the extent of the additional (if any) adverse effects of the

Woodlot Development as then proposed in terms of: (i)	building density/coverage; and
(ii)	traffic generation and vehicle movement.

[26]     In the third Challenged  Non-notification Decision in November 2013,  as regards RM130600, a different approach was taken.   The adverse effects of the development consented by RM120496 were considered to be already part of the environment.  On that basis, the adverse effects whose impact were to be considered were those additional effects “above and beyond those arising from RM120496”.

[27]     QLDC’s approach can be seen from the following brief extracts from the first and third of those decisions:

First – 3 December 2008

 The development granted under RM070741 and subsequent variation is considered to form part of the permitted base line and will be considered in the assessment of effects, accordingly.

   The effects in terms of building coverage and density have been previously considered under land use consent RM070741. However, the internal layout of the building has been amended such that now there are 14 units instead of 12 as originally consented under RM070741.   There are no additional adverse effects over and above what has already been consented.

   Lakes Environmental’s engineer has not raised any other issues with regard to traffic generation and vehicle movements.

Third – 28 November 2013

   4.2  FUTURE ENVIRONMENT

The environment which this proposal will be assessed against includes unimplemented resource consent RM120496 that is likely to be implemented.   The applicant has undertaken the majority of the required earthworks in accordance with that consent and there is no reason to consider the RM120496 development would not proceed should the current proposal be unsuccessful.  The Consent Authority must   therefore   consider   the   environment   within   which   this development is proposed to include the currently unimplemented resource consent RM120496. As such only adverse effects that would

arise above and beyond those arising from RM120496 will be considered below.

   4.3  ASSESSMENT: EFFECTS ON THE ENVIRONMENT

…

The primary adverse effects arising from the proposed development relate to traffic generation and specifically the effects of the increased traffic on the intersection between Andrews Road and State Highway
6A (SH6A).  These are considered to be effects on the environment
(people using the State Highway) and effects on people (the New
Zealand  Transport Agency  (NZTA)  as  administrators  of  the  State Highway and responsible for any required upgrade of the Andrews Road / SH6A intersection).   The effects on the environment will be discussed here and effects on people will be discussed later when effects on persons are being considered.

The NZTA have provided affected party approval for the development. Therefore no adverse effects on users of the SH6A will be considered as the NZTA assessed effects on the public prior to giving affected party approval.

…

   5.3  ASSESSMENT: EFFECTS ON PERSONS

…

The NZTA has provided approval for the proposal therefore no effects on that party will be considered.

In terms of effects on Council roading an assessment was undertaken by Council’s traffic engineers, MWH, and that report (attached as appendix 4 of this report) concludes that adverse effects on users of Andrews  Road  (apart  from  the  intersection  with  SH6  discussed earlier) will be less than minor. This is accepted.

The errors asserted by Mr Nash

[28]     As  helpfully  summarised  by  Mr  Whittington  for  QLDC,  the  essential elements of Mr Nash’s argument are that, in making the Challenged Non-notification Decisions:

(a)	QLDC erred and acted unlawfully by

(i)        failing to apply correctly the “receiving environment” and “permitted baseline” in its assessment of the effects of the various applications;

(ii)      failing  to  conduct  its  own  assessment  of  traffic  effects beyond NZTA’s affected party approval; and

(iii)	failing to base its decisions on adequate information.

(b)       QLDC acted unreasonably  by failing to consider that there were special  circumstances  in  terms  of  s 95(4)  of  the  RMA  to  justify notifying the applications.

[29]     I now consider the substance of Mr Nash’s application by reference to each of

those matters in turn.

Illegality – misapplication of permitted baseline and the receiving environment

[30]     Mr Nash’s   principal   argument   is   that   QLDC   wrongly   assessed   the significance of the resource consents which already existed for the Woodlot Development when it considered the significance of the associated adverse traffic effects.  That error, he argues, arose because QLDC misapplied the concepts of the “permitted baseline” and the “receiving environment” when making those decisions, allowing undesirable “environmental creep” to occur.

[31]     The concepts of permitted baseline and receiving environment reference the provisions of the RMA under which the Challenged Non-notification Decisions were made.

[32]     At the time the first of those decisions was made ss 94A and 94B, as relevant, provided:12

12	Emphasis added.

94A	Forming  opinion  as  to  whether adverse  effects  are  minor or more than minor

When  forming  an  opinion,  for  the  purpose  of  section  93,  as  to whether the adverse effects of an activity on the environment will be minor or more than minor, a consent authority─

(a)     may  disregard  an  adverse  effect  of  the  activity  on  the environment if the plan permits an activity with that effect; and
…

94B	Forming opinion as to who may be adversely affected

(1)        Subsections (2) to (4) apply when a consent authority is forming an opinion,  for  the  purpose  of  section  94(1),  as  to  who  may  be adversely affected by the activity.

…

(3)	A person—

(a)        may be treated as not being adversely affected if, in relation to the adverse effects of the activity on the person, the plan permits an activity with that effect;

…

[33]	At the time of the second and third Challenged Non-notification Decisions, ss 95D and 95E provided to equivalent effect:13

95D      Consent authority decides if adverse effects likely to be more than minor

A consent  authority  that  is  deciding,  for  the  purpose  of  section
95A(2)(a), whether an activity will have or is likely to have adverse effects on the environment that are more than minor─

…

(b)     may disregard an adverse effect of the activity if a rule or national environmental standard permits an activity with that effect;     …

95E	Consent authority decides if person is affected person

(1)        A consent authority must decide that a person is an affected person, in relation to any activity, if the activity’s adverse effects on the person are minor or more than minor (but are not less than minor).

(2)	The consent authority, in making its decision,—

13	Emphasis added.

(a)        may disregard an adverse effect of the activity on the person if a rule or national environmental standard permits an activity with that effect;

…

[34]	Those concepts also reference the provisions in s 104 of the RMA, which governs the substantive decision as to whether or not a consent should be granted.

[35]	Prior to the 2009 amendments s 104 provided, again as relevant:14

104    Consideration of applications

(1)    When considering an application for a resource consent and any submissions received, the consent authority must, subject to Part 2, have regard to─

(a)	any actual and potential effects on the environment of allowing the activity; and

(b)	any relevant provisions of─

(i)	a national policy statement:
(ii)	a New Zealand coastal policy statement:
(iii)	a regional policy statement or proposed regional policy statement:
(iv)	a plan or proposed plan; and

(c)	any other matter the consent authority considers relevant and reasonably necessary to determine the application.

(2)     When forming an opinion for the purposes of subsection (1)(a), a consent authority may disregard an adverse effect of the activity on the environment if the plan permits an activity with that effect.

Section 104 now, as relevant, provides:

104    Consideration of applications

(1)    When considering an application for a resource consent and any submissions received, the consent authority must, subject to Part 2, have regard to─

(a)	any actual and potential effects on the environment of allowing the activity; and

(b)	any relevant provisions of─

(i)	a national environmental standard: (ii)	other regulations:
(iii)	a national policy statement:
(iv)	a New Zealand coastal policy statement:
(v)	a regional policy statement or proposed regional policy statement:

14	Emphasis added.

(vi)	a plan or proposed plan; and

(c)   any other matter the consent authority considers relevant and reasonably necessary to determine the application.

(2)     When forming an opinion for the purposes of subsection (1)(a), a consent authority may disregard an adverse effect of the activity on the environment if a national environmental standard or the plan permits an activity with that effect.

…

[36]     The  concept  of  permitted  baseline  is  reflected  in  the  “may  disregard” provisions  of  ss  95D(b)  and  104(2),  and  in  the  similar  provisions  of  the  old ss 94(A)(a) and 104(2).  The concept of the receiving environment is essentially a reference to “the environment” as referred to in those provisions.

[37]     The concept of the permitted baseline, and the “may disregard” provisions, have  their  origins  in  the  Court  of Appeal  decision  of  Bayley  v  Manukau  City Council.15     In order to assess Mr Nash’s arguments, I have found it necessary to consider Bayley, and the various decisions which have followed it, in some detail.

[38]     Bayley involved an appeal from a decision of the High Court refusing to grant judicial review of a decision made by the Manukau City Council not to notify a resource consent application.  The application was to undertake a multi-unit terraced housing complex in a business area.   The complex was a restricted discretionary activity, due to the extent it encroached on the side yard that was required for a compliant business use.  The Court of Appeal found that the Council had failed to consider the possibility of consequential effects arising from the way in which the site layout may have been made possible by the use of the side yard in a non- complying way.

[39]     The Court recognised that, for a restricted discretionary activity, the words

“activity for which consent is sought” in what was then s 94(2) did not:16

… extend to an activity which is able to be undertaken without that consent and, more importantly, is unable to be considered by the Council.  … Under the proviso to s 105(1)(6) the authority may refuse consent or impose conditions only on the basis of those matters.  It would make little sense to require a consent authority to notify an application because it may involve

15	Bayley v Manukau City Council [1999] 1 NZLR 568 (CA).
16	At 577 lines 33-42.

effects which the authority must then disregard at the hearing of the application.  That would provide false hope for objectors and be wasteful of time and money.

[40]     But, the Court of Appeal reasoned, the restriction on the Council’s discretion was expressed in very broad terms.  Under that restriction the consent authority was obliged by its rules to consider and assess:17

Whether the site layout ensures a relationship of buildings and other structures on the site, carparking, access, manoeuvring, and landscape elements which is as satisfactory as the relationship envisaged by the yard rule.   Whether the site layout is compatible with the site development of adjoining residential, public open space and future development zones.

[41]     Moreover it was possible that:18

… by designing a structure intruding into space which the plan requires to be a yard, an applicant may have been able to utilise other portions of the property in a manner which in itself complies with the plan but actually has a greater impact on the environment of the neighbourhood because, for example, it is a more intense use than could have been achieved on the site without the yard intrusion.  In other words, in this case by taking up part of the   yard  the  applicant  may  have   gained   a   consequential  advantage detrimental to the neighbours and their enjoyment of their properties even by comparison with such commercial activity as is permissible as of right.

[42]     The Court found that, as a matter of fact, the Council had not considered those types of consequential effects when making its non-notification decision. Accordingly that decision was invalid.

[43]     It was in that context that the Court of Appeal observed:19

Before  s 94  authorises  the  processing  of  an  application  for  a  resource consent on a non-notified basis the consent authority must satisfy itself, first, that the activity for which consent is sought will not have any adverse effect on the environment which is a more than minor effect.   The appropriate comparison of the activity for which consent is sought is with what either is being lawfully done on the land or could be done there as of right.

[44]     Activities that were “being lawfully done on the land or could be done there

as of right” came to be known as the “permitted baseline”.

17	At 578 lines 1-5.
18	At 576 lines 29-37.
19	At 576 lines 1–6.

[45]     In Smith Chilcott Ltd v Auckland City Council the Court of Appeal held that the Bayley permitted baseline approach could be applied to substantive grant decisions, as well as non-notification decisions.20

[46]     The activities which formed part of the permitted baseline were qualified by the Court of Appeal in Smith Chilcott so that permitted, but fanciful, development possibilities were to be excluded.21

[47]     In Arrigato Investments22  the Court of Appeal considered whether baseline activities  extended  to  activities  permitted  by  unimplemented  consents.    In  that context, the Court described the permitted baseline in the following way:

[29]      Thus the permitted baseline in terms of Bayley, as supplemented by Smith Chilcott Ltd, is the existing environment overlaid with such relevant activity (not being a fanciful activity) as is permitted by the plan. Thus if the activity permitted by the plan will create some adverse effect on the environment, that adverse effect does not count in the ss 104 and 105 assessments.  It is part of the permitted baseline in the sense that it is deemed to be already affecting the environment or, if you like, it is not a relevant adverse effect.  The consequence is that only other or further adverse effects emanating from the proposal under consideration are brought to account.

[48]     The  Court  first  reasoned  unimplemented  consent,  by  definition,  did  not reflect activities which could be undertaken as of right23  – and hence did not come within the Bayley permitted baseline by dint of the decision in Bayley itself.24   The Court went on:

[34]      There remains, however, the second issue, whether Bayley should be extended so as to include unimplemented resource consent activities within the permitted baseline.  Mr Brabant argued that following the granting of a resource consent, the holder has an equal right to do what is allowed as would have been the case had the plan allowed it.   That is so but, as Mr Burns and Mr Loutit submitted, there is a material difference between what is allowed under a plan and what is allowed under a resource consent.  The plan represents a consensus, usually after very extensive community and regional involvement, as to what activities should be permitted as of right in the particular location.   There is therefore good reason for concluding, as was done in Bayley, that any such permitted activities should be treated as part of the fabric of the particular environment.

20	Smith Chilcott Ltd v Auckland City Council [2001] 3 NZLR 473 at [24].
21	At [26].
22	Arrigato Investments v Auckland Regional Council [2002] 1 NZLR 323, [2001] 7 ELRNZ 193.
23	For if they were, no consent would have been required.
24	At [33].

[49]	On the particular question of unimplemented consents the Court reasoned:

[35]      Resource consents are capable of being granted on a non-notified as well as a notified basis.   Furthermore, they relate to activities of differing kinds.  There may be circumstances when it would be appropriate to regard the activity involved in an unimplemented resource consent as being part of the permitted baselines, but equally there may be circumstances in which it would not be appropriate to do so.  For example implementation of an earlier resource  consent  may  on  the  one  hand  be  an  inevitable  or  necessary precursor of the activity envisaged by the new proposal.  On the other hand the unimplemented consent may be inconsistent with the new proposal and thus be superseded by it. We do not think it would be in accordance with the policy  and  purposes  of  the  Act  for  this  topic  to  be  the  subject  of  a prescriptive rule one way or the other.  Flexibility should be preserved so as to allow the consent authority to exercise its judgment as to what bearing the unimplemented resource consent should have on the question of the effects of the instant proposal on the environment.

[50]	The Court of Appeal also commented on the phenomenon of “environmental creep”, which – as noted – Mr Nash asserts has happened here:

[37]      We have given careful attention to the submissions made in respect of what was described as “environmental creep”.  This expression describes a process whereby having achieved a resource consent for a particular building or activity, a person may seek consent for something more and try to use their existing consent, as yet unimplemented, as the base from which the effects of the additional proposal are to be assessed.  In physical terms consent might be obtained for a 10 storey building and then before any work is done an application made for 2 extra floors.   On the basis posited by Arrigato [the appellant] effects would be limited on the second application to the extra 2 floors, rather than to the whole building comprising 12 floors. Mr Burns  and  Mr Loutit  expressed  concern  about  the  position  consent authorities would be in if the 10 floor structure had become part of the permitted baseline.  Mr Brabant argued that if such tactics became prevalent, consent authorities could amend their plans or reject the second application as going too far.

[38]      Reflecting on the competing contentions in this area has reinforced us in the view that there should be no rigid rule of law either way.   That conclusion should relieve consent authorities of the anxieties expressed by counsel  while  also  allowing  applicants  for  consent  to  seek  a  factually realistic appraisal.  What is permitted as of right by a plan is deemed to be part of the relevant environment.    But,  beyond that,  assessments  of the relevant environment and relevant effects are essentially factual matters not to be overlaid by refinements or rules of law. …

[51]	The enactment in 2003 of the former s 94A(a) and (b) modified and partially codified the effect of the Arrigato decision. That is:

(a)       It provided that, as relevant, a consent authority may, rather than must, regard activities “permitted by the plan” as part of the permitted baseline.   After Arrigato, that approach had been regarded as mandatory.

(b)       It did not, however, as the Court of Appeal had done in Arrigato, allow such a discretion as to activities permitted by unimplemented consents, but rather limited the scope of the permitted baseline to what is “permitted by the plan”.

[52]     Aspects of the new provisions were considered in a number of subsequent High Court and Environment Court cases.25   As a result a degree of confusion arose, including as  to  the status  of effects  of activities  permitted  by non-implemented consents,  and  the  relationship  between  the  permitted  baseline  (activities  whose effects had been “accepted” by the plan) and the environment on which the impact of the other effects of the proposed activity were to be assessed (sometimes described
as the “receiving environment”).

[53]     The Court of Appeal considered these issues in Queenstown Lakes District Council v Hawthorn Estate Ltd,26  a case about a consent given by QLDC for a subdivision of 32 residential lots in Queenstown.  The proposed subdivision was in an area where there were unimplemented resource consents for significant development.  Consent was required as the subdivision was a non-complying activity under the district plan and a discretionary activity under the proposed district plan. The key issue for the Court was whether the Council, when considering whether to grant consent, had been obliged to restrict its consideration of effects to effects on
the environment as the environment existed at the time of the decision, or whether the Council had been right – as it had done – to consider the future state of the
environment as it might be affected as and when those consents were implemented.

25         Rodney District Council v Eyres Eco-Park Ltd [2007] NZRMA 1 (HC); Tairua Marine Ltd v Waikato Regional Council HC Auckland CIV-2005-485-1490, 29 June 2006; O’Connell Construction Ltd v Christchurch City Council [2003] NZRMA 216 (HC); Wilson v Selwyn District Council [2005] NZRMA 76 (HC); Freilich v Tasman District Council [2005] NZRMA
410 (Env C); Queenstown Lakes District Council v Hawthorn Estate Ltd [2006] NZRMA 424 (CA).
26	Queenstown Lakes District Council v Hawthorn Estate Ltd, above n 25.

[54]     Having reviewed the definition of the word “environment” in, and the overall structure of, the RMA, the Court of Appeal concluded that the Council had been right to take a “futuristic” approach.  In doing so it said:27

[57]      In summary, all of the provisions of the [RMA] to which we have referred lead to the conclusion that when considering the actual and potential effects on the environment of allowing an activity, it is permissible, and would often be desirable or even necessary, for the consent authority to consider the future state of the environment, on which such effects would occur.

…

[84]      … In our view, the word “environment” embraces the future state of the environment as it might be modified by the utilisation of rights to carry out permitted activity under a district plan.  It also includes the environment as it might be modified by the subsequent implementation of resource consents which have been granted at the time a particular application is considered, where it appears likely that those resource consents will be implemented.

[55]     It did not, however, extend to include the effects of resource consents that might in the future be granted.  The Council’s approach had earlier been upheld in both the Environment Court and the High Court, on the basis however that such future effects could be considered as part of the permitted baseline.  In that context, the Court of Appeal in Hawthorn observed:

[27]      One of the questions that has been raised on the appeal concerns the adequacy of the Environment Court’s consideration of the application of what has come to be known as the “permitted baseline”.   Although that expression was used by Fogarty J in [74], we doubt that he was using the term in the sense that it is normally used, that is with reference to developments that might lawfully occur on the site subject to the resource consent application itself.   Rather, Fogarty J appears to have used the expression to refer to the likely developments that would take place beyond the  boundary  of  the  subject  site,  utilising  existing  resource  consents. Nothing turns on the label that the Judge used to refer to lawfully authorised environmental  change  beyond  the  subject  site.    However,  it  would  be prudent to avoid the confusion that might result from using the term other than in its normal sense, addressed in Bayley v Manukau City Council, Smith Chilcott Ltd v Auckland City Council and Arrigato Investments Ltd v Auckland Regional Council. As we will emphasise later in this judgment the “permitted baseline” is simply an analytical tool that excludes from consideration certain effects of developments on the site that is subject to a resource consent application.   It is not to be applied for the purpose of ascertaining the future state of the environment beyond the site.

27	At [57].

[56]     The Court later said:28

It is as well to remember what the “permitted baseline” concept is designed to achieve.   In essence, its purpose is to isolate, and make irrelevant, the effects of activities on the environment that are permitted by a district plan, or have already been consented to.  Such effects cannot then be taken into account when assessing the effects of a particular resource consent application.

[57]     What is clear from the earlier passage is that, where at [65] the Court refers to “effects of activities on the environment”, it is referring to the effects from activities that occur or may occur on the “subject site”.  What is also to be remembered is that, by the time of the Court of Appeal’s decision in Hawthorn, Parliament had – through the way in which s 104 had been enacted – confirmed that, for want of better words, what can be described as the “permitted baseline” approach was discretionary, and not mandatory.

[58]     These issues were further considered by the Court of Appeal in Far North District Council v Te Runanga-a-iwi o Ngāti Kahu,29 a case challenging non-notified consents to subdivide land in respect of which a land use consent had already been granted to build residential units.

[59]     In the High Court, the relevant issue was whether the Environment Court was correct in law when it held that it was obliged to include the effects of the consented residential units on the future environment. The Environment Court had found that it was.  It said:30

[98]      We consider that it is clear from Hawthorn that we are required to make a factual determination as to whether or not it is likely that effect will be given to an unimplemented resource consent [the land use consent].  If we determine that it is likely then the environment against which we assess the effects of a proposal will include the environment as it might be modified by implementation of the unimplemented resource consent in question.  We do not consider that we have a discretion to ignore that factual finding as to the future state of the environment.

[60]     The High Court was of the view that that conclusion was an error of law, reasoning that because the adverse effects of the consented residential units were

28	At [65].
29	Far North District Council v Te Runanga-a-iwi o Ngāti Kahu [2013] NZCA 221.
30	Te Runanga-a-iwi o Ngāti Kahu v Far North District Council [2010] NZEnvC 372.

within the “subject site”, they were part of the permitted baseline. As such, the High Court found the Environment Court had – as confirmed by s 104D(1) – a discretion whether to consider those effects or not.31    But it was not required to do so.  That distinction mattered because the Environment Court had recorded that if it did not have to include the adverse effects of the residential units in the permitted baseline, it would have concluded that the proposal would have been contrary to the relevant statutory objectives and policies, and would therefore have allowed the appeal.

[61]     The Court of Appeal rejected that approach.   In doing so it adopted the reasoning of Arrigato set out at [47] above.  As the Court had done in Hawthorn, it emphasised the exclusionary nature of the permitted baseline test and confirmed that the statutory purpose of the “may disregard” formulation was to vest a consent authority with a discretion to ignore the permitted baseline where previously it had been a mandatory consideration.32   It did so in the following terms:

[88]      We do not accept this distinction.   The qualification noted by this Court in Hawthorn was in the context of pointing out the limitation of the permitted baseline test to the site itself where the appellant had attempted to give it a more expansive application.  What is decisive is the exclusionary nature of the permitted baseline test.  In essence, as this Court observed in Arrigato:

[29]   Thus  the  permitted  baseline  …  is  the  existing  environment overlaid with such relevant activity … as is permitted by the plan. Thus, if the activity permitted by the plan will create some adverse effect on the environment, that adverse effect does not count in the ss 104 and 105 assessments.  It is part of the permitted baseline in the sense that it is deemed to be already affecting the environment or, if you like, it is not a relevant adverse effect.  The consequence is that only other  or  further  adverse  effects  emanating  from the  proposal  under consideration are brought to account.

[62]     Having emphasised the discretionary power as regards whether or not effects permitted by the plan are taken into account or not it went on to observe:

[91]      In the RMA context, the environment and the permitted baseline concepts are critically different.  Both are discrete statutory considerations. The environment refers to a state of affairs which a consent authority must determine and take into account when assessing the effects of allowing an activity; by contrast, the permitted baseline provides the authority with an optional means of measuring – or more appropriately excluding – adverse effects of that activity which would otherwise be inherent in the proposal.

31	Te Runanga-a-iwi o Ngāti Kahu v Far North District Council (2011) 16 ELRNZ 708 at [105].
32	Far North District Council v Te Runanga-a-iwi o Ngāti Kahu [2013] NZCA 221 at [88]–[90].

[63]     The  High  Court  has,  in  a  number  of  recent  decisions,  emphasised  the importance of the overall approach of the Court of Appeal in Hawthorn, and the need to place the observation in [84] of that decision – relating to the significance of resource consents that might be granted in the future – in context.33    In declining leave to appeal one of those decisions, the Court of Appeal has recently said:34

[16]      As noted earlier, the High Court dismissed the applicant’s appeal from the Environment Court.   The High Court Judge, Fogarty J, warned against treating the observation of this Court in Hawthorn at [84] as if it were  legislation,  and  highlighted the  need  to  consider  the  whole  of the decision in Hawthorn, rather than just the summary contained at [84].  He determined that the Environment Court had concluded that a coal mining licence was not equivalent to a permitted activity under a District Plan.  We agree that that is the case.  He also concluded that the Environment Court’s alternative analysis based on Hawthorn turned on its finding of fact that the possibility of Solid Energy using its coal mining licence at the Sullivan Block was speculative.   He found, correctly in our view, that that was a finding of fact that was not amenable to appeal in a jurisdiction in which the appellate court is limited to revisiting only matters of law.  He found no error by the Environment Court in its application for Hawthorn, and determined that its findings of fact were not amenable to appeal. (footnotes omitted)

[64]     In my view the rule is that what is permitted as of right by a plan may be considered by a consent authority to be part of the permitted baseline.  By the same token, a consent authority might decide not to adopt that approach: it might do so, for example – to adopt the phraseology from Smith Chilcott – where developments were permitted but, in the reality of the situation, fanciful.   Beyond that, the assessment of the relevant environment and relevant effects are essentially factual matters, not to be overlaid by refinements or rules of law.  That factual assessment, as acknowledged in the Far North Council case, is one that is required as a matter of law to be undertaken taking account of the future state of the environment, including as affected by other resource consents that the consent authority is satisfied are likely
to be put into effect.35   That assessment is, of course, to be undertaken applying the

effects-based approach fundamental to the RMA.

33         For example, Royal Forest and Bird Society of New Zealand Inc v Buller District Council [2013] NZHC 1324, [2013] NZRMA 273 at [20]-[23]; Queenstown Central Ltd v Queenstown Lakes District Council [2013] NZHC 817.
34	Royal Forest and Bird Protection Society of New Zealand Inc v Buller District Council & Anor
[2013] NZCA 496 (footnotes omitted).
35	Far North District Council v Te Runanga-a-iwi o Ngāti Kahu [2013] NZCA 221 at [94].

[65]     Moreover,  when  that  exercise  is  undertaken,  there  may  not  be  a  lot  of difference between considering a particular adverse effect as part of the permitted baseline or as part of the receiving environment.   If, as a part of the permitted baseline, the adverse effect is disregarded when assessing the effects of a proposed activity  on  the  receiving  environment,  it  is  difficult  to  see  how,  in  practice,  a different result would arise if that adverse effect were considered already to be part of the receiving environment.  After all, taking that approach would again simply mean that that effect was not one that had to be counted as impacting “on the environment”.

[66]     The Court of Appeal in Arrigato recognised that possibility:36

There are two possible ways of looking at the issue.  The first is to ask what effects qualify as adverse and the second is to inquire what comprises the relevant environment. Adverse effects already inherent in an unimplemented resource consent can be argued to be irrelevant because they are effects which the holder of the consent already has a right to impose on the environment.   On the approach which inquires what comprises the environment, Arrigato’s proposition is that the environment is already in substance subject to any adverse effects inherent in the granting of a resource consent.  In practical terms it is unlikely to matter which of these approaches are taken. They are both apt to lead to the same conclusion.

[67]     Using  the  Far  North  factual  situation  as  an  example,  and  accepting  the emphasis in that case on the centrality of the plan, not resource consents, to the permitted baseline approach, nevertheless if the Council and the Environment Court had considered the effects of the unimplemented land use consent as part of the permitted baseline, then the effects of the dwellings would have been ignored just as they were by reason of the fact that that consent was considered as part of the receiving environment.  An alternative way of expressing that proposition is that if a consent  authority  does  not  exercise  its  discretion  to  ignore  permitted  base  line effects, it may well nevertheless have to consider the environment as having been impacted by those effects.  Were it not to do so, it could fail to make its decision by reference to the appropriate factual context.

[68]     Against that background I consider Mr Nash’s illegality arguments.

36	Arrigato Investments & Ors v Auckland RC & Others, above n 22, at [26].

[69]     The essential point here is that, to a large extent, the Woodlot Development is a permitted activity.  Possible adverse effects on traffic of the increased density of dwelling units in the Low Density Residential Zone that might arise when compliant, and   hence   permitted,   residential   developments   are   built   have   already  been determined acceptable in the process of setting the District Plan in place.   The purpose of district plans is to assist territorial authorities to carry out their functions in order to achieve the purpose of the RMA.   The preparation of a district plan therefore requires consideration and application of the Part 2 purposes and principles of the RMA.

[70]     Because the Woodlot Development was from the outset both non-complying (height)  and  restricted  discretionary  (outdoor  areas  and  earthworks),  resource consents were necessary.  In assessing whether to notify those consents, what I think the Council was required to do was to consider whether, as regards the otherwise complying aspects of the proposal, the matters which meant resource consent was required might have consequentially increased any adverse effects of the proposal. That is the approach taken in Bayley to the significance of the intrusion into the side yard.  It was also the approach taken by the Court of Appeal in the slightly different context  of  overlapping  consents  in  Body  Corporate  97010  v  Auckland  City
Council.37

[71]     There is no suggestion here that those matters had or were likely to have any flow-on effects on the issue that is of concern to Mr Nash, namely site density and associated traffic generation.

[72]     Putting aside the question of the significance of previously granted consents, for each of RM070741, RM081340 and RM110460 the density of the proposed development met the relevant zone standard.  On that basis, I do not see how there can be a challenge to QLDC’s decision that possible traffic effects did not mean that the applications needed to be publicly notified.

[73]     For Mr Nash, Mr Todd submitted that, when considering the question of notification and consent, the Council should not only consider the matters that led to

37	Body Corporate 97010 v Auckland City Council [2000] NZRMA 529.

consent being required, but all the effects of the activity, to determine whether they were not more than minor.  Mr Todd referred me to the discussion in Bayley at pages
576 and 577, where the decision of Cooke J in Locke v Avon Motor Lodge Limited and that of Salmon J in Arley v North Shore City Council are discussed, and to the decision of the High Court in McPherson v Napier City Council.  In effect, and as I understood it, Mr Todd was arguing that Locke was, as so discussed by the Court of Appeal, authority under the Resource Management Act for the same proposition that it had been authority for under the old Town and Country Planning Act.  So, in this instance, QLDC was required to determine whether the traffic effects of the Woodlot proposal as a whole were “not more than minor”, even though they were – as the Council realised – anticipated and accepted by the District Plan.  I am not persuaded by that argument.   In Bayley the Court of Appeal acknowledged that the approach taken  in  Locke  may be  inappropriate under the RMA albeit,  I acknowledge,  in
assessing restricted discretionary activity.38    More significantly, I am guided by the

conclusion of the Court of Appeal in Arrigato, referred to at [50] above, that:

What is permitted as of right by a plan is deemed39 to be part of the relevant environment.40    But, beyond that, assessments of the relevant environment and relevant effects are essentially factual matters not to be overlaid by refinements or rules of law.

[74]     Here, the fact is that the District Plan anticipated and accepted the traffic density  consequences  of  residential  developments  up  to  a  certain  density,  as measured by the area of the site divided by the number of proposed units.  Moreover, in making that provision the District Plan can be seen as reflecting an anticipation that  that  level  of development  is  likely to  occur.   Those  are  essentially factual assessments and fact conclusions.   It is that type of assessment that, in my view, Arrigato and Far North recognised a consent authority was required to make. As the
authors of Environmental and Resource Management Law observe:41

[I]f a proposed non-complying activity is likely to generate the same amount of traffic as would a permitted activity, then the effects of that traffic generation may be disregarded in assessing whether the effects of the proposed activity are more than minor.

38	Bayley v Manukau City Council, above n 15, at 577 lines 45-46.
39	Now, “may be deemed by a consent authority”.
40	That is, somewhat confusingly, within the permitted baseline.
41	Derek  Nolan  (ed)  Environmental  and  Resource  Management  Law  (5th  ed,  LexisNexis, Wellington, 2015) at [4.53].

[75]     For essentially similar reasons, I do not think it can be argued – as it was for Mr Nash – that the Council did not have adequate information when it made those decisions.

[76]     The situation would be different, including for the non-challenged initial consent RM070741, if those non-complying and restricted discretionary aspects of the Woodlot Development could reasonably have been seen as possibly causing consequential effects on density and associated traffic generation.  If that were the case, then those matters should have been considered in the context of RM070741. In  that  context,  I think  QLDC’s  conclusion  that  the Woodlot Development  was “likely to be implemented” is one that was open to it, in terms of its factual assessment of the receiving environment, if not, as a matter of law, as regards its discretionary assessment of the permitted baseline.

[77]     The real issue here is whether traffic effects were properly considered when that was no longer the case, as occurred in late 2013 when the number of units in the Woodlot Development increased from 14 to 20.

[78]     In that context, and as recognised by QLDC, the increased density of the

2013 Woodlot Development was capable  – by definition – of generating traffic effects that were greater than those anticipated by the District Plan.  It was for that very  reason  it  had  become  a  discretionary  activity  not,  significantly  I  note,  a restricted discretionary activity.  On that basis, QLDC was required to assess whether the  adverse  traffic  effects  of  the  proposed  development  –  at  the  point  the
non-notification decision was made – were not “more than minor”.42   Rule 7.7.2(vi)

of the District Plan explicitly confirms that.

[79]     In assessing the legality of the third Challenged Non-notification Decision, and on the basis of the Far North decision, I cannot accept Mr Nash’s argument that

42         I have not considered in this decision whether the provisions which now give consent authorities discretion whether to publicly notify an application have any material effect on the way a non-notification decision may be made.   The case was argued on the basis that the relevant legislative changes had had no material effects.   The Court of Appeal in Coro Mainstreet v Thames District Council [2013] NZRMA 73 has questioned that assumption.  I have taken the point no further.

the Council was not correct when it regarded “the environment” as including the then unimplemented RM120496.

[80]     But, as I said, the real issue is whether those possible adverse traffic effects were properly, that is in this context lawfully, considered.

[81]     QLDC had three sources of information when it made its assessment:

(a)       the  traffic  generation  assessment  report  prepared  for  Woodlot  by

Bartlett Consulting;

(b)       the similar report prepared for QLDC by MWH New Zealand Ltd;

and

(c)       the  “affected  persons’  approval”  letter  from  the  New  Zealand

Transport Agency (NZTA).

[82]     Bartlett Consulting concluded that the traffic effects of the 20 apartment development would, by comparison with the previous 14 unit development, have less than minor increased traffic effects or, in fact, reduced traffic effects.  It is not clear, however, that QLDC relied on the Bartlett Consulting reasoning, as that reasoning was doubted by its own advisers MWH.

[83]     MWH Ltd, the Council’s advisors, took a different approach. They said:

While the calculation by Bartlett Consulting has merit, the traffic generation in the approved resource consent is the correct base for comparison of the proposal.

The previously consented base traffic generation is 112 [vehicles per day], comprised of Block One having 12 apartments and Block Two 2 apartments and each generating eight vehicles per apartment per day.43

43	MWH had earlier commented:
Traffic generation for the permitted Block One activities are calculated with reference to the NZ Transport Agency research report 453 appendix C, which is appropriate.  The Land Use Activity selected as Residential Dwelling (Outer Suburban), which has a generation per unit of
8.2 vehicles per unit per day, and is consistent with clause 3.3.2.1 of the QLDC amendments to the NZS440:2004 that requires assessments of residential traffic loading to be based on eight vehicles per apartment per day and with the previously approved resource consents.
I did not receive any submissions or affidavit evidence explaining these aspects of the information on which QLDC based its decisions.

[84]	Comparing consent RM120496 with proposed RM130600, MWH concluded:

It is proposed to modify Block Two by replacing the two apartments each containing seven bedrooms with the eight apartments each containing two bedrooms. Traffic generation has been calculated as per Block One, which is appropriate, and results with 164 vpd for Block One and Two combined.

Comparing the base traffic (112 vpd) to the proposal (164 vpd) shows a 43% increase in daily traffic is expected to be generated by the total proposal, and for Block Two the increases from 16 vpd to 64 vpd, an increase of 300%. The peak hour traffic volume will increase from 12.6 vph to 18 vph, which is an increase of 43%.

While the percentage increases  are high,  the absolute increase in traffic volume over the day and peak hour are unlikely to be noticed by road users. For example, the peak hour traffic increases by 5.4 vph, and assuming an
80/20 out/in trip distribution this calculates as an additional 4.3 vph out of
Andrews Road, or one vehicle every 14 minutes.

Based on the above analysis, the increased traffic generated by the proposal is considered to be less than minor.

[85]	In  terms  of  the  effect  on  the  Andrews  Road/SH5A  intersection,  MWH

observed:

Effect on Andrews Road and the Frankton Road intersection

Based on the traffic generation evaluation above there will be a small traffic volume increase from the proposal that will use Andrews Road and the Frankton Road intersection.

The existing movement deficiencies are unchanged, and are summarised below:

1.    Restricted tracking paths for all vehicle types in and out of Andrews
Road.

2.    Left turn out of Andrews Road appears to cross onto the Frankton Road central flush median, with potential for conflict with right turn in vehicles.

3.    It appears a vehicle cannot turn into Andrews Road if a vehicle is waiting to exit Andrews Road.

With increased traffic volumes on Andrews Road as a result of currently permitted activities, the frequency of potential conflicts will increase and therefore the likelihood of a crash increases.

The intersection requires improvements to cater for the expected traffic movements anticipated by the current land zoning of all Andrews Road properties.

The impacts on Andrews Road users as a result of this proposal, from the intersection to cul-de-sac head, are considered to be minor.   The existing carriageway appears to be 5.0m to 5.5m wide (measured from Google earth) with parking banned on one side and no footpaths.  This is not compliant with the QLDC District Plan (DP), however the increase in traffic (including estimating traffic generation from all properties on Andrews Road) does not change the required traffic provisions with reference to Table 3.1 – Road Design Standards – Urban of the QLDC amendments to the 4404:2004.

It is expected that the NZTA will be contacted regarding the proposal for their comment as an effected party.

[86]     NZTA’s consent letter was to the point.  It read:

Woodlot properties Limited – Residential Units – SH 6A – Frankton

Thank you for forwarding details of the above-mentioned land use proposal  for  our  consideration  and  comment.     We  understand  the applicant proposes to increase the number of residential units in an approved apartment block (Block 2) at Andrews Road, Queenstown.  The proposal  seeks  to  alter  the  internal  configuration  from  the  approved
2 apartments  containing  7  bedrooms  to  8  apartments  containing  2 bedrooms.

We are satisfied that the proposed activity is unlikely to have an adverse effect on the safety and functionality of the State highway adjacent to the subject site.   Accordingly, please find enclosed the NZTA’s written approval for your information and further action.

[87]     As can be seen, both MWH and NZTA compared the effects associated with RM130600  with  those  associated  with  RM120496.    That  is,  they  assessed  the adverse effects associated with the increment,  or increase, of adverse effects of RM130600’s 20 units as opposed to RM120496’s 14 units.  The issue is, therefore, whether that approach was lawfully correct or whether QLDC was required to consider whether the overall effect of the increased traffic associated with the Woodlot Development on the environment was “more than minor”.   That is the proposition that, in a variety of ways, Mr Nash advances.

[88]     There is, I accept, some support for that proposition in the wording of the

District   Plan,   where   relevant   assessment   matters   are   specified.       Section

7.7.2(vi)(a)(v) refers to  the adverse effects  of  “Any cumulative effect  of traffic generation from the activity in conjunction with traffic generation from other activities in the vicinity”.  Section 7.7.2(vi)(c) refers to “Any adverse effects of the proximity or bulk of the buildings, in terms of visual dominance by buildings of the

outlook from adjoining sites and buildings, which is out of character with the local environment”.   That “assessment matter” can be compared with that specified in Section 7.7.2(vi)(h): “The extent to which the increased building coverage would have any adverse effect on adjoining properties in terms of dominance by buildings, loss of privacy, access to sunlight and daylight and loss of opportunities or views”. Although the relevant provisions of the District Plan were not addressed during oral argument, and Mr Nash’s written submissions did not refer to them at all, it can clearly be argued that “any adverse effects” means what it says, as confirmed by the reference to “increased” building coverage.

[89]     In my view, however, and by reference not only to the concepts of permitted baseline and environment, as developed by the Court of Appeal subsequent to the Bayley decision, but also to the overall scheme of the RMA, I think the approach taken by QLDC was a legally correct one.  As a matter of principle,  district plans, agreed for a district following the processes of public consultation called for by the RMA, and fitting within the hierarchy of planning documents found in the RMA as most recently discussed by the Supreme Court in Environmental Defence Society Inc
v  New  Zealand  King  Salmon  Company  Ltd,44    reflect  a  given  community’s

assessment of how to give effect to the purposes and principles of the RMA.  Thus, s 9(3) of the RMA provides:

(3)	No person may use land in a manner that contravenes a district rule unless the use—

(a)   is expressly allowed by a resource consent; or

(b)   is allowed by section 10; or

(c)   is an activity allowed by section 10A.

[90]     Where, following that process, various uses and activities are provided for as complying activities those uses and activities have been accepted as being “appropriate”.    That  collective  decision  has  been  reached  pursuant  to  a  public process in which the Part 2 purposes and principles will have been applied.  If the approach  called  for  by  Mr Nash  was  required,  it  would  –  in  effect  –  call  that assessment into question.   That is, the increased traffic generated by a complying
activity may well have an effect on the environment that is “more than minor”.  But

44	Environmental Defence Society Inc v New Zealand King Salmon Company Ltd [2014] NZSC 38, [2014] 1 NZLR 593 at [11].

that effect, or the reasonable possibility of it, has been agreed to.   But if those (accepted) effects have to be included in the “adverse effects” by reference to which the “not more than minor” determination is to be made, that acceptance would have to be revisited, or at least notice given on the basis that it could be.  But, as Tipping J explained in Arrigato:45

Thus, if the activity permitted by the plan will create some adverse effect on the environment, that adverse effect does not count in the ss 104 and 105 assessment.  It is part of the permitted baseline in the sense that it is deemed to be already affecting the environment or, if you like, it is not a relevant adverse effect.  The consequence is that only other or further adverse effects emanating from the proposal under consideration are brought to account.

[91]     Furthermore,    with    reference    to    the    various    matters    specified    in Section 7.7.2(vi)   of   the   District   Plan,   the   adverse   effects   of   the   Woodlot Development, in terms of the minimum site density for a complying development, have been determined to be not incompatible with the levels acceptable in a low density residential environment, not out of character with the local environment and not incompatible with the scale of other buildings in the surrounding area.

[92]   The Judge-made concept of permitted baseline activities and the “may disregard”  provisions  of  the  RMA are  confirmation,  in  my  view,  of  that  basic principle.   Therefore when – as here – an activity is discretionary on the basis, among other things, that it allows for a density of development greater than that permitted as of right, the adverse effects to be assessed are those which arise consequentially because of and to the extent of that “greater” density.  Specifically, the District Plan represents a decision as to an acceptable level of development within the Queenstown area.  That acceptable level of development is reflected in the
District  Plan  in  the  minimum  site  density  (450m2)  for  complying  residential

development.   The discretionary status of comprehensive residential development reflects the fact that, beyond that a decision of acceptability has not been made.  In my view, therefore, what QLDC had to assess was, as it did, whether the increase in density associated with the proposal could have adverse effects that, by comparison to the adverse effects associated with a complying development, were not more than
minor.

45	Arrigato Investments Ors v Auckland Regional Council and Ors, above n 22, at [29].

[93]     The factual matters at issue here are quite different to the Arrigato example of a consented 10 storey building, to which it is proposed to add two storeys.  In that situation  what  has  to  be  assessed  is  not  the  incremental  two  storeys,  but  the difference between the height of the development the plan would have allowed (if any) as of right.  Moreover, that difference also has to be assessed in the context of the specific terms of the relevant district plan. A height limit may be set to expressly balance the need for development against the need to preserve existing amenity values.   By definition almost, in that context, any higher development than that permitted as of right could have a more than minor effect.  In my view, however, the density rules at issue here are not of that type.  The increased traffic effects caused by complying residential developments have not been calibrated in that way.  Rather, they represent an acceptable level of traffic density for the local environment.  The “more than minor” decision in this context is, in my view, properly made therefore by reference to the incremental effect on traffic that the density of a comprehensive residential development as a discretionary activity will have.

[94]     I conclude, therefore, the approach taken by the Council was one lawfully available to it.

[95]     There   is,   I   recognise,   a   proper   concern   with   the   phenomenon   of “environmental creep”.  But I think that concern is addressed by the Court of Appeal in Arrigato.  What is permitted by law (i.e. the plan, as subsequently emphasised in Far North) may, under the Judge made rubric of the “permitted baseline” approach, as now legislated by s 104(5), be disregarded by a consent authority when making non-notification or consent decisions.   Beyond that, what is required are factual assessments made against the background of the relevant District Plan and a proper, futuristic, assessment of the environment.  In that context, it is one thing to start with a proposed development that will, as regards a particular matter, have effects that the plan regards as acceptable.  It is another to obtain a consent for an activity which has effects which are not anticipated by the District Plan, and then to apply for a further consent which adds to those unanticipated effects.   In my view, the flexibility provided by the Arrigato approach as confirmed by the Court of Appeal in the Far North case, enables that type of concern to be addressed.

[96]     An example of the application of that approach is described by the Court of

Appeal in Hawthorn in the following terms:

[79]      The Environment Court dealt with the implications of the existing resource consents in the present case in a manner that was consistent with that approach.  It will always be a question of fact as to whether or not an existing resource consent is going to be implemented.  If it appeared that a developer was simply seeking successively more intensive resource consents for the same site there would inevitably come a point when a particular proposal was properly to be viewed as replacing previous proposals.  That would have the consequence that all of the adverse effects of the latter proposal should be taken into account, with no “discount” given for consents previously  granted.   We  are  not  persuaded  that  the  prospect  of  “creep” should lead to the conclusion that the consequences of the subsequent implementation of existing resource consents cannot be considered as part of the future environment.

[97]     Again, I think this emphasises the essentially factual nature of the inquiry called  for.    The  effect  of  the  decision  in  Far  North  is  to  confirm  the  non- discretionary nature of that inquiry.46

[98]     I also consider QLDC did have adequate information in terms of the MWH report and the NZTA consent letter.  Mr Nash argued, on the basis of the Court of Appeal decision in Royal Forest and Bird Protection Society of New Zealand Inc v Kapiti  Coast  District  Council,  that  QLDC  should  not  have  regarded  the NZTA consent as “signing off” on the adverse impacts on traffic at the Andrews Road/
SH6A intersection.47    In Royal Forest and Bird the Court of Appeal, reflecting the

approach it had taken in Arrigato in commenting on the risk of environmental creep, observed that ss 94A(c) and 104(3)(b) required a purposive – necessarily nuanced –
approach, including as to the significance of affected party consents given to a

46         The Supreme Court has granted leave to appeal from the decision of the Court of Appeal in the Far North decision (Te Rūnanga- Ᾱ-Iwi O Ngāti Kahu v Far North District Council [2013] NZSC 134). One of the questions to be determined is:

In relation to the subdivision consent application, whether or not the unimplemented land use consent should have been taken into account, when determining the application for the subdivision consent, as part of: (i) The “environment” under s 104(1) of the Resource Management Act 1991; or (ii) The permitted baseline under s 104(2).

The issues discussed in this judgment about the relationship of the permitted baseline, the receiving environment and environmental creep may therefore be considered by the Supreme Court in the relatively near future.
47	Royal Forest and Bird Protection Society of New Zealand Inc v Kapiti Coast District Council
[2009] NZCA 73, [2009] NZRMA 302.

particular proposal.48   The Court did not hold, as Mr Nash submitted, that an affected party  approval  from  the  administrator  of  a  particular  environment  was  not  a substitute for a consent authority’s own assessment of effects on that environment. Rather, it held that, “a particular piece of land may be of such importance in terms of Part 2 that it would be inappropriate to treat the current owner or administrator of it as the sole arbiter of the effects on that piece of land”.49    There is a considerable difference between the two propositions.

[99]     Mr Nash further submitted that the State Highway network fell within the scope of matters protected by Part 2 of the RMA, in that it was fundamental to the enablement of people and communities to provide for their social and economic wellbeing,50  and for the efficient use of resources and energy.51    QLDC therefore needed to make its own assessment of the effects of RM130600 on SH6A.  It also needed to consider the effects on the Andrews Road intersection as they impacted on itself.

[100]   Those rather conclusory submissions were not supported by any analysis of the role of NZTA under the Land Transport Management Act 2003, and the relationship of that act to the RMA.

[101] For QLDC, the submission was that the position of the Department of Conservation in the Royal Forest and Bird case was quite different to that of NZTA in this case.   Here the matter involved a technical issue on which NZTA plainly (again a conclusionary proposition) has unique expertise (traffic generation on its own highways).  Those considerations, it was submitted, distinguish this case from Royal Forest and Bird.

[102]   Both  the  Land Transport  Management Act and  the Government  Roading Powers Act 1989 establish what are, on the basis of my brief review,  complex legislative schemes.  In that context, and unwilling to embark unguided on what is
plainly a complicated statutory interpretation, I have nevertheless briefly considered

48	At [26].
49	At [27].
50	RMA, s 5(2).
51	RMA, s 7(b)–(ba).

the provisions of the Land Transport Management Act, and NZTA’s statutory role.  I note that it is the function of NZTA “to manage the State Highway system, including planning,   funding,   design,   supervision,   construction,   and   maintenance   and operations, in accordance with this Act and the Government Roading Powers Act
1989”.52

[103]   In these circumstances,  I am not prepared to conclude that QLDC  acted unlawfully when it concluded that NZTA’s affected persons’ consent meant it could be satisfied that the adverse effects of the Woodlot Development of 20 residential units on the Andrews Road/SH5 intersection were not more than minor.

Unreasonableness

[104]   Mr Nash argues that QLDC  acted unreasonably by failing to  give active consideration to whether the applications for RM120496 and RM130600 should have been notified on account of there being special circumstances under s 95A(4) of the RMA. That section provides:

Despite subsection (3), a consent authority may publically notify an application if it decides that special circumstances exist in relation to the application.

[105]   On each occasion, QLDC decided that special circumstances did not exist. Mr Nash submits that QLDC merely stated that conclusion, and did not actively engage itself in the necessary consideration.

[106]   He argued particularly that the history leading to RM130600 was that the developer applied for resource consent for a succession of gradually more intensive developments on the same site relying on the previous consents, though none had been implemented.  I do not accept that submission as made.  There was not, in my view, a material “intensification” up until the 20 unit RM130600 proposal.  Then, and as I have analysed above, QLDC acted lawfully when it considered adverse effects.  It therefore follows that I do not consider it acted unreasonably in deciding
not to notify under s 95A(4).

52	Land Transport Management Act 2003, s 95(1)(c).

Delay

[107]   The other argument that received some attention before me was whether, if Mr Nash succeeded in establishing that QLDC had acted unlawfully, relief should nevertheless be denied because of the delay in bringing these proceedings.  I do not need  to  consider that  argument  now.    However,  I note  that  if  Mr Nash  had  so succeeded, I do not consider that delay would have been a reason to grant him relief. The 20 unit proposal arose relatively late in the overall history.  My reading of the affidavits suggests that, once that proposal was on the table and consented, Mr Nash
– and I take it others – raised the concerns which led to these proceedings.  In many ways, the overall delay that is the successive iterations of the proposal and the period of time that elapsed from the first consent granted in 2007 has been of Woodlot’s making.  In that context, any delay that may have been associated with the issue of these proceedings is not, in my view, material.

Result

[108]   I  therefore  decline  Mr Nash’s   application   for  judicial   review   of   the

Challenged Non-notification Decisions.

[109]   I did not receive submissions on costs.  However, I see no reason why costs should not follow the event on a 2B basis.   If the parties cannot agree, brief submissions may be filed no later than four weeks from the date of this judgment.

[110]   I make a final comment. As MWH acknowledged, there is a sound basis for Mr Nash’s concerns – the implications of the Woodlot Development aside – with the safety  of  the  Andrews  Road/SH6A  intersection.    To  the  extent  that  Mr Nash attempted, through these proceedings, to have that matter addressed immediately in the  context  of  consents  applied  for  for  the  Woodlot  Development,  he  has  not

succeeded.   But that does not mean that matter will not have to be considered by
QLDC,  and  NZTA,  in  a  timely  fashion  in  terms  of  their  relevant  statutory obligations.

Clifford J

Solicitors:
GTODD Law, Queenstown for the plaintiff. Meredith Connell, Auckland for the first defendant.