GTodd Law

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April 2014

New Standards for Non-Notification of Resource Consents - Thu, 3 April 2014

The case of Coro Mainstreet (Incorporated) v Thames Coromandel District Council[1] issued on the 21st day of November 2013 indicates that new standards are to be applied by consent authorities when considering the non-notification of resource consent applications. The Court of Appeal, when deciding the case, addressed the amendments made to the Resource Management Act 1991 (“the Act”) in 2009 and found that significant changes had been made to the principals surrounding the non-notification process. The Court suggested that the effect of the amendments is that the test laid out in Discount Brands Ltd v Westfield (New Zealand) Ltd[2](the leading case authority on the matter) no longer applies.

The points raised by the Court of Appeal in Coro Mainstreet will affect the way in which consent authorities approach the issue of non-notification of resource consents in the future.

The case in front of the Court of Appeal

Coro Mainstreet was an appeal against a decision of the High Court to dismiss an application of Coro Mainstreet Incorporated (CMI) for Judicial Review. In the High Court CMI had applied for a decision of the Thames Coromandel District Council,not to notify a resource consent application, to be set aside. The resource consent application was made by National Trading Company of New Zealand Limited (NTC) to demolish a motel building in Coromandel Town and construct a new Four Square grocery store.

In the Court of Appeal CMI pursued only one issue, whether the Council’s officer had sufficient and reliable information before her upon which she could lawfully make the decision not to notify the resource consent application.

On the facts, the Court of Appeal found that the Council officer had adequate and reliable information on which to exercise her discretion. The Court approved the High Court’s decision and held that there had been no error by the Council’s officer in making its decision not to notify the resource consent application.

The Court of Appeal’s Perspective on Public Notification Principles

The most important aspect of the case is the position that the Court of Appeal took in respect of the legal principles concerning the non-notification of resource consent applications. Before making its assessment on the facts the Court addressed the 2009 amendments of the Act and the addition of s 95A. The Court suggested that by implementing s95A of the Act Parliament had altered the test, that had been developed through the leading Supreme Court case of Discount Brands, for the non-notification of resource consents.

The Court of Appeal listed four “significant” differences between the s95A and the pre 2009 provisions that had been considered under Discount Brands. These were:

1)      the presumption in favour of notification has been removed and replaced with a discretion;

2)      the stipulation that a consent authority has to be “satisfied” that it has received adequate information before making a notification decision has been replaced with the term “decides.” (In Discount Brands the Chief Justice held that the word “satisfied” implied a greater degree of certainty than the word “decides”.)

3)      the requirement that the consent authority must be “satisfied” that the adverse effects of the proposed activity “will be minor” (Discount Brands) has been replaced with the requirement that the consent authority must now “decide” whether adverse effects would have or were likely to have effects that are “more than minor”.

4)      there is no longer an express requirement for the consent authority to have “adequate information” before making a notification-decision.

The Court of Appeal held that in the circumstances of the case that the amendments to the Act did not affect the outcome and that it would have come to the same conclusion under the old Act. Therefore, the Court did not assess the implications of such amendments in depth. However, it stated “[i]f the point had affected the outcome of the present case, we would have wanted to consider whether the 2009 amendments gave effect to the apparent intention of Parliament to give consent authorities greater scope to decide not to notify resource consent applications, and to reduce the intensity of the review to be applied to non-notification decisions from that mandated in Discount Brands.”

The Effect for Resource Management Specialists

The statement of the Court abovesuggests that the principles contained in Discount Brands no longer apply under the amended act. Rather, it is Parliament’s intent that consent authorities should now be applying a less rigorous test when deciding whether or not to notify resource consent applications. Although, the new test still requires clarification, the Court of Appeal has opened the gates for change. Such change will affect the way that resource management specialists approach the issue of non-notification in the future.

For more details about the manner in which the case of Coro Mainstreet will affect your next resource consent application contact the Resource Management Experts at GTODD LAW.

[1] Coro Mainstreet (incorporated) v Thames District Council [2013] NZCA 665.

[2] Discount Brands Ltd v Westfield (New Zealand) Ltd [2005] NZSC 17.