"On a Whim" - How Not To Make a Notification Assessment

In the recent decision of The Associated Churches of Christ Church Extension and Property Trust Board v Auckland Council [2014] NZHC 3405, Toogood J found that Auckland Council’s decision to publicly notify a resource consent application for the removal (and replacement with a similar building) of a pre-1944 building was so unreasonable that no reasonable decision-maker could have made it. 

Background

The decision concerned a late-Victorian villa known as ‘The Old Homestead’, which was one of only two remaining houses in Point Chevalier constructed before 1900. Its owner, the Associated Churches of Christ Church Extension and Property Trust Board (‘the Trust Board’), had operated The Old Homestead for nearly forty years as a church and community centre. Despite its age, The Old Homestead had no heritage listing; in fact, Council officers assessed it in 2007 as being “somewhat familiar, but not a landmark.”

The Trust Board commissioned a building survey in 2010 which confirmed that The Old Homestead was in an almost irreparable state of decay – having unstable foundations, inadequate electrical and other services, suspected asbestos in the deteriorating roof, and being ridden with borer. This being the case, the Trust Board resolved to remove the existing building and construct an entirely new replica building.

The resource consent applications

Under the Operative District Plan, the building could be demolished or removed from the site without need for resource consent. The Trust Board obtained a resource consent to construct a new building within the drip line of two scheduled magnolia trees on the property in September 2013, and took preparatory steps for removing the building off the site.

However, the Trust Board was unaware of an operative provision of the Proposed Auckland Unitary Plan (‘PAUP’), which restricted the demolition of buildings which existed prior to 1944. Somewhat surprisingly, this requirement had not been communicated to the Trust Board during a pre-application meeting with Council officers. Under this PAUP provision, the Trust Board was required to apply for resource consent for the removal or demolition of The Old Homestead.

In November 2013, a Council compliance officer served an abatement notice on the Parish, requiring it to cease all removal work since it did not have the requisite resource consent. By this time, The Old Homestead was sitting on a removal truck’s trailer. A senior heritage consultant for Auckland Council inspected The Old Homestead the same day that the abatement notice was served, to assess its heritage value. The consultant’s report concluded that the building was of considerable historic importance, on account of its rarity as an example of late-Victorian architecture, and the widespread community use to which the building had been put by local residents since the mid-1970s.

The Trust Board accordingly applied for resource consent for the permanent removal of The Old Homestead in mid-November 2013.

The notification assessment

The Council’s consultant planner considered that the application should be dealt with on a non-notified basis because it would have no more than minor adverse effects on the wider environment, and a less than minor effect on persons located on adjacent sites.

Notwithstanding this, the Council’s Hearings Committee decided (by a majority) that the application for resource consent to remove The Old Homestead and construct a replacement building be publicly notified pursuant to section 95A, because: 1) the building had considerable heritage and historic significance within its local context; and 2) the removal of the building had the potential to destroy the historic connection between the heritage building and the local area, and to result in more than minor adverse effects on the local Point Chevalier and wider Auckland environment.

The parties’ arguments before the High Court

In judicial review proceedings, the Trust Board challenged the Council’s decision to publicly notify the application. It sought an order directing the Council to process the application on a non-notified basis.

In support of its case, the Trust Board argued several grounds of judicial review, including that the decision had been made irrationally, unreasonably, for an unlawful and improper purpose, and in breach of the Trust Board’s legitimate expectation.

The Council denied these claims, arguing that there was evidence upon which the Hearings Committee could reasonably decide that the adverse effects of the removal and replacement of The Old Homestead were more than minor, and these potential adverse effects were matters upon which the publicly elected members of the Committee were well placed to determine in the context of the notification decision.

Decision

Toogood J determined that the Committee’s decision was unreasonable, and should be set aside on that basis. However, in response to the Trust Board’s other arguments, he did not consider that the decision was unlawful, had an improper purpose, or that there was an argument of legitimate expectation. The Court set aside the Council’s original decision, and directed that the application for resource consent be processed by the Council on a non-notified basis.

Reasons

At the outset, Toogood J stated that notification should occur in the context of the RMA’s purpose – i.e., where it would assist the objective of sustainable management.

The Court found that it was unreasonable of the heritage consultant to conclude that the adverse effect of The Old Homestead’s removal would be more than minor. This is because the consultant’s finding of “considerable local significance” was strongly linked to The Old Homestead’s role in the community (the building being used as a church and community centre), and the proposed replica building would accommodate the continued use of the building for those purposes.

The Court rejected the Council’s submission that the heritage values of a community are matters which elected members of a local authority are best-placed to determine, without reference to evidence. Whilst Toogood J acknowledged that Committee members were entitled to express their own perspectives on the information placed before them, he stated that “they were not permitted to decide such matters on a whim”.

The Court also referred to the “well-recognised” fact that councils need to provide substantial written reasons when they depart from the advice of officers. In this case, the Council’s failure to address and rebut the expert advice that it received and rejected “le[d] to an inference that they were disregarded by the Council”. The Court concluded that the Committee failed to take account of compelling evidence and advice which contradicted its decision.

Toogood J considered the Council’s power pursuant to section 95(1) of the RMA to exercise a general discretion to require public notification. As to this, the Court found that the Committee failed to consider whether notification was likely to result in the Council receiving further information relevant to the issues for determination on the substantive application. When the Court undertook this assessment itself, it concluded that public notification of the application was unlikely to produce any significant additional relevant material.

The Court also referenced the ‘simplifying and streamlining’ amendments made to the RMA in 2009, stating, “If Parliament’s intention was to allow things to be done more speedily, requiring notification when it is pointless runs contrary to the purpose of the 2009 Amendment Act.”

Comment

The decision serves as a reminder to local government to make notification assessments in light of the purpose of the RMA, and the 2009 amendments. However politically contentious the substantive decision may be, decision-makers should not lose sight of whether publicly notifying the decision will aid the purpose of sustainable management, and whether it is likely to result in further relevant information being made available. Where the decision-maker decides to depart from expert advice, full reasons should be given. Above all, care should be taken to ensure there is no perception that notification assessments have been made ‘on a whim.’