King v Auckland City Council [2000] NZRMA 145 (HC, 1 December 2000)

Notification; affected persons; multiple consents; ‘as of right’ activities

1. This case involved a new two-storey dwelling and associated excavation. Randerson J noted that when considering section 94(2)(a) the focus was on the adverse effects on the environment. The main issue was whether those effects were minor, and this was a matter of fact and degree.

2. When considering section 94(2)(b) any adverse effects must be considered, and the issue is whether those effects will adversely affect a person. In this case one may only disregard de minimis effects or ones that are only a remote possibility (refer Bayley).

3. When assessing effects one can consider conditions that will reduce or eliminate the effects, but one cannot look at positive effects. One must ignore any effects on those people who gave written approval.

4. In discussing the ‘as of right’ aspect of the test, Randerson J discussed his views as expressed previously in McAlpine and stated that ‘as of right’ referred to permitted activities. The test itself applies to restricted and unrestricted discretionary activities. If no activities are permitted on a particular piece of land then a proposal is compared against what is lawfully existing on that land.

5. Randerson J expressed concern over how much speculation would be needed to fulfil that test. However, he stated that if a building of seven metres in height was permitted and a proposal sought eight metres in height then it was appropriate that the effects of the extra one metre only should be considered. He raised the problem that an extra advantage may be gained for the whole proposal due to the extra non-compliance. He warned that consent authorities needed to exercise care in making such a judgement.

6. When identifying the activity for which consent is sought, Randerson J referred to the Bayley case, which said there was no point in considering what a Council has to ignore later (for restricted discretionary and controlled activities). However, if discretion is broad then the factors to be considered are broad. When there is a narrow discretion then only those narrow factors may be considered. Any effects arising from matters outside that narrow discretion are not relevant.

7. In respect of multiple consents, consideration of them together depended on the overlap. In this case the dwelling, earthworks, excavation, etc were all interconnected and so they were all dealt with as discretionary activities.

8. Again consent authorities were warned to take a cautious approach to a decision not to notify given that such a decision grants a dispensation from the general policy of notification.