Keystone Ridge Limited v Auckland City Council (HC, Auckland, AP 24/01, 3 April 2000, O 'Regan J)

Permitted baseline; holistic approach

1. This case involved a proposal to demolish a supermarket and replace it with the construction of three apartment blocks consisting of 66 residential units. The Council granted consent to the proposal and this decision was appealed to the Environment Court. The Environment Court granted the appeal and the applicant appealed to the High Court.

2. The High Court considered the permitted baseline test in respect of section 105(1). The High Court stated that the correct approach, from Bayley, was to look at both the environment as it exists and as it would exist if the land were used in a manner permitted as of right by the plan. In respect of credible activities the decision maker is not obliged to establish what is likely, but merely to rule out what is purely hypothetical or out of touch with reality (see Barrett, Smith Chilcott).

3. The High Court confirmed that the holistic approach is appropriate where the decision maker looks at the cumulative effect of any non-compliance, rather than looking at each individual non-compliance as a separate issue.

4. It was stated that the use of the term 'baseline ' could not be interpreted as imposing undue rigidity on the exercise of the Environment Court 's discretion in these matters. It is notable that the words used in Bayley were 'appropriate comparison ', not 'baseline '.