Body Corporate 97010 v Auckland City Council (HC, Auckland, M1725/99, 8 March 2000, Randerson J); [2000] NZRMA 529; [2000] 3 NZLR 513 (CA, 17 August 2000)

Notification; overlap of consents; holistic approach; special circumstances

1. This proposal was for a high-rise residential development where consent was granted, then a variation was sought as well as an extension of the time before the consent lapsed.

2. Randerson J decided that the consents for the building itself and for the parking could be considered separately because the parking would be able to comply with the specified criteria and there would be no off-site effects. Further, this could have no impact on the building size or location because these were not matters that the Council had held within its discretion, i.e. there was no overlap that would require a collective/holistic assessment.

3. It was held that the fact the proposal was for a large development did not necessarily amount to special circumstances. Also, as it is not mandatory to require notification if special circumstances exist, a lack of consideration of this aspect cannot be a ground for judicial review.

4. Section 127 has its own notification provisions, which are cumulative. It is the effects of the change that are relevant, not the whole activity itself. One must compare the new proposal with the original activity as consented to. Therefore if the effects of the new proposal are less than the original then it would be appropriate not to notify it.

5. On appeal, the Court of Appeal confirmed that if there is no overlap between the consents then there is no need to use the holistic approach, and it is appropriate to assess separately consents that have different activity status.