Smith Chilcott Limited v Martinez & Ors [2001] NZRMA 108; [2001] NZRMA 503 (HC, 4 September 2000); [2001] 3 NZLR 473 (CA, 26 June 2001)

Permitted baseline; effects of 'as of right ' activities

1. This case involved a resource consent granted by the Council to build an apartment building on land where the original plan was to have a tower built over two sites. The tower was built in such a way as to require the two sites to be held on one title, which then meant subsequent development was restricted to three units whereas the plan would normally permit eight units.

2. On appeal it was submitted that the Environment Court had erred in holding that consideration of effects should be against the environment as it exists now, having regard to any credible or likely variations to the environment.

3. The High Court accepted that Bayley was the appropriate test to use for section 105 and section 104(1)(a) but also required consideration of section 9 in that context. It was stated that a use that does not contravene a rule in the plan may be established as of right. Therefore, effects arising from a lawful activity must be contemplated by the Act as being acceptable and thus not adverse.

4. The Court of Appeal upheld the High Court 's decision, but set a different test for the activities that can take place as of right which should be considered as part of the existing environment:

... any permissible use qualifies under the permitted baseline test unless in all the circumstances it is a fanciful use.