Videbeck v Auckland City Council [2003] NZRMA 113 (HC, 27 September 2002)

Notification; judicial review; delegation of decision by authority

1. In relation to the relocation of a dwelling, which was a discretionary activity, the Council granted a resource consent on a non-notified basis.

2. The Court reiterated that in relation to a review of such decisions it must, first, consider whether there was sufficient information available to the consent authority, and second, consider whether the Court must give appropriate weight to the experience and expertise of the relevant decision maker having regard to the information placed before him or her. Thirdly, the Court must be satisfied that there was sufficient information for a consent authority, acting reasonably, to be satisfied that the threshold requirements were met.

3. The Court noted that the decision not to notify an application deprived the public of the right to be heard, and therefore the Court should be vigilant in exercising its supervisory jurisdiction on review.

4. In this case, a planning officer of the Council provided a report on the application to the delegated decision maker, who then made the decision. However, in not providing a balanced report, the planning officer had taken on herself a de facto sub-delegation of the power and this was reviewable.

5. A planner, preparing a report for someone who has delegated authority to make a decision prohibiting interested persons from participating in the public process contemplated by the RMA, should ensure, at least, that the decision maker is appraised of the concerns expressed so that he or she can balance those concerns against other views expressed by the planner or other Council officers or experts.

6. The Court stated:

Effective 'rubber-stamping ' of recommendations for Council officers not to notify such applications is to be discouraged firmly. In my view, it is for the local authority to determine the appropriate level within its structures at which decisions such as this can be made and to delegate accordingly. De facto delegations will not be permitted by the Court.

7. As the plaintiff and the person to whom the resource consent had been granted were both innocent parties and would both be adversely affected by the Court 's decision in favour of either, the Court declined to grant relief in this case.