Re an application by Wellington City Council (EC, Wellington, W70/2003, 6 November 2003, Thompson J)

Notification; interpretation of 2003 provisions; service of affected parties

1. The Council applied for a declaration that the non-notification statement in 80 rules of its District Plan complied with the requirements of section 94D(3) so that the Council was not required to serve notice of an application for consent under those rules. The rule(s) provided that "the written approval of affected parties will not be necessary and applications need not be notified."

2. The Court declined to make the declaration on the basis that it was, at best, highly doubtful whether the non-notification statement complied with the requirements of section 94D(3).

3. The Court considered that it could only make the declaration if it was satisfied either that the terms "notified" and "served" were synonymous, or that "notified" was necessarily inclusive of "served". The Court noted that section 94 separates the concepts of notification and service. That separation gives rise to the two alternatives in sections 94D(2) and 94D(3). The Court considered that logically this must mean that at that point, notification and service are distinct concepts and one does not include the other.

4. The Court concluded that the Council's non-notification statement was not appropriate to deal with the separate concept of service in terms of section 94D(3).

5. Whilst the Court did not suggest alternative wording, it would appear that something along the following lines would suffice: "The application need not be notified, the written approval of affected persons will not be necessary, and notice of the application need not be served on any person."