Progressive Enterprises Ltd v North Shore City Council [2006] NZRMA 72 (HC)

Notification; judicial review

1. The Council decided not to notify an application for consent for a supermarket, on the basis of evidence that the adverse effects of the proposal were no more than minor. The Council granted consent, and Progressive Enterprises (a competitor) and Northcote Mainstreet sought review of the non-notification decision and the decision to grant consent.

2. The Court noted that the Council's non-notification decision was based on "some material capable of supporting the decision" that the adverse effects were no more than minor, a test that was found permissible by the Court of Appeal in Discount Brands. However, in the Supreme Court's judgment in Discount Brands, the "some material" test was rejected as insufficiently demanding. In this case, the Council was aware that Transit had concerns about traffic effects, but continued with its decision in spite of Transit's request for time to investigate those effects.

3. The Court adopted the precautionary approach of some of the members of the Supreme Court in Discount Brands, stating that at the section 93 stage, any real doubt whether a development would have more than minor adverse effects must be resolved in favour of the environment by requiring notification. The Council had not followed an appropriately precautionary approach, and its non-notification decision and decision to grant consent were both invalid.