Northcote Mainstreet Inc v North Shore City Council (High Court Auckland, 31 January 2006, Lang J, CIV-2004-404-6062)

Notification; judicial review; adequacy of information; persons likely to be affected

1. After the Discount Brands Court of Appeal judgment, Discount Brands Outlet Centres Limited applied for another resource consent for the outlet centre. The Council decided not to notify the application, on the basis that the adverse effects were minor. The Council also decided that Northcote Mainstreet was not a person likely to be adversely affected. The Council granted the resource consent and Northcote Mainstreet applied for judicial review of the notification decision and the substantive decision to grant the consent.

2. The High Court dismissed the application for review, concluding that the material before the Council was sufficiently comprehensive and reliable for the purposes of the non-notification decision, and that the decision itself was open to the Council.

3. The Court considered that despite the 2003 RMA amendments, consent authorities remain obligated to ensure that they have adequate information to make an informed decision. The Supreme Court's test of adequacy of information will still apply. However, the 2003 amendments mean that the decision on adequacy of information concerning notification is to be considered as part of the decision on notification, rather than being considered as a preliminary question.

4. The minority in the Supreme Court had stated that in order to non-notify, a consent authority must be clear that notification would not elicit information that might indicate more than minor adverse effects. The High Court was reluctant to create an absolute requirement out of this principle, because doing so might lead to overcautious notification of applications in situations where notification was not necessary.

5. The Court also concluded that Northcote Mainstreet was not a person adversely affected by the proposal in an environmental sense, and that including any individual or body with a self-proclaimed interest would produce far-reaching and burdensome consequences. The Court agreed with the High Court in Progressive that the 2003 RMA amendments removed any implication that service was only required of persons who were directly affected or who have an affected property interest. An indirect effect can be sufficient, provided it is an effect in an environmental sense.