Sawmill Workers Against Poisons Incorporated v Whakatane District Council (High Court Rotorua, 13 February 2006, Heath J, CIV-2006-463-32)

Notification; judicial review; adequacy of information

1. This case involved a challenge to Bay of Plenty Regional Council's non-notification decision relating to an application for a water discharge permit, which was subsequently granted. The appellant challenged the non-notification decision on three grounds: (1) an alleged inadequacy of information before the Regional Council for its decision not to notify the application, (2) an alleged illegitimate sub-delegation of the decision making power on notification, and (3) an alleged failure to bring an independent mind to bear when making the non-notification decision. The Court found that there was no evidential basis for the second and third grounds, so most of the Court's discussion focused on the adequacy of the information before the Council.

2. The Court noted that sections 104 and 105 of the RMA must be considered when a consent authority determines whether to deal with an application on a non-notified basis.

3. The Court agreed with Lang J in Northcote Mainstreet that the question of adequacy of information is part of the decision whether or not to notify the application, rather than being a preliminary decision. The Court noted that this flowed from the 2003 RMA amendments, which removed the "gateway" referred to in the Discount Brands Supreme Court decision.

4. The Court noted that Lang J, and Blanchard J in Discount Brands, had said that the material before the Council need not be conclusive or all encompassing in order to make a decision whether to notify an application. The Court added a qualification to this statement, saying that in some factual situations (for example where public health is an issue) the Council may need a more detailed appraisal of effects than when dealing with matters such as amenities. To be sufficiently comprehensive and reliable to justify non-notification in the context of possible public health issues, the material will need to be cogent and negate any real (as opposed to speculative) risk of harm.

5. On the facts, the Council had insufficient information to make a non-notification decision, because of an insufficient response to a section 92A request, and because the Council should have commissioned an independent report on one issue where there was a divergence of views. Accordingly, the basis for review of the non-notification decision was made out. However, the Court exercised its discretion and refused to grant relief, on the basis that an independent report obtained by the Court confirmed that the effects of the proposal were minor.