Bayley v Manukau City Council [1998] NZRMA 396 (HC, 19 May 1998); [1999] 1 NZLR 568 (CA, 22 September 1998)

Notification; affected parties; permitted baseline; multiple consents

1. This case involved a 57-unit residential complex. The activity was discretionary under the transitional plan. Under the proposed plan it was controlled, with some aspects being restricted discretionary.

2. The Court of Appeal reiterated the fact that the resource consent process was to be public and participatory. Care must be exercised before removing those participatory rights.

3. However, where a consent authority has retained control over only certain matters, the decision to notify must be made with only those matters in mind. If a consent authority notified an application on the basis of matters that would be disregarded in hearing the application, it would give false hope to objectors. In Bayley, the Council had provided itself with a wide discretion, so it was not an issue.

4. Where multiple consents are sought at the same time and their effects are overlapping, notification should only be dispensed with where none of the consents require notification.

5. The whole of the activity must be considered because the intrusion (non-compliance) could mean that more intensive use of the site is possible. It is important to avoid the hybrid approach, as noted in Locke.

6. In making a decision on notification, the Council must consider whether there will be adverse effects on the environment which are more than minor. An appropriate comparison is what is being lawfully done already on the site, or could be done as of right. Importantly, the Court of Appeal added the words ‘as of right’ to the test pronounced in Aley.

7. The second aspect of the Council’s consideration is whether there are any adverse effects that may affect any person. This includes temporary effects like construction. Such effects may only be disregarded if they are de minimis or merely a remote possibility. Otherwise, the written approval from all those affected must be gained before the matter can be non-notified.

8. The Court also noted that in reaching a decision on notification the possibility of an adverse effect could be excluded if the presence of some countervailing factor eliminates concern.