Mitre 10 Judicial Review HC Wellington [2012] NZHC 644 CIV 2011-485-2438
The High Court has set aside three decisions of the Wellington City Council relating to the rezoning of a former landfill and depot site and an associated resource consent application for earthworks. The Creswick Valley Residents Association Inc had notified the Council of its interest in any rezoning or land use application for the site several years earlier. The Residents Association then became aware of the change in zoning of the site to Business 2 Zone and the earthworks consent after some of the residents were notified about a resource consent application to allow the development of a Mitre 10 Megastore on the site. The Residents Association sought judicial review of the Council's earlier decisions on the basis that the Council acted unlawfully in the processes by which it rezoned the land and issued the earthworks consent.
Public notice and consultation
The rezoning of the site was part of the wider Plan Change 73 (Centres and Business Areas) and notified at the same time as Plan Change 72 (Residential Area). The Residents Association submitted that the consultation material released by the Council failed to meet the requirements for proper consultation under the Resource Management Act (RMA) and was misleading in stating that the rezoning of the land was "to better reflect existing uses" which could not apply to the site given it was not currently used for business purposes. The Residents Association contended that the Council was required to give notice to affected parties of the rezoning.
The Council submitted that all the information required by clause 5(2) of the First Schedule was included in the public notice, and is mechanical rather than substantive because there is no specific requirement to describe the plan changes or specifics of what it addresses. Further, the Council contended that in the context of a full review of all Residential and Suburban Centres chapters in Wellington it would not be practical to identify all the relevant changes in the public notice. The Council had mailed the public notice and a summary guide to all residents and ratepayers informing them about the major review of the plan provisions.
The Court considered that in order to determine whether the Council has met its wider administrative law obligations it is necessary to go further than considering whether the mechanical requirements of clause 5 of the First Schedule have been met. It noted that the Council's discretion as to what further information it supplies is very broad, but having decided to supply that additional information it had an obligation to ensure it was not materially misleading. The Court held that the information was materially misleading in respect of the site as it failed to identify the rezoning of the land was being motivated by different considerations than to reflect its existing use. The Council was required to consider whether any ratepayers were likely to be directly affected by the rezoning of the site, and that no specific consideration was given to this question. The Court noted that the Council ought to have anticipated a level of interest from neighbouring landowners and taken that interest into account.
The Court considered that the giving of notice to ratepayers generally, was not sufficient to comply with the obligation to give notice to the ratepayers likely to be directly affected by the rezoning of the site. It rejected the argument that the scale and complexity of the plan change alters this obligation. Councils are required to send to any such rate-payers information sufficient to draw the relevant part of the plan change to their attention. The Court held that the information sent to the residents did not satisfy this requirement, and therefore the Council had not complied with its obligations under clause 5(1A) of the First Schedule of the RMA in respect of the rezoning decision.
Decision to re-zone the site
The Residents Association argued that the rezoning was outside the scope of the land rezoning contemplated by the plan change, and the rezoning did not have proper regard to the rezoning principles that the Council had decided to apply or the relevant principles of the RMA. The Council submitted that the developer's request to include the rezoning of the site in the plan change was not made in a formal submission but feedback in the initial consultation phase, and that the Council only had to undertake a section 32 analysis of the proposed rezoning not apply the criteria.
The Court accepted the Council's submission that the rezoning was within scope of the plan change as the feedback from the developer was before the plan change was notified and the process for making submissions had not commenced. However, it concluded that the rezoning was not assessed against the criteria fixed by the Council for rezoning. It held that this meant the Council failed to have regard to relevant considerations, and had regard to irrelevant considerations, in reaching its decision to rezone the site. In light of this and the failures around consultation the Court set aside the Council's decision to include the re-zoning of the site in Plan Change 73 and consequently the Council's decision to re-zone the site.
Earthworks consent related to re-zoning
The Council had also granted a resource consent for earthworks and vegetation clearance on the site on a non-notified basis. The proposal was to form an earthworks platform to enable further development on the site, which would be applied for at a later stage.
The Residents Association submitted that the Council was required to give notice to affected parties of the earthwork consent application but failed to do so, in breach of a promise made to residents in 1999. Further, it contended that under section 91 of the RMA the earthworks consent should not have been processed separately from the pending resource consent application for the Mitre 10 Mega Store. It sought that the earthworks consent should be set aside because it had been materially influenced by the rezoning.
The Court held that the correspondence with the Council by the residents in 1999 did not create a legitimate expectation giving rise to an administrative law obligation on the Council to consult with residents over the rezoning. The relevant assessment was whether the planning law applicable at the time required consultation, although the correspondence was held to be relevant to the Council's consideration of whether the neighbours were directly affected.
The Court considered that it was not possible to examine the issues of whether the earthworks consent application should have been dealt with ahead of an application for the development of the site, and whether the application should have been publicly notified, in isolation from the zoning of the site. It held that the validity of the rezoning in Plan Change 73 was of such importance as to affect the validity of the decision making process for the earthworks consent. In light of this the Court set aside the Council's decision on the earthworks consent.
Our comments
This decision reinforces that care must be taken with the wording and content of public notifications. However, in the context of a wide plan change proposal the implication that a council must also directly notify any ratepayers likely to be affected by a specific provision, as well as general public notification, is of concern. This would give rise to an onerous obligation on a council to identify potentially numerous directly affected parties for a raft of specific changes proposed by a plan change.
This decision has been appealed to the Court of Appeal and may be heard later this year.