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The High Court has recently released an important decision on how restricted discretionary activity resource consent applications should be assessed. The decision is Auckland City Council v The John Woolley Trust and S J Christmas HC AK CIV-2004-404-3787 [31 January 2008].
The issue decided by the High Court was whether the provisions of Part 2 of the Resource Management Act 1991 (RMA) could be taken into account by a consent authority when assessing a restricted discretionary activity resource consent application.
The case involved an appeal brought by the Auckland City Council against a decision of the Environment Court to grant a restricted discretionary resource consent application to remove a large Himalayan Cedar tree from a residential property in Remuera. At the Council hearing stage, consent to the application was refused.
The Environment Court in its decision (A 49/2007) took into account Part 2.
As a result, the question of law that the High Court was asked to determine by the Council in its appeal, was whether Part 2 of the RMA applies to a resource consent for a restricted discretionary activity. This involved a consideration of the interrelationship between sections 77B(3), 104 and 104C of the RMA.
The decision
The essence of the High Court's decision is that there is a distinction between the grant and refusal of an application for a restricted discretionary activity. When deciding to grant a restricted discretionary resource consent application, Part 2 matters can be taken into account by a consent authority. However, when refusing to grant a restricted discretionary activity application, the only matters that can be taken into account are those which the consent authority has restricted the exercise of its discretion to. Similarly Part 2 matters cannot be relied upon when imposing conditions on a consent for a restricted discretionary activity beyond those relevant to the matters to which the consent authority has restricted the exercise of its discretion.
Whilst acknowledging that there were arguments both ways, the two main factors that appear to have influenced the High Court in reaching its conclusion about the role of Part 2 matters in the assessment of restricted discretionary applications are the legislative history applying to the 2003 amendments to the RMA and the Court's view that in order for the Council's arguments to succeed, section 104C of RMA would need to be akin to a code for restricted discretionary activities and by implication not subject to the general requirements of section 104 of the RMA.
With respect to this second factor, the High Court was view that Parliament cannot have intended that section 104C should be a code for applications for resource consents for restricted discretionary activities, since at least some of the provisions of section 104 must apply to such applications. The examples cited in the decision are sections 104(2) to (5) which the High Court pointed out must all logically apply to applications for restricted discretionary applications. We note that these sections include provisions about the ability of a consent authority to disregard adverse effects that a plan permits (section 104(2)), the requirement to disregard trade competition effects and effects on persons who have not given approval (section 104 (3) (a) and (b)) and the prohibition against granting consent to an application that should have been publicly notified and was not (section 104(3)(d)).
The decision also places particular emphasis on the wording of section 77B(3) which makes no reference to the matters to be taken into account when granting a restricted discretionary activity consent as opposed to declining one and imposing conditions.
Where to from here
Whilst the assessment of applications for restricted discretionary activities may now not be as straight forward as it was previously perceived to be, the High Court in its decision makes a number of observations about restricted discretionary activities that provide useful insights for territorial authorities in preparing district plans and plan changes going forward.
The High Court states its view in the decision that restricted discretionary activities were introduced to the RMA to deal with those cases where it was considered unnecessary to require consent authorities to consider the full range of relevant matters under section 104. The Court goes on to note that restricted discretionary activities should be confined to relatively minor matters and that in the particular case the Council could have specified a broader range of considerations for restricted discretionary activities concerning tree removals in its District Plan.
In light of the decision we believe there are two key messages for territorial authorities. The first is that they need to be careful about the categorisation of activities in district plans. A clear implication of Randerson J's comments is that only minor matters that are unlikely to raise Part 2 matters should generally be categorised as restricted discretionary activities. For some territorial authorities this decision may represent a departure from recent trends towards increasing categorisation of activities as having restricted discretionary activity status in district plans.
Secondly, where an activity has a restricted discretionary classification, the list of matters over which the consent authority restricts the exercise of its discretion should be carefully drafted so that any potentially relevant considerations are not exempt from the list.
If you have any queries, please about this case or restricted discretionary activity applications please contact Bill Loutit or Diana Hartley.
This newsletter is produced by Simpson Grierson. It is intended to provide general information in summary form. The contents do not constitute legal advice and should not be relied on as such. Specialist legal advice should be sought in particular matters.
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