Point Chevalier Social Enterprise Trust v Auckland Council
| Jurisdiction | New Zealand |
| Judge | Venning J |
| Judgment Date | 21 July 2023 |
| Neutral Citation | [2023] NZHC 1926 |
| Court | High Court |
| Docket Number | CIV-2023-404-000274 |
[2023] NZHC 1926
IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA
TĀMAKI MAKAURAU ROHE
Venning J
CIV-2023-404-000274
UNDER the Judicial Review Procedure Act 2016
IN THE MATTER of an application for Judicial Review
S J Ryan for Applicant
S Quinn for First Respondent
P F Majurey and L Ford for Second Respondent
E N C Lay for Third Respondent
Counsel: S J Ryan, Barrister, Auckland
Environment, Judicial Review, Resource Management — judicial review application of decision allowing a resource consent to develop an old hospital site on anon — notified basis — approach to judicial review — heritage considerations — Resource Management Act 1991 — Ngā Mana Whenua o Tāmaki Makaurau Collective Redress Act 2014 — Judicial Review Procedure Act 2016
This judgment was delivered by me on 21 July 2023 at 3.00 pm, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date
Point Chevalier Social Enterprise Trust (Trust) challenges the decision of Auckland Council (Council) to process applications by Marutūāhu Rōpū and Waiohua-Tāmaki Rōpū, (Rōpū) on a non-notified basis. It also challenges the Council's decision to grant the substantive resource consents.
The consents relate to a site popularly known as Carrington Hospital. The site includes the former Oakley Hospital Main Building (the Main Building). It also includes the Mason Clinic, other buildings and an internal road network. The Main Building was constructed in stages between 1864 and 1905. It is noted as a Category A Historic Heritage Place, in the Auckland Unitary Plan (operative in Part) (AUP). It is also listed as a Category 1 Historic Place by Heritage New Zealand Pouhere Taonga (HNZPT).
The Trust is a registered charitable Trust. As described by its Chairman, Christopher Casey, it acts as a social activator for local projects and opportunities in and adjacent to the Point Chevalier community. It has a particular interest in adaptive re-use of the Main Building.
The Council is the relevant unitary authority established under the Local Government (Auckland Council) Act 2009 responsible for considering and processing resource consents under the Resource Management Act 1991 (RMA) and in accordance with relevant plans including the AUP.
The Rōpū represent 10 of the 13 iwi and hapū who are the rights holders under the Ngā Mana Whenua o Tāmaki Makaurau Collective Redress Deed 2012 (Deed) and the Ngā Mana Whenua o Tāmaki Makaurau Collective Redress Act 2014.
The Attorney-General is sued as third respondent. The Crown through the Ministry of Housing and Urban Development (MHUD) is the land holder of the underlying land to which the consents in issue relate.
The Rōpū have been progressing the development opportunity of the Carrington Hospital site with the MHUD since 2018. The vision for the Rōpū's development of the overall site is:
“He hononga tika ki te hangai ngā hapori toitū me he tāone taioreore ma inga auahatanga me ngā ahurea taukiri o te hapori
A true partnership to establish inclusive, sustainable communities and world class city building through vibrant and innovative place-making.”
On 11 September 2021, the Rōpū, by their planning consultants, applied to the Council for land use and subdivision consents (together the Carrington Backbone Consents), relating to the proposed development of the Carrington Hospital site. The land use consent applied for was:
To construct four public roads, street landscaping, an urban open space, and install new and modify existing infrastructure requiring earthworks, partial demolition of an historic heritage building and tree removals.
The subdivision consent applied for was:
To undertake a subdivision around an approved land use consent for public roads to enable vesting of the roads with Auckland Council.
The proposal had previously been discussed at a meeting of interested parties, including the Trust. The Albert-Eden Local Board was advised of the application on 17 September 2021 and requested the applications be publicly notified.
The applications were also referred to HNZPT which, on 25 March 2022, advised that it supported the proposal, including the partial demolition of the Main Building.
On 25 May 2022, Christopher Casey wrote on behalf of the Trust to the Council. He submitted that the community were deeply affected by the proposed application. Mr Casey also confirmed the Trust considered the proposal should be publicly notified.
On 9 June 2022, Tracey Grant, acting under delegated authority from the Council, accepted the recommendation of Jennifer Valentine, consultant planner, that the applications for land use and subdivision consent be processed on a non-notified basis.
On 29 June 2022, Ms Grant, again acting under delegated authority, granted the Carrington Backbone Consents for the land use and subdivision.
The consents permit the partial demolition (approximately seven per cent) of two sections at the rear of the Main Building and the construction of infrastructure on the subject land, including the construction of an access road, known as the Gate 1 Road.
On 12 September 2022, after learning of the non-notified grant of the consent, Mr Casey wrote on behalf of the Trust to the Rōpū's solicitor. Mr Casey advised of community pushback regarding the partial demolition of Carrington Hospital's southeast wings and advised that a peer review of the consent and plans had concluded that a road design that retained all of the Main Building and gave a full development footprint could be a simple and economic option. The Trust also spoke to senior Māori leaders and lobbied local and national politicians.
On 1 November 2022, the Rōpū entered a construction contract to carry out the development works. The Gate 1 Road works commenced immediately and were due for completion in July 2023.
On 8 February 2023, the Trust commenced these judicial review proceedings and sought interim orders preventing the demolition of the rear wings of the Main Building.
Interim orders were not required as the parties reached an accommodation. The Rōpū agreed that, pending the outcome of these proceedings, the demolition work would not be carried out.
The Trust then sought to join the Head Contractor, Ockham Group Limited (Ockham) and the expert consenting panel. In October 2022 a partnership between Ockham and the first-named second respondent had applied for further resource consents (RC1 and RC2) to undertake development work south of the land the subject of the Carrington Backbone Consents. The application for RC2 was for a mixed-use housing development comprising 266 residential apartments and six small retail premises on land immediately adjacent to the Gate 1 Road. Access to the development will be from the Gate 1 Road.
In a decision delivered on 17 May 2023 Edwards J declined the Trust's application to join Ockham and the Expert Consulting Panel. 1
Jennifer Valentine, the planner employed by the Council, had recommended the applications for both the land use and subdivision resource consents proceed on a non-notified basis as she considered, having undertaken the s 95A RMA public notification tests:
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• public notification was not mandatory;
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• there was no rule or National Environmental Standard (NES) that specifically precluded notification of the activities and the applications were for activities other than those specified in s 95A(5)(b);
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• public notification was not required as the applications were for activities that were not subject to a rule that required it, and it was considered that the activities would not have adverse effects that were more than minor; and
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• there were no special circumstances requiring public notification.
Similarly, having undertaken the s 95B limited notification tests, Ms Valentine concluded:
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• limited notification was not mandatory;
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• there was no rule or NES that specifically precluded limited notification of the activities, and the applications were for activities other than that specified in s95B(6)(b);
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• limited notification was not required as it was considered that the activities would not result in adversely affected persons; and
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• there were no special circumstances that warranted the applications being limited notified to any other persons.
Ms Grant accepted the recommendations in both cases on 9 June 2022 and directed the applications proceed on a non-notified basis.
In the substantive decision issued on 29 June 2022 in which she granted the land use consent, Ms Grant concluded:
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(a) that the actual and potential effects of the proposal would be acceptable having regard to the assessment under ss 104(1)(a) and (ab) of the RMA;
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(b) the proposal was consistent with relevant statutory documents insofar as they related to the matters over which discretion was restricted: s 104(1)(b). In particular the proposal was consistent with the National Policy Statement on Urban Development 2020, the National Policy Statement on Freshwater 2020, and the relevant objectives and policies of the AUP;
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(c) no other matters were relevant under s 104(1)(c);
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(d) a seven-year lapse period for the consent was appropriate due to the scale of the works and the need to cater for existing activities on the site as well as the timing of future development;
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(e) in the context of the proposals for a discretionary activity land use consent, where the objectives and policies of the relevant statutory documents were prepared having regard to Part 2 of...
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