High Court decision on temporary effects in undertaking notification assessment

Environmental / Resource Management

Trilane Industries Ltd v Queenstown Lakes District Council [2020] NZHC 1647

The High Court has recently confirmed that a consent authority cannot ignore temporary effects in undertaking its notification assessment on the grounds those effects will be ameliorated in a relatively short timeframe having regard to the life span of the proposed activity.  This is in circumstances where the Council essentially bundled its assessment of temporary adverse effects with eventual mitigation of those effects, to reach the view that effects on landscape and amenity were minor.  In taking this approach, the Court held that the Council erred in law.

Evidence of landscape effects

In this case, Nature Preservation Trustee Ltd sought to develop a new residential building on the shore of Lake Wanaka.  The Council engaged a landscape architect to undertake a peer review of the proposal.  In her review, she described the magnitude of landscape and visual effects, using the terms “very high, high, moderate-high, moderate, low-moderate, low and very low”.  She explained that “[a]n effect which is determined to be low or very low could be considered to be less than minor in extent”. 

After considering an amended proposal, varied in accordance with her recommendations, she concluded that, whilst the natural character and integrity of the landscape would be adversely affected to a moderate extent, the effects would be adequately mitigated by the retention of the schist outcrops and by remediation of finished cut and fill slopes through re-grassing and revegetation with grey shrubland species.  Within five to seven years of construction, these effects would be low.

The Council expressly relied on and adopted this evidence concluding in its notification determination that the effects in this respect were therefore considered to be no more than minor.  The Council went on to consider, and then grant, the substantive consent under section 104 RMA.

Argument for review

The applicant’s neighbour, Trilane Industries Limited, then brought these judicial review proceedings, arguing that the Council erred in law in that it did not apply the key test for public notification under the RMA, being that the activity will have or is likely to have adverse effects on the environment that are more than minor.  It argued that:

1. Council’s own landscape expert found there would be moderate adverse effects on landscape and visual amenity for a period of several years;
2. As a result, the Council either ignored this evidence or erroneously treated it as a minor effect when determining not to publicly notify the application;
3. If the Council did not treat the words “moderate” and “minor” as synonymous, it nevertheless erred in finding the “moderate” landscape effects were “minor” on the basis that, over time, they would become “low”.

Council’s position

The Council in turn argued that there was no error.  It argued that it was not for the landscape architect to make the statutory notification decision and that the finding of a moderate effect by an expert does not automatically equate to a more than minor effect for the purpose of notification. 

Decision

The Court did not agree.  Under the circumstances, it considered that the Council erred in concluding that this temporary moderate adverse effect on landscape character and visual amenity was, for notification purposes, minor.  It stated:

1. A consent authority cannot average out effects over time to say that a temporary moderate adverse effect which will, in due course, reduce to a low or extremely low effect is therefore a minor or less than minor effect; and
2. While that approach may be appropriate in deciding whether to grant the resource consent, it is not appropriate when making a notification decision, which is intended to allow the public a right of audience if any adverse effects, whether temporary or permanent, will be more than minor.

While each adverse effect, whether temporary or permanent, had to be assessed, they may be discounted if they fall within the permitted baseline or if proposed mitigation would reduce the extent of effect to minor from the outset.  But this was not the case in this scenario where there was an identified delay before the mitigation would be effective. 

The Court declared the notification decision and the resource consent invalid and has directed reconsideration of the public notification decision.

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