Summary
A resource consent for an intensive social housing development was quashed by the court for failing to notify an affected person.
Background
The Resource Management Act 1991 (“Act”) categorises activities that determine whether a resource consent is required, and the level of scrutiny that consent applications must be given. Local authorities are empowered to create plans and rules which control land use in its district using these statutory categories.
Where a land user applies for resource consent, local authorities must notify ‘affected persons’ of the consent application. An affected person is someone who stands to be affected by the activity in a way that is minor or more than minor. Failure to notify affected persons can render a resulting consent invalid.
The Auckland Unitary Plan is the prevailing district plan in Auckland. The plan sets out zoning rules for various areas of Auckland, as well as creating ‘overlays’. Overlays are areas within a district that change or add to zoning rules that apply to that area.
In May 2022, Kainga Ora applied to Auckland Council for a resource consent for an intensive social housing project in the Manukau CBD (“Development”). The zoning rules set out in the plan classified intensive housing as a permitted activity, but the medium aircraft noise area overlay (“Overlay”) that applied to the Development classified intensive residential development as a discretionary activity requiring a resource consent.
The Overlay existed to protect Auckland Airport from ‘reverse sensitivity’ effects. Reverse sensitivity here meant the risk of increased airport noise complaints from residents, which could potentially disrupt airport operations.
The Council considered that Auckland International Airport Limited (“AIAL”) was not an affected person. They concluded that any reverse sensitivity effects from the Development were likely to be less than minor, on the basis that the development complied with acoustic standards within the Overlay. Accordingly, they decided not to notify AIAL of the consent application (“Notification Decision”) and granted the consent soon after.
When AIAL discovered that the consent had been granted, they challenged the Notification Decision and the consent via judicial review.
The case
The Court held that the Notification Decision was unlawful for three inter-related reasons.
Misinterpretation of the Overlay
The Council made the Notification Decision on the basis that if an application complied with acoustic standards in the Overlay, its reverse sensitivity effects would be less than minor and it would not require notification. The Council reasoned that as the underlying zoning rules were permissive of intensive housing, an acoustic assessment was all that was needed. Additionally, they emphasised the lack of explicit density controls in the Overlay.
The Court rejected the Council’s interpretation. The clear intent of the Overlay was that it superseded the underlying zoning rules. The policy behind the Overlay was to protect airports from reverse sensitivity effects, regardless of the zone in which those effects occurred. The terms of the Overlay specifically contemplated that new residential activities be avoided unless their effects could be mitigated through acoustic design standards and controls on density. High density developments increased the pool of potential noise complainants, a factor highly relevant to reverse sensitivity effects.
By relying on compliance with acoustic standards as the sole criterion, the Council had effectively treated the Development as a permitted activity under the plan, despite the Overlay explicitly saying a resource consent was required.
Failure to undertake adequate analysis of reverse sensitivity effects
The Court held that the Council had also erred in failing to undertake an assessment of all relevant effects on AIAL before making the Notification Decision. This requirement to assess effects was implied from the legislation.
The Council argued that their assessment of acoustic effects, in reliance on an engineer’s report, was sufficient to satisfy the requirement. The Court disagreed, holding that a broad assessment of all relevant noise effects or how those might have led to reverse sensitivity effects was required. This would have required a consideration of the cumulative noise effect on residents, including that aircraft noise would recur multiple times per hour, and that people in the outdoors would have to pause conversations or shout regularly.
Reliance on inadequate information
Finally, the Court held that the Council had erred in making the Notification Decision on the basis of inadequate information.
Examples of inadequate information on which the Council based their decision included a reliance on unrepresentative flight data collected during Covid-19 restrictions, as well as information about forecasted flight frequency. Adequate information on these points was necessary to accurately determine the level of disruption caused by aircraft noise and thereby the risk of noise complaints.
Result
The errors identified by the Court rendered the Notification Decision unlawful. Because the Council had not complied with the notification requirements of the Act, the resource consent issued for the Development was invalid. Should Kainga Ora wish to progress the development, it will need to re-apply for the consent on a notified basis. As a notified party, AIAL will have rights under the Act in respect of any consent issued, including the right to appeal the consent to the Environment Court.
The case is a prime example of the stringent approach to notification that has traditionally been applied by the courts. The decision suggests that where there is any room for doubt, consenting authorities should notify. The result of failure to do so here has been a delay of two years and counting for a major social housing project.
For future information on this case or similar issues please contact Brigitte Morten, Director
