By: Michelle Mehlhopt
Published: 29/06/2012
The decision appears to impose an additional obligation on Councils to not only identify those persons who are likely to be directly affected by a proposal and give notice to those persons, but to also identify the relevant part of the proposed plan or plan change that they are likely to be directly affected by.
This case also highlights the care that should be taken in providing additional material with a Public Notice in order to summarise the key aspects of the proposed plan or plan change.

Introduction
In this case the Applicant, Creswick Valley Residents Association Inc sought Judicial Review of decisions made by the Wellington City Council concerning the zoning and development of a site at 55-85 Curtis Street, Creswick Valley.

In this article we focus on the Council's notification and approval of a District Plan Change (PC73) to rezone the site from Outer Residential and Open Space B to Business 2.

The Court reviewed in detail the history of the site and the procedures taken in assessing the site for re-zoning.  It also examined the Council's obligations to ratepayers who were likely to be directly affected by the rezoning of the Curtis Street site, and whether sufficient information had been sent by the Council to draw such ratepayers' attention to the proposed change.

Notification of PC73
Proposed PC73 was publicly notified by advertisement in the Dominion Post in September 2009.  The rezoning of the Curtis Street land did not form part of the draft Plan Change that was made available for consultation.  It was inserted into the proposed Plan Change that was notified as a result of feedback on the draft Plan Change.

The Public Notice was sent to every ratepayer in Wellington, together with a leaflet headed "Important Notice for all Residents and Ratepayers."  That leaflet referred to a Summary Guide which set out some further detail.  The PC73 documents, together with the leaflet and the Summary Guide were available at public libraries and on the Council website.  The Council also ran an article in the 'Our Wellington Page' during the period in which submissions on PC73 could be made. 

A submission was lodged in support of the rezoning of the Curtis Street land by Prime Property Group which owned Terrace Heights Holdings Limited, the registered proprietor of the Curtis Street land.  However, no submissions were received opposing the rezoning of the land.

Following a hearing, the Council approved the recommendation from the Hearing Committee to rezone the Curtis Street land to Business 2.

The Applicant's Challenge
In the High Court the Applicant submitted (among other things) that:
The proposal to rezone the land as part of a District Plan change required proper consultation in accordance with the relevant provisions of the RMA.  The consultation material released by the Council not only failed to meet the requirements, but was misleading.
The Council was required to give notice to affected parties of the rezoning but failed to do so, in breach of a promise made to residents in 1999.

Discussion in relation to Notification
The Court considered that from a purely mechanical perspective, the requirements for notification under Clause 5 of the First Schedule to the RMA were met.  However, the Court considered that it was necessary, in determining whether the Council had met its wider administrative law obligations in relation to the promulgation of PC73, to go further than merely considering whether those mechanical requirements of Clause 5 had been met.

The Court considered that there are two respects in which the exercise of an administration discretion is required of the Council under clause 5(1A)(a).  It must decide:
  • What ratepayers are likely to be directly affected by the proposed Plan; and
  • Must also determine what, if any, further information should be sent with the Public Notice to those ratepayers.
As to the information to be sent with the Public Notice, the High Court commended the Council for preparing material which helpfully summarised the changes proposed by PC73.  However, the Court considered that there is an obligation on the Council, having decided to supply additional information, to ensure that the information is not materially misleading.

The Court concluded that the additional information provided in the Summary Guide was materially misleading, so far as the disclosure of the proposed zoning change for the Curtis Street site was concerned.  The Summary Guide stated that there were to be some changes of zoning "to better reflect existing uses", however, the rezoning of the particular land in question was motivated by different considerations, and therefore in the Court's view, the Summary Guide was misleading.
In relation to the exercise of the discretion to decide the persons who are likely to be directly affected by the proposed plan, a copy of the Public Notice was sent to every ratepayer in Wellington.  The covering leaflet said that the review involved the planning rules affecting land zoned Residential and Suburban Centre.  It said:  "as most people live, shop or work in these areas, it is likely the proposed District Plan changes will be of interest to you."  The Court considered that that suggested that the Council had decided that all ratepayers are likely to be directly affected by the proposed Plan Change, because of the changes to the planning rules.

However, the Court stated that that is not the only possible direct effect on ratepayers.  It is possible that one or more ratepayers may also have been directly affected by the proposed Plan Change in some specific way, by a provision other than the planning rules of general application across the zone.  That raised the question for the Court as to whether the general provision of a copy of a notice, on the generic basis of the effect of the planning rules on all ratepayers, will be sufficient compliance with clause 5(1A), or whether the Council must also identify that specific potential effect, and draw that to the attention of the ratepayers affected. 

The Court had found that there was nothing in the explanatory material which drew the proposed change of zoning of the Curtis Street site to the attention of ratepayers likely to be directly affected by that change.  The Court considered that the obligation on the Council to give notice of the proposed plan change to every ratepayer likely to be directly affected includes an obligation to identify the relevant part of the proposed plan.  The Court held that the Council did that, so far as the planning rules were concerned.  In doing so, it discharged its duty under Clause 5(1A)(a) so far as that likely effect was concerned.  However, the Court considered that the Council was required by Clause 5(1A), to consider whether any ratepayers were likely to be directly affected by the rezoning, and to send any such ratepayers information sufficient to draw that proposed change to their attention.

The Court emphasised the importance of the obligation on the Council to identify the ratepayers likely to be affected by a specific change, and to notify them of that change.  The scale and complexity of the proposed plan change does not alter the Council's responsibility in that regard.

The Court held that, to the extent that the Council should, in respect of any ratepayers, have formed the opinion that those ratepayers were likely to be directly affected by the rezoning, the giving of notice to those ratepayers, in their capacity as ratepayers generally, as likely to be affected by the change of planning rules, was not a sufficient compliance with the obligation to give notice to the ratepayers likely to be directly affected by the proposed rezoning of the Curtis Street land.
The Court stated that it is for the Council to determine which ratepayers, in its opinion, are likely to be directly affected by the rezoning.  It was clear from the sequence of events that no specific consideration was given by the Council to the questions of whether any ratepayers were likely to be directly affected by the change of zoning.  It was therefore not possible to examine what the Council's opinion on whether neighbouring ratepayers were likely to be directly affected by the rezoning might have been.  The Court stated that it was not for it to decide what decision the Council should have reached on whether any particular neighbouring ratepayer was likely to be affected by the rezoning, if it had considered that question.  The Court could, however, examine what might have been relevant to that question. 

The Court considered that the exchange of correspondence was relevant to the consideration which the Council should have given to the question of whether the neighbouring ratepayers were directly affected by the rezoning.  The site had generated considerable interest from neighbouring landowners in 1999  when the site was tendered, and sold to a tenderer who proposed to develop a supermarket.  This caused concern to some local residents.  Some residents wrote to the Council expressing their concern and requesting that they be consulted on regulatory permissions that may be sought for activities on the site.  In particular, the correspondence referred to zoning changes and notification procedures.  The Court stated that the Council ought to have anticipated a similar level of interest, and taken that interest into account in deciding whether neighbouring ratepayers were directly affected by the proposed rezoning of the Curtis Street land in PC73.  The fact that the rezoning was proposed as part of a wide review did not alter that obligation.

Conclusions and Outcome
In relation to notification, the Court held the following:
  • The Council was required to consider whether any ratepayers were likely to be directly affected by the rezoning of the Curtis Street site, and to send to any such ratepayers information sufficient to draw that proposed change to their attention.
  • No specific consideration was given by the Council to the question of whether any ratepayers were likely to be directly affected by the change of zoning.
  • The giving of notice to any such ratepayers, in their capacity as ratepayers generally, was not a sufficient compliance with the obligation to give notice to the ratepayers likely to be directly affected by the proposed rezoning of the site.
  • The information supplied to all ratepayers did not meet the Council's obligations to ratepayers likely to be directly affected by the proposed rezoning.
  • The Council ought to have anticipated a level of interest from neighbouring landowners and taken that interest into account in deciding whether neighbouring ratepayers were directly affected by the proposed rezoning of the site.
Those findings led the Court to the conclusion that the Council had not fully complied with its obligations under clause 5(1A) of Schedule 1 of the RMA in respect of the rezoning decision.  Therefore, the Council's decision to rezone the land at 55-85 Curtis Street was set aside.

 
 
Download article in PDF format



 Security code

Wynn Williams Christchurch
Level 5, Wynn Williams House, 47 Hereford Street, Christchurch 8013, New Zealand.
PO Box 4341, DX WX11179, Christchurch 8140.
+64 3 379 7622
+64 3 379 2467
Wynn Williams Auckland
Level 11, AIG Building, 41 Shortland Street, Auckland 1010, New Zealand.
PO Box 2401, Shortland Street, Auckland 1140.
+64 9 300 2600
+64 9 300 2609
Top

This page is best viewed in an up-to-date web browser with stylesheets (CSS) enabled. While you will be able to view the content of this page in your current browser, you will not be able to get the full visual experience. Please consider upgrading your browser software or enabling style sheets (CSS) if you are able to do so. The latest version of Firefox, Safari or Google Chrome will work best if you're after a new browser.