This article, written by Michael Garbett, a partner at
Anderson Lloyd, follows on from an earlier article entitled
"Restricted Discretionary Activities – Are They
Really?", which discussed different approaches adopted in
the Environment Court towards assessing resource consents for
restricted discretionary activities. The High Court has since
issued its decision in Auckland City Council v The John Woolley
Trust (CIV 2004-404-3787). This article analysis that decision
and its practical implications.
This High Court decision considered whether resource consent
should be granted for the removal of a Himalayan cedar tree.
The resource consent being sought was for a restricted
discretionary activity, which the Auckland City Council
refused. The Council considered the factors in the Plan all
related to protection of significant trees. The Plan did not
cover matters which supported removing the tree, such as the
health and well -being of the occupants.
High Court Decision
The High Court determined that the matters contained in Part
2, Resource Management Act 1991, are relevant to considering a
resource consent for a restricted discretionary activity,
provided they are not relied on to decline consent or impose
conditions. The Court stated:
...any application for consent to a restricted
discretionary activity is subject to Part 2 but with the
important proviso, evident from section 77B(3)(c), that
matters under Part 2 may not be relied upon to decline
consent for a restricted discretionary activity. Similarly,
Part 2 matters may not be relied upon to impose conditions on
a grant beyond those relevant to the matters upon which the
Consent Authority has restricted its discretion in the
This decision is significant because an applicant for a
resource consent for a restricted discretionary activity can
argue there are relevant matters in Part 2, which justify
consent being granted, despite those matters not being listed
as relevant in the District Plan.
Importantly opponents of the application cannot point to
matters under Part 2 to justify the consent being refused or
This creates a subtle distinction. It follows that if an
applicant is able to call evidence that its application
contributes to their health and safety, then opponents are
equally entitled to call evidence in rebuttal that those claims
are either overstated or outweighed by other considerations
under Part 2. If this is the case, then opponents can call
evidence and argue on any matter relevant under Part 2 of the
Act whether or not the issue is listed as relevant in the
This distinction will lead to more cases arguing whether
evidence being called by an opponent of a resource consent is
simply rebutting what the applicant alleges, or is attempting
to have the consent refused or conditions imposed based on
matters under Part 2. For the present, it appears that the
first approach is acceptable and the second is ruled out by the
decision of the High Court.
The High Court concluded that this interpretation is
consistent with what Parliament intended. These subtle
distinctions further complicate the resource management process
rather than simplify it creating another complexity in an
already immensely complex regime. If this is how Parliament
intended the Act to operate, then Parliament need to re-visit
this part of the legislation.
The content of this article is intended to provide a
general guide to the subject matter. Specialist advice should
be sought about your specific circumstances.
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