Barrett v Wellington City Council [2000] NZRMA 481 (HC, 21 June 2000)

Notification; special circumstances; permitted baseline

1. This proposal was for a retirement complex where the earthworks and second access way were restricted discretionary and the building turned out to be non-complying in respect of two units, which breached the sunlight access plane.

2. It was reiterated that consideration of special circumstances is not a mandatory consideration and therefore cannot be the basis for judicial review.

3. Chisholm J confirmed that the Bayley test applies to non-complying activities as there is no good reason for it not to. It was used as such in the Lowe decision.

4. In Bayley the 'permitted baseline test ' was formulated for section 94(2)(a) but Chisholm J held that it should be used for (b) as well (relying to some extent on the reasoning put forward in an article by Nolan and Williams).

5. The 'as of right ' test requires an assessment of 'credible ' developments which are permitted activities on the land in question.

6. Where one feature of the proposal is non-complying, then the whole development is non-complying. As there is no restriction on discretion for non-complying activities, all factors may be considered. The permitted baseline used in this case was the proposed building without the non-complying units.

7. In this case, the Court noted that incorrectly applying the sunlight access plane might not translate into a significant effect, but combined with other errors meant the Council could not possibly have been satisfied it was entitled to proceed on a non-notified basis. Of importance was the Council's failure to have regard to its own objectives and policies, which stated that the rules set minimum standards for all dwelling-houses.