Westfield (New Zealand) Limited v North Shore City Council [2005] NZSC 17

Notification; judicial review; appeal; adequacy of information; persons likely to be affected

1. In this case, the Council considered that Discount Brands Limited's application for consent to construct a substantial outlet shopping centre did not require notification. Consent was granted. The first and second respondents sought a judicial review of that decision in the High Court. The High Court set aside the non-notification decision and the decision to grant the consents (CIV-2003-404-5292) on the basis that the Council's commissioners had failed to sufficiently inform themselves of the potential adverse effects on other shopping centres before making the decision not to notify. The applicant appealed.

2. The Court of Appeal (CA30/04, 14 June 2004, Hammond J, William Young J, O'Regan J) reversed the High Court's decision. The Court was satisfied that the commissioners' decision not to notify was a decision that a reasonable consent authority could reach on the basis of the information before it. The decision that the effects would not be more than minor was one a reasonable consent authority could have reached on the basis of the information before them and, in particular, having regard to their knowledge of the local environment. The appeal was allowed.

3. The Supreme Court reversed the Court of Appeal's decision. The Court noted that a notification decision was a significant decision with natural justice implications for participation in the consent and appeal process, so a consent authority needs to be cautious. Under the RMA prior to the 2003 amendments, the decision on sufficiency of information was a preliminary decision to be made prior to the decision on notification.

4. On judicial review, the Court will scrutinise the material that was before the consent authority at the time of the notification decision in order to determine whether there was an adequate basis for the decision. Contrary to the Court of Appeal's finding, a consent authority needed more than just "some material of probative value" in order properly to be satisfied that effects would be minor. The consent authority must have adequate information to enable it (a) to understand the nature and scope of the proposed activity as it relates to the district plan; (b) to assess the magnitude of any adverse effect on the environment; and (c) to identify the persons who may be more directly affected. The information is not required to be all-embracing, but it must be sufficiently comprehensive to enable the consent authority to consider these matters on an informed basis. The Council in this case did not have sufficient information, so its decision not to notify the application was invalid.

5. The Supreme Court was unanimous that Northcote Mainstreet was a "person" for the purposes of the RMA, but expressed differing views on whether Northcote Mainstreet Inc was capable of being a person adversely affected. The majority concluded that a body with no direct property rights or interests was incapable of either experiencing amenities or suffering from adverse effects upon them. Tipping J considered that an indirect property interest (ie if one of the body's members had a property interest) would be sufficient. Elias CJ considered that a person could be affected even if the person had no property interest at all.