Aley v North Shore City Council [1999] 1 NZLR 365; [1998] NZRMA 382 (HC, 18 May 1998)

Notification; effects on 'existing environment '; baseline

1. This case involved a proposal for a five-level building. The proposal included discretionary and controlled status activities. The AEE only looked at effects arising from the non-compliance, rather than assessing the proposal as a whole.

2. It was held that the building height and bulk requirements in the plan, with which the building complied, should be used as a guide rather than being determinative in respect of notification.

3. Referring to Locke, the Court held that a hybrid classification is not an option. The minor nature of a non-compliance is relevant, but not determinative.

4. Salmon J held that 'environment ' in the context of 'effects on the environment ' means the existing environment, not what can be built as a right. However, it is noted that the example given in this case refers to the situation where a discretionary activity may not be able to exercise the full rights under the plan, rather than using the example of a permitted activity.

5. The activity for which consent is sought is the whole building, not just the aspects that made it discretionary.

6. The limited considerations available under section 94 (the tests) were held to be a reason not to further limit it by using permitted activities as the baseline. Permitted activities come into play at the section 104 and section 105 stage.

7. Salmon J commented that while 'minor ' implies a comparison, there is nothing in the Act to say that a proposal should be compared with permitted uses.