Murray v Whakatane District Council [1999] 3 NZLR 276 (HC, 2 July 1997); [1999] 3 NZLR 325 (CA, 29 March 1999)

Notification; standing, special circumstances

1. This case involved a subdivision of a coastal area for residential use. The Council regarded it as a controlled activity and on that basis the consent was granted non-notified. In fact the transitional provisions meant that the Council had the power to decline the consent even though it was a controlled activity. This was a determining factor in allowing the application for review.

2. The policy of the RMA is that decisions about resources are best made by allowing public participation in a process where applications are publicly contested. Section 94 must be assessed in light of this general policy. The wide scope for general public participation in consent processes is subject to the significant limitation provided by section 94.

3. Section 94(5) is an additional safeguard, requiring notification where special circumstances exist. Special circumstances are circumstances which are unusual or exceptional, but may be less than extraordinary or unique. When assessing whether a matter needs to be notified, one should consider matters relevant to the merits of the application. The purpose of section 94(5) is to consider matters beyond the plan provisions. It was held that the fact that people have indicated a desire to make submissions on a proposal does not necessarily amount to special circumstances.

4. The Court of Appeal upheld Justice Elias 's decision.