Learning Summary: Wallace v Auckland Council
The High Court decision Wallace v Auckland Council [2021] NZHC 3095 - widely known as the “Ventnor Road” decision - has created new implications for those wanting to develop sites in the Residential - Mixed Housing Suburban, Residential - Mixed Housing Urban, and Residential - Terrace Housing and Apartment Buildings Zones in Auckland.
The main effect of the decision is that when undertaking an assessment of the building intensity of a proposed activity on neighbourhood character and amenity, the density of buildings and the effects of activities in those buildings, including the number of residents in the buildings, must be considered. This includes on both existing and planned character.
The High Court decision has been appealed to the Court of Appeal, however is still current law at this time.
This learning summary is written to give an overview of the proposal, the Council process, the alleged errors of law, key learnings, and tips for those preparing resource consent applications for residential development in the above zones.
1. 44 Ventnor Road Application summary
Application for land use consent under s9(3) and subdivision consent under s11
Mixed Housing Suburban Zone
13 x 2-storey dwellings on 1,685m² – density of 130m² per dwelling
Three terrace blocks, one car park/ dwelling
All houses were two levels, 9 x 3 bedrooms, and 4 x 2 bedrooms
Complies with core standards height and yards but utilises the Alternative Height in Relation to Boundary (AHIRB)
Complies with most non-core standards except:
minor infringements of outlook (dwelling 7 and 8)
Outdoor living space (dwelling 1)
Also required resource consent for:
E12 Earthworks (693m³)
E27 – reverse manoeuvring (for 2 car parks and waste truck)
2. Application process
Comprehensive AEE prepared by independent planning consultant
Council specialists reviewed numerous matters including engineering, traffic, urban design, arboriculture, soil contamination, and waste management
Detailed comment was provided on the proposal from the Orakei Local Board, seeking public notification
Letters of concern were received by immediate neighbours, seeking notification, or otherwise advising that a judicial review of a non-notified decision would be sought
The council processing planner recommended non-notified approval
Decision on application was made by an independent duty commissioner, who agreed with the planner’s recommendation, with some changes.
3. What is a judicial review?
Review of the statutory process, and not a review of the merits of a proposal. For example, the court can consider:
Was there adequate information to make the decision?
Where all relevant matters considered?
Were irrelevant matters considered?
Was the decision one that a reasonable decision maker would make? Or was it so unreasonable that no one could have made the decision?
The Hight Court has the discretion to refuse to grant relief even if procedural errors are found. For example, where errors made are found to be inconsequential and/or development that has commenced in reliance on a consent prior to seeking judicial review.
Impression of 44 Ventnor Road Development
4. Alleged Errors of Law
The Council failed to identify the neighbourhood, the neighbourhood character and residential amenity when assessing the effects of the development and had inadequate information upon which to assess those effects (first error of law);
The Council failed to consider the adverse effects of the intensity of development on the neighbourhood character, residential amenity, safety and the surrounding residential area (second error of law);
The Council failed to identify affected persons (third error of law); and
The Council’s decision was unreasonable because of the inaccuracy and inadequacy of information on adverse traffic effects (fifth error of law). Statutory and planning context
[77] The alleged errors relate to the interpretation and application of:
Sections 95B and 95E of the RMA, which concern the limited notification of applications for resource consents and the related question of who is an affected person for the purposes of limited notification;
(b) Sections 104(1) and (2) and 104C(1) of the RMA, which govern the consideration of applications for resource consents for restricted discretionary activities; and
Chapter H4 of the AUP, which concerns the MHS Zone: in particular: H4.1 Zone description; H4.2 Objectives; H4.3 Policies; H4.4 Activity table; H4.5 Notification; H4.6 Standards; and H4.8 Assessment criteria for restricted discretionary activities.
The Court found that the Council erred on second and third alleged errors of law, but not the first and fifth.
The site and locality description within reporting and Architectural Statement showed that the neighbourhood character and amenity was identified, and there was no other evidence to suggest that adverse traffic effects have not been accurately assessed.
5. Key Learnings
The existing environment needs to first be described in sufficient detail.
It is necessary to establish the ‘neighbourhood character’ but not the actual ‘neighbourhood’ in terms of defined geographical area (see [148]).
The Court found that the Council adequately described the existing character.
An assessment is to be made against the receiving environment with regard to ‘built intensity’:
The neighbourhood character and amenity of the ‘receiving environment’ includes existing legally established and potential future permitted activities, but does not include activities that require resource consent (i.e. four or more dwelling and the associated built form).
[131] the Council was entitled to take into account the effects of the development on the environment as it exists today and as it may be modified by activities that are permitted as of right under the AUP and under any consents already granted, but was not entitled to take into account the environment as it may be modified by future resource consents. However, for the reasons already given, that assessment must be limited to the matters on which the Council restricted its discretion.
[138] However, he [the Planner] then stated that the MHS Zone provides for development over three dwellings, provided the development meets the objectives, policies and assessment criteria for the zone and activity and obtains consent. He included that possible development in the environment against which effects must be assessed. That is wrong as a matter of law, for the reasons discussed above. It also misunderstands why resource consent is required.
[141] the error is compounded by the Planner’s further analysis of adverse effects. The Planner recognised that the proposed development would be a notable departure from the existing environment but then said that must be viewed not only against what is permitted but also against the scale of development anticipated in the MHS Zone as reflected in the zone’s objectives, policies and development standards.
[149] I [the Court] consider that what is required by H4.8.1(2)(a) is an assessment of the building intensity, scale, location, form and appearance of a proposed activity on such neighbourhood character and residential amenity as are found to exist in the location of the activity for which consent is required. To undertake that assessment, what is required is an adequate description of the area of the proposed activity, including any neighbourhood character and residential amenity that may be in that area, in sufficient detail to enable an assessment to be made of the effects on those matters caused by the building intensity, scale, location, form and appearance of the proposed development.
The Court found that the objectives and policies were a relevant consideration for s104(b) but not for s95
[142] It is, of course, entirely appropriate for the Council to take into account the AUP’s objectives and policies under s 104(1)(b) and, indeed the policies and objectives of the NPS-UD and the RPS, when deciding whether or not to grant consent. However, those considerations are separate from the assessment of the effects on the environment required under s 104(1)(a) and from the assessment of effects on persons required under s 95E.
The notification assessment is therefore not limited to the ‘planned character’ as referred to in the Policies.
The Court found that “building intensity” as used in H4.8.1(2) was intended to include the density of buildings (number of buildings) and the effects of the activities in those buildings (use of the buildings), including the numbers of residents in those buildings.
The key reason for this is because ‘scale, bulk, form and appearance’ was listed as a separate point within the matters of discretion.
Compliance with the standards is relevant but not necessarily sufficient.
[184] The Planner did not consider the effects of the number of dwellings, more than four times the number permitted as of right in the MHS Zone, nor the effects of the activities of those occupying the buildings, nor the extent to which those effects were addressed by the assessment criteria.
Auckland Council and the resource consent applicant have appealed the Wallace decision, noting its approach differs from previous case law – e.g., Ennor, Tasti, Discount Brands. However until such time that the appeal has been resolved, it is to be considered as current law and binding on the council and decision-makers.
6. Application assessment recommendations
If the existing surrounding area is changing/ has evidence of recent intensification, comment on this as part of ‘receiving environment’ assessment. Carefully consider what the ‘neighbourhood’ is for the site – it is unlikely to be just the street, but is equally unlikely to be an entire suburb. Use the LINZ Building Consent layer on Auckland Council GeoMaps to identity where new consents may have been issued, but not yet commenced. Tools like Apple Maps (the 3D feature) and Google Maps are also helpful, but nothing will beat a site / area visit to see what is happening on the ground.
Comment on the change from the number of buildings and dwellings on the site from what currently exists, and perhaps how many bedroom/ how large each dwelling is. The less bedrooms/ smaller the dwellings, the lesser the number of persons that can occupy the dwelling.
Establish the ‘permitted activities’ that could occur if it could be useful to the intensity assessments, where it is not fanciful. For example, three building ‘blocks’ could be comparable to three buildings containing permitted uses.
The matters of discretion in the THAB zone are the same as the MHS and MHU. There is also no permitted baseline that can be relied upon for THAB (however there will be from 1 August based on MDRS changes required to be notified). The focus for THAB would need to be more on the existing character and how it is changing, high quality design and mitigation measures used, and characteristics of the most-affected neighbouring properties (i.e., where their windows and living areas are and their ‘perception’ of intensity from where they are located).
Emphasis on the nature of the effects from movement of people, vehicles, noise being ‘residential’ in nature and arguably, these effects from dwellings could potentially be less than those generated by a permitted childcare centre or boarding house.
Comment on whether the additional ‘effect’ from increased density (movement of people, noise, traffic) results in an adverse effects on the environment or on persons. Some points to consider (as suggestions, non-exhaustive):
The AUP does not control the number of people/ bedrooms for one dwelling, or the number of car parks associated with each dwelling. Consider what could be a non-fanciful scenario.
Seek comment from a traffic engineer (if you have one for the project) as to the estimated increase in trip numbers pre- and post-development. This can be compared to what could occur as of right on the site as a permitted activity (as long as that comparison is not fanciful). As a planner, you should then consider what the nature or character of the surrounding traffic network is like and whether there would be discernible difference in this character from the proposed development (i.e., a currently quiet residential cul-de-sac would be more affected than a relatively busy local or arterial road in terms of ‘character feel’).
Comment that as the outdoor living spaces outside for smaller dwellings are usually also smaller, and the houses are closer together, this could in fact increase the awareness of neighbours, and there would also be less noise generated as residents would want privacy themselves.
Consider effects from the internal layout including design of parking and access. This can include such matters as waste collection and where bins are stored, the noise that cars make when driving across driveway strip drains and the edging in concrete, the reversing sound of trucks if there is private waste collection proposed, idling engines etc.
Remember that the onus is on the applicant to provide the assessment of what constitutes the ‘neighbourhood’. The council planner will then reference this assessment in their reporting, where they agree. Avoid bland descriptions of the wider suburb or zone, or relying solely on a desktop study. Visit the site and surrounding area to enable an accurate description based on what is ‘on the ground’ or underway at the time the AEE is being prepared.
7. Summary
The Ventnor Road decision has had wide-ranging implications for the processing of resource consents in the varying residential zones of Auckland. It is imperative that applications are well prepared with solid, evidence-based assessments regarding neighbourhood character and development intensity. It’s also unlikely that Auckland Council will accept ‘fanciful’ permitted activity comparisons for a proposal, made up a mixture of activities that are unlikely to ever be found together on one site.
Further guidance will be available once the Court of Appeal decision is made, and CoLab will look to provide further advice at that time.
