Relevant Plan Provisions Must Prevail in Determining Whether Adverse Effects Arise

Environmental / Resource Management

In the recent decision of Liu v Auckland Council [2019] NZEnvC 33 the Environment Court cautioned that personal views as to what constitutes an adverse effect must not outweigh the application of relevant planning provisions. The decision also provides helpful commentary regarding the nature of the abatement notice appeal regime under the Resource Management Act 1991 (RMA).

Background

The decision concerned an appeal by Donghua Liu against an abatement notice. The abatement notice had been cancelled before the appeal was heard. Mr Liu continued the appeal on the basis that the abatement notice was issued illegally and the decision to issue it should be subject to judicial scrutiny and quashed. The abatement notice was issued pursuant to s 322(1)(b) RMA as being necessary to avoid, remedy or mitigate an adverse effect on the environment. 

The abatement notice sought the removal of an asphalt shingled roof at 110 St Andrews Rd, Epsom and its reinstatement to a corrugated metal roofing. The notice contended that the change in roof material constituted an adverse effect on the special character of the area. The area in question was subject to a special character overlay under the Auckland Unitary Plan (Operative in Part). The relevant provisions sought to maintain and enhance the special character of the area via controls on the demolition or removal of pre-1940 buildings and managing streetscape considerations such as lot sizes, setbacks, and facades. The provisions were more ambivalent in respect of the control of roof materials.

Legal findings

The Court’s decision made the following legal findings in respect of the appeal:

1. The subject matter of an appeal against an abatement notice under s 325 RMA is the content of the notice rather than the decision to issue that notice. The decision to issue is a necessary precursor to the notice and is the subject of requirements in s 322 RMA which reflect the importance of ensuring that the serious consequences of an abatement notice are properly considered before it is served. Once served, the focus of attention under the RMA is on the notice and its terms rather than on the process prior to service including the decision to serve it.

2. Regarding whether the appeal was now moot due to the cancellation of the abatement notice, the Court considered the recent decision of Baker v Hodder [2018] NZSC 78 where the Supreme Court referred to reasons for restraint in addressing moot questions. In that case the Supreme Court stated that a decision to hear a moot appeal should be made only in exceptional circumstances, whether of the particular case (such as to address serious procedural unfairness) or the broader public interest (such as an important legal point). The Court in the present case concluded that while raising issues that could be of significance for this area of law, it was not one where matters of general public importance were so clearly presented as to justify the exercise of discretion to determine the question in a moot appeal.

 A note of caution

 Given the Court’s conclusion as to mootness the Court did not address the evidence on appeal in great detail. However, the Court stated that the facts of the case merited judicial comment. The Court questioned the degree to which the advisors to the council officer had based their assessment on the provisions of the Auckland Unitary Plan and the degree to which they treated the discretionary scope of their assessment as allowing them to import their own views into the decision-making process regarding the abatement notice. To the extent that their own views outweighed the application of various plan provisions it was arguable that the process was flawed and may have vitiated the foundation for serving an abatement notice based on adverse effects on the environment.

We consider that this cautionary note is applicable beyond the immediate facts of this case to other situations where a council is called on to assess whether effects on the environment are adverse. The relevant provisions of planning documents are the key determinant of this question, rather than the subjective judgment of functionaries.

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