Ipsofactoj.com: International Cases [2005] Part 12 Case 8 [NZCA]


COURT OF APPEAL, NEW ZEALAND

Coram

Discount Brands Ltd

- vs -

Northcote Mainstreet Inc

HAMMOND J

O'REGAN J

WILLIAM YOUNG J

14 JUNE 2004


Judgment

Hammond J

(delivering the judgment of the court)

INTRODUCTION

  1. In this appeal we are again asked to address the vexed question of when a local authority can appropriately dispense with public notification of a consent application under the Resource Management Act 1991. We use the term "vexed" advisedly. There have been a number of applications for judicial review in relation to this issue in the High Court, and it is apparently one which has given rise to concern at the Bar, in local authorities, and in Parliament.

  2. In this instance, the appellant, Discount Brands, wished to proceed with the construction of a substantial outlet shopping centre on Aucklandís North Shore. It submitted certain information to the North Shore City Council, which, in the result, did not require notification of the resource consent application. This notwithstanding that certain commercial interests on the North Shore had indicated a firm desire to be parties to the planning decisions, and indeed had gone so far as to indicate that if non-notification was permitted, they would seek judicial review of that decision.

  3. The resource consent application was subsequently approved. Those commercial interests (the first and second respondents) proceeded to make a judicial review application to the High Court. That application was determined by Randerson J in a judgment delivered on 5 April 2004 (HC AK CIV-2003-404-5292). The Judge granted review, set aside the Councilís 25 July 2003 non-notification decision, and (consequentially) the 21 August 2003 grant of the resource consent application.

  4. Discount Brands now appeals to this Court against that judgment. The Council supports Discount Brandsí appeal. The first and second respondents cross appeal on two points.

    • First, a finding that Northcote Mainstreet Incorporated was not capable of being an "affected person" under certain provisions of the Resource Management Act; and

    • secondly, against a determination that a 35 percent discount condition to be imposed on all tenants at the shopping centre was enforceable.

  5. We have come to the view that Randerson Jís decision should be reversed. The practical outcome will be that the non-notification decision of the City Council (and consequentially, the grant of resource consent) will be reinstated. The burden of this judgment is therefore to explain how we have come to this view.

    BACKGROUND

  6. The resource consent sought from the Council was for the operation of a discount outlet shopping centre at Akoranga Drive, Northcote, offering some 56 tenancies with a total gross useable floor area of just over 4,000m2.

  7. The core proposal was for this centre to be an outlet for the sale of seconds, surplus and out of season goods. The intention was that the centre would sell a range of personal and household goods including, books, footwear, clothing, jewellery and music at a minimum of 35 percent below their regular retail price. The development was to be within an existing building that had been derelict for several years.

  8. Various consents were required for the proposed centre. The reasons a consent was required were:

    1. the site has frontage to two arterial roads;

    2. the activity would be a high traffic generating enterprise;

    3. insufficient loading spaces were provided for the gross floor area;

    4. the landscape yard abutting the reserve was less than required, and the overall landscaping was below the level required by the Plan;

    5. retailing activities would exceed 2,500m2 and were to be located within the Business 9 Zone.

  9. As it transpired, the issues relating to traffic, loading bays and landscaping were finite and measurable. They were dealt with to the satisfaction of the Commissioners, and are not the subject of any continuing challenge.

  10. The issues relating to the discretionary consent with respect to the retailing activities were, as Mr. Galbraith QC said, "different in character." Not only are they not finite or measurable in the same way, but trade competition of itself is not a relevant consideration under the Resource Management Act. As a general proposition, the adverse trade effects of a proposed retail development must be such as to seriously threaten the viability of existing retail centres, with ongoing consequential effects for the community served by those centres, before they can properly ground an objection to the grant of a resource consent. The consequential effects might take the form of an effect on public amenities or roading. Those might, for instance be rendered redundant, or diminished in their community benefit, because the viability of an existing retail centre might be undermined.

  11. Sections 93 and 94 of the Resource Management Act have been extensively amended by the Resource Management Amendment Act 2003. As matters stood at the relevant times in relation to this proceeding, s94(2) of the Resource Management Act 1991, which lies at the heart of this case, provided that an application for a resource consent need not be notified in accordance with the Act if the application related to a discretionary activity or a non-complying activity and:

    1. The consent authority is satisfied that the adverse effect on the environment of the activity for which consent is sought will be minor; and

    2. Written approval has been obtained from every person whom the consent authority is satisfied may be adversely affected by the granting of the resource consent unless the authority considers it is unreasonable in the circumstances to require the obtaining of every such approval.

  12. Discount Brands appreciated from the outset that there was likely to be real concern on the part of other shopping centres on the North Shore, which could lead to time consuming, and expensive, hearings if the resource consent application had to be publicly notified. The company therefore procured, and provided to the Council, a report which is described as a "Retail Assessment" from Hames Sharley. That firm engages in applied economic and social research. The report concluded that the offering of discounted goods at the outlet site would be complementary to, rather than competitive with, existing retail centres on the North Shore. It suggested there would be no material effect on other retail centres.

  13. Discount Brandsí planning and resource management consultants, A R Watson and Associates, then forwarded to the Council a covering letter, along with the relevant information required by the Act, an Assessment of Effects upon the Environment report, and the Hames Sharley report addressing the retail and the traffic and parking situations. The consultants suggested that this was an application which, in accordance with s93(2) of the Resource Management Act, could proceed without notification.

  14. The information so provided was then reviewed by Rebecca Welch, who is an officer of the Council with the designation of "Planner" in the "Major Projects team" at the Councilís regulatory unit. Ms Welch took the usual sort of steps, including obtaining further information from Discount Brands, and consulting with other Council officers. She then prepared her own report, which suggested that "the most serious social or economic potential effect of the proposed discount outlet shopping centre is its impact on existing and proposed centres in North Shore City." Ms Welch was critical of the information provided by Discount Brands, not so much in a conclusory sense, but rather because she considered that the information then before the Council was inadequate to reach a conclusion. For instance, she said that the assessment of market share that the shopping centre would require to be commercially viable "is not an assessment of the market share that the discount shopping centre would necessarily capture. No assessment of this kind has been undertaken." Her ultimate recommendation was, therefore, that "there is insufficient information to determine the social and economic impacts of the proposed discount shopping centre." The matter then proceeded to the Commissioners for a determination on the notification issue.

  15. In the result, at the time the question of whether notification should be required or not came before the Councilís Regulatory and Hearings Committee for determination, there was a substantial amount of material, as follows:

    1. the application for consent;

    2. the Hames Sharley report, which went to the social and economic effects, and the impact that the proposal would have on other North Shore centres;

    3. an assessment of environmental effects by A R Watson and Associates, also referring to social and economic effects;

    4. Ms Welchís report going to traffic effects, social and economic effects, adversely affected parties, and the special circumstances of this application;

    5. a memorandum from Mr. Patience (a senior environmental policy advisor with the North Shore City Council, who had worked with Ms Welch on the relevant issues) also addressing social and economic effects;

    6. brief written statements by Ms Grierson (essentially the promoter of Discount Brandsí projects) and Mr. Male (a businessman with North Shore retail interests who supported the proposal) going, inter alia, to the relevant markets, and whether they overlapped;

    7. notes of previous discussions between Ms Griersonís interests and the Committee on 9 July 2003 (at a preliminary meeting on the issue of notification);

    8. a supplementary report by Ms Welch, along with an independent traffic report;

    9. a letter from Messrs Russell McVeagh (for the now respondents) urging that the proposal be notified;

    10. written submissions from Mr. M L S Cooper QC (for Discount Brands) traversing the circumstances of the application, and certain legal authorities relating to non-notification of resource consent applications, and urging "that this is an application which the Council can confidently deal with on a non-notified basis."

  16. On 25 July 2003 (at what was its second meeting on this subject) the Commissioners decided that the resource consent application need not be publicly notified.

  17. For completeness, we add here that on 20 August 2003 Ms Welch circulated a report under s104 and s105 of the Resource Management Act 1991 concluding that the application should be declined, and consent refused. Notwithstanding that report, consent was granted. The substantive hearing was held on 21 August 2003. The relevant record of the Hearings Commissioners was entered in evidence. It records that the adverse effects on the environment will be less than minor because, inter alia:

    The applicant has provided economic and retail information that demonstrated that the proposal will not generate social or economic effects on existing or proposed retail centres as the unique nature of the discount outlet centre will offer goods in a different economic market than those presently available. For this reason the discount outlet shopping centre will complement rather than undermine other centres (having no regard to trade competition). Furthermore as the discount outlet shopping centre will have a large primary catchment any potential effect on existing or proposed centres would be dispersed throughout the catchment to a level where it would be less than minor. The character, heritage and amenity of existing centres will be maintained as well as their accessibility and the social function they fulfil.

  18. The first and second respondents then commenced the proceedings now before us, seeking a declaration that "the non-notification decision was invalid".

    THE CASE IN THE HIGH COURT

  19. As to the law, Randerson J found the analysis of Heath J in Videbeck v Auckland City Council [2002] 3 NZLR 842 (HC) to be a "helpful guide" and appears to have expressly relied upon the reasoning in that judgment. Heath J there said, at para [34]:

    Given the scheme and purpose of Part VI of the Act and the way in which s 94(2) of the Act has been interpreted by the Court of Appeal, I am of the view that the following approach should be taken by this Court in determining whether nonĖnotification decisions can, properly, be characterised as "unreasonable" in a Wednesbury sense:

    (a)

    First, it is necessary to consider whether there was sufficient information available to the consent authority for it to determine, in accordance with the test set out in Bayley (see para [23] above), whether the threshold requirements of s 94(2) have been met. Only if those threshold requirements are met will the consent authority have a discretion whether or not to require the application to be notified.

    (b)

    Secondly, in determining whether the information was sufficient to meet the threshold requirements of s 94(2), the Court must give appropriate weight to the experience and expertise of the relevant decision maker having regard to the information placed before him or her. But as the issue is one of sufficiency of information, this Court will, no doubt, interfere more readily with a decision of this type than (for example) one made in a quasiĖpolitical context by elected representatives who are answerable at the ballot box: cf Woolworths in the context of rating.

    (c)

    Thirdly, if this Court is satisfied that there was sufficient information for a consent authority, acting reasonably, to be satisfied that the threshold requirements (as explained in Bayley) have been met, Wednesbury principles will be applied to the ultimate discretionary decision whether or not to notify the application. Thus, once threshold requirements have been met the Court will need to ask itself whether the decision not to notify was one which no consent authority, acting reasonably, could properly have made.

  20. As to the facts, in the High Court proceeding, the respondents had filed an affidavit by a Dr J D M Fairgay. He is an economics consultant with many years of experience in engagements for private clients, local authorities and central government. In 1992 Dr Fairgay had undertaken a comprehensive study for North Shore City Council into the implications of the principal alternative retail strategies on the North Shore. And in 2000 he had undertaken research which included detailed investigations into how North Shore residents utilised shopping service centres, and how they derived benefit both functionally and socially from them.

  21. Dr Fairgay was critical of the terms of the consent in this case. He suggested the Hames Sharley report to be generally superficial and simplistic. It was his view that there was a basic flaw in the calculation of the percentage of available retail expenditure likely to be attracted to the new centre. In consequence, the likely impacts of the centre were, in Dr Fairgayís view, significantly understated, perhaps by as much as 50 percent. Dr Fairgay also entered into the debate, which had been sharply polarised between the parties, as to whether the goods to be sold at the new centre were in the same or in a different market. He suggested a greater degree of overlap than what Discount Brands had contended for.

  22. In the High Court, the Judge, whilst not accepting all of Dr Fairgayís criticisms, found that, in particular, the points we have just noted had "substance". The Judge also criticised the absence of "solid data" to support Discount Brands case.

  23. In the result, the Judge held that "the Councilís Hearing Commissioners failed to sufficiently inform themselves on the potential adverse effects on other shopping centres on the North Shore before making the decision that the application for resource consent need not be notified. In that respect, they either failed to take into account relevant material necessary to satisfy themselves about the statutory test or they acted unreasonably (in the judicial review sense)".

  24. The Judge gave as his express reasons for these conclusions (substantially relying on Dr Fairgayís affidavit):

    • first, that there had been a failure, recognised by the Councilís own officers, to carry out any systematic analysis of the potential economic and social impacts on existing centres; and

    • secondly, Council had not obtained an independent report on the economic and social impacts. Under that head the Judge concluded, "a more sophisticated analysis was required than that offered by the Hames Sharley report".

  25. Significantly, we think, the Judge concluded (and this has not been challenged before us) that Westfield and Northcote had not established significant adverse effects on existing North Shore shopping centres going beyond trade competition. The Judge put this point this way, in [para 97]:

    During the course of the hearing, I raised with counsel my concerns that none of the witnesses who filed affidavits on behalf of Northcote and Westfield expressed the view that the Discount Brands proposal would or might have the kind of significant adverse social or economic effects on existing shopping centres on the North Shore which go beyond mere trade competition. Rather, their approach was to say that there was inadequate information to enable them to form a view on that issue. I suggested to counsel that if the deponents for Northcote and Westfield considered those effects might occur, they would surely have said so. This aspect of the matter has given me serious pause to consider but in the end, I have concluded that the real point is the validity of the decision making process rather than the ultimate outcome. The respondents did not submit that I should refuse to exercise my discretion to grant relief should I find reviewable error.

  26. For completeness, we note here that the Judge expressed concern at the voluminous material which the application for judicial review had attracted. So much so, that in a post-script to his judgment His Honour felt it appropriate to endeavour to "provide some guidance for the future as to the proper scope of evidence in cases such as this". The significance of this for present purposes is that this case is a graphic illustration - evident also in other judicial review cases - as to what happens when applicants for review (which it appears have been predominately commercial interests) seek to challenge non-notification decisions in extensive judicial review proceedings.

    THE SUBMISSIONS FOR THE APPELLANT

  27. Mr. Galbraithís overarching submission was that Randerson Jís "reasoning process either directly or impliedly second-guessed the conclusions of the Commissioners, based on reasoning which was incorrect in the legal principles applied, and unjustified on the facts."

  28. He suggested that the standard for review in this case should be restricted to the traditional grounds of whether proper procedures had been followed, whether mandatory relevant considerations had been taken into account, whether irrelevant considerations had been taken into account, error of law, or "unreasonableness in the Wednesbury sense".

  29. Mr. Galbraith further submitted that the basis for a review in the situation before this Court is akin to the Courtís limited powers on an appeal from the exercise of a judicial discretion "because again the Court is respecting the entitlement of the judicial officer to choose what weight to give to the evidence/information before him/her".

  30. He accepted that adequacy of information may be a consideration in determining whether or not relevant or irrelevant factors have been considered, whether there has been a misconstruction amounting to an error of law, or whether a decision maker has acted unreasonably, but with the limitations inherent in that concept in judicial review.

  31. Mr. Galbraith accepted also that a decision may also be set aside where there is no evidence/information to support it, but he said this consideration "cannot be broadened into a general review of the evidence/information actually before the decision maker, particularly when that is then compared with new opinion evidence available in the wider world and an explicit second-guessing of the decision to go with the then available evidence". He suggested that where there is material available that supports the decision, any challenge on the basis that more information could have been available "must overcome the review hurdle of unreasonablity, i.e., it was irrational for the decision maker to proceed on the basis of the information before it".

  32. Mr. Galbraith was critical of the decision of Heath J in Videbeck, in particular insofar as it described s94(2) as "extraordinary", and with the consequences which followed from such a categorisation; and because Heath J had, inappropriately in Mr. Galbraithís submission, raised the information requirement to a distinct and separate information threshold which must be met before the local authority could properly make a decision.

  33. Given the thrust of these submissions on the law, Mr. Galbraith then submitted that there was evidence before the Commissioners "sufficient to justify the conclusions which they reached". He emphasised that the focus "always had to be on the Commissionersí entitlement to proceed on the basis of the information which they had before them."

  34. Finally, it was submitted that if any residual basis remained for impugning the Commissionersí non-notification decision in the exercise of its discretion, this Court should decline to grant relief. Counsel suggested the first and second respondentsí only interest was as trade competitors. Mr. Galbraith submitted that it was a "long bridge", as he termed it in oral argument before us, to demonstrate that the adverse impact of the Discount Brands centre on existing retail centres was significant enough to threaten the viability of those centres. He also said that notification after this period of delay would impose costs disproportionate to any likely benefits, and seriously risked frustrating the fundamental policy of the Resource Management Act that appropriate developments should proceed.

    THE SUBMISSIONS FOR THE RESPONDENTS

  35. Mr. Curryís submissions were helpfully reduced to 12 "core points" which fairly encapsulated the case for the respondents. We therefore set those points out in full.

    1.

    The non-notified application and the consent were all [in respect of] .... [personal and household] goods to be retailed about one kilometre away from the Northcote centre.

    2.

    The District Plan requires such a retailing application to be subject to a "thorough evaluation of the effects on amenity values of the North Shore centres."

    3.

    A non-notified application denies rights of public participation, limits the flow of information concerning effects, and can only proceed if the adverse effect will be minor.

    4.

    It is for an applicant to provide sufficient probative information to the Council to enable both [a] thorough evaluation and justify the denial of public participation.

    5.

    The Councilís officers were correct in their assessment of the insufficiency of the information. The Commissioners were irrational in deciding otherwise.

    6.

    It is the proper role of a reviewing Court to consider whether the information was probative and sufficient.

    7.

    The High Court was correct in applying a test broadly based on the failure of the Commissioners to "sufficiently inform themselves on the potential adverse effects on other shopping centres on the North Shore before making the decision that the application for resource consent need not be notified".

    8.

    Even if a strict test were applied as to whether there was any probative information that would justify the decision not to notify the application, the appeal must fail. The information was not probative in material respects. It did not assess the application across the appropriate range of categories. It proceeded on a false premise that the applicant would retail in a separate economic market. The common sense reality is that shoppers buy from various retailers and make purchase decisions which involve a trade-off between price, quality and ease of access to the retailer.

    9.

    For this Appeal Court to broadly endorse the approach of the High Court would be to confirm principles that are consistent with the evolution of the law and strike the right balance between allowing Councils to make RMA decisions and the achievement of substantive legality.

    10.

    The First Respondent is capable of being an adversely affected person.

    11.

    For notification purposes any adverse retail effect is sufficient to require notification. Recognised adverse effects include ruinous influence on urban form, and inhibiting transportation efficiencies.

    12.

    The condition imposed based on a discount of 35 percent deduction from normal retail price would be unenforceable and would not define the boundary of the consent. A normal retail price cannot be determined by RMA administrative assessment, if it can be determined at all.

    OVERVIEW

    (a) The problem at large

  36. The problem whether a planning application should be notified or non-notified is by no means new in New Zealand. The earliest New Zealand planning legislation (the Town Planning Act 1926) was largely developed from English legislation, but had incorporated into it much of the philosophy and practice from the United States of America. Right from the outset, New Zealand planning legislation sought to achieve a workable compromise between flexibility and rigidity.

  37. The 1953 and 1977 Town and Country Planning Acts attracted their own share of difficulties, of various kinds, in relation to notification issues. The reason is not hard to find: in the simplest terms, notification is a "gate-keeper" decision. It determines who can participate in the planning process. But planning law in New Zealand has never been fully open-ended or participatory. This because there cannot be limitless participation. And, modern planning, whatever form it takes, is ultimately regulation by Government intervention (in this instance through a local authority) of private land use and development. In consequence of this character, planning law is, in the best sense of the word, "political". As the distinguished America administrative lawyer, Kenneth Davis said:

    Planning in the public interest is necessarily political in the full and proper sense of the word. It is the application of governmental power, as expressed through public authority and resources, to accomplish desired purposes in the public interest which are also open to public scrutiny. It is in these respects - not in techniques of planning, which have much commonality - that public planning processes differ sharply from planning processes in the private sector. Public authority sets the basic ground rules within which private enterprise must operate (Davis, Land Use (1976) cited in Robinson, The Law of Town and Country Planning (3 ed, 1981) 3).

  38. In the last operative planning statute prior to the coming into force of the Resource Management Act 1991 (the Town and Country Planning Act 1977), non-notified applications were permitted only if the district scheme contained appropriate ordinances permitting such applications (s65), and even in the limited instances where non-notified applications were possible, the council had the ability to insist upon a notified application. Under the Regulations made under that Act there were (very broadly put) two kinds of notification required - actual service on such bodies and persons as the council considered to have a greater interest in the application than the public generally; and, by means of a single notice in a newspaper circulating in the area affected by the application.

  39. That kind of procedure attracted its own share of litigation. To take only one illustration, there were disputes about what information had to be provided to comply with the Regulations (the answer to which was, that it should be sufficient to enable a person of normal intelligence to understand what was proposed and should be such as a careful man of business trying to carry the objects of the Act might supply without going into unreasonable particulars, see CEG Godber v Wellington City Council [1971] NZLR 184 (SC) and Attorney-General ex rel Benfield v Wellington City Council [1979] 2 NZLR 385 (SC)). Another problem was that there were difficulties in defining "the neighbourhood"; and the actual terms of the application might alter somewhat in the planning process, which led to arguments in practice not unlike arguments over shifts in the pleadings in civil litigation.

  40. The short points, for present purposes, are that the planning process at local authority level in New Zealand has never been fully participatory; and the question of where to draw the line for participation has never been capable of being reduced to bright line rules. There is nothing "extraordinary" about this process.

    (b) The particular context of s94

  41. The history of the town and country planning legislation and the various notification provisions would have been before Parliament in enacting the Resource Management Act 1991. In the result, Parliament chose to enact s94, the relevant subsection of which is set out in para [11] above.

  42. The notification aspect of s94(2) is an important delegation of power to local authorities. The provision is expressed in plain language that does not permit further exegesis. The decision whether notification is required or not is for the consent authority, as a preliminary decision. In this case, all the consent authority had to be satisfied on was that "the adverse effects on the environment of the activity .... [would] be minor", given that there was no lis as to the (lack of) effect on other shopping centres, and the only party considered to be adversely affected by the proposal had given its written approval for the purposes of s94(2)(b).

  43. The reasons for Parliament proceeding in that manner appear to be obvious. Given the general purposes of the Resource Management Act - to address adverse effects on the environment - if it can be seen that there are no such effects, or that they "will be" minor then there is no proper basis for subjecting the application to the constraints and expense of a full hearing. This "gate-keeper" function is therefore designed to promote efficiency, whilst at the same time seeing that the proper concerns of the Resource Management Act are addressed in appropriate cases.

  44. There are at least two potential areas of concern with respect to such a provision. One is that competitive interests may seek to delay or deflect an application for resource consent via the objection procedure, for no properly grounded environmental reasons. The other is that a local authority, or local authorities generally, may not pay proper regard to the important statutory duty which is cast upon them. But whether trade competitors have made undue recourse to this statute, and whether local authorities generally have adhered to their obligations under the statute are large questions which are not for this Court. The function of the High Court, and for that matter this Court on appeal, is the resolution of this particular case. We do not have the information, and this Court is not institutionally competent, to undertake an assessment as to whether non-notification is being too readily resorted to.

  45. For completeness, we note that the notification procedures, and the means of reviewing the decision of the local authority on notification, were recently the subject of Parliamentary scrutiny during the enactment of the Resource Management Amendment Act 2003. Parliament in fact enacted a concept of "limited notification" but chose to go no further in respect of an area of the Act said by the Select Committee to "be causing [distinct] concern". The Select Committee considered removing the review of non-notification decisions to the Environment Court; but in the end left such review in the High Court by means of judicial review.

    (c) The obligations of Council

  46. Two points need to be made under this head. The first is as to the temporal character of the decision on notification of the consent authority or the committee or hearing commissioners to whom it has delegated its functions. The decision to be made by the council is between the time the application is received and a decision is made on the merits of it. It is wrong in principle to endeavour to impugn a council's decision by later generated material which was never before the council at the relevant time. This same problem has arisen in other areas of administrative law. For instance, in the so-called ITF case, (R v Chief Constable of Sussex, Ex parte International Traderís Ferry Ltd [1999] 2 AC 418 (HL)) a claim was brought against a Chief Constable's decision to reduce the days on which protection would be given to animal livestock exporters whose trade was the target of angry and often violent protesters from animal welfare activists. The traders had said they wanted to continue trading "at whatever cost", but they were not prepared to bear the cost themselves, and brought proceedings against a cash-strapped police authority. In dismissing the claim in the House of Lords, Lord Slynn stated, "If this matter is looked at ex post facto, it may be that some more money could have been squeezed from elsewhere to provide extra policing .... but that is the wrong approach on this application. The question is what the Chief Constable reasonably believed at the time". (pp 432-433, emphasis added.) Just so in this case: the authority (or Commissioners) must be satisfied at the relevant time, and on the information then available.

  47. This leads naturally enough to the second point, which is as to the quantum of information available to the authority in making this important initial decision. It is unlikely in this subject area that there would ever be a case in which the authority had no evidence before it, and simply proceeded on an intuitive basis. At the very least the authority will likely always have (even if applicants provide no information) the information generated by Council's own officers. The paradigm situation will likely be one, as in the present case, where there is information provided by an applicant, and information provided by Councilís own planning staff. We do not accept that there is some separate, stand alone threshold of information which must be available to the authority before it can even begin to turn its mind to the issue of notification or no notification. The question is whether the consent authority could reasonably have come to the view it did come to and the assessment of the reasonableness of the authorityís decision incorporates a consideration of the evidential base for it. It is not a separate exercise. Of course a consent authority should not accept blindly what is placed in front of it. Plainly as part of its general legal obligation it must ask itself whether it has in front of it - in its opinion - sufficient information to enable it to make the statutory determination. If the authority is not so satisfied, just as plainly it is open to the authority to ask for further information, or even to obtain external assistance. We deal with the "sufficiency" of information, for judicial review purposes, in greater detail later in this judgment.

    (d) The standard of review of the discretionary decision

  48. There was a good deal of argument before us as to the appropriate standard of review in judicial review proceedings of a discretionary decision of the character at issue in this case.

  49. Until, perhaps, a decade ago the orthodox position was as stated by Hayne J in the High Court of Australia, in these terms:

    In public law, decisions may be examined for error of law but, statute apart, there is no review of the merits of decisions made by such bodies. The closest the Courts come to such a review is what is usually called Wednesbury unreasonableness .... What the Wednesbury test reflects is that the Courts are not well placed to review decisions made by such bodies .... (Brodie v Singleton Shire Council (2001) 206 CLR 512, 628).

  50. More recently, both in this country and the United Kingdom, the depth of administrative law review has been said to vary with context. What is sometimes termed a "hard-look doctrine" (as it is termed in North America) or a "super-Wednesbury" doctrine (as it is termed in the United Kingdom) is employed. The notion is that at least where important interests are at stake (for instance, in human rights cases) so-called Wednesbury review should be abandoned and the depth of review altered to (at least) a less deferential "reasonableness" inquiry (see, in New Zealand, Pharmaceutical Management Agency Ltd v Roussel Uclaf Australia Pty Ltd [1998] NZAR 58, 66 (CA) per Blanchard J.)

  51. However, in the particular context of notification/non-notification decisions under s94 of the Resource Management Act 1991, we can see no appropriate basis for adopting a more stringent standard of review than the traditional approach, to which we have already adverted in para [49].

  52. To the extent that there is existing authority on this question, this Court in Bayley v Manukau City Council [1999] 1 NZLR 568, 580 observed that "whilst a balancing exercise of good and bad effects is entirely appropriate when a consent authority comes to make its substantive decision, it is not to be undertaken when non-notification is being considered, save to the extent that the possibility of an adverse effect can be excluded because the presence of some countervailing factor eliminates any such concern, for example extra noise being nullified by additional soundproofing." (Emphasis added). The deficiency in Council's consideration in Bayley and which led to invalidity was because the relevant officers had failed to consider possible consequential effects arising from the use of a yard in a non-complying way (which would lead to more intense development than would otherwise have been permitted). The context of that case was therefore different from this case.

  53. Authority apart, in principle, we can see no justification for a more extensive right of review of the character of the present decision, under s94(2). First, even acknowledging, as we do, the important "gate-keeper" function which reposed in the Council, the Act itself is not open-ended as to public participation. And we think it of distinct importance in this particular case, that this decision did not affect any direct rights or interests of the respondents.

    (e) Sufficiency of evidence

  54. Can a Court review the sufficiency of the evidence before the Commissioners? This issue attracted a good deal of attention in the submissions of counsel before us.

  55. The general issue of review of findings of fact in evidence in administrative law has given rise to some difficulty in recent years. It is perhaps useful to begin by noting that this difficulty arises in part because Judges and commentators can be addressing different issues under the general rubric of review of findings in fact. (See Jones, "Mistake of Fact in Administrative Law" [1990] Public Law 507.)

  56. One area is the review of jurisdictional facts, in the strict sense of that term. Formerly this head attracted more importance than it enjoys today. In contemporary administrative law, issues of statutory interpretation - which is what these matters really raise - will usually be questions of law, or at least questions of mixed fact and law, and reviewable on that basis.

  57. A second area is whether reviewing Courts will enquire whether the meaning of a particular term is satisfied by the evidence actually before the decision maker. It is this area which has traditionally attracted the nomenclature "no evidence". The leading authority has long been R v Nat Bell Liquors Ltd [1922] AC 128 at 151-154 per Lord Sumner. As long as there is "some" evidence of probative value to support the decision, reviewing Courts are loath to interfere with the decision under review. (See generally, Wade & Forsyth, Administrative Law, 8 Ed at page 278 et seq.)

  58. The third area - and that of greatest moment in the instance case - is: how far is the way now open for a review of evidence supporting the decision-makerís findings? The traditional answer was that in relation to findings of fact these are especially a domain where a deciding authority or tribunal must be the deciding authority. Whilst the Courts have jealously regarded the law as being for them; facts and fact finding have been for the tribunal. But as Wade & Forsyth have put it, "the limit of this indulgence" is reached where findings are based on no satisfactory evidence. It is entirely one thing to weigh evidence which might go either way: or even to incorrectly evaluate evidence. But it is quite another to make entirely insupportable findings. To find facts without evidence of this character is an abuse of power, and as such it ought to be within the scope of judicial review.

  59. What this has meant, in the simplest terms, is that as with the intensity of review according to context, so today with this particular ground of review. Some authorities now put it as directly as that acting "upon an incorrect basis of fact" (see Secretary of State for Education and Science v Tameside NBC [1977] AC 1014, at 1030) is reviewable; and, in this jurisdiction, it has been held that a Ministerís decision was invalid for failure to take into account the true facts, a medical referee having misled him in an inadequate report (Daganayasi v Minister of Immigration [1980] 2 NZLR 130).

  60. This approach mirrors the tendencies in statutory developments. This ground of review is well established on the Continent, and it was expressly accepted by the European Court of Human Rights in Vogt v Germany A-323 (1996) 21 HER 205 (requiring "an acceptable assessment of the relevant facts"). In the United States of America, it has long been accepted that the standard required of judicial review of delegated fact finding is one that there be "substantial evidence" for the factual findings (see, for instance, the Federal Administrative Procedure Act 1946; and the well-known Universal Camera line of cases (179F 2b 749 (2b Cir 1950); 340 US 474 (1951); 190F 2d 429 (2d Cir 1951). In Australia, the Administrative Decisions (Judicial Review) Act 1977 s5(3)(b) allows judicial review where "the person who made the decision based the decision on the existence of a particular fact, and the fact did not exist".

  61. The development of the law generally towards what might be termed a common law, Ďwrong factual basisí doctrine, is both appropriate and timely. And this has the happy corollary that much of the older law, which raises unnecessary complexities about "jurisdictional facts" has been made much less relevant. This has led Wade and Forsyth, for instance, (supra, 286) to suggest that the "old rule" was that a Court would quash only if the erroneous fact was jurisdictional; whereas now a Court may quash if "an erroneous and decisive fact" is jurisdictional; found on the basis of no evidence; or wrong, misunderstood or ignored. It will be noted this broadly mirrors the three categories of cases we have already outlined.

  62. Whilst recognising that the law has moved on, and that there is now in some respects an enlarged and more transparent ability to challenge factual findings in reviewing Courts, the various, and relatively obvious, dangers must still be remarked upon. The first is that there is a world of difference between a general appeal and judicial review. In Pring v Wanganui District Council [1999] NZRMA 519 (a certificate of compliance case) this Court expressly turned its face against any blurring of these two kinds of proceedings. And it affirmed that the test is that there must have been some material capable of supporting the decision. The Court appears to have declined to allow the opening up of the issue of the sufficiency of the evidence.

  63. We can see no appropriate reason for departing from that understanding in relation to notification decisions. Something like subsequent de novo judicial fact finding in this area would destroy the reason for the creation of the discretion in the first place, in that the straightforward resolution of applications under this provision would be threatened. The capability of local authorities to draw specialised inferences based on their experience would be lost. Consent authorities could become unduly cautious in determining that applications should not be notified. The burden on reviewing Courts imposed by a number of cases in this subject area would be inappropriate and if that reality results, there would be the real danger that local authorities would become little more than evidence gatherers with decisional responsibility shifting to the judiciary. The extreme of total judicial deference to authority fact finding in this area is inappropriate, but neither is the opposite extreme of what amounts to de novo, and as in this case ex post, fact finding by reviewing Courts acceptable. The orthodox test of the existence of some material of probative value having been before the decision makers is accordingly appropriate in this subject area.

    (f) Summary

  64. In summary, notification decisions of the kind in issue in this case may be impugned on standard judicial review principles; no higher or special standard of review is appropriate in this subject area. It follows that, in the event of a challenge, a Court would need to be satisfied that the local authority was able to demonstrate that it had before it at the relevant time, information on which it could reasonably have come to the determination it did. And in making the particular decision, as this Court emphasised in Bayley, the particular local authority must have had due regard to the importance of the decision being reached: what is at issue is the right to participate. Best practice also requires local authorities to record - albeit not in extended form - their reasons for non-notification decisions. Informal, or casual decisions, may be open to challenge on established principles of judicial review relating to the giving of reasons.

    THIS CASE

  65. Against these observations we return to this case. There was evidence before the Commissioners, at the time of their determination, on which those Commissioners could have reached the conclusion they in fact reached. The Commissioners were not restricted just to the totality of the information in front of them; they were also entitled to draw their own inferences and to employ their own understanding of their own communities. There was evidence on which it was open to the Commissioners to reach a view that the proposal was not directed towards head-to-head retail competition with existing centres, and that it would complement the existing retail offering and reduce the leakage of retail expenditure from the total North Shore catchment.

  66. In the result, at the relevant time, and in the circumstances of this case, the Commissioners had to decide, on the information then available to them, whether any impact on existing centres would be so substantial as to threaten their viability. It must be born in mind that there would only be a relevant environmental impact which was more than minor if there was a major commercial and economic impact on existing centres. The Commissioners took the view that any consequential public and community effects would be no more than minor. We do not believe it was appropriate to interfere in that decision by way of judicial review.

  67. Mr. Curry argued that the Hames Sharley report and Ms Griersonís analysis, both of which were before the Commissioners, had errors and omissions and questioned Ms Griersonís expertise in the relevant field. He said the District Plan required a thorough evaluation of the proposal and this was not possible given these faults in the material before the Commissioners. We do not accept that submission. In the absence of directly affected parties, the Commissionersí decision that the effects were not more than minor involved a finding that the impact on other shopping centres in the area would not be ruinous and that no other significant adverse effect (e.g. on urban form objectives or transport strategies) would result. In our view a reasonable consent authority could have reached that conclusion on the basis of the information before the Commissioners, particularly having regard to their knowledge of the local environment. It is perhaps relevant in this regard to note, as Randerson J did, that none of the experts produced by the respondents in the High Court expressed a view on the substantive merits which was inconsistent with the conclusion of the Commissioners.

  68. We accept the appellantís contention that the Judge took a more vigilant approach to judicial review than was appropriate in this case. And we are satisfied that the Commissionersí decision not to notify in this case was a decision that a reasonable consent authority could reach on the basis of the information before the Commissioners.

    CROSS APPEAL

    Status of Northcote

  69. It is convenient first to set out the paragraph of the judgment under appeal out of which this point arises:

    Two other matters should be mentioned. First, Mr. Curry submitted that Northcote and Savemart should have been asked to provide written consents as persons adversely affected under s94(2)(b). I do not accept that submission which was not pleaded as a ground for review. Northcote is an organisation representing the retailers at that shopping centre and is not itself subject to effects contemplated by the section. Savemart is merely a trade competitor and is potentially affected only in that capacity. Effects such as those are excluded from consideration. Secondly, Discount Brands suggested in written submissions (not pursued in oral argument) that neither Westfield nor Northcote had standing to bring these proceedings. I am not persuaded by that submission. Each had a sufficient interest in the subject matter, greater than that of the public at large, to give them standing for the purpose of judicial review.

  70. In this Court, the point can be shortly disposed of. First, it was not pleaded as a ground of review. We therefore cannot see how it can be advanced on appeal, without leave (which was not sought). In any event, on the facts, although s94 refers to "affected persons" and a "person" includes an incorporated society under the Resource Management Act, Northcote did not exist as a legal entity at the relevant time. Itís registration as an incorporated society had lapsed. And, the proposition seems to be one advanced in the abstract, in that there was no relevant evidence before the Commissioners (or the Court) of any relevant adverse effect on Northcote.

    Enforceability of the discount condition

  71. This point arises in this manner.

  72. Discount Brands had always contended that the relevant social and economic impacts of its proposal were distinctly less than minor because the goods to be traded would be in a different economic market, created by the discount nature of the operation. This, it said, was driven by a discount condition which would be required (qua the tenants) which required the retailing of personal and household goods at a minimum of 35 percent less than their regular retail price.

  73. The respondents, on the other hand, contended that there was no proper basis for the Commissioners to conclude that the proposed centre "will operate in a different economic market", and that in any event this discount condition was invalid for uncertainty and therefore unenforceable.

  74. Randerson J found, on this point:

    Nor do I accept criticisms of the enforceability of the discount conditions. The term of the grant is quite specific and it is not to be assumed that it will not be complied with: Barry v Auckland City Council [1975] 2 NZLR 646, 651. While it may have been preferable to have made it a specific condition of the consent that the identified clause be inserted in the leases of all tenancies, it is not, in my view, an insurmountable difficulty given the terms of the grant itself. No doubt any affected parties will be quick to alert the Council if sales occur without the minimum 35% discount.

  75. Before this Court, Mr. Galbraith contended that this discount is not a "condition" but is actually part of the definition of the permitted use in that it is central to the concept and operation of the centre.

  76. In our view, there was evidence before the Commissioners that the minimum pricing addition would be a term of the lease of each retail tenancy. The Judge was well able to take the view that the Commissioners were entitled to assume that the terms of consent and the leases would be observed.

    CONCLUSION

  77. The appeal is allowed. The cross-appeals are dismissed.

  78. Discount Brands will have its costs, and reasonable disbursements, in the High Court. If counsel are unable to agree on those sums, they are to be fixed by the trial Judge.

  79. Discount Brands will have costs of $6,000 in this Court, together with its reasonable disbursements, these to include the travel and accommodation costs of counsel. There will be no order for costs in favour of the City Council.


Cases

Videbeck v Auckland City Council [2002] 3 NZLR 842 (HC); CEG Godber v Wellington City Council [1971] NZLR 184 (SC); Attorney-General ex rel Benfield v Wellington City Council [1979] 2 NZLR 385 (SC); R v Chief Constable of Sussex, Ex parte International Traderís Ferry Ltd [1999] 2 AC 418 (HL); Pharmaceutical Management Agency Ltd v Roussel Uclaf Australia Pty Ltd [1998] NZAR 58 (CA); Bayley v Manukau City Council [1999] 1 NZLR 568; R v Nat Bell Liquors Ltd [1922] AC 128; Secretary of State for Education & Science v Tameside NBC [1977] AC 1014; Daganayasi v Minister of Immigration [1980] 2 NZLR 130; Vogt v Germany A-323 (1996) 21 HER 205; Pring v Wanganui District Council [1999] NZRMA 519

Legislations

Resource Management Act 1991: s.93, s.94, s.104, s.105

Administrative Decisions (Judicial Review) Act 1977 [Australia]: s.5(3)(b)

Federal Administrative Procedure Act 1946

Authors and other references

Jones, "Mistake of Fact in Administrative Law" [1990] Public Law 507

Wade & Forsyth, Administrative Law, 8 Ed

Representations

AR Galbraith QC (instructed by Stafford Klaassen, Auckland) for Appellant.

GP Curry & CN Whata (instructed by Russell McVeagh, Auckland) for First & Second Respondents


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